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Kevin Powers

Deadly Force

The law enforcement community has been put under the microscope recently due to the use of deadly force in several incidents across the country.  For various reasons the media has seen fit to hype these incidents, often painting law enforcement as unaccountable and out of control.

But what are the real facts?  Richard Johnson, Ph.D. with the University of Toledo’s Criminal Justice Program has sifted through the data trying to answer that question.  He looked at the 56,259 homicides in the U.S. for the period 2009 through 2012.  Homicide is defined as the intentional or negligent killing of one person by another.  This would include both justifiable killings as well as murders.  Some of his findings are striking.

Of the 56,259 homicides studied, 1,491 were due to police use of force.  In comparison, 755 homicides were accidental, such as a child playing with a gun.  Another 1,120 were justifiable self-defense homicides.

The yearly average of deaths caused by police is 372.  In contrast, nearly 36,000 persons are killed in motor vehicle accidents each year and another 38,000 plus commit suicide each year.

Johnson also looked at race as a factor in homicides.  Over the four year period, 19,000 of the homicides were of black males.  But out of the 19,000, only 481 were from police use of force.  In contrast, 648 black males were killed by private citizens acting in self-defense.  Of these justifiable killings, over 73% were committed by another black person.

The data also showed that of the 17,719 black males killed in criminal homicides, in nearly 90% of the cases the murderer was another black male.  Of the 372 police-caused deaths each year, 120 are black males.  This compares to 4,166 black males who are murdered each year.  In fact, regardless of race or gender, an American is more likely to get struck by lightning (373/year) than to be killed by police (372/year).

Johnson also estimated that each year, 14,600 police officers are injured or killed in the line-of-duty due to assaults.  Comparing that to the 372 deaths each year caused by police, he concludes:  “This would suggest significant restraint of the part of police officers nationwide… not an epidemic of police-initiated killings in the U.S.”  Amen to that.


Collective Bargaining

I’m sure you recall that Ohio wasn’t the only state that tried to trash collective bargaining rights for public employees.  Wisconsin virtually repealed bargaining rights for most of its public employees.  And as I write this, the Wisconsin Supreme Court has upheld the 2011 gutting of the Wisconsin law.

I bring this up because this is the last issue of Police Beat before this November’s election.  Please remember that it was republicans in Columbus, spurred on by a republican governor, who tried to gut YOUR collective bargaining rights.

Please also remember that it was the same republicans in Columbus who balanced the state budget by throwing city and county budgets into chaos.  I am referring to the phasing out of funds the state used to divvy up among the subdivisions and also the elimination of the estate tax.  These two measures made it much more difficult for subdivisions to pull out of the recession.

We have seen five (5) years now with nearly flat wage growth and struggling to avoid concessions, and all the while paying more each year for medical insurance.

And we continue to hear that so –called “right to work” legislation is going to be brought up after the elections this fall.  This is another republican attack on unions and working people that should more accurately be called “right to work for less.”

All these problems can be traced to a single source – a republican ideology that favors the wealthy and screws over everyone else.  The way to solve this is really quite simple – they must be voted out of office.  Remember this in November – vote democrat up and down the ticket.

Last Updated (Saturday, 27 September 2014 10:45)


Public Records

by Kevin Powers, Esq.


If you read Ohio’s Public Records Act, R.C. 149.43, you see that it starts out with a  very broad definition of “public record”:  “…ANY record that is kept by ANY public office…”  The statute then goes on to define nearly two dozen exceptions.

One such exception is medical records.  Medical records could include things like the Family Medical Leave paperwork you had to submit in order to be eligible for leave.  It could also include doctors’ notes you are required to submit when using sick leave.

But what if you are sent for a medical or psychological evaluation by your employer who suspects you of being unfit for duty?  Does the doctor’s report in such cases constitute a medical record?  According to Ohio courts, the answer is “no”.  Such records are public records that your employer must disclose to anyone requesting them.

In State ex rel Toledo Blade v. Telb, the newspaper was investigating a Sheriff’s deputy and requested his personnel file.  Based on what was provided the newspaper learned that the Sheriff had sent the deputy for psychological evaluations but the reports from the psychologists had not been disclosed with the Sheriff arguing that they were medical records exempt from disclosure.

The court looked at the statutory definition of medical records as “...any document… that pertains to the medical history, diagnosis prognosis or medical condition of a patient that is generated and maintained in the process of medical treatment.

Here the court reasoned that the psychological reports were not generated in the process of medical treatment and must be disclosed.   While this decision was a common pleas court ruling, it has been cited with approval and followed by higher courts including the Ohio Supreme Court.  See, State ex rel. Strothers v. Wertheim.

In State ex rel. Multimedia v. Snowden the Ohio Supreme Court determined that pre-hire psychological evaluations are public records.   Presumably, the results of pre-hire and fit for-duty medical examinations are available to the public.

So armed with this knowledge what can you do if you are ordered to submit to a medical/psychiatric evaluation?  Most medical doctors would instinctively believe that whatever report they send to the employer would remain confidential.  You should explain to the doctor that such reports are in fact public records and ask that he/she use discretion on what is put into the report.


Who is a Deputy?

Under Ohio’s collective bargaining law public employees are divided into two camps. On the one hand are the “right to strike” employees. Units consisting of such employees are faced with a difficult choice when their negotiations reach impasse. If the employer or the union rejects a fact finder’s recommendation the employer can unilaterally impose its last, best offer on the bargaining unit. If the employees are unwilling to work for such terms, their only option is to go on strike.

For safety forces and others who are prohibited from striking, disputes over the terms of a new contract are resolved through a procedure called “conciliation” which is just another name for binding arbitration.

One such group that is eligible for conciliation is deputy sheriffs. Customarily, when we think of a deputy sheriff we think of a uniformed officer who carries a gun and has arrest power. A recent court decision, however, has broadened the term.

The Benevolent Employees of the Hamilton County Sheriff is a union that represents various clerical and administrative employees working for the Hamilton County Sheriff. The union and the sheriff went to fact finding and the county voted to reject the fact finder’s recommendations. SERB issued an order directing the parties to conciliation.

The Sheriff objected, arguing that these employees were not eligible for conciliation and SERB withdrew its conciliation order. The union appealed SERB’s ruling to the Franklin County Court of Common Pleas.

The trial court looked to R.C. 311.04 which grants sheriffs the power to appoint deputies. The statute states, in part:

The sheriff may appoint, in writing, one or more deputies. At the time of

the appointment, the sheriff shall file the writing upon which the

appointment is made with the clerk of the court of common pleas, and

The clerk shall enter it upon the journal of the court.

The union produced copies of forms the employees had signed upon being hired indicating that they had been “appointed Deputy Sheriff (s)… and been duly sworn.” Based upon this the trial court concluded that unit members were “deputy sheriffs” and eligible for conciliation even though they did not carry guns or have arrest power. That decision was later affirmed by the Franklin County Court of Appeals.

Undoubtedly there are other county sheriffs who routinely “deputize” all or most employees. Those who do will be affected by this decision. This could even spur the general assembly to amend the collective bargaining law to clarify who is actually a deputy for conciliation purposes.


Bargaining Outlook

Although the private sector economy is showing signs of life, a recent story in the New York times shows that public sector employment continues to decline.  Ohio actually has one of the lowest unemployment rates in the country but it is the private sector that is adding jobs.

Public employers state-wide continue to lay off employees, leave job vacancies unfilled, and demand concessions at the bargaining table.  There are two related forces causing this.

First, the Wall Street crash from five years ago caused massive job losses in the private sector.  Unemployed people do not pay municipal income tax and so city budgets get squeezed.  Similarly, the unemployed have less money to spend so sales tax receipts take a hit that impacts counties.  Adding further fuel to the fire is the fact foreclosed homeowners don’t pay property taxes.  These are all factors largely beyond the control of state and local governments.

The second factor holding down employment and wage growth, however, is entirely the doing of Governor Kasich and his Republican lackeys in Columbus.  When he took office he vowed to break the backs of the public sector unions.  Senate Bill 5 was one such attempt but it failed.  The real damage, however, has been reduced state revenue going to the local governments.

In one moderate-size city I’m familiar with they received over $650,000 is state revenue sharing in 2011.  In 2013 they will receive only $100,000.  That equates to about six or more full-time jobs.

The slash to local government funding was a “two-fer” for Kasich.  It allowed the state to balance its budget by dumping the hard decisions on the cities and counties.  And it also put a choke hold on the public sector unions as membership falls.  Ultimately, the greatest pain is felt by the little guys who lose their jobs.  But it is also being felt by those still working because it is near impossible to bargain for higher wages when the increases could only be funded by further layoffs.  The chart below taken from SERB’s website dramatically illustrates the impact.

State Employment Relations Board

Annual Wage Settlement Report

Wage Settlement Breakdown (2002-2011)

Comparison Group 2002200320042005200620072008200920102011
Statewide3.59 3.102.792.72 3.012.982.922.151.260.73

The data is not yet compiled for 2012 but if the average settlement is higher than it was in 2011 I will be surprised.

Let us hope that we have hit bottom and that in 2013 we’ll start climbing out of this prolonged recession.  But even once local revenues start to increase, I foresee more years of downward pressure on wages and benefits.  Most employers will want to use new revenues to make overdue capital purchases and neglected infrastructure improvements.  Others will want to hire more employees rather than give wage increase to current staff.

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