The Ohio Supreme Court and the United States Court of Appeals for the Sixth Circuit recently decided cases concerning separate issues, both of which may be of interest to some of our members.

The Supreme Court, in The State ex rel. Village of Oakwood v. Industrial Commission of Ohio, et al., 2012-Ohio-3209 (July 18, 2012) addressed a dispute concerning a Workers’ Compensation claim for a police officer who was working special duty for a private employer.

Specifically, the police officer was performing traffic-control duties on a construction project, in full uniform, utilizing his police cruiser.  As is often the case with special duty, however, the officer was being paid directly by the private employer, a construction company.

The issue, that resulted in litigation, arose due to the fact that the officer was injured when his police cruiser was struck by another vehicle driven by a private citizen.

The officer properly filed a Workers’ Compensation claim which was initially allowed against the public employer for whom he was employed as a police officer.  Later, the Bureau of Workers’ Compensation issued another Order naming the private construction company as the proper employer.

At the final levels of administrative appeal, the decision was again reversed and it was determined that the City was the correct employer.

The City filed a complaint in the Franklin County Court of Appeals alleging that “the Commission had abused its discretion in finding it to be the amenable employer.”

The Appeals Court upheld the Commission’s decision and the City appealed to the Ohio Supreme Court.

The Supreme Court upheld the Court of Appeals and the Commission’s decision, by stating:

¶ 14  The staff hearing officer examined the totality of what he considered to be the relevant circumstances in this case and made determinations supported by evidence in the record.  We have “consistently recognized and generally deferred to the Commission’s expertise in areas falling under the agency’s jurisdiction.”  State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm. 126 Ohio St.3d 37, 2010-Ohio-2451, 930 N.E.2d 295, ¶ 27.  Accordingly, we defer to the Commission’s expertise in finding [the City] to be the amenable employer.

The good news for our members is that the Court made it clear that there was no doubt that the injury happened in the course of employment.

The only uncertainty was which employer was the responsible employer for purposes of the Workers’ Compensation Act.  In deciding this difficult question, the Court also indicated that these cases are very fact specific, and thus, a flexible, rather than rigid analysis, will be applied to the actual circumstances to determine the responsible employer.

In another case of potential interest, the Sixth Circuit Court of Appeals, on Petty v. Metropolitan Government of Nashville & Davidson County, Nos. 10-6013/6105 (July 24, 2012), applied the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) in favor of a Police Sergeant who was returning to his department from active service in the United States Army.

The controversy in this case resulted from the fact that the returning veteran was not immediately reinstated by his employer to his former position.

Instead, the employer subjected the employee returning from military leave to a separate return to work process which included, among other things, a drug screening, a personal history update questionnaire and a meeting with the Police Department psychologist.

Due to answers given on the questionnaire regarding his separation from the army, the police department commenced an investigation against the returning officer and, eventually, terminated him.

The returning Sergeant then filed a complaint in federal court alleging violations of the reemployment and anti-discrimination provisions of USERRA.

In affirming the lower court’s decision to reinstate the employee to his former position of Patrol Sergeant with back pay and partial liquidated damages, the Sixth Circuit held:

We find no fault with the Court’s conclusions.  USERRA prohibits employers from placing “additional prerequisites” on returning veterans seeking to exercise their reemployment rights.  See 378 U.S.C. §4302.  Petty I found that rescreening employees before reemploying them constituted such an “additional prerequisite,” and concluded that Metro’s additional investigation violated this prohibition.  See Petty I, 538 F.3d at 440-41.  Though USERRA may permit Metro to terminate Petty for dishonesty after reemploying him, Metro never restored Petty to his position as patrol sergeant.  Accordingly, we hold that the district court properly exercised its discretion in awarding Petty back pay and reinstatement under his reemployment claim.

Obviously, issues concerning Special Duty injuries and reinstatement from the military can be difficult and complex.  Please do not hesitate to contact your OPBA representative with questions concerning these or any other workplace issues.

I recently wrote to you about two Ohio Appeals Court cases dealing with the issue of whether law enforcement officers needed a warrant to place a Global-Position-System (“GPS”) tracking device on a suspect’s vehicle when it is parked in a public place.1

As you may recall, the Butler County Court of Appeals held that placing the GPS on the suspect’s van and monitoring its movements, without a warrant, did not constitute a search or seizure under either the Constitution of Ohio or of the United States.

I am revisiting this issue so soon, due to the fact that, as often happens with new technology, the case law governing it is rapidly evolving.
This is illustrated by the fact that the United States Supreme Court, on January 23, 2012, issued a decision which essentially overrules the Butler County Court of Appeals with respect to the issues noted above.  

In United States v. Antoine Jones, 2012 U.S. Lexis 1063 (1/23/12), the Supreme Court considered a case where the government obtained a search warrant permitting it to install a GPS on a vehicle registered to a suspected drug dealer’s wife.  The warrant authorized installation of the device in Washington D.C. within ten (10) days of its issuance.  Instead, the agents installed the device on the eleventh day in Maryland.2  The agents then tracked the vehicle for twenty-eight days. Subsequently, an indictment issued naming the drug dealer and several other persons on drug trafficking conspiracy charges, based substantially, on the information gathered during the surveillance of the vehicle with the GPS device.

The Federal District Court suppressed some of the data obtained from the tracking of the GPS, but, it allowed much of it into evidence on the basis that the drug dealer had no reasonable expectation of privacy when the vehicle was on public streets.3

The Federal Appeals Court for the Washington D.C. Circuit reversed the trial court and held that the admission of the evidence obtained by warrantless use of the GPS violated the Fourth Amendment to the U.S. Constitution.

On appeal, the Supreme Court framed the issue as whether the attachment of a GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.
In affirming the Court of Appeals’ reversal of the drug dealer’s conviction and vacating his life sentence, the Supreme Court held that the “installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search.”  Jones, supra., at p. 4.

Consequently, the lack of a warrant required the suppression of the data obtained from the GPS tracking device.
A review of the Supreme Court’s decision emphasizes the evolving nature of and the difficulty of addressing matters relating to the utilization of advancing technology in law enforcement.  Although there were no dissenters in the case, there were concurring opinions that illustrated that the Court was by no means unanimous in deciding how to apply the centuries-old constitutional language and hundreds of years of precedent to extremely sophisticated and rapidly changing technology.

Accordingly, the law in this area is sure to continue to change as quickly as the cutting edge technology that it seeks to regulate.
Finally, on a topic totally unrelated to the foregoing, the Columbus Dispatch and several other large newspapers reported, on or about January 21, 2012, that a prison guard, employed by the State of Ohio, in the Southwestern part of the State was terminated for allegedly making threats against Governor John Kasich on his Facebook page.  The post allegedly stated, “OK, we got Bin Laden… lets go after Kasich next.  Who’s with me?”

The employee has indicated, as most fair-thinking people would probably conclude, that he meant it as a joke and that it was taken out of context.
While that may be true, this further illustrates the growing problem related to law enforcement employees suffering serious discipline due to posting material on social media sites.

Regardless of how that case is decided on appeal, it further emphasizes the need for law enforcement-related employees to exercise common sense and good judgment when utilizing social media.

[1] See State v. Kelly, 188 Ohio App.3d 842, 937 N.E.2d 149 (12^th Dist. 8/2/2010) and State v. Johnson, 190 Ohio App.3d 750 (12^th Dist. 11/29/2010).

[2] For purposes of the litigation, the government conceded that it had not complied with the warrant’s requirements and, instead, argued that a warrant was not necessary.

[3] This was the same rationale relied on by the Butler County Appeals Courts in allowing the data into evidence in Kelly and Jones, supra.

By: Joseph Hegedus, OPBA Attorney

While technological advances sometimes result in contributing to a more complex and difficult workplace for law enforcement employees, certainly, some devices have provided more effective and efficient tools for combating crime.

In addition, all of this evolving technology has provided the courts with novel issues to consider on an ongoing basis.

Recently, the Ohio Twelfth District Court of Appeals, for Butler County, decided two connected cases dealing with the issue of whether police officers needed a warrant to place a GPS device on a suspected drug dealer’s car which was parked on a public street.

The facts of the case illustrate that a detective received information from three separate confidential informants alleging that the defendant was trafficking cocaine. The intelligence also asserted that he was about to acquire seven (7) kilos of cocaine and that he did some of his business out of a white Chevy van.

The detectives performed a trash pull at the defendant’s residence and while they were there they placed a GPS device on the undercarriage of the defendant’s van which was parked on a public street. The GPS device was in a magnetic case and did not require that it be hard-wired to the van.

During the trash pull the detectives discovered that the defendant had recently gotten fuel in both Cincinnati, Ohio and Chicago, Illinois on the same day.

In periodically checking the movements of the defendant on the Internet, one of the detectives discovered that the defendant was once again, in or near Chicago.

After unsuccessfully attempting to contact local law enforcement officers to assist, the detective engaged the retired brother of a Butler County Sheriff’s Office employee, who lived in the Chicago area, to attempt to identify the van. The retired Immigration and Custom’s Enforcement Officer located the defendant’s van along with another automobile with Ohio license plates and witnessed the defendant carrying a box/package to the vehicles from a Chicago residence.

The retired officer then followed the vehicles back to Ohio where both vehicles were stopped for separate traffic violations in Butler County.

Upon stopping defendant’s van, a canine was deployed around the exterior of the van without success. At that time, defendant consented to a search of the van which did not produce any contraband. However, a search of the companion vehicle, also with the aid of a canine, led to the discovery of seven (7) kilos of cocaine hidden in a secret compartment in the trunk of the car.

Both the defendant and the driver of the companion vehicle were arrested and filed Motions to Suppress alleging various constitutional issues, the most interesting of which was whether the law enforcement officers violated the federal and/or state constitution by placing the GPS device on the vehicle without a warrant.

In upholding the denial, by the trial court, of the Motions to Suppress, the Butler County Court of Appeals held that placing the GPS on the van and monitoring its movements did not constitute a search or seizure under either the federal or Ohio Constitution because there is no reasonable expectation of privacy in the exterior of an automobile, which includes the undercarriage. Also, the court indicated that a person traveling in an automobile on a public thoroughfare has no reasonable expectation of privacy in his or her movements from one location to another. Finally, the Court reconfirmed that, in Ohio, canine checks of the exterior of a vehicle do not constitute a search within the meaning of the constitutions, and thus, an officer need not have a reasonable, articulable suspicion of criminal activity prior to deploying a canine to check the exterior of an automobile.

The two related cases discussed above are State v. Kelly, 188 Ohio App.3d 842, 937 N.E.2d 149 (12th Dist. Ct. of Appeals, Butler County, 8/2/2010); and State v. Johnson, 190 Ohio App.3d 750, 2010-Ohio-5808 (12^th Dist. Ct. of Appeals, Butler County, 11/29/2010).

The Johnson case was recently accepted for discretionary review by the Ohio Supreme Court and has been briefed by both parties, as well as an impressive array of interested third parties, who filed “amicus” or friend of the court briefs.

As a result, the Ohio Supreme Court will likely decide this issue of first impression sometime late in 2012.

On June 17, 2010, the United States Supreme Court decided the case of City of Ontario, California, et al., v. Jeff Quon, et al., 177 L.Ed.2d 216; 2010 U.S. Lexis 4972. This case involved the claim by a City and its police department (the “Employer”) that it had a right, under the circumstances of the case, to read text messages sent and received on pagers owned by the Employer and issued to its employees.

The police officer sued the Employer claiming that he had an expectation of privacy in the messages that was protected by the ban on unreasonable searches and seizures found in the Fourth Amendment to the Constitution of the United States and made applicable to the states by the Due Process Clause of the Fourteenth Amendment.

The specific facts involved the issuance by the City of twenty (20) pagers, capable of sending and receiving text messages, to various police officers including SWAT Team members.  Prior to issuing the pagers, the City issued a “Computer Usage, Internet and E-Mail Policy” that indicated that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice.”  Further, the policy expressly stated that the employees had no expectation of privacy when using the City’s resources.  While the policy did not expressly cover text messages sent and received through the pagers, the City made it clear to the employees that the text messages would be treated in the same manner as e-mails.

Almost immediately, subsequent to the issuance of the pagers, the City noticed that certain employees were consistently exceeding the character limit for text messages contained in the pager plan purchased by the City.

As time went on and this practice continued, sometimes exceeding the plan limit by a factor of three or four times the permitted amount, the Police Chief decided to try to determine whether the plan character limit was too low.  Consequently, the plan carrier was contacted and asked to provide detailed text message information for a two-month period.  A review of the information revealed that “many of the messages sent and received . . . were not work-related and some were sexually explicit.”*    

Based on his preliminary review, the Police Chief referred the matter to the department’s internal affairs division to commence an internal investigation.  As a result of the investigation, discipline was issued.

One of the officers who was disciplined then filed a lawsuit in federal court claiming the aforementioned Constitutional violations among other causes of action.
In reversing the lower court and finding in favor of the City, the U.S. Supreme Court stated as follows:
Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts.  Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule.  Katz, supra, at 357, 88 S. Ct. 507, 19 L. Ed. 2d 576.  The Court has held that the “special needs” of the workplace justify one such exception, O’Connor, 480 U.S., at 725, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality opinion); id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (SCALIA?, J., concurring in judgment); “Von Raab, 489 U.S., at 666-667, 109 S. Ct. 1384, 103 L. Ed. 2d 685.

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “justified at its inception” and if “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of” the circumstances giving rise to the search, 480 U.S., at 725-726, 107 S. Ct. 1942, 94 L. Ed. 2d 714.  The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.”  Id., at 726, 107 S.Ct. 1492, 94 L. Ed. 2d 714.  As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs.  This was as the Ninth Circuit noted, a “legitimate work-related rationale.”  529 F.3d at 908.  The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.

As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.  The review was also not “excessively intrusive.”  O’Connor, supra, at 726, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality opinion).  Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002.  While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious.  And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.

Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive.  See Von Raab, supra, at 671, 109 S. Ct. 1384, 103 L. Ed. 2d 685; cf. Vernonia School Dist. 47J v. Acton 515 U.S. 646, 654-657, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995).  Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny.  Quon was told that his messages were subject to auditing.  As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications.  Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used.  Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises - - and given that Quon had received no assurances of privacy - - Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.

From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life.  OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been.  That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters.  The search was permissible in its scope.

The above decision highlights similar problems that are occurring for our members on an ever-increasing basis.  The advent of cell phone, internet and MDT usage in the workplace has resulted in an alarming number of administrative investigations.
As a result, it is extremely important to comply with local rules and policies and/or common sense, in the absence of any such policies, when utilizing electronic devices during working hours.  Further, when using any of these devices that are owned by the Employer, one should always assume that any message sent or received or any web-sites visited are subject to review by the Employer.
As always, contact your OPBA representative if you have any questions or concerns regarding this or any other workplace issue.

*  In fact, the actual investigation illustrated that only 57 out of 456 messages sent or received by one officer, during work hours, were work-related.  Moreover, on an average workday, he sent or received 28 messages of which only 3 were related to police business.