In a recent opinion, the U.S. Supreme Court emphatically reaffirmed the requirement that collective bargaining agreements (“CBAs”) must be interpreted according to “ordinary principles of contract law” when deciding whether retired employees are entitled to health care benefits. CNH Industrial N.V. v. Reese, No. 17-515, 2018 WL 942419 (U.S. Feb. 20, 2018). The Supreme Court once again rejected the analysis used by the U.S. Court of Appeals for the Sixth Circuit (including federal courts in Michigan) that placed a “thumb on the scale” in favor of holding that CBAs provided lifetime health care benefits to retirees. The result is that employers in Michigan will now have greater certainty in negotiating and modifying the terms of health care benefits provided to their employees and retirees under CBAs.
The case involved a dispute over union retiree health benefits. In 1998, CNH entered into a CBA which provided group health care benefits to certain employees set to retire under the company’s pension plan. After the CBA expired, a class of CNH retirees and surviving spouses initiated a lawsuit in federal court asking for declaratory judgment that they were entitled to health care benefits for life and seeking to enjoin CNH from modifying those benefits.
While the case was pending, the U.S. Supreme Court decided M SmitG Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2015). In Tackett, the Supreme Court held that CBAs must be interpreted according to ordinary principles of contract law. It also explicitly rejected the analysis used by the Sixth Circuit, which relied on the so-called “Yard-Man inferences.” Under a Yard-Man analysis, which was not used in any other federal circuit, courts in the Sixth Circuit would infer that an employer agreed to provide retirees with lifetime health care benefits unless there was a specific provision in the CBA stating that those benefits had a limited duration or could not be modified. The Supreme Court held that the Yard-Man inferences were inconsistent with ordinary contract princi
After Tackett was decided, the district court ruled in favor of the retirees. The Sixth Circuit affirmed the district court’s holding that the retirees had vested lifetime health care benefits.
The Supreme Court unanimously reversed, holding that the Sixth Circuit had failed to follow Tackett’s directive to apply ordinary principles of contract law. Instead, the Sixth Circuit had relied on the Yard-Man inferences to find that CBAs were ambiguous and therefore, extrinsic evidence beyond the contract language could be considered in deciding whether the CBAs provided retirees with lifetime health care benefits. The Supreme Court held that the Sixth Circuit erred by failing to enforce the CBA’s general durational clause to health care benefits (i.e., that the contractual obligation to provide health care benefits ends when the CBA’s term expires). In order to provide lifetime benefits, the parties must include a specific provision to that effect in the CBA.
Foster Swift Collins Smith PC
- Richard C. Kraus and Mindi M. Johnson
It provides that the fee required for an applicant for a retired law enforcement officer concealed carry certification shall be no more than 20% of the fee required under the Firearm Concealed Carry Act for application or renewal for a concealed carry license.
Here's an article we are running in the August issue of American Police Beat about the most recent murder of one of our law enforcement officers.
This morning NPR on their Morning Edition radio show aired a story on the dramatic increase of unprovoked attacks on law enforcement. There was no text available so all I have to send you is the link to the segment on the radio show. I hope you can tune in. It's well done. Click here
VIDEO: Help Us Fight This Gross Injustice
To my fellow officers!
Here in New York City, Sgt. Hugh Barry of the 43 Precinct was indicted for Murder 2 by a Bronx grand jury for the shooting death of an emotionally disturbed woman who attacked him with a baseball bat. This is a message from Ed Mullins, president of the NYPD Sergeants Benevolent Association (SBA), who needs all of our help to get justice for Sgt. Barry
and watch the video the SBA produced to educate the public about the realities of police work and the NYPD's use of force training. Scroll down to see how you can help Hugh Barry. The SBA is a founding member of PubSecAlliance, an online community of police union and association leaders and their members.
Calling all Chiefs, Patrol Officers and
Everyone in Between . . .
This is a Battle We Have to Win:
Saving Your Pensions
John Arnold and his wife and the infamous Koch Brothers, who have spent millions of dollars trying to steal your pension. Don’t let them get away with it.
by Cynthia Brown
It’s no secret that there’s a relentless, well-funded attack on your pensions. The people and organizations that are determined, no matter what it takes, to get their greedy hands on your retirement funds have used every tactic in the book to reach their dream of shutting down traditional pension plans and replacing them with 401(k)s. This will impact everyone in the profession - chief down to the officer on the midnight tour answering 911 calls.
The justification for this development? Mostly the bogus argument that states and municipalities face unsustainable pension obligations that will force cuts to essential services and raise taxes if the system is not drastically “reformed.” We think a more accurate word is “destroyed.”
In an excellent article that appeared in The New York Times, Boston University professor David Webber makes the case that the media has mostly taken the crisis claim at face value, while economists and actuaries debate whether there is even a problem. Webber writes:
Since the Great Recession, 49 states have reformed pensions to make them more sustainable, increasing employee contributions and reducing benefits. Wherever one stands on the underfunding question, plenty of options short of converting pensions to 401(k)s exist, including ones that would preserve some collective shareholder voice. But these are rarely considered. Why?
Well, folks, the answer is simple. The motivation is not so much that they’re worried about the fiscal health of your community and that pensions are eating away at that. What they’re really after is control of the funds, so those billions of dollars you earned under contractual agreement doing one of the toughest jobs in our society go into their pockets, not yours.
We highly recommend that you read this article in its entirety. This is one of the biggest issues police unions face and it’s a battle we have to win.
Read more on PubSecAlliance
Over Use of Force Policy
Ken Crane, president of the Phoenix Law Enforcement Association, has raised numerous objections to new use of force policies.
Click the image above to watch the video.
It seems like every law enforcement agency is grappling with changes in use-of-force policies, which are too often implemented by people that are not familiar at all with the complicated, risky, and high-pressure world of law enforcement, especially when it comes to the use of deadly force.
The press conference you are about to watch was convened by Ken Crane, president of the Phoenix Law Enforcement Association (PLEA), flanked by some of Arizona’s most powerful law enforcement officials. Ken builds his case, detail by detail, and powerfully proves the action taken against this officer is wrong. Every police association in the country is dealing with these kinds of situations and we thought you might get some good ideas seeing what Ken Crane and his folks at PLEA did to fight back. You can read the story below the video.
Phoenix Police Chief Jeri Williams is having trouble defending new and confusing use-of-force policies that are causing a morale problem for officers.
The Phoenix Law Enforcement Association (PLEA) held a news conference recently regarding that topic.
PLEA is defending a Phoenix police officer involved in a 2015 shooting. PLEA is also criticizing how Phoenix Police Chief Jeri Williams handled the case.
“Police managers will often take the politically safe route when it comes to police use of force matters,” said Ken Crane, president of PLEA. “This means the men and women who daily man the front lines are sometimes sacrificed for the benefit of the politically correct decision.”
PLEA’s concerns date back to a Dec. 26, 2015, incident, when a suspect throwing bricks at a police car and precinct substation died in an officer-involved shooting.
It happened in the area of 39th Avenue and Cactus Road just before noon.
On that day, an officer was leaving the precinct when the man threw a rock or brick at his patrol car.
While the officer was calling dispatch, the man threw additional bricks, breaking a precinct door, police said.
Officers in the building managed to leave and approach the man.
“An officer and a sergeant had to contend with an unstable, uncontained violent subject,” Crane said.
“The suspect was still holding rocks/bricks and was refusing to stop, drop the objects, or obey any police direction,” Phoenix police Sgt. Jonathan Howard said at the time.
The suspect then reportedly threw a large rock or brick at one of the officers. It glanced off a tree and hit the officer in the hand.
The officer fired, striking the suspect.
The suspect was taken to the hospital in critical condition and later died. He was identified as 41-year-old Lonnie Niesen.
The incident was investigated, but the officer who fired the gun was cleared.
“The officer was cleared by the Maricopa County Attorney’s Office of any wrongdoing,” said Crane.
But 15 months later, a police department Use of Force Board reviewed the incident and recommended that the force be designated “out of policy.”
At the time, Phoenix Police chief Jeri Williams went with the recommendation of the board.
“This raises a question,” said Crane. “How did the officer go from hero to zero in 15 months?”
PLEA’s website states what they say happened next:
“PLEA intervened and asked for a meeting and she agreed. Chief Williams came to the PLEA office and we thoroughly briefed her on all aspects of the case. She agreed to give it a re-look and get back with us. PLEA received an email from her on July 28, 2017. Chief Williams indicated she would not reverse the Use of Force Board recommendation. By our count we brought the subject up for discussion on three occasions over a time period of several months."
READ MORE HERE
What Peace Officers Should Do When Being Recorded in Public
1.) React Without Reaction: What Peace Officers Should Do When Being Recorded
The number of viral videos of police encounters has skyrocketed in recent years, bringing with it national scrutiny about officer conduct and agency policies. Some of these videos have...
(In Public Safety, American Military University)
2.) In Full View: An Update on the Right to Photograph and Record in Public
The Rights and Limitations of the Public to Record Peace Officers: A Policing Perspective -
12 Tips to Share With Peace Officers Before Filming Makes Them "Stars"
(Sheriff and Deputy Magazine, National Sheriffs' Association)
3.) Training: Media Relations and Social Media Strategies for Law Enforcement Seminar
°Thursday, March 8, 2018 at the LAPD Academy
° Registration information:
° A Peace Officers of Los Angeles County (https://poalac.org
) Training Seminar
* What works (and what doesn’t!)
* How to handle routine, controversial, and major incidents
* Transparency issues – being open while protecting investigations
* Accuracy issues – pitfalls and corrections
* Social Media strategies – development and implementation
* Expert panel discussion – Q&A
* Kate Mather – Reporter, Los Angeles Times
* Chief David Maggard – Los Angeles Airport Police Department
* Cmdr. Michael Parker – Los Angeles County Sheriff’s Department (Ret.)
* Josh Rubenstein – PIO, Los Angeles Police Department
* Bill Rams – Cornerstone Communications
* Sergeant Saul Gomez – PIO, California Highway Patrol
If you enjoyed these emails and would like to receive them in your inbox you can signup by clicking HERE
Should cops be collecting taxes on top of everything
else they do?
Peace officers should not be tax collectors
By Molly Davis,
For the Deseret News
Many police executives have claimed that they do not impose quotas on their officers-but if that were true, then why do they oppose legislation banning them?
It has long been rumored that many police agencies operate under a quota system - one in which officers are required by their superiors to issue a specific number of citations. Whether this is true or not has been difficult to prove because, aside from personal testimony and leaked documents, there is little evidence confirming quotas are used by police departments.
It may be that departments don't have an official written policy on quotas, either implementing or banning them. Instead, some quotas could exist in untraceable means such as word of mouth.
Many Utahns' skepticism of police quotas recently received a boost when a former police officer, Eric Moutsos, publicly alleged in a viral Facebook post that his past employer, the Salt Lake City Police Department, regularly relied on quotas as a means of garnering increased funds for their city.
In later conversations, Moutsos disclosed that quotas were repeatedly used as an objective tool for officer evaluation. Officers would be rewarded or punished based on these expected performance metrics. He also indicated that it was virtually impossible to advance in one's career without increasing your numbers, whether it was citations issued or arrests made. According to Moutsos, officers seeking transfer or promotion to better units within the field of police work are often evaluated based heavily on how many citations and arrests they have on their track record. Police departments often contend that this is a matter of measuring productivity and tracking work.
But Moutsos' testimony is not the only evidence of quotas being used in Utah. Leaked emails from the Cottonwood Heights Police Department in 2013 showed that prizes were given out as incentives to officers who reached certain quotas.
Additionally, an audit of the Provo Police Department revealed that "officers felt that they were required to meet a quota of different kinds of traffic violations including, but not limited to, parking, equipment and moving violations." Some officers felt they had been "passed over for promotion and transfer based on the arbitrary requirement of a certain amount of activity in selected patrol categories, most notably traffic enforcement."
Former state Rep. Carl Wimmer, previously a police officer for both West Valley and South Jordan, admitted he "had to write three tickets every day. That was a quota, and they exist."
It's been a decade since the Legislature explored the issue. Neil Hansen, a former Utah House member, sought to ban police quotas in 2008 and again in 2009. Both bills failed, in part due to opposition from police executives across the state. However, the Utah State Fraternal Order of Police has consistently supported banning quotas.
Many police executives have claimed that they do not impose quotas on their officers - but if that were true, then why would some oppose legislation banning them? Others claim quotas should not be banned because they are a good tool for evaluating an officer's performance. But if quotas are as helpful and good as they claim, then why do police departments often try to hide any evidence that they are using quotas?
The arguments against banning quotas simply don't add up. And although some law enforcement executives may be vocal in the fight against banning quotas, many police officers are silent in their support of prohibiting this practice, fearing professional retribution for speaking up.
Most peace officers enter into a career in law enforcement because of a desire to keep their community safe. They signed up to be a peace officer in the truest sense of the word - not a revenue generating robot whose purpose is to boost the city budget.
The Legislature should prohibit quotas in Utah, just as multiple other states have done such as Missouri, Tennessee, Texas and Florida. Tickets will still continue to be given and fines will still be paid. And rather than being stuck chasing drivers down for actions that have not endangered anyone, officers will be freed up to focus on actual threats to public safety.
In a world without quotas, officers would be given the opportunity to fully perform their jobs through proactive policing where they can use their discretion to prioritize public safety without the threat of being punished for not writing a high number of tickets each day. Utahns would better be able to trust that the police officers are patrolling the streets for the purpose of safety, not monetary gain.
Molly Davis is a policy analyst at Libertas Institute.
Click here for full story
KEY TASK: PROTECT YOUR SYSTEM'S COMPUTER SYSTEM
By Ernie Smith
Meltdown and Spectre, a series of hardware-level exploits disclosed last week, led to a collective freak-out in the tech world. The issues, mostly with Intel processors but affecting almost every major type of CPU, definitely are serious, but what do they mean for your association?
In 1994, a math professor unwittingly came across what would prove to be a costly headache for the chip giant Intel-a bug in the way that the floating point unit in Intel's Pentium chip divides numbers.
The problem was seen in retrospect as perhaps a bit overblown-it was not a situation that most computer users would run into on a regular basis-but it still ended up costing Intel hundreds of millions of dollars.
The flaws recently revealed in popular lines of processors promise to affect users a lot more than that old floating-point bug, especially if they don't upgrade their devices.
Last week saw the revelation of two separate bugs, one specifically targeting Intel devices, nicknamed Meltdown, and another affecting chips by both AMD and the widely used ARM platform, along with Intel, called Spectre. Both affect processors made over a 20-year period, involving the processors' handling of something called speculative execution, a technique that allows for faster processing but also created massive security holes that promise to be with us years from now.
The bugs are significant enough that they've earned their own names and logos, and each is believed to enable attackers to access sensitive data at the hardware level. A piece of malware could, theoretically, grab passwords or other sensitive data at a very low level within the system. The bugs, in this way, have parallels to the Heartbleed bug, except at the hardware level.
Much has been written about these flaws, and early on, the news about Meltdown in particular-reportedly first discovered months ago by Google researchers-had a lot of people freaking out and struggling to explain what it does.
Fortunately, we've had a few days to digest this news, and while Intel will surely be dealing with the fallout for some time, it's looking like Meltdown and Spectre, at least in the short term, will be more of an ongoing security annoyance than a code-red crisis-as long as you're on top of tech security issues in your organization.
So, what does this mean for your association's IT department? A few quick takeaways:
Now might be a good time to hold off on buying new machines. Since this is a hardware problem, it's going to take Intel and other manufacturers some time to solve it-so if you're in the market for a new computer, it may be wise to wait. In particular, it may be prudent to hold off on a noncritical purchase of a machine with an Intel processor, as Intel plans to implement fixes to Meltdown in its hardware. While Intel has software patches going to the machines already on the market, those are said to slow down certain operations, and it's possible that Intel will be able to solve the Meltdown-related security issues in later iterations of its chips. At the same time, the issues may simply be unavoidable, particularly as Spectre affects a much broader array of products-including some versions of the iPhone and iPad, along with connected devices that use the ARM architecture. Which of course means ...
Expect to do a lot of patching in the coming weeks. While it's clear that software can only do so much about a fundamental hardware-based issue, the Meltdown and Spectre scare highlights why it's so important that your organization have a well-considered approach to security and updates. In the longer term, more patches could be necessary, and because Intel and other processor makers are at the mercy of third-party software vendors, it might take a while for your connected devices to get patched. Hey, it could be worse: As Wired notes, the United States Computer Emergency Readiness Team initially believed the only effective way to solve the Meltdown problem was to replace the hardware entirely. In that light, patching is definitely a nice alternative.
Cloud computing resources are likely to see some hiccups.Want an idea of how bad Meltdown could be for cloud computing? Look to the world of gaming. Big-name publisher Epic Games, for example, has run into a lot of problems over the past few days due to the way patches have affected servers for its popular title Fortnite. It's a high-profile example of what may become the most visible problem caused by Meltdown in particular: Cloud computing exists to make processing power available to the public, and now the exploit-and its necessary patch-promise to make that processing power, well, less powerful. While big players and small have been working on solutions for the flaws, the speed issues related to patches will be particularly felt on the cloud, as database software and web servers are likely to face the strongest effects from such patches. This could mean that your cloud computing dollar might not go as far.
This is not an ideal situation by any means, but if your IT department is staying on top of security issues, you might be able to keep your head above water. But expect a few headaches. (And I would expect the tech industry to learn a lot from this crisis, as it did with Heartbleed.)
Just because it's called Meltdown doesn't mean you actually need to have one.
See the full article HERE