Steven H. Schwartz & Associates, P.L.C.

Michigan Codifies Garrity Rights for Law Enforcement Officers

Schipper — 2007-03-15 14:54:40

On December 29, 2006, Michigan enacted M.C.L. 15.391, codifying the protection of involuntary statements made by law enforcement officers. Such protection has been in place since the Supreme Court's ruling in Garrity v. State of N.J., 385 U.S. 493 (1967). In Garrity, the Court ruled that public sector employees are in fact under duress and deprived of free choice when asked to either incriminate themselves or forfeit their jobs. Therefore, the use of such statements is prohibited in a subsequent criminal proceeding as involuntary self-incrimination.

The new Michigan law defines an "involuntary statement" as a statement made by the officer under threat of dismissal or other employment sanction. "Law enforcement officers" include emergency dispatch workers and local corrections officers. As in Garrity, involuntary statements may not be used against the officer in a criminal proceeding. Additionally, such statements are confidential and may not be disclosed without establishing one of the following: 1) officer written consent, 2) search warrant, subpoena, or court order, 3) collective bargaining or administrative or legal proceeding involving the officer's employment status or to defend the officer or law enforcement agency in a criminal proceeding, or 4) with limited use by legal counsel in a civil action against the officer or law enforcement agency.

Sixth Circuit Encourages En Banc Review of Arbitration Timeliness Disputes

Schipper — 2006-12-11 10:58:35

It has been a long-standing judicial precedent that the courts' jurisdiction in determining the arbitrability of arbitration agreements in a collective bargaining agreement is limited to determining whether the dispute is on its face governed by the contract. In other words, courts, not arbitrators, determine if the dispute is to be settled through arbitration. Arbitrators are to make the determination of procedural arbitrability (e.g. whether the parties have complied with procedural requirements under the agreement).

However, in the 6^th Circuit Court of Appeals, this rule has been slightly altered by the Court's ruling in General Drivers, Warehousemen and Helpers, Local Union 89 v. Moog Louisville Warehouse. In Moog a timeliness clause in the agreement contained the language: [I]f the Union fails to notify the Company [...] within 15 calendar days after the Company gives its answer in writing [...] then the Union shall be conclusively presumed to have accepted the Company's answer thereto and said grievance shall not thereafter be arbitrable. The Court found this language to, "clearly indicate that the particular grievance in dispute [was] excluded from arbitration."

Analogous time-bar language recently occurred in the case of Steelworkers v. Saint Gobain Ceramics & Plastics. The Court ruled that, while it felt Moog created a false dichotomy between express and non-express time-bars, it was bound by precedent to find that the grievance was not arbitrable. The Court went on to note that the 6^th Circuit is the only Court of Appeals to rule that time-bars are a question for the court in determining arbitrability and encouraged an en banc review of Moog so as to overturn it.

As a matter of policy, employers should have an express time-bar in their grievance procedures and closely follow the guidelines of the time-bar language.

City Manager Exit Agreements

gabrys — 2006-04-17 16:40:10

Introduction. City Managers serve in a perilous profession. City Managers are apt to lose their jobs for a number of reasons unrelated to performance or competency: differences in policy or direction, management style, budgeting issues. City Managers may also lose their positions for less rational reasons: jealousy, power plays, retaliation for ordinance enforcement, disagreeing with a strong-willed elected official, scapegoating or other political reasons.