The Ohio Patrolmen's Benevolent Association (O.P.B.A)

In Defense of Collective Bargaining

A team of OPBA attorneys recently completed a lengthy odyssey when the Ohio Supreme Court refused to accept for review the appeal of the City of Munroe Falls (The “City”) in the case captioned City of Munroe Falls v. State Employment Relations Board, et al., Case No. 13-0266 (2013).

The case began in the spring of 2010, when the City, for the first time, refused to bargain with the OPBA concerning a successor contract for a bargaining unit of Sergeants.

The City initially claimed it had no duty to bargain because the bargaining unit only contained one member and, thus, was not subject to the Collective Bargaining Act - - R.C. Chapter 4117, purportedly due to the fact that it could not “collectively” bargain with a unit containing only one member.[1]

In response to the City’s refusal to bargain, the OPBA filed an Unfair Labor Practice Charge (the “Charge”) with the State Employment Relations Board (“SERB”), on or about September 10, 2010.

SERB investigated the OPBA’s Charge and on October 14, 2010, determined that there existed probable cause to believe that the City violated R.C. §§4117.11(A)(1) & (A)(5) by refusing to bargain a successor contract for the Sergeant’s bargaining unit.

As the case at SERB proceeded through the hearing process, the City’s theory of the case took an interesting turn.  In addition to its more pedestrian arguments that single member bargaining units abated as a matter of law, the City began to broadly also assert that R.C. Chapter 4117 was unconstitutional, in that it allegedly violated Section 3, Article XVIII of the Ohio Constitution and that it was an improper delegation of legislative authority.

On or about July 12, 2011, SERB ruled in favor of the OPBA and ordered the City, inter alia, to bargain a successor contract, in good faith, with the OPBA for the Sergeant’s Bargaining Unit.  In doing so, SERB ignored the City’s constitutional arguments.

The City timely appealed SERB’s ruling to the Summit County Court of Common Pleas and renewed all of its former arguments, including its claims that Chapter 4117 was unconstitutional.

On or about February 6, 2012, Judge Tammy O’Brien upheld the SERB decision in favor of the OPBA and, notably, ruled in favor of the constitutionality of Chapter 4117, by stating at p. 10 of her Order:

The Supreme Court of Ohio addressed constitutional arguments like those presented by Munroe Falls, in Rocky River v. State Emp. Relations Bd., 43, Ohio St.3d 1, 539 NE.2d 103 (1989).  The Court held in Rocky River:

The Ohio Public Employees’ Collective Bargaining Act R.C. Chapter 4117 *** [is] constitutional as [it] falls with the General Assembly’s authority to enact employee welfare legislation pursuant to Section 3, Article II of the Ohio Constitution, Section 3, Article XVIII of the Ohio Constitution, home-rule provision, may not be interpreted to impair, limit or negate the Act.  (Citations omitted). Rocky River has not been overruled and remains good law.[2]

The City then appealed to the Summit County Court of Appeals.

On December 31, 2012, the Appeals Court affirmed the decision below, while stating, at pages 8-9 of its Judgment Entry:

Munroe Falls asserts in its fourth assignment of error that the lower court erred in concluding that R.C. Chapter 4117 does  not violate the Ohio Constitution.  We do not agree.

We note that Munroe Falls does not point to a particular section in R.C. Chapter 4117 that it believes is unconstitutional; instead, it broadly asserts the entire Chapter is unconstitutional.  We are mindful that “[s]tatutes are presumed to be constitutional unless shown beyond a reasonable doubt to violate a constitutional provision.”  (Internal quotations and citations omitted.)  Nitchman v. Nationwide Mut. Fire Ins. Co., 146 Ohio App. 3d 315, 317 (9th Distr. 2001).

Essentially Munroe Falls asserts that R.C. Chapter 4117 violates Section 3, Article XVIII of the Ohio Constitution and is an improper delegation of legislative authority. . . .

Rocky River has not been overruled, and, thus, this Court is bound to apply the law as set forth by the Supreme Court of Ohio.  As the Supreme Court has already determined that Chapter 4117 is constitutional and has not reversed its position on this issue, Munroe Falls’ argument concerning Section 3, Article XVIII of the Ohio Constitution is without merit.  See id.

With respect to Munroe Falls’ assertion that R.C. Chapter 4117 represents an improper delegation of legislative authority, we are likewise not persuaded.

In the winter of 2013, the City attempted to appeal this case to the Ohio Supreme Court.  As previously stated, the Ohio Supreme Court refused to accept jurisdiction of the case, by Entry dated May 8, 2013.

Thus, the foregoing three-year ordeal concluded with a significant victory for OPBA members and other public employees, as another challenge to the continued viability of the Collective Bargaining Act was completely rebuked.

[1] The City’s position was disingenuous, at best, given the fact that the unit had only contained one member since at least 2004 and the City had previously bargained a contract with the OPBA for the one person unit.

[2] Ironically, former Ohio Supreme Court Justice, Andy Douglas, the author of the Rocky River decision, guided and advised the team of OPBA attorneys working on the Munroe Falls case.


DNA Swab Normal Part of Booking

A ruling made on June 3, 2013, by the Supreme Court of the United States in MARYLAND v. KING might be of interest to some readers.  The Court determined that it is lawful to take a DNA swab as a normal part of the booking process for a serious offense.

The case started with the arrest of Alonzo King in 2009 for first and second degree assault charges.   Seems like some people didn’t like it when he showed up with a rifle and started bothering them.  When being processed into the Wicomico County jail in Maryland, the Corrections Officer obtained a DNA sample with a cheek swab. In Maryland it is perfectly legal to swab those being booked for serious crimes.  It is legal in all states to swab during a felony arrest.

When the sample was run through the Federal database, it matched a DNA sample obtained in a rape case from 2003 that was never solved.  Armed with the DNA evidence, King was brought to trial on the rape charge.

King’s lawyer objected to the admission of the DNA evidence based upon the fourth Amendment.  He claimed it was an unlawful search and challenged the legality of the search.  The Judge in the Circuit Court found the search to be legal and the trial ended with his conviction.  However, the Maryland Court of Appeals found the search violated King’s constitutional rights.

In their ruling, the majority found that the Fourth Amendment allows for reasonable searches when a suspect is detained and taken to a jail due to a serious offence, thus eliminating the need for a warrant.  The check swab is similar to taking a picture or fingerprinting a prisoner.  Much as pictures and fingerprinting have improved police work and the justice system in the past, DNA testing can and is vastly improving them now and into the future.  Unlike pictures and fingerprinting, DNA evidence seems to be almost completely reliable.

The Court did place several limitations on the retrieval and use of DNA.  For example, the retrieval of the DNA should not threaten the detainee’s safety.  The method of extraction must minimize pain and shouldn’t require surgery.  Until an individual is ar­raigned for a serious crime, their DNA can’t be added into any database.  Furthermore, if the suspect isn’t found guilty their DNA must be eliminated from the system.  The fact that a swab is so painless, quick and easy was important to their thinking these searches are reasonable.

On the topic of wage increases, there is an upward trend once again.  Of course it couldn’t have gotten much lower.  There have been way too many low and no wage increases over the last few years.  Even those municipalities that weren’t hurt by the recession could get away with small increases.  As the economy continues to slowly improve, wages should continue to increase.

Many of the Eastern Counties are seeing a lot of land being leased or sold for the right to drill wells.  Thanks to the process called “Fracking”, some people are getting quite wealthy.  Hopefully that wealth will be spread to higher wages as well!


Message from the Executive Director

The OPBA has been active in Columbus along with the recruitment of new departments. I and/or our Special Council Justice Andy Douglas have been attending Ohio Retirement Study Council, ORSC, meetings. The first meetings that were attended the legislative members of ORSC questioned the financial stability of the OP &F Fund. The new Executive Director, John Gallagher, of the OP & F fund and its actuary spoke stating the fund had the best returns, 14.9%, in 2012, of a majority of the funds. They also stated that the changes from pension reform have yet to be fully implemented so their concerns were basically premature. In the most recent meeting attended, the ORSC made proposals on the authority that had been granted by the recently enacted pension reform bills for the OP & F, SERS, STRS and HPRS funds. The OPBA will continue to monitor activity with the ORSC, pension systems and legislature.

I recently testified at a Joint Senate hearing concerning School Safety of the Public Safety and Education Committees chaired by Senator LaRose and Senator Lehner respectfully. This committee was formed prior to any legislation being proposed because the committee chairs felt it was necessary to get input from the respective stakeholders prior to any legislation being introduced.  The joint committee was going to review the 4 days worth of testimony to determine the best course of action moving forward with any possible legislation. Two issues that the committee members were to look more closely at were ratio of school psychologists to students as well as school resource officers.

The OPBA has recently been involved in elections in Garfield Hts. and Shaker Hts. Police Departments. In Garfield Hts. the OPBA filed petitions for election to have the patrol officer’s switch from the local FOP lodge to the OPBA. I would like to welcome the Garfield Hts. Patrol Officers who voted 21 to 13 in favor of the OPBA. The petitions for election at Shaker Hts. PD were for the OPBA to become the exclusive representative for the patrol unit and supervisors unit over their current representative the local FOP lodge. I would also like to welcome the Shaker Hts. patrol unit which the OPBA won 26-17 and the Shaker Hts. supervisors unit which was won by 8-5 margin. The OPBA is now in the transition phase with both departments. I realize that the OPBA must now show through action to the aforementioned departments that the choice made was the correct one taking their memberships forward. I believe that the OPBA will prove to not only our supporters but every member that the change was correct. The OPBA has recently been contacted by 2 Sheriff Departments and another police department.

When I began my first term in January of 2012, I had stated that I truly believed that the OPBA provides unparalled representation and service to its membership. I believe it is because of that representation that we won the aforementioned elections. I personally became involved in those representational services the evening of March 17, 2013 with an officer involved shooting in Solon. I made contact with a staff attorney minutes after being notified of the incident, and upon arrival at the local hospital the involved officers were put in contact with the an attorney within the hour.  It is this type of service that OPBA provides that sets us apart.

The OPBA has continued to move membership meetings around the State of Ohio. On March 7, 2013 our membership meeting was held in Columbus. John Gallagher, Executive Director, and Scott Huff of OP&F, Fund as well as Mr. Gordon Gatien, Government Relations officer from OPERS, attended our meeting. These representatives made presentations and answered questions from the members in attendance.
This is the second year that we have had a second family day in another area of the State. The OPBA wanted to provide our membership that is spread throughout the State the ability to participate in a family day without having to drive a prohibitive distance. This year our second event will be at the Dayton Dragons at Fifth Third Field, Dayton, Ohio.


An Update on GPS Tracking

By: Sherri Bevan Walsh

Law enforcement has benefited greatly from advances in technology over the last 20 years. Tracking defendants with cell phone tower triangulation, identifying organized criminals with information-sharing technology and using DNA databases are just a few examples. But these technological advances are fraught with numerous undecided legal challenges.

In 1996, the U.S. Supreme Court expanded warrantless searches to include an automobile exception. When law enforcement has probable cause to believe that a vehicle contains contraband, an officer may rely on exigent circumstances to search that vehicle.

GPS is an effective means of surveillance, but it raises issues concerning an individual’s right to privacy. In January 2012, the U.S. Supreme Court held in U.S. v. Jones that placing a GPS device on a suspect’s vehicle qualifies as a search under the Fourth Amendment. However, the Supreme Court declined to say whether that always requires a search warrant or if it could be done under the automobile exception.

Using the automobile exception is the most logical means of installing a GPS device without a warrant. However, courts are hesitant to use the automobile exception to include a warrantless GPS device because of its unlimited duration and scope.

The U.S. Eastern District of Pennsylvania addressed this issue twice last year. In both cases, it held that the rationale behind the automobile exception does not apply to a warrantless installation of a GPS tracker. Furthermore, the court ruled that probable cause that contraband was in a vehicle only gave rise to a search of that vehicle. The U.S. District Court of Delaware went so far as to rule that an individual can use another’s car with the same expectation of privacy the owner would have when it comes to a warrantless GPS device.

The fundamental theme in the courts is that a person has a constitutional right to be free from their activities being monitored unless a search warrant has been sufficiently executed. A person’s right to freedom of movement and rights under the Fourth Amendment to be free of unreasonable search and seizures has been determined to significantly outweigh the government’s interest as it relates to the use of a GPS tracking device.

Before an officer installs a GPS device on a vehicle, he or she should undoubtedly try to get a search warrant. Some defendants have attacked the probable cause contained in the search warrant, but courts are much more likely to deny challenges to the use of the GPS device when a search warrant has been granted.

Jones has changed the landscape for law enforcement and GPS tracking. While the Supreme Court has not detailed exactly what those changes are yet, the lower courts have given a clear indication that warrantless GPS tracking will be suppressed.

This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.