Since we publish only four times a year this is the last chance before November elections to remind everyone who their friends are. Last year we fought a bruising battle to keep collective bargaining rights in the face of republican efforts to gut your rights.

Ohio was not unique, however.  Similar battles played out with less success in places like Wisconsin, for example, where nearly all public employees lost their collective bargaining rights.  It used to be that the republican party’s hatred for government was directed at the federal government. That same hatred is now being directed at all levels of government.  Here is a newsflash for our members:  YOU ARE THE GOVERNMENT!
Please recall that the State of Ohio balanced its budget on the backs of the cities and counties.  Sales tax revenue that used to go to local government has been slashed each year of Governor Kasich’s administration and such revenues will soon be reduced to nothing.  Likewise, in another giveaway to the wealthy, inheritance taxes are being eliminated which further squeezes local government financing. So even though the State is projecting a $500 MILLION budget surplus, Kasich and the GOP are proposing more giveaways to the rich but no restored funding for local government.

Although the private sector economy continues to improve, the government-haters continue to squeeze local governments.  Even though we’re not seeing as many layoffs and furlough days as in the recent past, the local governments continue to squeeze our members.  As officers retire they are not being replaced so we see shrinkage through attrition.  Training budgets are being cut to the bone.  Some employers are now refusing to replace ballistic vests.  I know of departments where the officers are using their own money to replace things like windshield wipers on city cruisers.    All of these problems can be traced directly to republican policies that favor the rich and screw the working men and women.

Across the country we are seeing police pensions being gutted by the government-haters.  Manpower is being reduced to dangerous levels and all the while the fat keep getting fatter.  The next big attack to watch for is so-called “right to work” legislation.  Proponents of right to work claim that it creates a business-friendly environment that attracts new jobs.  If that were true then states like Alabama would have low unemployment and poverty rates but we know that isn’t the case.  Right to work is about union-busting, period.

The government-haters will tell you what you want to hear to get your vote and then they turn around and try to screw you.   It is high time to stop voting for the government-haters and start voting for government supporters.

For years the accepted wisdom was that you could not obtain disability benefits through any state pension fund for a temporary condition.  Only permanently disabling conditions were thought to qualify.

However, the Ohio Supreme Court recently ruled that an officer temporarily disabled by depression unrelated to his work was entitled to disability benefits through the Ohio Police & Fire Pension Fund.

In the case of State ex rel. Tindira v. OP & F, 130 Ohio St. 3d 62, the Court seized on the difference in language under two different sections of R.C. 742.38.  Under 742.38 (b), it states:
“(b)” ‘Permanently disabled’ means a condition of disability from which there is no present indication of recovery.

“A member of the fund who is permanently and totally disabled as the result of the performance of the member’s official duties as a member of a police or fire department shall be paid annual disability benefits in accordance with division (A) of section 742.39 of the Revised Code.  In determining whether a member of the fund is permanently and totally disabled, the board shall consider standards adopted under division (C) of this section applicable to the determination.

Further on in the same statute, however, it states the following:

“4) A member of the fund who has completed five or more years of active service in a police or fire department and has incurred a disability not caused or induced by the actual performance of the member’s official duties as a member of the department, or by the member’s own negligence, shall if the disability prevents the member from performing those duties and impairs the member’s earning capacity, receive annual disability benefits in accordance with division (C) of section 742.39 of the Revised Code.  In determining whether a member of the fund is disabled, the board shall consider standards adopted under division (C) of this section applicable to the determination.”

The first paragraph uses the qualifiers “permanently and totally” in describing the disability.  The second paragraph eliminated those modifiers.  The Court thus reasoned that a temporary disability could qualify for benefits under the latter section assuming the other requirements were met.    
While the Court’s analysis is hard to argue with it seems doubtful that the state legislature intended such an outcome. The Court’s interpretation creates an anomaly:

If you are injured on-the-job, your disability must be permanent and total.  But if you are injured off-the-job, the disability need not be permanent.  Presumably it need not be totally disabling, either.

If the legislature did not intend such an outcome I expect they will get busy drafting legislation to fix this.

I’m sure our members are aware that their rights are under furious attack from Republicans in the Senate, House of Representatives and the governor’s office.  But if you think these are the only Republicans trying to screw you, you would be wrong.

The State Employment Relations Board (“SERB”) is now in Republican control and its first opinion issued this year is cause for alarm.  The case arose as an unfair labor practice (“ULP”) charge being filed against the City of Toledo by the Toledo Police Command Officers’ Association (“TPCOA”).  Here are the facts.

The City and TPCOA finalized a contract in August, 2009 that was to run through the end of 2011.  Under the health insurance provision, employees were required to contribute toward monthly premiums a fixed amount of $25 for single coverage or $55 for family coverage.  Another provision of the contract required the City to pay or “pick up”, each employee’s 10% pension contribution.

In January, 2010, a new mayor took office and immediately sought union concessions to close a projected budget deficit.  To make a long story short, TPCOA rejected the mayor’s demand for concessions.

Under previously established precedent, the City’s options were limited.  If a union will not voluntarily agree to concessions during the middle of a contract, the employer has the option to lay people off in order to balance the budget.  This legal principle was followed in both the public and private sectors.  Up until now, that is.

The City of Toledo, however, refused to take “no” for an answer.  City Council simply passed an ordinance imposing the concessions it wanted from TPCOA.  In response, TPCOA filed a ULP.

Given SERB’s prior rulings in cases where an employer tried to rewrite a contract without the union’s consent, one would have thought TPCOA’s ULP case was a slam dunk.

In a 13-page opinion that completely  mangles SERB’s own previous precedents, SERB ruled that “the City did not commit an unfair labor practice…when it modified its existing collective bargaining agreement with the TPCOA without negotiation by and agreement of the union.”  The opinion was authored by Kasich-appointee Craig Zimpher and seconded by former Republican state rep Robert Spada.  Eugene Brundige wrote a lengthy dissenting opinion.

If S.B. 5 becomes law, your city council or county commissioners will have the final say on what goes in your bargaining agreement.  And now, thanks to SERB, your city council or county commissioners will be able to re-write the agreement during its term.

If you are not yet convinced that republicans are your enemies, what is it going to take?  Whether elected or appointed to office their agenda is to screw you! Here is a sampling of what some of our so-called friends said in order to obtain a political endorsement:

Republican Sen. Bacon – “when it comes to collective bargaining for law enforcement, I’m supportive – especially since law enforcement cannot strike”.

Republican Sen. Stewart – “I support collective bargaining in Ohio the way it is now.”

Republican Sen. Schaffer – “I made a commitment years ago that if this section of the Code was going to be altered, I would oppose leaving our safety forces defenseless in negotiations.”

Republican Sen. Widener – “Collective bargaining is a principle I have supported in the last 7 years as a state representative.”

Republican Sen. Hite – “Collective bargaining has come under attack by some of my colleagues. [W]hen it comes to those who protect and defend us…I defend the collective bargaining process.”

Republican Sen. Wagoner – “I think getting rid of binding arbitration altogether presents an unworkable situation for a lot of our policemen.”

Republican Sen. Beagle – “I respect the right to bargain collectively.”

Besides being republican and telling us how much they support law enforcement and collective bargaining, what else do these gentlemen have in common? You guessed it – they all voted FOR S.B. 5! Even the republican senator who introduced the bill, Shannon Jones, received an endorsement from the FOP along with these other hypocrites.

As you recall, the statehouse took on a circus atmosphere as S.B. 5 was ramrodded through the legislature. One politician after another lined up to say something stupid into a microphone but my favorite was Republican Rep. Lou Blessing. When asked if he would support a pay reduction for legislators as a way of sharing in the sacrifice he answered: “I earn my pay, and I’m not ashamed of what I make.”

The base pay for a state representative is just over $60,000 per year but with his committee assignments a heavy hitter like Blessing probably makes closer to $90,000 per year. But here’s the real kicker – it’s only a part-time job! That’s right – these jokers NEVER work more than three days a week. Go to their web site and look at their calendar – for ALL of May, June and July they are only in session 27 days and only two days in all of July. Nice work if you can get it. Meanwhile, the average cop in Ohio has a salary in the mid-$50s.

It’s time to tell our “friends” WE WILL REMEMBER IN NOVEMBER!

The Ohio Supreme Court recently issued an opinion that explains in some detail the so-called "Garrity" rule and its application. The original case, Garrity v. New Jersey, was decided by the US Supreme Court in 1967.  Edward Garrity and others were police officers for various towns in  New Jersey and they were being investigated over allegations of wide-spread ticket fixing.

As part of the investigation the officers were advised of their Miranda rights against self-incrimination.  But they were also told that if they refused to answer questions they would be fired.

The answers the officers gave were then used against them to obtain criminal convictions for "conspiring to obstruct administration of traffic laws".  As noted by the Supreme Court at the time, "the choice imposed on petitioners was between self-incrimination or job forfeiture".  In what remains a landmark ruling, the Supreme Court reversed the criminal convictions of Garrity, et al. and held that the constitution prohibits use of such coerced statements in criminal proceedings.

Earlier this year in the case of Ohio v. Jackson, 128 Ohio St.. 3d 218, the Ohio Supreme Court added clarification to "Garrity" that should be of comfort to all of our members.

Anthony Jackson was an officer with the Canton Police Department who was charged with possessing a firearm in a bar.  Prior to indictment Jackson was questioned as part of an internal investigation and advised of his "Garrity" rights.  During the interview Jackson revealed the name of a witness whom investigators had not known about.

The officer who took the "Garrity" statement was later called to testify at the grand jury which ultimately indicted Jackson, but he refused to answer questions about the content of the statement itself.  The Ohio Supreme Court found that even though the actual "Garrity" statement was not provided to the grand jury, calling one who witnessed the taking of the statement was an unlawful "derivative" use of the statement.  Plus the Court found that the State had failed to prove it could have learned of the unknown witness through other means.  After indictment but prior to trial the prosecuting attorney was also provided a copy of the "Garrity" statement.  Even though the prosecutor did not use the coerced statement at trial, the Court found that even reviewing the statement by the prosecutor was an improper use under Garrity.

This is not the end of the story.  There remained the question of what is the appropriate remedy for Jackson.  Prior to the case reaching the Ohio Supreme Court, the trail court ruled that dismissal with prejudice of the criminal charges was the appropriate remedy.  The Fifth District Court of Appeals felt that the violation could be cured by assigning a new prosecutor to re-try the case and suppressing any tainted evidence from being introduced.

The Supreme Court agreed with the trial court and held that "when the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed."