Random search and employee privacy

Random search and employee privacy

US v Gonzales, CA9, 01-30059

May a government employee be required to submit to a random search by his or her employer and under what circumstances? These were the major issues in the Gonzales case. 

In the view the U.S. Circuit Court of Appeals, Ninth Circuit, government employees may be subjected to searches by a government employer, but the court must consider the strength of the employee's reasonable expectation of privacy, the justification for the government employer's search, and the scope of the search as it relates to the justification for the search, in order to determine whether the search is reasonable.

Alexander Gonzales was employed at a "post store" on a federal Air Force base. He was the target of a random search of employees as he left the store when a store detective asked him to let her look in his backpack. The store detective had no individualized suspicion that Mr. Gonzalez was stealing anything.

The store detective found four packages of spark plugs worth $3.75 each in the backpack. Although Gonzales told the store detective that he had purchased the spark plugs elsewhere, he ultimately pleaded guilty to larceny, reserving for appeal the district court's denial of his motion to suppress the evidence found in his backpack on the theory that it was the fruit of an unlawful search conducted in violation of the Fourth Amendment.

The Circuit Court said that, in the context of this case, the following applied:

1. The search was random, not based on individualized suspicion, for the purpose of deterring theft and apprehending employees who stole store items and was conducted pursuant to an established policy of the store.

2. Gonzalez signed or initialed a statement that store employees were subject to random searches when he started work and that he knew such random searches were store policy.

3. Although individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer, government employees' expectations of privacy at the workplace may be "reduced by virtue of actual office practices and procedures."

4. The government employer did not need probable cause to believe that an employee was stealing, but its search had to conform to the test of reasonableness.

Thus, said the court, Gonzalez's "expectation of privacy" was limited by his knowledge of the store's policy of searching its employees' belongings to deter theft and to apprehend thieves.

There are, said the court, still two test that must be satisfied in this type of situation in order to hold that the search was justified at its inception.

The first test applied by the court: Was there a legitimate reason for the search?

In this instance, the court ruled that "Prevention of theft is a legitimate justification for a search. It's hard to run a store if the employees walk out with the inventory."

The second test: Was the "search as actually conducted was reasonably related in scope to the circumstances which justified the interference."

As to this second test, the court said that unless there is evidence that the search went beyond the scope of its justification, there is no basis to conclude that such a search went beyond what was reasonable.

The Circuit Court concluded that an employer is entitled to search an employee for stolen merchandise, even though the search was on a random basis without reasonable suspicion, but only if the individual had clear notice before he or she ever came to work that he or she would be subject to just such a search, and the search did not go beyond the scope appropriate to looking for stolen merchandise.

In contrast, the Circuit Court observed that "[a]n employee on his first day who had not yet signed or learned of the store policy, let alone a customer who neither knew of nor consented to any policy of random searches, might be in a much stronger position to have a reasonable expectation of privacy deserving protection from such searches...." 

Exceptions to dismissal of improper practice charge must be timely served

Exceptions to dismissal of improper practice charge must be timely served
Mtr. of Fern Rudin-Moore and DC-37, PERB Case U-25423

The Board affirmed the Decision of the ALJ dismissing Rudin-Moore's improper practice charge alleging that DC-37 violated §209-a.2(c) of the Act, when a DC-37 representative failed to respond to her inquiries regarding the status of a grievance that she had asked him to file on her behalf. The Board dismissed the exceptions on procedural grounds, finding that they had not been timely served on the other parties. Rudin-Moore filed exceptions with the Board on February 6, 2006, however, her exceptions were never served on either DC-37 or the District. 

Failure to follow administrative procedures precludes judicial review

Failure to follow administrative procedures precludes judicial review

Miller v Nassau County, 297 A.D.2d 344

The Appellate Division, Second Department, dismissed the appeal filed by Benjetta Miller in her attempt to obtain judicial review of Nassau County's placing her and a number of other employees in positions at a "lower salary line."

The Miller ruling illustrates the difficulties confronting an individual seeking a court review of an administrative action if he or she fails to follow the controlling administrative or statutory procedures.

In Miller's case, the Appellate Division found that there were two problems that barred the courts from assuming jurisdiction to review Nassau's placing her on a "lower salary line":

1. Miller failed to exhaust her administrative remedies under the parties' collective bargaining agreement -- i.e., she failed to file a timely grievance; and

2. To the extent that the Miller's claims fall outside of the scope of the collective bargaining agreement, she failed to serve a notice of claim on the County as required by Section 50-e(1)(a) of the General Municipal Law. 

Concerning individuals subject to financial disclosure

Concerning individuals subject to financial disclosure

Suffolk County Ethics Commission v Neppell, 307 AD2d 961

When the Suffolk County Ethics Commission [SCEC] asked Thomas M. Neppell, Jr., the chair of the Brookhaven Town Republican Committee, to file a financial disclosure form with the SCEC pursuant to Section A30-10 of the Suffolk County Charter, Neppell refused to do so, contending that he was neither a county officer nor a county employee.

SCEC sued Neppell, contending that because he was an officer of a political party officer, the County Charter required him to file a financial disclosure with it.

Noting that Suffolk County's Code Section A30-10A(1), Financial Disclosure provides in part that:

Every candidate for countywide elected office or for member of the County Legislature and every political party officer shall file with the Suffolk County Ethics Commission an annual statement of financial disclosure containing the information and in the form set forth in Chapter 61 of the Suffolk County Code.

Justice Doyle said that although Neppell argues he is not an employee of the County of Suffolk and thus he is not required to file a financial disclosure form, his argument must fail.

Why? Because, the court explained, General Municipal Law Section [GML] 811(1)(b) clearly authorizes municipalities to require financial disclosure from "local political party officials" as if such officials were officers or employees of such county, city, town or village...."

As the County's Code Sections A30-8(c) A30-10A(1) "appropriately dovetail with and mirror" the relevant section of the GML and as Suffolk County "has appropriately chosen to exercise the power to require the completion and filing of the annual statement of financial disclosure" by a local political party official as if he were an officer or employee of the County of Suffolk, Neppell was required to file because:

The Suffolk County Ethics Commission has captured the spirit and intent and the worthy objective of General Municipal Law Section 800 et seq. that is honesty in government, in formulating its local laws with regard to financial disclosure, in a format harmonious and consistent with state law.

Justice Doyle concluded that Neppell, as Chairman of the Brookhaven Town Republican Committee, "is a political party officer (as defined in Section A30-8 of the Suffolk County Charter) and is required to file a financial disclosure form with the Commission ...."

[Click on http://longisland.newsday.com/data/pdfs/levy/Memo%20on%20Financial%20Disclosure%20requirements%20from%20Ed%20Dumas.pdf for a recent statement concerning financial disclosure by the Nassau County Chief Deputy County Executive.]

Free speech and whistle blowing

Free speech and whistle blowing

Brochu v City of Riviera Beach, 304 F.3d. 1144

The Brochu case interweaves allegations of the suppression of free speech, whistle blowing and retaliation into its fabric.

Steven Lobeck, a City of Riviera Beach police officer, sued the City police department for alleged reverse race discrimination in imposing discipline.

Subsequently, Edward Brochu, another City of Riviera Beach police officer sued the City alleging it had violated Title VII by retaliating against him because he testified against the City in the Lobeck litigation. As an example of such retaliation, Brochu alleged that he was transferred to a less desirable assignment, with significant changes in job duties and responsibilities.

Brochu also sued the City pursuant to 42 USC 1983, claiming that the City had violated his First Amendment rights to free speech because:

1.It had engaged in a pattern and practice of retaliating against employees who exercise their First Amendment rights; 

2.He had responded to a request to participate in an investigation into the City police department by the FBI; 

3.He had actively participated in the election campaigns of various reform candidates for the city council who had made campaign promises to clean up problems in the police department during his "off-hours;" and, 

4.He had met with others to discuss the problems in the police department and to formulate potential solutions.

Brochu alleged that his participation in "these anti-corruption activities" resulted in his being placed on administrative leave and his being subjected to conditions that were so intolerable that he had to resign from his position under circumstances that amounted to constructive discharge.

The jury awarded Brochu $2,000,finding that the City had retaliated against him for engaging in conduct protected by Title VII. Further, the jury awarded him an additional $450,000.00 on his First Amendment claim, finding that protected speech activity was a substantial and motivating factor for the City's decision to place him on administrative leave, an action that amounted to a constructive discharge.

The Circuit Court vacated the jury's determination, holding that Brochu did not prove his 42 USC 1983 claim because he was put on administrative leave for a valid reason that had nothing to do with any speech protected by the First Amendment.

Citing Rankin v McPherson, 483 US 378, the Circuit Court said that "[a]lthough it is well-established that an employer may not discharge a public employee in retaliation for the employee's exercise of his right to freedom of speech, that right is not absolute.

In such a type of case, said the court, "[t]he problem ... is to arrive at a balance between the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees," quoting from Pickering v Board of Education, 391 US 563.

In the words of the Circuit Court:

We have no problem concluding that, under the case law, "speech activity concerning corruption and mismanagement of [a] Police Department and/or . . .support [of] candidates for the City Council" might be a matter of public concern. In this case, however, Brochu was not not merely "commenting upon matters of public concern," i.e., the alleged ineptitude of his superiors and/or the alleged corruption in the police department, nor was he merely publicly campaigning in favor of candidates he felt would support a reform agenda. Rather, he was a major player in the creation and dissemination of a virtually secret plan to overthrow the existing police administration and put himself and his friends in charge.

This, said the court, "was not the sort of public speech activity engaged in by an employee as a citizen who is protected by the First Amendment. This was back-room maneuvering by an employee as an employee which, even if tangentially related to the political process in Riviera Beach and even if motivated by a sincere desire to reform the police department, is not the sort of public discourse which the First Amendment was intended to protect."

The Circuit Court observed that if creating and disseminating such an overthrow plan somehow constituted protected speech, the issue was whether a First Amendment right to participate in that activity was outweighed by the employer's interests under the facts of this case. The court's conclusion:

A Pickering balancing analysis weighing Brochu's interest in engaging in protected activities against his employer's interest in "promoting the efficiency of the public services it performs through its employees" demonstrates that the City would have been entitled to judgment as a matter of law.

Why? Because, the court explained, "[a] police officer is considered "part of a quasi-military organization [and] [i]n a law enforcement agency, there is a heightened need for order, loyalty, morale and harmony, which affords a police department more latitude in responding to the speech of its officers than other government employers."

The Circuit Court concluded that "the secret plan created by Brochu was simply not protected speech activity [but] even if it were, its potential to cause havoc in the police department would ... definitively tip the Pickering balance in favor of the City."

The Circuit Court held that Riviera Beach was entitled to judgment as a matter of law and it was reversible error for the district court not to have granted that motion.

The Doctrine of Legislative Equivalency

The Doctrine of Legislative Equivalency

Babor v Nassau County Civil Service Commission, 297 A.D.2d 342

The doctrine of legislative equivalency, applied by the Court of Appeals in deciding the Torre case [Torre v County of Nassau, 86 NY2d 421, was also a key factor in the Babor case. The doctrine sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act. The Babor case concerned the abolishment of a number of positions by the Nassau County Commissioner of Health.

Marguerite Babor served as a Nassau County public health administrator. When the Nassau County Board of Supervisors adopted a budget reducing the Health Department's 1992 appropriation more than 20% below its appropriation for 1991, positions encumbered by Babor and other public health employees were abolished. This resulted in a number of layoffs.

Babor and other individuals sued the County and the Nassau County Civil Service Commission contending that their former positions had been abolished in bad faith. They also argued that their layoffs were in violation of Section 61.2 of the Civil Service Law as other employees were required to perform their former duties as "out-of-title" work.

Finally, they contended that the abolishment of their former positions violated the doctrine of legislative equivalency as only the legislature, which they claimed created their positions, could direct that they be abolished. In other words, they argued, a county administrator may not unilaterally abolish a position created by the legislature.

Supreme Court, Nassau County granted the County's motion for summary judgment and dismissed Babor's petition. The Appellate Division reversed that part of the Supreme Court's dismissal rejecting Babor's argument based on the doctrine of legislative equivalency and remitted the case to the lower court.

The Appellate Division said that while, on it face, Babor's petition presents an issue as to whether the doctrine of legislative equivalency was violated, the parties provide different interpretations of the documentary evidence relevant to making a determination concerning the issue. Therefore, said the court, the Supreme Court must resolve this aspect of the case. Accordingly, summarily dismissing this branch of their claim was improper and a trial was required to resolve the issues of fact involved.

In contrast, the Appellate Division ruled that the Supreme Court "properly dismissed" Babor's petition insofar as she sought reinstatement to her position based on allegations that the County acted in bad faith and violated Section 61.2 of the Civil Service Law by assigning out-of-title work to other employees. With respect to these aspects of Babor's petition the Appellate Division concluded that:

The County established its entitlement to summary judgment with respect to those claims, and [Babor] failed to present evidence sufficient to raise any triable issues of fact.