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How Not to Get Sued as a How Not to Get Sued as a Police Chief or How Not To Police Chief or How Not To

Get FiredGet FiredPete OrputPete Orput

MCPA MCPA CoCo--counsel April 2015counsel April 2015

Basic ConceptsBasic Concepts

�� Employment At WillEmployment At Will

�� Contracts/AgreementsContracts/Agreements

�� ProtectionsProtections

–– Due ProcessDue Process

–– Veterans PreferenceVeterans Preference

–– Civil RightsCivil Rights

–– Constitutional RightsConstitutional Rights

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Employment At WillEmployment At Will

The city may fire a chief for any reason or The city may fire a chief for any reason or no reason at all.no reason at all.

any hiring is presumed to be "at will“; that is, the employer is free to discharge individuals "for good cause, or bad cause, or no cause at all," and the employee is equally free to quit, strike, or otherwise cease work.

Employment AgreementsEmployment Agreements�� Ask for a formal employment agreement Ask for a formal employment agreement

from your city manager.from your city manager.

�� The League of Minnesota Cities has been The League of Minnesota Cities has been encouraging cities to have agreements in encouraging cities to have agreements in place for new police chiefsplace for new police chiefs

�� Now is the time to negotiate for yourself Now is the time to negotiate for yourself for job security.for job security.

Employment AgreementsEmployment Agreements�� A wellA well--drafted Employment Agreement addresses the drafted Employment Agreement addresses the

following key issues: following key issues: �� The job position The job position �� Whether the position can be changed by the employer Whether the position can be changed by the employer �� The length of the agreement The length of the agreement �� The salary, bonus, and benefits The salary, bonus, and benefits �� When the employee can be terminated for just cause When the employee can be terminated for just cause �� What “just cause" means What “just cause" means �� When the employee can be terminated without just cause When the employee can be terminated without just cause

and what severance payment will be due and what severance payment will be due �� The employee's job responsibilities The employee's job responsibilities �� The employee's confidentiality obligations The employee's confidentiality obligations �� Where and how disputes will be handled Where and how disputes will be handled

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Bumping RightsBumping Rights

� "Bumping,” means the displacement of a junior worker by a senior worker to avoid the layoff of the senior worker. Before accepting a Before accepting a promotion to a police executive position from promotion to a police executive position from within the department, meet with HR and union within the department, meet with HR and union rep. to negotiate your right to rejoin the union rep. to negotiate your right to rejoin the union upon lay off, upon lay off,

If you have been selected from the ranks, you If you have been selected from the ranks, you may have bumping rights back to the collective may have bumping rights back to the collective bargaining unit.bargaining unit.

City Employment HandbookCity Employment Handbook

�� Many public employees have successfully argued Many public employees have successfully argued that the rules in the handbook are, in effect, an that the rules in the handbook are, in effect, an employment contract. employment contract. Dontley v Howard Dontley v Howard UniversityUniversity. 859 A.2d 651 (D.C. Ct. App. 2004). 859 A.2d 651 (D.C. Ct. App. 2004)

�� City handbooks typically state that discharge City handbooks typically state that discharge from employment shall be for from employment shall be for “just cause”.“just cause”.

�� The handbook language may give employee a The handbook language may give employee a right to notice and a hearing.right to notice and a hearing.

�� An employment agreement may specifically An employment agreement may specifically obviate the handbook.obviate the handbook.

City employment hand booksCity employment hand books

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Civil Rights ProtectionCivil Rights Protection

�� A showing of purposeful discrimination A showing of purposeful discrimination based on sex, race, national origin, based on sex, race, national origin, religion, disability, orientation…,religion, disability, orientation…,

�� In violation of Title VII of the Civil Rights In violation of Title VII of the Civil Rights Act of 1964 or of the Minnesota Human Act of 1964 or of the Minnesota Human Rights Act,Rights Act,

�� May be a cause of action under 42 USC May be a cause of action under 42 USC sec. 1983. sec. 1983.

Constitutional RightsConstitutional Rights

�� First Amendment ClaimsFirst Amendment Claims

�� Chief must prove that the protected speech was Chief must prove that the protected speech was the motivating factor in termination.the motivating factor in termination.

�� Then burden shifts to the city which must show, Then burden shifts to the city which must show, by a preponderance of evidence, that it would by a preponderance of evidence, that it would have made the same decision absent the have made the same decision absent the protected activityprotected activity

�� I wouldn’t rely too heavily on this defense…I wouldn’t rely too heavily on this defense…

Discrimination ClaimsDiscrimination Claims

Direct discrimination: A claimant must show either “an acknowledgment of discriminatory intent by the defendant or;

circumstantial evidence that provides the basis for an inference of intentional discrimination.”

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Discrimination ClaimsDiscrimination Claims�� Indirect showing of discrimination:Indirect showing of discrimination:

� first, that he is a member of a protected class;

� second, that he was meeting his employer's legitimate performance expectations;

� third, that he suffered an adverse employment action;

� fourth, that he was treated less favorably than similarly situated individuals who are not members of his protected class.

Political SpeechPolitical Speech

�� Practical AnalysisPractical Analysis

The reality is that if a chief says The reality is that if a chief says something that irritates a council person something that irritates a council person or mayor, they will likely wait and amass or mayor, they will likely wait and amass other evidence of wrongdoing to support a other evidence of wrongdoing to support a firingfiring..

Sure Fire Ways To Get FiredSure Fire Ways To Get Fired

�� Criminal ConvictionCriminal Conviction

�� Unprofessional ConductUnprofessional Conduct

�� Outside Remuneration Outside Remuneration While on DutyWhile on Duty

�� Neglect of Office DutiesNeglect of Office Duties

�� Political SpeechPolitical Speech

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Criminal ConvictionCriminal Conviction

�� Conduct that impairs the use of one’s Conduct that impairs the use of one’s licenselicense–– POST Board may suspend peace officer POST Board may suspend peace officer

license for conviction of all felonies, gross license for conviction of all felonies, gross misdemeanors and some misdemeanors misdemeanors and some misdemeanors (domestic assault, drug crimes, theft)(domestic assault, drug crimes, theft)

–– DWI conviction could result in driver’s license DWI conviction could result in driver’s license suspension.suspension.

–– Domestic assault or OFPs prevent one from Domestic assault or OFPs prevent one from carrying a firearm.carrying a firearm.

Convictions, ContinuedConvictions, Continued

�� It does not matter whether the conviction It does not matter whether the conviction is stayed or continued for dismissal.is stayed or continued for dismissal.

Unprofessional ConductUnprofessional Conduct�� AdulteryAdultery

�� DrunkennessDrunkenness

�� Gambling addictionGambling addiction

�� Using city property for one’s own gainUsing city property for one’s own gain

–– Cellular phone for personal useCellular phone for personal use

–– Squad car for personal useSquad car for personal use

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Outside RemunerationOutside RemunerationWhile On DutyWhile On Duty

�� Serving on corporate boards (for Serving on corporate boards (for remuneration remuneration –– even small $)even small $)

�� Serving on other department’s hiring or Serving on other department’s hiring or promotion panelspromotion panels

�� Doing private investigative workDoing private investigative work

�� Accepting gratuitiesAccepting gratuities

GratuitiesGratuities

�� M.S. 471.895 makes it a misdemeanor for M.S. 471.895 makes it a misdemeanor for a “local official” to accept a gratuity from a “local official” to accept a gratuity from an “interested party”, i.e. a constituent or an “interested party”, i.e. a constituent or someone who may rely on police services someone who may rely on police services in the community.in the community.

Neglect of DutyNeglect of Duty

�� Disregarding orders of a police Disregarding orders of a police commission or city councilcommission or city council

�� Being habitually unavailable to the publicBeing habitually unavailable to the public

�� InefficiencyInefficiency

�� Time abuseTime abuse

�� Dereliction of dutyDereliction of duty

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WhistleblowersWhistleblowers

�� Claiming a violation of M.S. 181.932, the Claiming a violation of M.S. 181.932, the State Whistleblower Statute, is a defense State Whistleblower Statute, is a defense to a firing that is raised to a firing that is raised after termination.after termination.

A successful whistleblower claimA successful whistleblower claim

�� Mayor of City of Moline Acres fired chief.Mayor of City of Moline Acres fired chief.

�� Chief sued alleging: Mayor ordered cops to tow legally Chief sued alleging: Mayor ordered cops to tow legally parked car from residence of former mayor; parked car from residence of former mayor;

�� Ordered a truck towed then when cop told truck driver Ordered a truck towed then when cop told truck driver that mayor ordered it, he was fired.that mayor ordered it, he was fired.

�� Mayor ordered DWI checkpoints in front of saloon that Mayor ordered DWI checkpoints in front of saloon that wouldn’t let him use the lot for the city circuswouldn’t let him use the lot for the city circus

�� Mayor had his sonMayor had his son--inin--law released from arrest and law released from arrest and tickets destroyed. tickets destroyed.

�� Chief dimed the mayor to the county attorney, then the Chief dimed the mayor to the county attorney, then the mayor fired him. mayor fired him.

Things to Avoid

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Some broad categoriesSome broad categories

�� SexSex

�� Drugs/alcoholDrugs/alcohol

�� Internet usageInternet usage

�� Criminal misconductCriminal misconduct

�� Battles with UnionsBattles with Unions

�� Burn outBurn out

�� New appointing authorityNew appointing authority

Disbanding the Department and Disbanding the Department and contracting with the Sheriffcontracting with the Sheriff

�� Mora City Council members ended months Mora City Council members ended months of discussion and debate by voting 3of discussion and debate by voting 3--2 2 Tuesday afternoon to disband the city's Tuesday afternoon to disband the city's police department and contract with the police department and contract with the Kanabec County Sheriff's Office for the Kanabec County Sheriff's Office for the administration of law enforcement administration of law enforcement services. services.

�� Mayor was member of Kanabec County Mayor was member of Kanabec County Sheriff’s Office….Sheriff’s Office….

Political SpeechPolitical Speech�� Legal AnalysisLegal Analysis

–– Whether chief engaged in speech involving a Whether chief engaged in speech involving a matter of public concern;matter of public concern;

–– Whether the employee’s interest in the Whether the employee’s interest in the expression outweighs the gov’t interest in expression outweighs the gov’t interest in providing services efficiently;providing services efficiently;

–– Whether the employee has shown that the Whether the employee has shown that the protected speech was a substantial or protected speech was a substantial or motivating factor in the challenged motivating factor in the challenged employment decision;employment decision;

–– Whether the employer has shown it would Whether the employer has shown it would have reached the same decision in absence of have reached the same decision in absence of the protected speech.the protected speech.

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Texas Chief fired for Texas Chief fired for management management issuesissues

�� Chief and sergeant fired after starting and Chief and sergeant fired after starting and loudly participating in local Tea Party loudly participating in local Tea Party movement which attacked incumbent movement which attacked incumbent council members…council members…

Columbia, SC. Chief firedColumbia, SC. Chief fired

�� New mayor got in car wreckNew mayor got in car wreck-- other party seriously other party seriously injured.injured.

�� Chief refused to turn over investigation to outside Chief refused to turn over investigation to outside agency.agency.

�� City manager fired him citing that he had turned over a City manager fired him citing that he had turned over a previous investigation to an outside agency when a city previous investigation to an outside agency when a city councilman was involved in a fendercouncilman was involved in a fender--bender in the city bender in the city hall parking lot. hall parking lot.

�� When asked why he turned over that one and not the When asked why he turned over that one and not the current case, he said the City Hall parking lot is private current case, he said the City Hall parking lot is private property and the police department investigates property and the police department investigates accidents only on public property, as is the case with the accidents only on public property, as is the case with the mayor’s accident. mayor’s accident.

Internet/texting/posting, etc.Internet/texting/posting, etc.

�� UW Campus police chief fired for texting UW Campus police chief fired for texting things such as:things such as:

�� “I’m a bit of a voyeur and a fan of the “I’m a bit of a voyeur and a fan of the female form.”female form.”

�� Chief requested a photo of woman. When Chief requested a photo of woman. When she sent one with clothes he said “Less she sent one with clothes he said “Less clothes, more smile and sensuality”clothes, more smile and sensuality”

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Internet issues, cont.Internet issues, cont.

�� Pa. Police Chief fired for posting videos on Pa. Police Chief fired for posting videos on internet.internet.

�� Videos showed chief firing auto weapons Videos showed chief firing auto weapons while ranting about gun control. He also while ranting about gun control. He also ripped Secretary of State Kerry for arms ripped Secretary of State Kerry for arms control treaties.control treaties.

�� Stated reasons for firing: Misuse of govt. Stated reasons for firing: Misuse of govt. property, neglect of duties.property, neglect of duties.

More internet posting….More internet posting….

�� Chief sent racist emails to friends.Chief sent racist emails to friends.

�� Chief had received emails from friends Chief had received emails from friends then forwarded them on to other cops.then forwarded them on to other cops.

Fla. Chief Fired over eFla. Chief Fired over e--mails?mails?�� Chief sent eChief sent e--mails to friends lamenting mails to friends lamenting

that President Obama’s security detail that President Obama’s security detail should shoot him. Also sent should shoot him. Also sent disparaging edisparaging e--mails mails about Arabs and Muslims…about Arabs and Muslims…

�� He wasn’t fired for that!He wasn’t fired for that!

�� He was fired for having been paid for He was fired for having been paid for time off that he had not reported…time off that he had not reported…

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More internet nonsenseMore internet nonsense

�� Police Chief fired for posting the N word Police Chief fired for posting the N word on Facebook.on Facebook.

�� Sending out a video “How a real N___a Sending out a video “How a real N___a orders Starbucks.orders Starbucks.

�� Forwarding salacious emails, though Forwarding salacious emails, though funnyfunny-- will get you fired quickly.will get you fired quickly.

�� This applies to tweets, text messages, etc.This applies to tweets, text messages, etc.

Enforcing the LawsEnforcing the Laws

�� Chief fired for writing too many speeding Chief fired for writing too many speeding tickets.tickets.

�� “The chief is just too aggressive for our “The chief is just too aggressive for our community”community”

�� One person told the city council that the One person told the city council that the chief pulled her over and made her put chief pulled her over and made her put her hand over her heart and promise to her hand over her heart and promise to never speed., He also made me call him never speed., He also made me call him “Chief”.”“Chief”.”

Law EnforcementLaw Enforcement

�� 5 officers told city council that chief made 5 officers told city council that chief made them write 12 tickets per shift.them write 12 tickets per shift.

�� Chief fired for too aggressively enforcing Chief fired for too aggressively enforcing town code related to clean up of debris town code related to clean up of debris after a tornado.after a tornado.

�� Chief was fired for not writing enough Chief was fired for not writing enough tickets. Town’s department wrote more tickets. Town’s department wrote more tickets than any other municipality in the tickets than any other municipality in the statestate

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TheftTheft

�� Big or littleBig or little-- doesn’t matter!doesn’t matter!

�� Police chief fired for “missing Police chief fired for “missing ammunition”. He took a case of ammo ammunition”. He took a case of ammo from the office storage room.from the office storage room.

�� Chief fired because police dept. vehicles Chief fired because police dept. vehicles had their electronic equipment “repaired” had their electronic equipment “repaired” at the chief’s son’s shop.at the chief’s son’s shop.

Common Theft FiringsCommon Theft Firings

�� Chief terminated for using onChief terminated for using on--duty officers duty officers for personal errands.for personal errands.

�� Used city vehicles for personal use.Used city vehicles for personal use.

�� Many cases where chief used city vehicleMany cases where chief used city vehicle--squad car, public works tractor or dump squad car, public works tractor or dump truck, Segway, water patrol boats or gear truck, Segway, water patrol boats or gear for personal use.for personal use.

Dekalb Co. GA. Chief FiredDekalb Co. GA. Chief Fired

�� Chief had 2 seized vehicles at his home: Chief had 2 seized vehicles at his home: A Range Rover and a Mercedes.A Range Rover and a Mercedes.

�� He had five police vehicles (3 assigned to He had five police vehicles (3 assigned to cover 3 shifts + 2 back up vehicles.)cover 3 shifts + 2 back up vehicles.)

�� He blocked the city manager’s efforts to He blocked the city manager’s efforts to fire chief’s aidefire chief’s aide-- he then was considered he then was considered insubordinate.insubordinate.

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Sex and sex harassmentSex and sex harassment

�� Chief fired due to 3 year extraChief fired due to 3 year extra--marital marital affair.affair.

�� Considered code of conduct violations.Considered code of conduct violations.

�� Investigation revealed that chief misused Investigation revealed that chief misused sick leave to be with his gooma Also used sick leave to be with his gooma Also used tax payer funded money to fund trysts.tax payer funded money to fund trysts.

Consorting with prostitutesConsorting with prostitutes

�� Cop left his and duty belt at a prostitute’s Cop left his and duty belt at a prostitute’s rendezvous and when he awoke it was rendezvous and when he awoke it was gone.gone.

�� Prostitute’s pimp later shot himself with Prostitute’s pimp later shot himself with the gun while haggling over pawning it.the gun while haggling over pawning it.

Clashes with Mayor, Clashes with Mayor, City ManagerCity Manager

�� Chief did not follow mayor’s advice on Chief did not follow mayor’s advice on budget, got the boot.budget, got the boot.

�� Chief fired after 25 years because the Chief fired after 25 years because the “City wanted to go in a new direction”“City wanted to go in a new direction”

�� Chief fired by mayor because “the Chief Chief fired by mayor because “the Chief needs to be in the city not in another city needs to be in the city not in another city sitting, drinking coffee, doing whatever he sitting, drinking coffee, doing whatever he did”.did”.

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U.S. Park Police Chief FiredU.S. Park Police Chief Fired

�� 2004, U.S. Park Police Chief Teresa Chambers 2004, U.S. Park Police Chief Teresa Chambers was sacked after telling The Washington Post was sacked after telling The Washington Post that budget cuts for the police force that patrols that budget cuts for the police force that patrols much of the monumental core in Washington much of the monumental core in Washington could jeopardize public safety.could jeopardize public safety.

�� She She fought a legal battle since and was finally fought a legal battle since and was finally reinstated in 2011.reinstated in 2011.

Chief fired by city manager over Chief fired by city manager over “new direction” for department.“new direction” for department.

�� Officers complained to city manager about the Officers complained to city manager about the chief not giving them take home cars and issues chief not giving them take home cars and issues with with uniform allowanceuniform allowance. City mgr. cited chief’s . City mgr. cited chief’s “personnel problems”.“personnel problems”.

�� One of the city councilmen had, coincidentally, One of the city councilmen had, coincidentally, been arrested for his 3been arrested for his 3rdrd domestic incident.domestic incident.

�� Councilman, along with 2 other members, were Councilman, along with 2 other members, were concerned with chief’s management and advised concerned with chief’s management and advised city mgr. of their concerns…city mgr. of their concerns…

Clashes with ManagementClashes with Management

�� Mayor and city administrator were Mayor and city administrator were investigating police complaints and left investigating police complaints and left chief out. Chief complained and was chief out. Chief complained and was sacked. sacked.

�� New city mgr. and mayor had lost New city mgr. and mayor had lost confidence in chief.confidence in chief.

�� Chief fired for wanting to fill 3 vacancies Chief fired for wanting to fill 3 vacancies over mayor’s objection.over mayor’s objection.

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Clashes with ManagementClashes with Management

�� Chief fired after publicly disagreeing with Chief fired after publicly disagreeing with cuts instituted by mayor.cuts instituted by mayor.

�� After the chief’s press conference he was After the chief’s press conference he was terminated.terminated.

�� As soon as union learned of tension As soon as union learned of tension between new mayor and chief they held a between new mayor and chief they held a nono--confidence vote, too!confidence vote, too!

More mgmt. clashesMore mgmt. clashes

�� Chief blamed for heroin epidemic.Chief blamed for heroin epidemic.

�� Mayor: “I need someone to work the Mayor: “I need someone to work the streets, not an administrator”streets, not an administrator”

�� Turns out the new mayor was a cop who Turns out the new mayor was a cop who had worked with the new chief he hired had worked with the new chief he hired when they were both cops together years when they were both cops together years ago.ago.

Clashes with ManagementClashes with Management

�� Chief fired for:Chief fired for:

�� Running background checks without Running background checks without authorizationauthorization

�� Using office to seek revenge on othersUsing office to seek revenge on others

�� Questioning authority of mayor to screen Questioning authority of mayor to screen police applicants.police applicants.

�� Contacting news media about negative Contacting news media about negative city administration stories.city administration stories.

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Clashes with Police UnionClashes with Police Union

�� Chief came in making deep slashes to Chief came in making deep slashes to personnel, etc.personnel, etc.

�� Chief fired 2 local police assn. presidents.Chief fired 2 local police assn. presidents.

�� Cop union votes “no confidence” then Cop union votes “no confidence” then chief is out.chief is out.

Texas Chief fired for Questioning Texas Chief fired for Questioning wisdom of City Council votewisdom of City Council vote

�� City council voted to purchase semaphore City council voted to purchase semaphore cameras to catch those going through red cameras to catch those going through red lights.lights.

�� Chief questioned legality of photo cop’s Chief questioned legality of photo cop’s evidence in court and use of $ from evidence in court and use of $ from budget.budget.

�� Fired soon after with scathing Fired soon after with scathing performance review.performance review.

�� Currently suing to get job back.Currently suing to get job back.

TruthfulnessTruthfulness

�� Coral Gables Police has an opening for a Coral Gables Police has an opening for a chief. The city administrator fired the last chief. The city administrator fired the last one for lying about crime statistics to the one for lying about crime statistics to the city council.city council.

�� Chief “accidentally” allowed his officers’ Chief “accidentally” allowed his officers’ weapons certification expire. (the firearms weapons certification expire. (the firearms expert was a buddy of the chief’s and he expert was a buddy of the chief’s and he wasn’t properly certified)wasn’t properly certified)

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Chief fired when newsies Chief fired when newsies uncovered convictionuncovered conviction

�� Chief had sex with a minor but received a Chief had sex with a minor but received a stayed sentence.stayed sentence.

�� Newsies uncovered the conviction and Newsies uncovered the conviction and went public.went public.

Chief shoots wifeChief shoots wife

�� Accident or intentional?Accident or intentional?

�� Does it even matter?Does it even matter?

The Best reason to get fired?The Best reason to get fired?

�� 18 year old kid was ordered by court to 18 year old kid was ordered by court to work off misdemeanor by doing work off misdemeanor by doing community service with the police. Cops community service with the police. Cops recalled that the kid had criticized the recalled that the kid had criticized the cops to the judge.cops to the judge.

�� Took kid to shed behind the cop shop and Took kid to shed behind the cop shop and administered the “cinnamon challenge”.administered the “cinnamon challenge”.

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Kid was held down while a large amount of ground cinnamon poured into his mouth. Without any water it is apparently an impossible task.Results are choking, coughing up a plume of spice dust and vomiting.

“What ever you are, be a good one!”

Pete Orput, MCPA Counsel

Pete.orput@co.washington.mn.us

Questions?