To answer some of your questions, and bear in mind this is not legal council or should it be taken as such, please contact your attorney. The following is for informational purposes only. We will attempt to address each question individually. Crapper answers in red.Anonymous said... To the Crapper we go. I am asking the crapper to research cases that officers have acually won a case of violation of LEOBR. I ask this because one hears continually that there is no "Tort" to support this type of infraction.What are the potential penalities to an agency that violate LEOBR ?Is there civil remedy ?Can the timing and circumstance be considered in the venue. As a case of a 15 year Sgt. being moved from a specialized unit.
The timing in itself, may or may not be an issue for a tort, probably not. However, an "on going course of conduct" may lend itself for a tort under the "hostile work environment" if there is emotional distress that occurs under this issue. Unfortunately, departments can require personnel to work odd hours, midnights, and generally anything else the department deems appropriate. However, a transfer without cause or due process as a retaliatory measure is illegal under LEOBOR (see below). Proving that the transfer was punitive, without due process, lands on the plaintiff, in this instance, the police officer. There are transfers that can occur to "benefit the agency" that do not fall under disciplinary action. For instance, if an employee has an issue with another employee to where it begins to effect the work of either or both employees or there is another such conflict, the employee(s) can be transferred, without disciplinary action, in order to elevate the problem.
The notice is given at 1600 to report at 2400 to a Patrol group the same day and this would occurr on a friday causing the said officer to work 10days in a row. Going from day work to midnights. This giving the Sgt. eight hours to prepare for duty in unform, pick up equp., get uniforms ready, and sleep.
Where a department could get into trouble is if they require personnel to work over 44 hours in a work week without paying overtime or transfer personnel from a midnight shift to a day shift, followed by an evening shift (with no break, essentially requiring personnel to work 24 hours). In this aspect, there is the concern that the officer might act in a manner unfit for duty (i.e. crashing his police vehicle) due to lack of sleep, which the department would probably be liable for civilly.
I see this happening once as a possible oversight, but to happen twice well lets just say this Sgt. better have thick skin. If this Sgt. is the only Sgt. in a two year period to receive written counseling from his immediate supervisor. The immediate supervisor admits that this Sgt. is the only Sgt. written up in that period. This I/S has at least five other Sgt.s that have faced an array of situations that could have reulted in one form or another of discp. action yet there was none taken ?? Would this be considered an hostile possibly retalitory enviroment. Yet no sustained I.A.D. cases, letters from the public or complaints by personell on this same Sgt.. Subordinates that continually strive for what is best for the agency. No known or documented tranfer request from this said Sgt.s Patrol groups.
Again, the course of conduct comes into issue, on the departments end. First, was there really a violation of policy requiring a reprimand. If not, this is an issue. Can the officer prove that other violations occurred, by other officers, without them receiving reprimands? If this is correct, would those officers be willing to come to court and testify that they indeed violated the same policy however never received any disciplinary action? These are questions that would have to be answered by the court and proven by the plaintiff. There is no doubt that departments routinely target specific personnel that they just don't like or whatever their reasoning is. This can, inevitabley, land a department in hot water, especially if a class action lawsuit is filed on behalf of all personnel that have been "wronged" by the department. But, it is dependant upon the officers to prove that either violations of the department's own policies by the department occurred or it really was a "hostile work environment" and it is incumbent upon the department to prove that the transfers or other actions were consistent with the policies of the agencies, there was a reason for doing so other then punitive in nature, that the department was indeed not target specific individuals, and that there was not a hostile work environment. The term "hostile work environment" is wide ranging. Officers can also raise questions or file complaints to their human resources departments.
I dont know just food for thought. I was wondering if this site has access to this type of legal advise.If anyone may quess who I am reffering to please do not post the person name. This situation mimics mine and I dont want agency or personnel be wrongfully targeted by the question. I ask because i am very close to the person that this happend to.Is there a state or federal agency that would be able to assist here ??Well no big deal. If anyone has a simular case to add please do. I would love to read it. Please dont add name or agencies lets keep this real. No BS please
There have been cases where officers have sued departments for transfers, etc. Some of these cases are posted below and are great reading. In short, the possibility to sue an employer always exists if there is a "hostile work environment". However, it is incumbent on the employee to prove that this type of environment actually exists and to produce witnesses that can factually testify to this effect and/or produce records.
August 27, 2009 11:47 PM
Transfers from one division or department to another for disciplinary reasons, although departments can claim it's for other reasons, are plainly unlawful. The problem is proving that the transfer was made "with malice". However, Maryland LEOBOR plainly states:
Transfers from one division or department to another for disciplinary reasons, although departments can claim it's for other reasons, are plainly unlawful. The problem is proving that the transfer was made "with malice". However, Maryland LEOBOR plainly states:
3-103. RIGHTS OF LAW ENFORCEMENT OFFICERS GENERALLY.
(D) RETALIATION.
A LAW ENFORCEMENT OFFICER MAY NOT BE DISCHARGED, DISCIPLINED, DEMOTED, OR DENIED PROMOTION, TRANSFER, OR REASSIGNMENT, OR OTHERWISE DISCRIMINATED AGAINST IN REGARD TO THE LAW ENFORCEMENT OFFICER’S EMPLOYMENT OR BE THREATENED WITH THAT TREATMENT BECAUSE THE LAW ENFORCEMENT OFFICER:
(1) HAS EXERCISED OR DEMANDED THE RIGHTS GRANTED BY THISSUBTITLE; OR(2) HAS LAWFULLY EXERCISED CONSTITUTIONAL RIGHTS.
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2 comments:
What about when no reason is given and there is finanical lose as well as damage to ones reputation when other potential employers look at someone?
Well, depends what type of finacial loss you are talking about. However, a transfer, in itself, should not mean a loss of money in paygrade. This would be actionable. However, if you are talking about a loss due to change of hours, more then likely, this is not actionable due to the fact that it is understood when police officer join respective departments that they can assign you to duty wherever as long as it is not for punative reasons (see initial responses). Damage to reputation should not be a factor if another department looks into a transfer. If a transfer is not for punative reasons, then there should be nothing noting such in their personnel folder. Further, if this matter is discussed by administration as a punative measure to another potentional employer, when the measure was not punative (according initially to the current department) this would also be actionable.
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