Home Legal News Michael J. Hostler

Michael J. Hostler

Public Records

One of our Directors called the OPBA on a Friday afternoon asking to speak with one of the attorneys.  The call was transferred to me.  I listened as the officer told me that one of our members just shot and killed a perpetrator.

I verified his phone number and told him that I was going to my car and would call him back in a few minutes.  OPBA Executive Director Tom Austin, was made aware of the incident.  I told him I was going to the scene.  He decided to respond as well.  We started the 50 mile trip to the location of the shooting.  I called the representative and we discussed the facts of the case.  He told me that five officers from three different departments were involved in the chase and all were present at the time of the shooting.  Two Departments are OPBA and the other was the Highway Patrol.

I immediately asked him to tell all officers on the scene to not speak to anyone until I arrived.  I also asked him to make sure to instruct any officer to not speak to anyone about this incident whether they were involved or not.  The last thing we need during an officer involved use of force is speculation and fellow officers talking about what they think they heard on the radio.

As we approached the area, the officer that shot the perpetrator and his OPBA Director asked us to meet them at the Police Station.  As we arrived, they told us that the Department’s supervisors and the other agencies were all cooperating and understanding the stress level of the officers.

The Chief agreed to not ask any questions and told the officer he would be interviewed on a later date.  The Department called the officers wife and invited her to come to the station.  They would send a cruiser to pick her up or she could come on her own.

The Chief gave me full access to offices and privacy as I spoke with the officers. We all know the press will be at the department demanding the officer’s personnel file.  I asked the Law Director if Executive Director Austin and I could review the personnel file of the officer.  She agreed.

As we looked at the file, many items were discovered that should be redacted such as addresses, phone numbers, and dependant information.  Fortunately, we were able to clear these up before the press arrived.

ORC 149.43 (A) lists twenty-nine exceptions to the general rule of disclosure of public records.  Additionally, ORC 149.45 (A) (1) outlines internet exceptions and what must be redacted, truncated or encrypted.  If it calls for a redaction, all the information is eliminated from the request.  If the section provides for “truncated” information that would be, for example, redaction of all numbers in a social security number except the last four digits.

RC 149.45 (D) (4).  RC 149.45(D)(1).Peace officers, corrections officers, fire fighters, EMT and other members of the law enforcement/public safety job may request that a public office other than a county auditor redact that requester’s address from any record made available to the general public on the internet that includes the requester’s residential and familial information.

In conclusion, information such as a beneficiary of employment benefits, including but not limited to life insurance benefits is not to be disclosed.  The address of the actual personal residence, social security numbers and bank account information, residential telephone numbers, debit card, charge card or credit card numbers are also protected.  Medical information and emergency contact telephone numbers, and participation in an employee assistance program are also protected.

The identity and amount of charitable or employment benefit deduction, unless the amount of the deduction is required by state or federal law (taxes) must be protected. (OAG 2000-021).


Be sure to contact us if you have any questions




How to make the Employee premium contribution for health insurance benefits: “Very fair and very balanced”

With the Affordable Care Act (Obama Care) coming into our lives, perhaps Governor Kasich’s opinion about the government employees’ share of health of care cost not being “fair” was right. (Did I really just write that?).

During the Senate Bill 5/Issue 2 fiasco, in an interview at the Fox Toledo studios, the Governor said about health care:

“What we are asking government workers to do is to help share in the solution here and we’re asking them to pay 15% for their health care…”. (Open the attached YouTube site and listen @ 24 seconds http://www.youtube.com/watch?v=X6TxuiXHz_o)

During the same interview he justifies his idea of employees paying 15% by saying:

“So, I think it’s very reasonable and very balanced”. (YouTube above @ 56 seconds).

During this interview, and in many other interviews and commercials, the Governor used the phrase “it is only fair”. Well Governor Kasich, you got my attention.  First of all, there is a need for change.  There is also a need to re-examine the way health care costs are shared by the government employees.  Of course, this change may not be acceptable to many employees, but it will definitely make the higher paid employees reevaluate the Governor’s take on fairness.

Using the City of Cleveland as an example, I think it is only fair that employees of the City pay their fair share of taxes, whether that employees is earning $35,000.00 per year or $150,000.00 per year.

  • Each employee pays 2% of their wages in city income tax:  That is fair.
  • Each employee pays 10% of their wages to PERS or a little more to Police and Fire and PERS-LE. That is fair.
  • Each employee pays 1.45% of their wages for Medicare. That is fair.
  • Each employee pays 3% of their wages for Ohio income tax. That is fair.
  • Each pays 12% of their wages in Federal withholding. That is fair.

*(State income tax and Federal withholding may vary, but similarly situated people are paying the same).

Additionally, consumers in Cuyahoga County pay the same rate of sales tax. A person buying a Rolls Royce will pay much more in sales tax than another person buying a Chevy Cruze.  However, the tax rate is equal, so it is fair.

The same holds true in property tax rates.  For example, I looked at the Kent school system tax millage of 102.73.  As you know, the vast majority of property tax is for the school millage.

The owner of one house in the Kent school system, valued at $315,000.00, paid $4,622.00 in property tax.   The owner of another house in the same school district, valued at $130,000.00 paid $2,554.00 in property tax.  Needless to say, the family in the mobile home park down the road paid even less.  However, all are paying towards the schools and regardless of the value of your house, or the number of children you have in the school system, if any, the formula is equal and therefore; that is fair.

In fact, if you do not want to pay the above property tax rate, move from Kent to the next town over, Ravenna.  The Ravenna school millage is only 66.22.

With the Governor’s quest for fairness in mind, I went to the websites http://buckeyeinstitute.org/state-salary and http://buckeyeinstitute.org/local-salary .  Many of you are aware this is the location where you can find out the pay of “some” public employees.  The salaries posted are total compensation, including bonus and overtime.

I first looked at the local level salary site. I obtained information as to how many employees fell into a particular pay range in the City of Cleveland during the year 2010. (Most recent data available).  Keep in mind, I am not comparing the pay people receive, just how much they pay towards their health care.

Below are the pay ranges and how many employees fell into each range.


$25,000.00 - $30,000.00                                  382

$30,000.00 - $40,000.00                                  1522

$40,000.00 - $50,000.00                                  1616

$50,000.00 - $60,000.00                                  1327

$60,000.00 - $70,000.00                                  1243

$70,000.00 - $80,000.00                                  594

$80,000.00 - $90,000.00                                  311

$90,000.00 - $100,000.00                                157

$100,000.00 -$100,000.00 PLUS                     129

The next step in this equation is that the City of Cleveland offers their full-time employees, regardless of position held or rate of pay, six (6) choices for health care.  The monthly contribution per plan is as follows:

Individual Family

Coverage Coverage

Monthly cost Monthly cost

MMO Plus                           $52.50                                   $105.00

HMO Health Ohio                $62.50                                   $125.00

Kaiser                                $67.50                                   $135.00

Next, I took the medium pay  of each earnings group. The lowest paid group, $25,000 - $30,000 has a medium of $27,500.00 and the second highest range of $90,000.00 - $100,000.00 is $95,000.00.

I then found the percentage of the employees’ annual income each group was paying for medical insurance. With the monthly premium selection outlined above, the percentage of the annual income of an employee in the $27,500.00 range would pay per year is:

Single Rate % of Employee’s Family Rate % of Employee’s

Per month Annual Income Per month Annual income

MMO Plus                               $52.50                   2.26% $105.00 4.58%

HMO Health Ohio                    $62.50                   2.72% $125.00 5.45%

Kaiser                                   $67.50                    2.95% $135.00 5.89%

Again, from the table of monthly heath care contribution, employees in the $55,000.00 range paid as follows:

% of Employee’s % of Employee’s

Single Rate Annual income Family rate annual income

Monthly for health care Monthly for health care.

As you can see, the lowest paid employees paid twice as much of their annual income for health care as the group of employees earning twice as much per year.

The employees that are making $105,000.00 paid the following percentage of their annual income for health care.

% of employee’s % of Employee’s

Single Rate annual income Family Rate annual income

Monthly for health care Monthly for health care

MMO Plus                           $52.50                   .59% $105.00             1.20%

HMO Health Ohio                $62.50                   .71% $125.00             1.43%

Kaiser                                $67.50                   .77% $135.00             1.54%

The lowest paid group paid three (3) times as much of their annual salary as a person earning $105,000.00 did.

Mayor Jackson earns $132,000.00 per year and pays the following:

% of employee’s % of Employee’s

Single Rate annual income Family Rate annual income

Monthly for health care Monthly for health care

MMO Plus                           $52.50                   .47% $105.00 .95%

HMO Health Ohio                $62.50                   .56% $125.00 1.13%

Kaiser                                $67.50                   .61% $135.00 1.22%

Finally, Mr. Ricky Smith, the City of Cleveland’s Director of the Port Control earned $208,000.00.  His percentage of annual earnings for health care is:

% of employee’s % of Employee’s

Single Rate annual income Family Rate annual income

Monthly          for health care Monthly for health care

MMO Plus                           $52.50                   .30% $105.00 .60%

HMO Health Ohio                $62.50                   .36% $125.00 .72%

Kaiser                               $67.50                    .39% $135.00 .77%

Clearly, when looking at the percentage of annual earnings paid towards health care, fairness does not exist. Would the Governor feel each group paying the same percentage of their annual income towards health care as the lowest paid group would be fair?  If so, this is a sample of what the monthly premium would be if paid at the same annual percentage:

Annual wage          $27,000.00 Vs.  $55,000.00 $27,500.00 Vs.        $55,000.00

Single Single Family Family

Monthly Monthly Monthly Monthly

MMO Plus                $52.50                      $103.58                                 $105.00                       $209.91

HMO Health Ohio      $62.50                     $124.66                                  $125.00                       $249.79

Kaiser                     $67.50                      $135.00                                  $135.00                      $269.96

How about the employee making $105,000.00?

Single Single Family Family

Monthly Monthly Monthly Monthly

Annual wage $27,000.00 Vs.  $105,000.00 $27,500 Vs.          $105,000.00

MMO Plus                 $52.50                    $197.75                                  $105.00                        $400.75

HMO Health Ohio      $62.50                     $238.00                                 $125.00                        $476.87

Kaiser                      $67.50                    $258.12                                  $135.00                        $515.37

How about Director Smith?

Single Single Family Family

Monthly Monthly Monthly Monthly

Annual wage $27,000.00 Vs.  $208,000.00 $27,500 Vs.       $208,000.00

MMO Plus                $52.50                   $392.74                                 $105.00                         $795.91

HMO Health Ohio     $62.50                   $472.00                                 $125.00                         $947.00        

Kaiser                     $67.50                   $512.65                                $135.00                          $1,023.55

I cannot believe this, but I not only find myself agreeing with Governor Kasich, but I also agree with the Americans for Tax Reform (and other conservative groups) that the ACA is a tax.

Governor Kasich was looking for the government workers to help find the solution in making premium payments fair. Well, obviously HEALTH CARE CONTRIBUTIONS SHOULD BE TREATED THE SAME WAY AS A TAX, BY A PERCENTAGE OF INCOME.

The great news is that everyone does not have to pay 5.89% of their annual income for the highest cost health package.  Actually, they can pay less than 3.3%.

In 2010, if all 7,561 employees listed on the Buckeye Institutes’ site paid the current rate for the Kaiser family coverage at $135.00 per month, the City would collect $12,248,820.00 dollars in 2010.    Of course the City did not collect nearly this amount because many employees are single or chose a lower cost plan.

However, if all 7,561 employees actually paid 3% of their pay towards health care in 2010, the City would have collected over $12,000,000.00.  On the other hand, if all employees paid 5.89% of their annual earning, like the people in the $27,500.00 range did, then the City would have collected over

$23,350,000.00. Please remember that the highest wage I used was $105,000.00 and there were 129 employees who earned more than $105,000.00 in 2010.

If health care is a tax, and I am prone to believe it is, then health care premium deductions should be based on a percentage of earnings just like:

PERS                                      10%

Medicare                                 1.45%

City income tax:                      2%

State income tax:                    3%

Health care insurance:              ?%   Well, I’m not sure, but whatever percentage it is, it would be more fair than it is now.

The government entities know how much money they receive in insurance contributions each year.  Therefore, they should have a pretty good idea of how much they should expect year to year.  I’m clearly not an accountant nor a mathematician, however, with the current computer programs and in the hands of a professional accountant, I’d bet my life that Cleveland could meet their needs for employee contributions and still charge the employees less than 5.89% of the employees annual wages.  Actually, I suspect 2.5% would cover the tab.

Let’s be fair.

Last Updated (Saturday, 14 December 2013 17:28)


Use Of Force

The question of how to determine the amount/type of force necessary to protect yourself, to protect the public, and to perform the duties you are expected and required to perform is a constant question.  However, with the recent shootings in Colorado, Connecticut, and the Boston bombing we must think about “what would I do in a similar situation?”

First of all, we must look at the big picture.  The events mentioned above all happened in different States with different views.  However, the United States Supreme Court offers guidance in the case of Graham v. Connor, (490 U.S. 386 (1989).

In this case, Mr. Graham, a diabetic, asked his friend to drive him to a convenient store so he could buy some orange juice to counteract the onset of an insulin reaction.  When Graham entered the store, he saw that there was a long line and decided to leave (in a hurry) and have his buddy drive him to another friend’s house instead.

Connor, a Charlotte police officer, saw Graham enter and then quickly run out of the store.  Connor was suspicious of this behavior, so he made a traffic stop of the car.  Connor had the occupants sit on the curb while he went to the car to check if anything happened at the store.

When other officers arrived on scene, Graham ran around the car twice before sitting on the curb.  Graham’s friend explained Graham’s diabetic condition and asked if they had sugar or juice for him.  One of the officers said that he had seen diabetic problems before, but felt Graham was just plain drunk

The officer rolled Graham onto his face and cuffed him.  He was thrown onto the hood of the car, and then they threw him into the cruiser.  Conner finally verified there was no crime at the store and gave Graham a ride home.  However, between the time Connor made the initial stop, and the time he gave Graham the ride home, Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder.  He also claims to have developed a loud ringing in his right ear that continues to this day because of this investigatory stop.

Graham brought suit against the individual officers involved in the incident, alleging that they had used excessive force in making the investigatory stop, in violation of rights secured to him under the Fourteenth Amendment to the United States.

The District Court used the four-step test that was being used at the time.  The 4 steps are:

(1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) "[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.”

The case eventually found its way to the U.S. Supreme Court which held:

“Today we make explicit what was implicit in Garner's analysis, and hold that all claims   that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other "seizure" of a (free citizen*) should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive   governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.” (*in short, a Free Citizen is a person not yet confined or convicted).

The reasonableness of a particular use of force must be judged from the totality of the circumstance as known by the officers at the moment the force is used. So the Court further stated:

“Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. The question is whether the totality of the circumstances justifie[s] a particular sort of. . . seizure".

The Court further reasoned that information learned after the officer uses the force is irrelevant to assessing the appropriateness of the officer’s use of force.  What counts in our law is the perception of the officers on the scene at the moment force was used, rather than with 20/20 hindsight. The Court also stated that allowances must be made for the fact that:

“…Officers are often forced to make split-second judgments-in circumstances that are tense, uncertain and rapidly evolving-about the amount of force that is necessary in a particular situation.”

It is obvious that there is always more than one way to “skin a cat”.  However the situations we deal with are changing by the second, when you decide you need to use force, by all means use it, but be sure it is reasonable.

The Court also states that not only does the Fourth Amendment apply to use of force cases with the objective reasonableness test of the Graham case, but also the less restricted and subjective standard of “shock the conscience” applicable to the Eighth and Fourteenth Amendments, (which applies to detainees, and people who are convicted and incarcerated).  The subjective element of this test is determining if the officer’s use of force was applied in good faith or maliciously and sadistically for the purpose of causing harm.

Law enforcement, which includes corrections, road patrol, and dispatch, is a business where all employees deal with people who can change their demeanor from zero to sixty in a matter of seconds. We have witnessed first-hand and have seen the cornucopia of television programs that contain actual footage of real cops, corrections officers and dispatchers on the job.

We all know that the friendly demeanor and cooperative nature of a suspect may suddenly place his car in drive as you walk back to your cruiser.  We also know that the suspect who places his hands over his head with a smile on his face can suddenly reach down for a knife.  These individuals suddenly create more danger to the public, the officer, and themselves than before they were initially stopped. In a jail, convicted inmates refuse to obey orders and directives from officers.

The U.S. Supreme Court’s opinion in Graham points out a simple fact; the totality of the circumstances must be examined when considering use of force by police and corrections officers in the United States. The Court’s holding that the reasonable officer on scene and the circumstances that are tense, uncertain and rapidly evolving, all of these factor in.  These are the legal standards for use of force in this Country. What counts is the perception of the officers on the scene at the moment force was used, rather than with 20/20 vision of hindsight.

Under Graham, an officer's use of non-deadly force is reasonable if the jury is merely persuaded that a reasonable officer in the same situation could have believed the same force was necessary or in other words "reasonable under the circumstances."  Bottom line, the old using no more force than was "reasonable and necessary," is still the best option.

Of course, the standard for use of deadly force is more stringent. The Court found in Tennessee v. Garner, 471 U.S. 1 (1985), that there are circumstances when an officer can use deadly force. One example would be whether the officer could reasonably have had probable cause to believe that the suspect posed a threat of serious physical harm, either to the officer or to others.  Also an

Officer’s use of deadly force exists where there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.

Recently, in State v White, 2013 Ohio 51 Court of Appeals of Ohio, Sixth Appellate District, Lucas County, the Court stated:

“Given that a police officer is authorized and, is frequently obligated to use force (sometimes deadly force) the benchmark of the "objectively reasonable officer" is not just appropriate for criminal prosecutions, but necessary. Unlike the reasonable person (civilian) standard, the reasonable officer takes into account not only the specialized training and experience of police officers, but also the public-safety role for which they are uniquely employed. In that sense it is a more tailored standard than what suffices for tort law - because in circumstances relevant to the law enforcement function, the reasonable officer can do more than the reasonable civilian. But if federal use-of-force law applies to the prosecution of a police officer for an alleged misuse of force on duty, then all of its doctrines, standards and derivative rules apply to the extent their use is supported by the evidence and is consistent with the nature of the crime charged”. (Note: This case has just been appealed to the Ohio Supreme Court and we will update on the outcome).

Finally, Graham explicitly cautions deference to the law enforcement perspective:

"Not every push or [**51] shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment.  Calculus of reasonableness must   embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.”

Last Updated (Friday, 14 June 2013 09:02)


Public Records

I submit to you that the greatest difference between employees in the public sector and the private sector employees is two words…PUBLIC RECORDS.

The Ohio Revised Code covers public records in ORC 149.43.

Section (B) (1) provides:

Upon request and subject to division (B)(8) of this section all public records responsive to             the request shall be promptly prepared and made available for inspection to any person           at all reasonable times during regular business hours. Subject to division (B)(8) of           this section, upon request, a public office or person responsible for public records shall     make copies of the requested public record available at cost and within a reasonable       period of time. If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt. When making that public record available for public        inspection or copying that public record, the public office or the person responsible for             the public record shall notify the requester of any redaction or make the redaction plainly             visible. A redaction shall be deemed a denial of a request to inspect or copy the redacted information, except if federal or state law authorizes or requires a public office to make the redaction.

The section above demonstrates that “any person” can make a public records request, ABOUT YOU.  (Division (B) (8) deals with incarcerated individuals).  Redacted material is outlined within the Code and deals primarily with people in safety forces.  However, the vast majority of your record, including your income, cannot be redacted.

On the other hand, if any of you enter a local machine shop, Wal-Mart, or grocery store and demand to look at the personnel file of any employee, let alone demand to look at the wages paid to the employees, you will most likely be visited by one of your co-workers for a ride to the local jail (or mental health facility).

Your decision to enter public employment has put a very serious dent into your right to privacy.  This sacrifice is not shared by our private sector friends.  This subject of public records is one of the reasons our benefits are indeed different from the private sector. However, our privacy does have some protections under the law.

In the case Hall v. City of Cookeville, 157 Fed. Appx. 809, The United States Court of Appeals for the Ninth Circuit has held that police officers' right to privacy ensures a fundamental liberty interest in preserving their lives and the lives of their family members, as well as preserving their personal security and bodily integrity. Where the release of private information places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat, the magnitude of the liberty deprivation strips the very essence of personhood.

The Court gave some protections in this case. However, everything that protects the public sector employee today is constantly being challenged and chipped away at by the press, special interest groups, and indeed some of our own politicians.

Ohio Revised Code Ann. 149.43 (2012) which addresses public records is so important (and complex) that when I look at it on Lexis/Nexus, there are 180 pages of text concerning this issue.  More importantly, there are many references to cases, along with other sections of the revised and administrative codes pertaining to this issue.  I have listed a few that are germane to our membership.

§ 149.43. Availability of public records:

(A) As used in this section:

(1) "Public record" means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for-profit entity operating the alternative school pursuant to section 3313.533 of the Revised Code. "Public record" does not mean any of the following:

(a) Medical records;

(3) "Medical record" means any document or combination of documents, except births,     deaths, and the fact of admission to or discharge from a hospital, that pertains to the           medical history, diagnosis, prognosis, or medical condition of a patient and that is      generated and maintained in the process of medical treatment.

Please note: A Court can issue an order to release some medical information if it is determined the information is necessary.

h) Confidential law enforcement investigatory records;

(2) "Confidential law enforcement investigatory record" means any record that pertains to             a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but            only to the extent that the release of the record would create a high probability of        disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the        record pertains, or of an information source or witness to whom confidentiality has been         reasonably promised;

(b) Information provided by an information source or witness to whom confidentiality      has been reasonably promised, which information would reasonably tend to disclose the      source's or witness's identity;

(c) Specific confidential investigatory techniques or procedures or specific investigatory    work product;

(d) Information that would endanger the life or physical safety of law enforcement           personnel, a crime victim, a witness, or a confidential information source.

Perhaps the most important exception to Public Records follows:

(p) Peace officer, parole officer, probation officer, bailiff, prosecuting attorney, assistant   prosecuting attorney, correctional employee, community-based correctional facility       employee, youth services employee, firefighter, EMT, or investigator of the bureau of      criminal identification and investigation residential and familial information;

(7) "residential and familial information" means any information that discloses any of the following about a peace officer…,” ***(Note: the use of” … “is deletion of the           numerous employee positions listed in (p) above).***

(a) The address of the actual personal residence of a peace officer…, except for the state                    or political subdivision in which the peace officer… resides;

(c) The social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of, or any          medical information pertaining to, a peace officer…;

(d) The name of any beneficiary of employment benefits, including, but not limited to,      life insurance benefits, provided to a peace officer…;

(e) The identity and amount of any charitable or employment benefit deduction made by the peace officer’s… compensation unless the amount of the deduction is       required by      state or federal law;

(f) The name, the residential address, the name of the employer, the address of the            employer, the social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of the spouse, a former spouse, or any child of a peace officer…;

(g) A photograph of a peace officer who holds a position or has an assignment that may    include undercover or plain clothes positions or assignments as determined by the peace            officer's appointing authority.

These are some of the protections offered to our members in this section of the ORC.  However, there are exceptions and challenges to most (if not all) of them.  An example follows:

(9) (a) Upon written request made and signed by a journalist on or after December 16,       1999, a public office, or person responsible for public records, having custody of the         records of the agency employing a specified peace officer… shall disclose to the            journalist the address of the actual personal residence of the peace officer…, and, if the     peace officer's… spouse, former spouse, or child is employed by a public office, the             name and address of the employer of the peace officer's…, spouse, former spouse, or        child. The request shall include the journalist's name and title and the name and address          of the journalist's employer and shall state that disclosure of the information sought       would be in the public interest.

Section (9) (a) is how a reporter ends up at your front door and sticks a microphone in your face. However, they still do not print or show the address.

A major cause of us losing the protections provided by the Code is the employee himself.

The Hall v. City of Cookeville case started from an incident involving a family that was on vacation.  The father left his wallet on top of his car at a gas station.  He drove out and soon thereafter realized his mistake.  He simply pulled off the road to retrieve the wallet.  However, a police officer pulled up on the car.  The door of the family car was still open, and the family’s dog jumped out of the car.  The officer shot the dog. Of course this story was captured on the officer’s dashboard camera and it went viral. The actual case revolved around the officer’s privacy and the release of records that could put him or his family in “Harm’s Way”.

The officer complained about the information released by the City.  However, the real problem was outlined by the Court when it wrote:

“…After this highly-publicized event, Hall became the subject of intense media attention.             Following a meeting with Shipley, Hall's attorney, and others, Hall agreed to be interviewed by a reporter from a Nashville news station on January 9th. In order to    bolster Hall's appearance in the interview, the City released portions of his personnel file   relating to Hall's disciplinary actions and commendations to the reporter. The record is             unclear whether this release was done with Hall's knowledge or consent”. (Emphasis         added).

Because the Officer went public, the Court then stated:

“…Hall's penchant for media attention led to the voluntary release of his personal information into the public eye. Because he engaged the media, and in doing so released           virtually all of the information released by the City through his personnel file, there was      no increased risk to Hall or his family based solely on the release of his personnel file.”            (Emphasis added).

In this case, the officer actually was interviewed (voluntarily) on the “Today Show”, thus giving his information to the entire world.

As you go to work each day, just remember:

We all know there are public records request.

We all know what is basically allowed to be released.

We all better know that in order to preserve the few exceptions/protections we have in the Public Records legislation, we must be careful of what we write on reports, documents and social media (Twitter, Facebook…).  Be aware of what you say and how you act in the view of the public, and most importantly, stay away from the press.

Last Updated (Saturday, 15 December 2012 13:03)


Protect Your Protections

The Americans with Disability Act (“ADA”) demands that when an employer orders an employee to submit to a medical and/or psychological examination to establish the employee’s fitness-for-duty, the employer is responsible for the costs of the ordered examinations.  
Should the examiner’s report find the employee is not fit-for-duty, the ADA provides that the employee may obtain a second opinion, from a practitioner of his choice, at the employee’s expense.  
The U.S. Equal Employment Opportunity Commission’s guidance on Disability Inquiries and Medical Examinations at question 12:
12. May an employer require that an employee, who it reasonably believes will pose a direct threat, be examined by an appropriate health care professional of the employer's choice?
Yes. The determination that an employee poses a direct threat must be based on an individualized assessment of the employee's present ability to safely perform the essential functions of the job. This assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence.  To meet this burden, an employer may want to have the employee examined by a health care professional of its choice who has expertise in the employee's specific  condition and can provide medical information that allows the employer to determine the effects of the condition on the employee's ability to perform his/her job. Any medical examination, however, must be limited to determining whether the employee can perform his/her job without posing a direct threat, with or without reasonable accommodation. An employer also must pay all costs associated with the employee's visit(s) to its health care professional.
In essence, the employer must be able to reasonably articulate why they feel you are not capable of performing your essential job functions.  An employer demanding an employee be examined because he cannot run one mile in under four minutes is not reasonable.  However, expecting a patrol officer to get in and out of the cruiser is arguably reasonable.    
The determination that an employee poses a direct threat does not necessarily mean you are about to go on a murderous rampage.  Most often fitness-for-duty examinations are ordered because the employer perceives your medical and/or psychological condition is affecting your ability to meet the essential job functions required and that your inability may result in death or injury to yourself, fellow employees and/or the general public.

The law provides that the medical/psychological examinations can only be focused on the employee’s ability to perform the job without being a threat to others, with or without reasonable accommodation.  Unfortunately, some employers would abuse their authority by sending an employee for both a medical and psychological examination, even though their stated “reasonable” concern was, for example, to verify the employee’s broken leg had properly healed.
Additionally, The United States Department of Labor provides:
“An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee. (see: The "Certification of HealthCare Provider.  http://www.dol.gov/whd/fmla/appendixf.pdf ).
When you present a “return to work” clearance from your own doctor, the Department of Labor provides that the employer may send you to their doctor for a second opinion, just as you could get your own second opinion “at your expense”. The rules mandate that if the employer requests a second opinion, the employer “must pay” the expenses. Additionally, if a third opinion is needed, the law requires that the third care provider must be approved jointly by the employer and the employee, at the employer’s expense.
We just witnessed our Governor, along with the MAJORITY of our State Representatives and State Senators, attempt to strip us of protections we had fought long and hard to earn.  The protections afforded to the American workers through the ADA, FMLA, Department of Labor, EEOC, (both State and Federal) can be changed as well.   Many of you know under President Bush our Congress revamped the FMLA, with most changes being injurious to the employee.

Last Updated (Saturday, 23 June 2012 13:20)

More Articles...