CASE UPDATES

By: Martin J. Mayer

WAIVER DID NOT PROTECT SHERIFF FOR ALLEGED DEFAMATORY STATEMENTS

McQUIRK v. DONNELLEY, Sheriff Glenn-County 99 Daily Appellate Report 8603

Philip McQuirk medically retired from the Glenn County Sheriff's Office in 1990 and applied for the non-peace officer position of Property Room Manager with the Mountlake Terrace, Washington, Police Department in 1995. As part of the employment process McQuirk signed a waiver for release of information which also contained the provision that "I hereby release you, your organization or others from liability or damage which may result from furnishing the information requested above."

McQuirk's offer of employment was rescinded after Glenn County Sheriff Donnelly contacted Commander Smith. McQuirk alleged that during the twenty minute conversation Sheriff Donnelly made five defamatory statements about him: (1) that a splitting maul had disappeared from the evidence room over which McQuirk had responsibility and that the maul had reappeared after McQuirk was notified that its owner wanted it; (2) that McQuirk had submitted a false insurance claim for damage to the tires of his car; (3) that McQuirk had committed perjury while testifying in a criminal case; (4) that Donnelley personally knew that McQuirk had fabricated a police report; and (5) that McQuirk had stolen a ring from another officer in the sheriff's locker room.

Sheriff Donnelly was later told that a ring had in fact not been stolen, but he did not notify Commander Smith of this. There also was some dispute over whether Sheriff Donnelley did or did not inform Commander Smith that some of his comments were based solely on rumor.

Although the trial court, the United States District Court for the Eastern District of California, granted summary judgment, holding the waiver valid and that Sheriff Donnelley and Glen County were immune under California law, the United States Court of Appeals, Ninth Circuit reversed and remanded.

The Ninth Circuit found that under California Civil Code Section 1668, a release from future liability for all intentional torts was against public policy and was not enforceable in California. Therefore, inasmuch as McQuirk's claims were for intentional torts, Sheriff Donnelly could not use the waiver to shield himself from liability. Glenn County also could not escape liability under California Government Code Section 815.2 since Sheriff Donnelly, its employee, was not immune.

/ How does this impact your department?

This case addressed applicability of Civil Code Section 1668, a section that has not been previously addressed by the California Courts, regarding language of the release signed by an applicant for employment. Language absolving one from liability for all future intentional torts, having now been found to be against public policy, requires modification of language contained in employment waivers. Agencies should consider modifying their release to read "I hereby release, discharge, and exonerate any agency, their agents, representatives and/or any person from liability arising out of the furnishing and/or inspection of records and/or other truthful, even though embarrassing, information."

Additionally every member of the agency authorized to release records and/or information concerning a former or current employee must be made aware that malicious, false, and/or unsupported data, including their personal opinions are not necessarily protected and they may be personally liable.

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OFFICER INJURED DURING OFF-SITE TRAINING BY PRIVATE VENDOR ASSUMED THE RISK

PFAU v. KIM'S HAPKIDO 99 Daily Appellate Report 8247

Kevin Griswold was teaching martial-arts techniques to police officers attending a continuing education course required by their department. Griswold asked Dan Pfau, one of the officers, to play the role of an aggressor attempting to take Griswold's handgun. In the process of demonstrating a technique of defending against that attempt, Griswold allegedly injured Pfau's shoulder. Pfau sued Griswold and Kim's Hapkido, the martial-arts studio which allegedly employed Griswold.

The California Court of Appeal Fourth District, in affirming the trial court's granting of Kim's Hapkido's motion for summary judgement, held that a martial-arts instructor engaged in the training of police officers had no duty of care to avoid injury to those officers because the officers assumed the risk of injury. The Court also noted that under the Firefighters' Rule there was no duty owed to prevent injury while training to meet emergency situations stating, in part, "before a person may respond effectively to [emergency] calls, he or she must be trained in what to do .. at the scene of the emergency ... [and] training ... is no less a part of a public safety officer's employment than is responding to an emergency. The risks arising out of both are risks that the officers are hired to face."

/ How does this impact your agency?

Although agencies should strive to insure that training, on or off the employers property, is made as safe as possible, there are types of training that pose significant possibility of injury. If an officer is injured as a result of such training, he or she will not be able to sue the instructor but will be considered injured on duty (IOD).

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DELAYED SUSPECTED CHILD ABUSE INVESTIGATION REQUIRES EXIGENCY, CONSENT OR WARRANT TO RETAIN QUALIFIED IMMUNITY

CALABRETTA v YOLO COUNTY & WOODLAND POLICE DEPT. 99 Daily Appellate Report 8905

Four days after receipt of an anonymous telephone call of a child screaming "No Daddy, no" at 1:30 a.m. Jill Floyd, a social worker in the Yolo County Department of Social Services, went to the Calabretta home to investigate. Mrs. Calabretta, the children's mother, refused Floyd entry, however the children were standing at the door and Floyd noted on her report that they "were easily seen and they did not appear to be abused/neglected."

Fourteen days after the call and ten days after the first visit, Floyd returned to the Calabretta home with a police officer. Floyd did not tell the police dispatcher about the specific allegations, just that she needed police assistance to gain access so that she could interview the children. Officer Schwall met Floyd at the Calabretta house, knowing nothing about the case except that he had been assigned to assist. Floyd told Schwall that she had received a report of the children crying, and Schwall understood Floyd to mean that the children might have been beaten.

Mrs. Calabretta answered Schwall's knock and when informed he and Floyd were there checking on her children's welfare, because of a report of children crying, stated that she was uncomfortable letting them in without her husband being at home. Officer Schwall had the opinion that in any check on the welfare of children "there is an exigent circumstance" so no search warrant was needed, and entry was made without consent.

Floyd took the Calabretta's twelve year old daughter into one room while Schwall remained with the mother in another. When a three year old came into the room Floyd told the twelve year old to pull the three year old girl's pants down as she wanted to look at the three year old's buttocks to see whether there were marks. The twelve year old did not and the three year old started crying, causing Mrs. Calabretta to run into the room. Floyd repeatedly told Mrs. Calabretta that hitting the children with objects was breaking the law and insisted on seeing the child's buttocks. Mrs. Calabretta, in obedience to Floyd's order, pulled down the child's pants revealing no bruises or marks.

The Calabrettas sued the social worker, officer and others and the district court denied defendants motion to dismiss. The United States Court of Appeals, Ninth Circuit affirmed the trial court holding that Floyd and Schwall were precluded from asserting a qualified immunity defense as their acts violated a clearly established right that would have been known by a reasonable social worker or police officer. The court pointed out that in the absence of a special exigency, a reasonable officer would have understood that the police cannot enter a home without consent or a search warrant. No exigent circumstances existed here because there was a 14 day delay in conducting the investigation.

The court noted that even with administrative searches, such as investigating a child's well-being, the Fourth Amendment is the guiding principle on any home invasion.

/ How does this impact your department?

When called upon to assist other government agencies to gain entry into a residence, departments must obtain enough information to make an informed decision on how to proceed. Assuming exigent circumstance, consent, or warrant, and acting on such assumption, subjects the agency and it's personnel to unnecessary liability exposure. Departments should also train not only dispatch personnel but field officers in what information is required to lawfully enter a residence and not rely on knowledge received during academy attendance, FTO programs, or experience. Regular training bulletins, distributed to each officer, is also recommended.

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FAIR LABOR STANDARDS ACT DOES NOT PROHIBIT PUBLIC EMPLOYER FROM REQUIRING EMPLOYEES TO USE COMP TIME

COLLINS, et al. v. SPOKANE VALLEY FIRE PROTECTION DISTRICT 99 Daily Appellate Report 8779

A group of firefighters employed by the Spokane Valley Fire Protection District No. 1 were members of the International Association of Fire Fighters, Local 876, that negotiated a collective bargaining agreement for the receipt of comp time in lieu of overtime pay for projects outside of their normal hours. The bargaining agreement capped the amount of comp time that an employee could accumulate at 144 hours, after which the Fire District was required to pay the employee time and a half for each overtime hour. Employees are able to schedule paid time off based on their comp hours by giving notice to the Fire District sixty-four hours in advance.

The firefighters did not use their comp time and the time began to approach the 144 hour cap. Due to budgetary restraints, rather than paying overtime, the Fire District ordered the firefighters to use their comp time. The firefighters did not want to use the comp time, but reluctantly complied with the order.

The Assistant Fire Chief denied the Union's grievance, stating the intent of the bargaining agreement was to ensure that employees were allowed an opportunity to use their earned comp time, and not to guarantee additional income. Suit was filed claiming violation of the FLSA by requiring the firefighters to use comp time after they had accumulated a certain number of hours.

The district court held the FLSA did not prohibit employers from requiring employees to use accumulated comp time. The United States Court of Appeals, Ninth Circuit affirmed. The court pointed out that it had not previously addressed the issue of whether the FLSA prohibits an employer from compelling an employee to use comp time, pointing out, however, that the Fifth and Eighth Circuits had.

In Moreau v. Harris County, 158 F.3d 241 (5th Cir.1998), the Fifth Circuit held that employees do not have a property right in accrued comp time, specifically rejecting the Eighth Circuit's reasoning, noting that the statutory purpose of § 207(o) was to ease the burden on public employers of paying overtime wages.

The Eighth Circuit, in Heaton v. Moore, 43 F.3d 1176 (8th Cir.1994), held that because §207(o)(5) provided that employers could deny the use of comp time only if it would unduly disrupt their business, the negative implication of the statutory grant was that employers had no control over employees' use of comp time. Agreeing with the Fifth Circuit's holding, the Ninth Circuit stated that it does not suggest that the FLSA requires that public employers be allowed to force employees to use comp time, but encourages public employers and employees to negotiate and reach agreements concerning the use and preservation of comp time.

/ How does this impact your department?

Departments should make every effort to resolve overtime issues through the meet and confer process. Until an agreement is reached, however, there is no prohibition in having employees use comp time as long as such is done in a reasonable and fair manner.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Martin J. Mayer at (562) 590-8280.

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