by: Jeff Perry
The economic news we are hearing every day has been much better than what we were hearing during 2009, but not nearly so good as 2011. The economy is still growing in the USA, but not quite as fast as predicted. Unfortunately, the predictions were already anything but quick.
There are many who fear the economy is heading into another recession due to the economy slowing down worldwide and the dept crisis in Europe. Hopefully, that is not going to be the case. If that prediction comes true, we will all be in for a rough time.
The various branches of the government are generally improving economically. While there are few jurisdictions that are hiring yet, the number of layoffs has decreased markedly, and revenue has returned to the general vicinity of pre-recession numbers.
The State Employment Relations Board (SERB) has released the wage settlement report for 2011. The economic mess really hit around the last quarter of 2009. The negative impact from recession hit the public sector twelve to eighteen months after. The impact to wage increases is plain to see. This is by far the worst average wage increases ever recorded by the SERB.
The State wide average increase is wages for 2012 was 0.57%. In 2006 it was 3.01%. The average wage increase has decreased every year since then. The range over the ten years of the survey was 0.57% in 2011 up to 3.59% in 2002. This is a trend that must end!
The Cincinnati region had the largest decrease in wage rate increase from the following year of 0.71%, down to 0.49%. The lowest regional increase award goes to Cincinnati as well. Bad year for the south west section of Ohio!
Only one of the regions saw their rate of wage increase go up from the last wage survey, Southeast Ohio. Their wage rate went up 1.38% from 1.23% last year. That was the highest increase in wage rates as well. The Columbus Area has the distinction of having the second largest increase in wage rates from 2011 to 2012. Their average increase went up 1.12%. These were the only two regions that had wage increases averaging over one percent!
Townships were the jurisdiction that had the highest increase in rate of wage increase over 2011. They had the highest percent for the third year in a row. They were the only jurisdiction to get over a one percent wage increase as well. However, they had the largest decrease in wage increase from 2011 to 2012 as well, going from 1.99% to 1.25%. School Districts came in last with a meager 0.35% increase.
Police did have a smaller decrease in the percent of wage increases compared to the other unit types. However, the Fire did much better than police once again, with 0.27 percent more. Fire did much better than any other unit type for the last four years, and seven out of the last ten years. The teachers found themselves on the bottom of the pack again. They increased their percent wage increase by an average of 0.36%. That meager wage increase resulted from the largest decrease from last year, of 0.62%.
The first year of most contracts usually had the smallest wage increase of the contract last year. The last year of the contracts had the largest. This is referred to as back loading a contract. Unions usually prefer to get the most we can as soon as we can, since it maximizes the amount of money earned over the life of a contract.
News of the State budget looks pretty good so far. However, that doesn’t mean the Governor has any plans to return any money to the local government funds. He still wants to squeeze the Cities so he can spend the tax money as he sees fit. Hopefully, things will change in Columbus come November.
The recent attempt by labor’s foes to eliminate collective bargaining rights highlights the fact that law enforcement must defend itself on two fronts – the bargaining table and the Statehouse. Following the defeat of Senate Bill 5, the State Employment Relations Board addressed labor politics on the local level with a bit of a twist. In the decision of In re Urbana Firefighters Association, IAFF Local 1823 et al., SERB 2011-006 (11-17-2011), the Board held that the IAFF did not have to bargain with the City employer in order to circulate a petition to place on the ballot a City charter amendment aimed at setting full-time staffing requirements and establishing a Fire Division. While the decision absolved the firefighters of any wrongdoing, the implications of the decision point to possible concerns.
In Urbana, the Union and City were parties to a collective bargaining agreement effective November 2008 through November 2011. Among the agreement’s provisions, Article 3 set forth a Management Rights clause that reserved as exclusive management rights, inter alia, the right to determine the size and duties of the work force, staffing patterns, and to discontinue any Department or Division.
Early in 2010, the City conducted Labor/Management meetings with the City’s bargaining unit members to address the City’s budget shortfall. The City sought wage and benefits concessions of ten percent from each of its Divisions during the first six months of 2010. Similar meetings were held in June and July addressing the budget reductions for the second part of 2010. After a June meeting, IAFF Local 1823 and several of its bargaining unit members acting as agents of the Union circulated petitions in the City for an amendment to the City charter. The proposed amendment required the City to establish a Fire Division to provide fire, emergency, medical and rescue services. Further, the amendment required the Division to be the sole and exclusive publicly-funded enterprise providing these services. The amendment also required the City to: (1) employ no fewer than twenty-three employees in the Division; (2) employ all such employees as full-time employees and (3) fill vacancies within ninety days. The Union was able to acquire the necessary number of signatures and the amendment was placed on the November ballot.
In September of 2010, the City filed unfair labor practice charges against the Union and its member agents alleging that they violated R.C. 4117.11(B)(3). This section prohibits an employee organization, its agents, representatives or public employees to refuse to bargain collectively with a public employer. The City alleged that the Union circumvented its duty to bargain by circulating the petition. The proposed charter amendment ultimately did not pass. SERB still heard the merits of the City’s charges after such failure at the polls.
The Board analyzed the case by initially finding that the proposed amendment language involved an “attempt to change the parties’ existing CBA during the term of the agreement by circulating a petition to amend the City’s Charter to permanently add, inter alia, a minimum manning provision for firefighters.” SERB specified that “a review of Article 3 of the parties’ CBA reveals that this agreement clearly states that the City has the exclusive right to determine the size of the work force.” SERB offered no other discussion to explain its finding that the amendment would have changed the CBA.
Upon such finding, SERB explored the question of whether such change to the agreement could be accomplished under the mid-term bargaining rule of In re Toledo School Dist. Bd. of Ed., SERB 2001-005 (9/20/2001). The Board in Toledo explained:
Where the parties have not adopted procedures in their collective bargaining agreement to deal with midterm bargaining disputes, SERB will apply the following standard to determine whether an unfair labor practice has been committed when a party unilaterally modifies a provision in an existing collective bargaining agreement after bargaining the subject to ultimate impasse as defined in Vandalia-Butler:
A party cannot modify an existing collective bargaining agreement without the negotiation by and agreement of both parties unless immediate action is required due to (1) exigent circumstances that were unforeseen at the time of negotiations or (2) legislative action taken by a higher-level legislative body after the agreement became effective that requires a change to conform to the statute.
In addition, to clarify Youngstown, follow Franklin County Sheriff, and assure consistency in future cases involving issues not covered in the provision of a collective bargaining agreement, but which require mandatory midterm bargaining, SERB will apply the same two-part test as stated above.
In re Toledo School Dist. Bd. of Ed., SERB 2001-005 (9/20/2001). According to the Board, the petition’s circulation in Urbana would not be an unfair labor practice if the “higher-level legislative body” exception applied.
The Board concluded that the “higher-level legislative body” exception did apply per the holding of In re Cincinnati, SERB 2005-006 (9-8-2005), SERB v. Queen City Lodge No. 69, 174 Ohio App.3d 570 (2007). In the Cincinnati case, SERB found that the City of Cincinnati did not violate its duty to bargain when it placed a charter amendment concerning a police promotional process on an upcoming ballot to be voted on by the City’s electors. Since the electorate was ultimately responsible for the proposed charter amendments in both the Cincinnati and Urbana cases, the Board found the circumstances analogous and concluded that the Urbana firefighters did not violate their duty to bargain by circulating the charter amendment petition.
The Union prevailed in Urbana. However, the case raises concerns as the Board authorized the possibility of a City charter amendment operating to “change” a collective bargaining agreement under the “higher-level legislative body” exception announced in Toledo. As you may recall, a 2011 Police Beat article noted that the Board has recently used the “exigent circumstances” exception from the Toledo case to approve, contrary to express provisions in the parties’ existing CBA, a City’s unilateral increase of employee health care premium contributions and its unilateral elimination of the City’s requirement to pay employee pension contributions. See In re City of Toledo, SERB 2011-001 (March 29, 2011).
Any purported right to actually change a collective bargaining agreement by charter amendment is antithetical to the purposes and protections of Ohio’s Collective Bargaining Act. It is basic that R.C. 4117.10 (A) requires that the terms of a collective bargaining agreement prevail over a local law when the two are in conflict. Jurcisin v. Cuyahoga County Bd. of Elections, 35 Ohio St.3d 137 (1988). As noted in past columns, Rocky River v. State Employment Relations Bd., 43 Ohio St.3d 1 (1989), held, in part, that the finality of the conciliation process does not violate a City’s “home-rule” powers. While it is not inarguable that the Charter amendment would have constituted a “change” to the CBA in Urbana, the fact that the Board’s holding was based on such finding legitimizes concern over the potential effects of the decision.
The Board, perhaps aware of the slippery slope that it was navigating, saw fit to temper its decision with a warning to both employers and Unions who would draw broad conclusions from the decision:
[W]e caution both public employers and employee organizations that deal with public employers to be circumspect when considering taking any action to secure through a charter amendment terms and conditions of employment that are different from those in the parties’ existing CBA. Such actions will be closely scrutinized in future unfair labor practice charges that come before the Board and the Board will make its determinations on a case-by-case basis.
The Board’s warning reminds one of Judge Hildebrandt’s dissent in the Cincinnati case where he cautioned that “SERB has set a dangerous precedent by allowing the City to circumvent the rights of the Union and to frustrate the purpose of Ohio’s collective-bargaining law by allowing a public employer to agree to certain terms and conditions of employment with a Union and then shortly thereafter pass legislation that conflicts with those terms.” Cincinnati, 582.
It is becoming evident that the Toledo exceptions will have to be revisited by the Board in some form, whether by interpretation or overhaul. Both sides to a collective bargaining agreement deserve the right to rely on its provisions irrespective of attempts to change such terms by Charter amendment. Any exception to maintaining the integrity of an agreement’s provisions must be closely scrutinized, even when it is the Union that would seemingly be favored.
The Americans with Disability Act (“ADA”) demands that when an employer orders an employee to submit to a medical and/or psychological examination to establish the employee’s fitness-for-duty, the employer is responsible for the costs of the ordered examinations.
Should the examiner’s report find the employee is not fit-for-duty, the ADA provides that the employee may obtain a second opinion, from a practitioner of his choice, at the employee’s expense.
The U.S. Equal Employment Opportunity Commission’s guidance on Disability Inquiries and Medical Examinations at question 12:
12. May an employer require that an employee, who it reasonably believes will pose a direct threat, be examined by an appropriate health care professional of the employer's choice?
Yes. The determination that an employee poses a direct threat must be based on an individualized assessment of the employee's present ability to safely perform the essential functions of the job. This assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence. To meet this burden, an employer may want to have the employee examined by a health care professional of its choice who has expertise in the employee's specific condition and can provide medical information that allows the employer to determine the effects of the condition on the employee's ability to perform his/her job. Any medical examination, however, must be limited to determining whether the employee can perform his/her job without posing a direct threat, with or without reasonable accommodation. An employer also must pay all costs associated with the employee's visit(s) to its health care professional.
In essence, the employer must be able to reasonably articulate why they feel you are not capable of performing your essential job functions. An employer demanding an employee be examined because he cannot run one mile in under four minutes is not reasonable. However, expecting a patrol officer to get in and out of the cruiser is arguably reasonable.
The determination that an employee poses a direct threat does not necessarily mean you are about to go on a murderous rampage. Most often fitness-for-duty examinations are ordered because the employer perceives your medical and/or psychological condition is affecting your ability to meet the essential job functions required and that your inability may result in death or injury to yourself, fellow employees and/or the general public.
The law provides that the medical/psychological examinations can only be focused on the employee’s ability to perform the job without being a threat to others, with or without reasonable accommodation. Unfortunately, some employers would abuse their authority by sending an employee for both a medical and psychological examination, even though their stated “reasonable” concern was, for example, to verify the employee’s broken leg had properly healed.
Additionally, The United States Department of Labor provides:
“An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee. (see: The "Certification of HealthCare Provider. http://www.dol.gov/whd/fmla/appendixf.pdf ).
When you present a “return to work” clearance from your own doctor, the Department of Labor provides that the employer may send you to their doctor for a second opinion, just as you could get your own second opinion “at your expense”. The rules mandate that if the employer requests a second opinion, the employer “must pay” the expenses. Additionally, if a third opinion is needed, the law requires that the third care provider must be approved jointly by the employer and the employee, at the employer’s expense.
We just witnessed our Governor, along with the MAJORITY of our State Representatives and State Senators, attempt to strip us of protections we had fought long and hard to earn. The protections afforded to the American workers through the ADA, FMLA, Department of Labor, EEOC, (both State and Federal) can be changed as well. Many of you know under President Bush our Congress revamped the FMLA, with most changes being injurious to the employee.
What is it?
Caring for your aging parents is something you hope you can handle when the time comes, but something you probably hope you never have to do. Caring for your aging parents means helping them plan for the future, and this can be overwhelming, both physically and emotionally. When the time comes for you to take care of your parents, you may be certain of only two things: Your parents need you, and you need help.
Talk to your parents about the future
Start caring for your aging parents by talking with them about their needs and wishes if they are able. In some cases, however, they may not be willing to talk to you about their future, either because they are afraid to face it or because the resent your interference. If this is the case, you may need to do as much planning as you can without them, or, if their safety or health is in danger, step in as caregiver anyway.
Prepare a personal data record
The first stop you should take is to ask your parents to help you prepare a personal data record (if they are unable to help you, you’ll have to search for the information yourself). A personal data record is a document that lists information that you might need in case your parents become incapacitated or die. Information that should be included is financial information, legal information, medical information, insurance information, and information regarding professional advisors and the location of important records.
Example(s): When Marcia and her mother prepared a personal data record, Marcia realized that her mother did not have a durable power of attorney or health care proxy in case she became incapacitated and could not make decisions about her medical care. The next day, Marcia made and appointment with her mother’s lawyer to discuss this issue.
You can’t know everything, and you probably don’t have enough time to learn everything you need to know to care for your parents. That’s why you should seek advice from professionals. Some advice will be free, and some you will have to pay for. If you live far from your parents or are too overwhelmed to handle all your parents’ affairs, you can hire a geriatric care manager who will evaluate your parents’ situation, suggest options, and coordinate professionals who can help. In addition, talk to your employer. Some employers have set up employee assistance programs that offer advice and assistance to people who are dealing with personal challenges, including caring for aging parents.
Don’t try to care for your parents alone. Many local and national caregiver support groups and community services are available to help you cope with caring for your aging parents. If you don’t know where to start finding help, call the Eldercare Locator, and information and referral service sponsored by the federal government that can direct you to resources available nationally or in your area. Call the Eldercare Locator at (800) 677-1116.
What kind of advice will you need?
Housing and health care advice
If your parents are like many older individuals, where they live will depend upon how healthy they are. As your parents grow older, their health may deteriorate so much that they can no longer live on their own. At this point, you may need to find them in-home health care or health care within a retirement community or nursing home. On the other hand, you may want them to move in with you. In addition, you will need information on managing the cost of health care, long-term care insurance, major medical insurance, Medicare, and Medicaid.
Contact: National Association for Home Care
Visiting Nurse Associations of America
Centers for Medicare & Medicaid Services (formerly known as the Health Care
American Association of Homes and Services for the Aging
American Association of Retired Persons (AARP)
Health Insurance Association of America
If your parents need help managing their finances, you may need to contact professionals whose advice both you and your parents can trust, including one or more of the following individuals or organizations.
Contact: Your financial planner
Your investment counselor
Your tax attorney
The Social Security Administration
Legal advisors can help you plan for your parents’ incapacity (including documents such as power of attorneys, medical directives, and living wills), contact nursing home ombudsmen, set up and monitor guardianship, prepare wills, give tax advice, and provide bill payment and representative payee assistance. Many states provide funds for the delivery of free legal services to the elderly and many attorneys specialize in elder law, so finding legal advice shouldn’t be difficult.
Contact: Your attorney
National Association of State Units on Aging
American Bar Commission on the Legal Problems of the Elderly
Legal Counsel for the Elderly
What kinds of support and community services will you need?
Caring for your aging parents will be easier if you know what kinds of support and community services are available and where to locate them. The following is a list of the kinds of support and community services you can find locally and nationally, along with specific suggestions of who to contact for information.
Adult day care
If you need to work or run errands and you can’t leave your parents alone, consider using adult day care. These programs are located in hospitals, churches, temples, nursing homes, or community centers. Many are private nonprofit organizations. Adult day care can be expensive but is sometimes subsidized by the government, and fees may be based on a sliding scale. In addition, Medicare, Medicaid, long-term care insurance, or your health insurance may pay part of the cost.
Contact: Your local senior center or community center
National Institute on Adult Day Care
The Alzheimer’s Association
Caregiver support groups (self-help)
Many self-help groups are available to provide information and emotional support on broad topics (such as aging) or specific topics (such as heart disease). You may find these support groups helpful if you know little about caring for your aging parents. Such groups might also provide an opportunity to help others by sharing your experiences.
Contact: The Alzheimer’s Association
Children of Aging Parents
National Self-Help Clearinghouse
Caregiver training/health education
You may feel better about taking care of your parents if you are armed with knowledge. You may want to complete first-aid courses or take classes in gerontology.
Contact: Your local college or university
Your local hospital
The American Red Cross
If you are uncertain of your parent’s mental or physical capabilities, ask his or her doctor to recommend somewhere you can take your parent to undergo an assessment. These assessments can be done at hospitals or clinics. Your parent will be evaluated to determine his or her capabilities. The evaluation determines whether the individual can take care of himself or herself on a day-to-day basis, including such things as bathing, dressing, eating, using the telephone, doing housework, and managing money. Based on this evaluation, you and your parent will receive advice regarding care options.
Contact: Your doctor
The National Association of Professional Geriatric Care Managers
Aging Network Services
When you are caring for your aging parents, you may feel guilty or even resentful because you don’t have limitless energy. Taking care of your parents is hard work, however, and everyone needs a break once in a while. If you are caring for your aging parents, look into respite care. Medicaid may pay for some respite-care services.
Contact: Your doctor
Your local hospital
The Alzheimer’s Association
National Association for Home Care
Financial and tax considerations for you
Caring for your aging parents is not only an emotional burden for you but may be a financial one as well, depending upon how well off your parents are and how much caring for them costs. Because many adults today are becoming first-time parents in their thirties, and others are remarrying and rearing second families, increasing numbers of adults are finding themselves in the “sandwich generation”. They face having to pay expenses of growing children (including college expenses), plan for their own retirement, and support their aging parents financially. Thus, it’s important to plan not only your parents finances, but your own as well.
Financial planning for your parents
Making sure that your parents won’t outlive their money is a critical step in ensuring that your own finances will remain sound. In particular, you’ll need to make sure that your parent is receiving all the benefits to which he or she is entitled and that his or her money is invested wisely. You’ll also need to create a financial profile for your parents, a statement that includes income, expense, and net worth. If, after considering your parent’s financial condition, it’s clear that they won’t have enough resources to pay for their own care, you’ll need to find ways to supplement their income. You may need to look at Supplemental Security Income (SSI), for instance, or ask other relatives for help. You’ll also have to determine how much financial support you can give your parents (see below).
Financial planning for you
Besides caring for you parents, you have a lot of other financial obligations. Before you can determine the best way to help your parents financially, you’ll have to look at your own financial picture. Not only will you need to consider your current expenses, but you’ll have to look down the road a few years, considering how much you’ll need to save for your own retirement and, perhaps, for your child’s education.
Tip: Due to the complexities inherent in providing adequately for several generations in the same family, consider seeking the advice of a financial professional.
Tax benefits for children supporting aging parents
Federal income tax law provides several tax benefits to you if you are supporting your parents financially. If you have a dependent care account at work, you can put pretax dollars into the account that you can use to pay for some costs associated with caring for your dependent parents. You may be able to claim an exemption for your parents as dependents, and you may be entitled to claim a dependent care credit. In addition, you may be able to file your taxes as head of household and deduct medical expenses you paid for your parents. For more information consult your tax advisor.
Questions & Answers
If you are financially supporting your parent, is he or she entitled to receive Social Security benefits based on your earnings?
If you are providing at least one-half of your parent’s support at the time of your death, and he or she is age 62 or over and is not entitled to a retirement benefit that is equal to or larger that the amount he or she would receive based on your earnings record, then he or she may be entitled to receive a parent’s Social Security benefit equal to 82.5 percent of your primary insurance amount (PIA).
Joseph C. Randazzo, JD, CFP®
Michael Embrescia Suzanne Lipps Sal Catalano Bill Matejka
Financial Network of America LTD
Cleveland – Twinsburg – Columbus – Kelleys Island – Naples
Securities and advisory services offered through WRP Investments, Inc. Member FINRA and SIPC. Financial Network of America is not affiliated with WRP Investments, Inc. Securities activities and advisory services are supervised by the WRP home office at 4407 Belmont Ave., Youngstown, OH 44505 (330) 759-2023
Prepared by Broadridge Investor Communication Solutions, Inc. Copyright 2012
Thomas Jefferson wrote that “Information is the currency of democracy.” In the world of law enforcement labor organizations, information may, indeed, be currency. Information may be the difference between a 1.5% pay raise and a 2.5% pay raise. It may mean the difference between a union member being terminated or having his job restored by an arbitrator.
Imagine buying car. As the potential purchaser, you would love to know the true manufacturing and overhead cost of the car, so that you could negotiate as close to that number as possible, thus putting yourself in the best position. Understandably, the salesperson does not want you to know the accurate numbers or the dealership’s true bottom line.
Likewise, in the field of public sector labor law, we sometimes find that management does not necessarily want to advertise its true financial picture. The management negotiator may state or testify that a governmental entity’s General Fund balance has decreased sharply since the financial collapse of 2008, but that negotiator may go out of his or her way not to disclose that monies have since been strategically siphoned off and hidden in a capital fund or a special project fund. Unscrupulous finance department personnel seem to have a knack for “hiding” money when it comes time for collective bargaining.
Public sector labor unions have always had many challenges with respect to getting business done on behalf of their members. We are faced with unreasonably tight-fisted management negotiators and obstructionist bureaucrats at every turn. Not the least of our challenges is the ability to obtain timely, relevant, and accurate information, especially from those against whom we bargain and litigate.
We need good, accurate information when collectively bargaining, when handling disciplinary matters, when processing grievances, and when litigating unfair labor practice charges. So, how does one obtain such information from one’s opponent in these matters? One answer is through properly made public records requests. In practice, a bargaining unit member or a union advocate making such a request must be able to effectively navigate Ohio’s sometimes tricky Sunshine Laws so as to obtain that information which will actually make a difference.
This article seeks to provide some guidance on how to properly make a public records request. Before making a public records request, the requester may wish to become familiar with Ohio Revised Code Chapter 149, under which most public records requests in Ohio are made. Additionally, the requester should be armed with the latest edition of the Ohio’s Attorney General’s “Ohio Sunshine Laws – An Open Government Resource Manual,” which is commonly referred to as the “Yellow Book.” The 2012 version of this comprehensive guide can be found at www.ohioattorneygeneral.gov/YellowBook.
One threshold issue related to making a public records request is whether the entity whose records are being sought is actually a “public office” within the meaning of R.C. 149.011(A), thus making it subject to public records requests. Obvious public offices are cities, counties, townships, and villages. Interestingly, any private entity that is the “functional equivalent” of a government entity is also properly subject to a records request.
Once the requester establishes that the requestee is, in fact, a public office or functional equivalent, the requester needs to analyze whether the information sought is actually a “public record” within the meaning of R.C. 149.011(G). A public record is:
1) That which is stored on a fixed medium (i.e., tapes, e-mails, photos, film, video, paper, etc.), AND
2) Is created or received by or has come under the jurisdiction of a public office, AND
3) The record relates to what that public office does (i.e., the organization, functions, policies, decisions, procedures, operations, or other activities of the office).
Each and every one of these elements must be met in order for an item to be subject to a public records request. Here are some practical examples of items which are not public records:
1) An e-mail sent or received from a public sector e-mail account asking a coworker to go to lunch. Note that in order for an e-mail to be a public record, it must relate to what a public office does.
2) A record not yet in existence. If a requester asks a City to create a document or record that does not already exist, the City has no obligation to create a record and release that information.
3) A record that once existed, but has been lawfully disposed of in accordance with a public employer’s approved records retention policy. If a public office does not possess a record, then it has no obligation to produce it upon request.
4) Notes taken by a member of a public office, if those notes are kept as personal papers (not official records), are kept for the employee’s own convenience, and other employees did not have access to the notes.
There are some specific statutory exceptions to public records requests. Examples include healthcare provider-patient records (a specific example of this where a County Jail is actually a health care provider for inmates). Student records are another example. More importantly for law enforcement personnel is the statutory exemption for the residential and family information of peace officers, parole officers, probation officers, bailiffs, prosecuting attorneys, assistant prosecuting attorneys, correctional employees, youth services employees, firefighters, EMT’s, and BCI&I investigators. Likewise, Social Security numbers and direct deposit bank account information is statutorily protected from public records requests.
The final exception to the Public Records Act that will be discussed in this article is the Confidential Law Enforcement Investigatory Record. A CLEIR is not a public record if it pertains to a “law enforcement matter” involving a specific suspicion of misconduct and the investigating agency has the authority to enforce law. That misconduct must be criminal, civil, or administrative in nature, but does not include an investigation exclusively concerning internal personnel discipline. If internal personnel discipline is a potential outcome, in addition to other criminal, civil, or administrative penalties which are also potential outcomes, then the CLEIR remains a non-public record. However, if the law enforcement employer states that an investigation is exclusively concerning internal personnel discipline, then recorded material concerning the investigation is properly subject to a public records request. If the release of a CLEIR, would reveal the name of an uncharged suspect, the name of a confidential source, put someone’s physical safety at risk, or reveal investigatory techniques or procedures, then the CLEIR may not be subject to a records request.
In terms of format, there is no special way of making a public records request. Any “person” can make a records request. A request may be written or verbal. The requester’s motivation for the request is not relevant, nor is the identity of the requester. The requester must make the request specific enough so that the public office can fulfill the request, if it is possible to fulfill, and must indicate a mechanism for how to receive the information that he or she has requested. Otherwise, there are no “magic words” necessary to make a lawful public records request. The public office cannot require the requester to put the request in writing or identify himself or herself.
The tips discussed here are merely a starting point to a large body of law related to public records and open government. Should you have any questions on the issue, please do not hesitate to contact your OPBA Attorney or Business Agent for further guidance.
Imagine you pull over a driver for a routine traffic stop. The driver, a known drug dealer, is driving under a suspended license. After arresting the driver, you search his car and find $7,000 in the glove compartment. The driver cannot account for the source of the money.
That's quite a large sum of cash, and especially suspicious for a known criminal. The money is unaccounted for and discovered during the commission of a crime. Is the $7,000 subject to criminal forfeiture?
If you said yes, you guessed incorrectly.
In order to be eligible for criminal forfeiture, the property must meet two elements. First, it must belong to the defendant. Second, the property must be tied to the charged crime.
Referring back to our example, the money meets the first element of forfeiture. There is no reason to suspect the money would belong to anyone other than the driver, especially if the car he is driving is his.
However, the money does not meet the second element of forfeiture. Although the driver was committing a crime by driving under suspension, the money has no bearing on that particular crime. A criminal plus unaccounted money does not equal a forfeiture.
According to section 2981.02 of the Ohio Revised Code, property subject to forfeiture must either be contraband or property that was obtained through or used during the commission of the particular crime for which the suspect is charged.
It is important to note the difference between property seized as evidence and property seized as a criminal forfeiture. Evidence will be returned to its owner after the defendant's case is resolved – even if law enforcement has reason to suspect that the property was illegally obtained.
We once had a case in which men broke into a known drug dealer's home in a failed robbery attempt. When police arrived on the scene, they discovered thousands of dollars in cash in the man's home. Although the officers had good reason to believe that the money was profit from dealing drugs, the cash belonged to the victim and thus was not tied to the charges brought against the defendants. Therefore, it was not subject to forfeiture and was returned to the victim.
Criminal forfeiture is presented to the grand jury as a specification tied to a particular charge. The grand jury (or judge or jury in a trial) must first consider the actual charge. Then the jury must determine whether the property was used during the commission of the crime.
Officers testifying about forfeiture must be prepared to establish a connection between the property sought for forfeiture and the crime charged. Simply encountering a suspect in the possession of property for which they cannot account does not automatically mean the property is subject to forfeiture. The proper connection must be made between the property and the actual crime charged. The stronger the evidence, the more likely the judge or jury will find in favor of the forfeiture specification.
When considering seizing property as forfeiture, it may be helpful to consider the following questions:
• Could the offense have been committed without the presence of the property in question?
• Did the suspect have the property in his possession primarily to commit or attempt to commit the offense for which he has been charged?
• How instrumental was the property in the commission of the crime?
In a criminal case, forfeiture can be considered a sanction or punishment. Therefore, it is the State's burden to prove beyond a reasonable doubt that the property in question meets all the requirements of forfeiture. The judge or jury must consider the above questions when determining whether property is subject to forfeiture. Considering those questions before you seize property may help to strengthen the case when presented to a judge or jury.
If the burden of proof seems too high for criminal forfeiture, civil forfeiture statutes exist and are successfully used by this office. The civil forfeiture burden is preponderance of the evidence. We can subpoena tax returns and other documents to shore up the proof for civil forfeiture. Civil forfeiture requires the proceeds to be derived from:
• an offense or to be the instrumentality that is used in or intended to be used in the commission or facilitation of a felony offense or a misdemeanor authorized by statute, or
• an attempt to commit, complicity in committing, or conspiracy to commit either of those offenses.
Interrogations and depositions can be used in a civil case as an additional tool for forfeiture. When in doubt about what to do, contact this office to discuss the information you have.
We have recently seen an increase in forfeiture specifications, and have had greater success with both criminal and civil forfeitures. By continuing to work together, we hope to continue that success.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
Sherri Bevan Walsh
Summit County Prosecuting Attorney
NAPO has been working with the Treasury Department, Members of Congress and members of the pension community on Treasury regulations and the enactment of Normal Retirement Age rules. Earlier this year NAPO met with key policy makers within the Treasury Department; Mark Iwry - the Senior Advisor to the Secretary and the Deputy Assistant Secretary for Retirement and Health Policy, George Bostick - the Benefits Tax Counsel, Harlan Weller - the Actuary in the Office of Tax Policy, Bill Bortz - the Associate Benefits Tax Counsel in the Office of Tax Policy and Bill Evans the Attorney-Advisor in the Office of Benefits Tax Counsel. NAPO addressed the concerns of rank-and-file law enforcement on the pending implications of the proposed January 1, 2013 enactment of Normal Retirement Age guidelines
On April 18th, Treasury released updated guidance making modifications to the 2007 regulations. These changes are an important step in the right direction for NAPO’s membership for several reasons.
First, the “safe harbor” provision that allows public safety to qualify for “Early Unreduced Retirement” will now encompass pension plans that are combined with other plans. Therefore, officers will no longer be forced to wait longer to retire and receive benefits. NAPO has worked closely with the offices of Senator Herb Kohl (D-WI), Representative Bill Pascrell (D-NJ), Representative Ron Kind (D-WI) and Representative Sean Duffy (R-WI) to address this specific issue. We would like to thank them for their hard work and leadership.
Secondly, this notification clarifies in-service distributions for public safety. As long as an individual is participating in a plan and is older than 62, they are entitled to collect in-service distribution. We are aware that this does not solve all the problems with this issue and will continue to seek a legislative fix.
Finally, and most importantly, for the immediate future, the enactment date for the IRS Normal Retirement Age has once again been postponed. The new date of enactment has been moved to January 1, 2015.
NAPO will continue to seek a full exemption for public safety from the Normal Retirement Age and will work to raise awareness of the issues of HELPS Benefits. (If an officer retired under “Early Unreduced Retirement” then they do not qualify for HELPS Benefits. Under the HELPS provision, a public safety officer must have retired at “Normal Retirement Age” in order to obtain the privilege to use up to $3,000 from their retirement savings on a pre-tax basis for use toward health care insurance and long-term care insurance premiums.)
Please contact NAPO’s Director of Government Affairs, Rachel Hedge via email (
) or phone (703-549-0775) if you have any questions regarding this or any other legislative issues.