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

Understanding Intermittent FMLA Certification And Use

The Family and Medical Leave Act of 1993 (“FMLA”) was created “to balance the demands of the workplace with the needs of families.”[1] In a nutshell, this law requires certain employers (including government employers) to permit unpaid time off for covered employees to handle qualified medical and family conditions.  There is absolutely no requirement under the statute that any employee be paid for FMLA time off which is strictly FMLA time and not in conjunction with other time off such as paid sick leave or paid vacation time.  FMLA leave includes time off for such things as personal or family illness or injury, family military leave, pregnancy, maternity leave, adoption of a child and placement of a child in foster care.

Since the promulgation of this landmark law, an incredible amount of time, effort, and resources have gone into enforcing and interpreting the requirements of the statute.  Like other employee organizations, the OPBA has engaged in countless battles against employers in order to promote and protect the interests of its membership when it comes to FMLA interpretation.

Certain aspects and requirements of the FMLA are clear cut and need little interpretation.  Others, however, are very fact and interpretation specific.  One of these areas in need of constant interpretation is intermittent FMLA certification and use.

There are two basic kinds of FMLA usage.  One is for a specific event or time-defined period.  These instances relate to an event or a series of events such as a surgery, recuperation from an injury, a pregnancy/birth, etc.  These specific event usages typically have an expected end to the FMLA use and are typically for one continuous period of time.

The other type of FMLA usage is referred to as “intermittent use” which is use that is not necessarily continuous in nature.  In other words, one may need to use time or not need to use time based on the periodic necessities of the certified condition.  Intermittent use may be for a defined period of time or, if the condition is chronic, may be for a period that lasts until the conclusion of the affected employee’s working career.  When an employee seeks to be approved for intermittent use, he or she must be certified by an appropriate caregiver (i.e., physician, psychologist, etc.).

When the leave is for an employee’s own serious health condition or the serious health condition of a covered family member, the employer may request recertification no more often than every 30 days unless certain conditions exist.  If the certification indicates that the “minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification.”[2] In other words, if a medical certification indicates that an employee’s intermittent condition is expected to last for a period of 90 days, then the employer is prohibited from asking for a recertification until the 91st day.

However, an employer is permitted to require recertification every six months no matter what.  Even if the employee has a chronic condition such as multiple sclerosis or some other incurable condition which will periodically require the employee to be off work, the employer is still permitted to require recertification every six months.  Some employers choose to require recertification for longer periods of time, but that is the employer’s choice.

Employer policies that require recertification in less than six months for conditions lasting six months or more are unlawful.  The court in Harcourt v. Cincinnati Bell Telephone Company held:

“In this case, CBT’s policy of restricting intermittent leave to ninety days as a matter of course regardless of the health provider’s certification that the employee needs more than ninety days of intermittent leave is a plain violation of § 825.308(b) where no other exception applies.  The Court notes that CBT never challenged the validity of any certification tendered by Plaintiffs in this case, nor does it contend that any other exception applies.  It follows then that CBT violated Plaintiffs’ FMLA rights by arbitrarily requiring them to recertify their FMLA-qualifying condition every ninety days when their healthcare providers certified that a longer period of leave was required.”[3]

It is extremely important to note that using FMLA time does not provide a blanket shield to any employee when it comes to violating other leave usage policies.  FMLA does not necessarily protect employees from allegations of pattern abuse of sick leave or inappropriate use of sick leave.  If an employee takes time off using paid sick leave for an FMLA-certified condition and is caught by the employer doing something that he should not be doing, then the FMLA is no defense against such an allegation.  Employees still bear the burden of adhering to lawful policies.

If your workplace has a practice or policy related to time off that you believe does not comport with the requirements of the FMLA, please contact your OPBA representative.  If the employer’s FMLA recertification or usage policies conflict with the requirements of the FMLA, the employer policies will be stricken.  Federal law will trump employer policies on this topic, but it is up to the employees to challenge any unlawful policies.  The OPBA can be instrumental in effecting such change for your benefit as it has done in many workplaces throughout Ohio for many years.



[1] “Findings and Purposes,” 29 U.S.C.§2601.

[2] 29 C.F.R. § 825.308(b).

[3] Harcourt v. Cincinnati Bell Telephone Co., 383 F. Supp. 2d 944 (S.D. Ohio 2005).

 

NAPO Supports Repeal of the Excise Tax


 

Andrea Rocco, Attorney

Serendipitously, I started working for the OPBA soon after Labor Day.  In some ways, landing here has been an opportunity to come full circle.  As a young attorney, I represented the State Employment Relations Board and at that time worked cases with Joe Hegedus, Randy Weltman and Kevin Powers.  Then, like now, OPBA members received effective and aggressive legal representation and it is a privilege to join the entire staff.  It has been a very busy inaugural quarter as I meet members from across the region.  I was asked to use this space to introduce myself so this would be a good time to put down the magazine and get a snack.

Cleveland born, I was raised and grew up in Lakewood with my three brothers (Cleveland fireman, Rocky River elementary school teacher, and Medina business developer), two parents and dog, DiMaggio.  After graduating from Lakewood High School (big fan of public education!), I attended and graduated from Ohio University (OU-OU-OU).  I worked in Boston as a public relations director for a few years after college and attended many a Celtics game at the Garden during their heyday.  Love Larry Bird! I also attended lots of baseball, but after my heart was broken in the 2007 playoffs and the Boston curse lifted, that team shall go unnamed.  I then returned home to attend law school (where I met my husband) at Cleveland Marshall. I graduated in 1993 and thus began my legal career.

My past employment includes the Cuyahoga County Prosecutor’s Office, Lake County Prosecutor’s Office, Attorney General’s Office Cleveland branch, City of Lakewood and the City of Westlake.  I was the Westlake City Prosecutor for over 10 years and recently served two years as Clerk of Courts for Cuyahoga County. I also served on the Westlake School Board for 12 years, being successfully elected three times (it is true what they say, there are no harsher politics than local politics!) and served as a magistrate for the County Diversion Program for over a decade.

I live in the third oldest house in Westlake with my husband, Phil, our two kids, Isabel (16) and Jake (14), and our cat Oliver (who really is much more like a dog, which is even better) on nearly 3 acres, which is good and bad.  We can make fires in the back without arousing too much attention but the leaves seem to be never-ending in the Fall.  And while we could have raised chickens in the original chicken coop in the back (house was built in 1872), we opted instead to turn it into a clubhouse for the kids.

I enjoy spending time reading, attending theater and watching any mystery or period piece TV show on PBS.  Love Zac Brown Band, Bruce Springsteen and show tunes.  I also enjoy watching my daughter and son on stage and on the field and court as both play basketball, baseball and perform in show choir and/or theater.

Lastly, I am glad to be working for the OPBA and to have the opportunity to assist law enforcement.   It is an honor to represent individuals who on a daily basis significantly contribute to our communities.

 

PPN Letters to Key Congressional Offices on S 2381

VIA FACSIMILE: (202) 224-2499

The Honorable Mitch McConnell Majority Leader United States Senate Washington, DC 20510

Dear Majoriy Leader McConnell:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417


VIA FACSIMILE: (202) 224-7362

The Honorable Harry Reid Minority Leader United States Senate Washington, DC 20510

Dear Minority Leader Reid:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417

VIA FACSIMILE: (202) 225-5117

The Honorable Paul Ryan Speaker of the House United States House of Representatives Washington, DC 20515



Dear Mr. Speaker:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 225-4188

The Honorable Nancy Pelosi, Minority Leader United States House of Representatives Washington, DC 20515

Dear Minority Leader Pelosi:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 228-0554

The Honorable Orrin G. Hatch Chairman, Committee on Finance United States Senate Washington, DC 20510

Dear Chairman Hatch:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417


VIA FACSIMILE: (202) 228-0554

The Honorable Ron Wyden Ranking Member, Committee on Finance United States Senate Washington, DC 20510

Dear Ranking Member Wyden:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



CC: Kara Getz

VIA FACSIMILE: 202) 224-9516

The Honorable Chuck Grassley Chairman, Committee on the Judiciary United States Senate Washington, DC 20510

Dear Chairman Grassley:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 224-9516

The Honorable Patrick Leahy Ranking Member, Committee on the Judiciary United States Senate Washington, DC 20510

Dear Ranking Member Leahy:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 224-6163

The Honorable Lisa Murkoswki Chairman, Committee on Energy and Natural Resources United States Senate Washington, DC 20510

Dear Chiarman Murkowski:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 224-6163

The Honorable Maria Cantwell Ranking Member Committee on Energy and Natural Resources United States Senate Washington, DC 20510

Dear Ranking Member Cantwell:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 228-3027

The Honorable Chuck Schumer United States Senate Washington, DC 20510

Dear Senator Schumer:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 224-9673

The Honorable Richard Blumenthal United States Senate Washington, DC 20510

Dear Senator Blumenthal:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 228-5044

The Honorable Patty Murray Ranking Member, Committee on Health Education Labor and Pensions United States Senate Washington, DC 20510

Dear Ranking Member Murray:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417



VIA FACSIMILE: (202) 228-2072

The Honorable Elizabeth Warren United States Senate Washington, DC 20510

Dear Senator Warren:

On behalf of the national organizations listed above, representing state and local governments, elected officials, employees and retirement systems, we are writing to express our strong opposition to public pension requirements contained in the Puerto Rico Assistance Act of 2015

(S. 2381). These provisions are not limited to the territory of Puerto Rico, but impose a federal mandate on all state and local governments in areas that are the fiscal responsibility of sovereign States and localities, and are conflicting, administratively burdensome and costly.

The provisions are not germane to the underlying legislation, nor do they protect benefits, save costs or improve retirement system funding. They also have neither been introduced this Congress as stand-alone bills nor received consideration under regular order, including in the many hearings pertaining to Puerto Rico.

State and local government retirement systems are established and regulated by state laws and, in many cases, further subject to local governing policies and ordinances. State and local governments have and are taking steps to strengthen their pension reserves and operate under a long-term time horizon. Since 2009, every state has made changes to pension benefit levels, contribution rate structures, or both. Many local governments have made similar modifications to their plans. A compendium of information that corrects many misperceptions regarding the financial condition of these governments and their retirement plans can be found here: State and Local Fiscal Facts: 2015.

Federal interference into the fiscal affairs of state and local governments is neither requested nor warranted. Therefore, we strongly urge the exclusion of provisions impacting state and local government retirement systems from legislation relating to Puerto Rico assistance or any other legislation under consideration.

If you have any questions or would like additional information, please feel free to contact any of our organizations’ legislative staff listed below. We would be more than happy to meet with your office to discuss this important matter further.

Sincerely,

Jeff Hurley, NCSL, (202) 624-7753 Barry Kasinitz, lAFF, (202) 737-8484 Larry Jones, USCM, (202) 293-2352 Timothy Richardson, FOP, (202) 547-8189 Michael Belarmino, NACo, (202) 942-4254 Alfred Campos, NEA, (202) 822-7345 Carolyn Coleman, NLC, (202) 626-3000 Elizabeth K. Kellar, ICMA, (202) 962-3611 Bill Johnson, NAPO, (703) 549-0775 Cornelia Chebinou, NASACT, (202) 624-5487 Ed Jayne, AFSCME, (202) 429-1188 Emily Swenson Brock, GFOA, (202) 393-8467 Neil Reichenberg, IPMA-HR, (703) 549-7100 Maryann Motza, NCSSSA, (303) 318-806 Hank Kim, NCPERS, (202) 624-1456 Leigh Snell, NCTR, (540) 333-1015 Jeannine Markoe Raymond, NASRA, (202) 624-1417


 

The United States Supreme Court to Hear Fair Share Fee Challenge in Friedrichs v. California Teachers Association

The defeat of Senate Bill 5 certainly has not proven to be the last fight for the preservation of collective bargaining rights for public employees in Ohio. Anti-union proponents have petitioned since 2011 to place right to work on the Ohio ballot.  In 2013, Ohio House Republicans reaffirmed their anti-union animus by introducing right to work bills.  While the petition drives have yet to garner the requisite signatures for placement on the ballot and the House bills have stalled-out, public employees and labor unions in Ohio remain on their heels via the latest litigation brewing in the federal courts.  In the case of Friedrichs v. California Teachers Association et al., the United States Supreme Court is being asked to overturn nearly forty years of precedent and hold that fair share fees for public sector labor unions are unconstitutional.  This case should be followed closely, as it has the potential to have a dramatic effect on public sector unionization in Ohio and across the country.

In California, public sector unions are permitted to charge a fair share fee to employees who do not choose to become members of the union.  By statute, this fee cannot exceed the dues payable by members.  The permission of the union to collect such fee is subject to the limitation that “[a]gency fee payers shall have the right, pursuant to regulations adopted by the Public Employment Relations Board, to receive a rebate or fee reduction upon request, of that portion of the fee that is not devoted to the cost of negotiations, contract administration, and other activities of the employee organization that are germane to its function as the exclusive bargaining representative.”  The fee charged by the union to objectors excludes, among other things, all lobbying expenses not specifically related to ratification or implementation of a collective bargaining agreement.

The California Teachers Association, National Education Association and their local unions are the respondents and exclusive representatives for public school teachers and other educational employees throughout California. The petitioners are teachers who have chosen not to become union members.  They are joined by Christian Educators Association International for its members who share standing with the individual petitioners.  They allege that but for California’s agency shop arrangement, they would not pay fees to subsidize the union.  Further, they object to the public policy positions of the union, including positions taken in collective bargaining (although the complaint does not identify these collective bargaining positions).  The petitioners contend that their First Amendment rights are violated by the fair share arrangement itself, and by the fair share fee opt-out procedure.

The petitioners are asking that the Supreme Court overturn the 1977 case of Abood v. Detroit Board of Education, 431 U.S. 209, (1977), which held that a state may permit a public sector exclusive bargaining representative to charge nonmembers a mandatory agency fee “insofar as the service charges are applied to collective bargaining, contract administration, and grievance-adjustment purposes.” 431 U.S. at 232.  The Abood holding rests on two enduring propositions.  First, the Court noted that the principle of exclusive union representation is “a central element in the congressional structuring of industrial relations” that a state may properly choose to establish for its own governmental units. 431 U.S. at 220, 223. Second, when a state makes such a choice, “the designation of a union as exclusive representative carries with it great responsibilities.”  431 U.S. at 221.  The Court explained that “[t]he tasks of negotiating and administering a collective bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones.”  Id. Such tasks, the Court stated, “often entail expenditure of much time and money.”  Id. “Moreover, in carrying out these duties, the union is obliged ‘fairly and equitably to represent all employees..., union and nonunion,’ within the relevant unit.”  Id. (quoting Machinists v. Street, 367 U.S. 740, 761 (1961)).

The Court in Abood concluded that it is consistent with the First Amendment to require all represented employees to pay a share of the union’s expenses as their exclusive collective bargaining representative.  “A union shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become ‘free riders’ - to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees.” 431 U.S. at 222.  To preserve the First Amendment rights of non-member employees, the Court held that such fee not include expenses “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective bargaining representative.”  431 U.S. at 235.

In Ohio, R.C. 4711.09(C) provides that collective bargaining agreements for public sector employers may contain a provision requiring employees in the bargaining unit who are not members of the employee organization to pay to the union a fair share fee.  Accordingly, unless an employee is subject to a collective bargaining agreement containing a fair share fee, non-members of the union pay nothing.  Of course, Ohio law requires that fair share fees not exceed membership dues and that no employee is required to become a member of the union. Additionally, Ohio public employee unions are required to maintain an internal procedure to determine a rebate, if any, for nonmembers which conforms to federal law, provided a nonmember makes a timely demand on the employee organization.  Such rebate procedure protects the constitutional rights of the employees as discussed in Abood.

The oddity concerning the Friedrichs litigation is that there is virtually no factual record for the Supreme Court to review.  At both the District Court and Appellate Court level, the petitioners conceded that such courts do not have the authority to overturn existing Supreme Court precedent.  The petitioners requested these courts to decide against their interests on the basis of the pleadings (without trial or oral argument) so that the case could be presented to the Supreme Court as quickly as possible.

There is no doubt that depending on how the Supreme Court answers the claims of the petitioners in Friedrichs, Ohio’s statutory authorization for fair share fee agreements could be in jeopardy.  This could present a hardship for public sector unions for the precise reason offered by the Supreme Court in Abood. Should a critical number of employees wish to become free riders, public sector unions will suffer losses of revenue, and consequently, will have few resources to represent employees.  It is expected that a decision will be reached by the Supreme Court in 2016.

 

 

Brady Revisited

In the Spring 2014 Edition of the Police Beat, OPBA Attorney Joe Hegedus discussed whether a police officer’s personnel file must be disclosed to a defendant in light of Brady v. Maryland, 373 U.S. 83 (1963) and its subsequent line of cases.  In that article, Attorney Hegedus pointed out that the Supreme Court in Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.  The Court has also held, “that the duty to disclose such evidence is applicable even though there has been no request by the accused.” United States v. Agurs, 427 U.S. 97, 107, (1976).  The Court expanded the duty to disclose evidence where, “the duty encompasses impeachment evidence as well as exculpatory evidence.” United States v. Bagley, 473 U.S. 667, 676, (1985).  In Kyles v. Whitley, 514 U.S. 419 (1995), the Court defined what evidence is “material” by stating, “Such evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Kyles, 514 U.S. 419, 433-434.  Attorney Hegedus cited numerous subsequent cases that detail the present state of the law related to Brady and the duty to disclose, none of which broadens the responsibilities of prosecutors to disclose all matters in an officer’s personnel file in all cases.

Unfortunately, as part of another attack on the profession, this time legal counsel and advocates for Employers have attempted to seize on Brady as a means to justify disciplining or terminating an officer.  Employers and apparently some prosecutors have advocated for a broad “Brady List” which, in theory, would exclude a police officer who has ever been alleged to have been dishonest or untruthful from remaining employed as a police officer.  A Google search of “Brady list” or “Brady Cops” will show over 500,000 results.  These advocates seem to suggest that there would be a departmental list of officers who have been alleged to be untruthful and as a result, those officers’ credibility would be damaged to the point that they could never testify in court.  The theory asserts that the final conclusion to the process is that the officer must be terminated.  What these advocates seem to ignore is the present state of the law and the difficulty in determining what conduct qualifies one to be placed on “the list.”  What this leads to is Employers randomly selecting which officers they want to terminate and then justifying it by using Brady.  Random discipline is directly contrary to the “just cause” standard in the CBA.  What is most troubling is that the theory is advanced by advocates who are often hired by the Employer for the disciplinary or termination arbitration to “win-at-all-cost” and don’t have to deal with the consequences or aftermath to the Employers, the officers or the greater cost on the law enforcement community.  Employers should realize the long-term damage to their own interests.

In 2003, Police Chief Magazine detailed the difficulty of such a theory.[1] In discussion Brady, Mr. Jeff Noble noted that many departments had instituted a No Lies rule.  “The No Lies rule causes managers to deem that Brady has taken their discretion [for termination] away on these cases that fall outside the justified or excusable [conduct] categories. But removing management discretion is not the Brady rule.” Id. “First, it is important to understand that even though the defense gets the information - and they should get it - there is no guarantee that the defense will be able to present the evidence of officer misconduct to the jury. It is the court, not the defense, that makes this determination.  In its decision to admit evidence, the court will weigh the evidence to determine if it is more probative than prejudicial. Not all evidence of deceptive conduct by an officer will be admissible.” Id. Evidence that an officer lied in their private life to protect their own interest “would be prejudicial against the officer's credibility, but at the same time it offers very little probative evidence on the officer's credibility while testifying in court and therefore most judges would not permit this evidence to be introduced.”  Id. “Courts are likely to treat many administrative lies in the same manner.”  Id.

As the Supreme Court also noted in Strickler v. Greene, 527 U.S. 263 (1999), citing United States v. Bagley, 473 U.S. 667 (1985) and Kyles v. Whitley, 514 U.S. 419 (1995) “evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’”  Strickler, 527 U.S. 280-281.  “*** [Under] the prosecution’s broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes that the outcome was unjust.  Thus the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence -- that is, to any suppression of so-called ‘Brady material’ -- although, strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’” Id. (Emphasis added).

In my opinion, there can be no broad Brady list or officer exclusion, because the prosecutor’s determination of whether the disclosure of a police officer’s prior disciplinary record is necessary and exculpatory must be made on a case-by-case basis relative to the evidence in that case.  Further, even if disclosed, courts will weigh the evidence to determine if it is more probative than prejudicial.  Not all evidence of deceptive conduct by an officer will be admissible.  Finally, neither employers nor prosecutors have developed a standard on which to determine what conduct qualifies an officer for inclusion on a “Brady list” or for testimonial exclusion.



[1] Noble, Jeff, Police Officer Truthfulness and the Brady Decision, The Police Chief, vol. 70, no. 10, October 2003.