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untanglingwebs
El Supremo
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Judge dismisses Flint police union president's Whistleblower claim against city
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Gary Ridley | gridley@mlive.com By Gary Ridley | gridley@mlive.com
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on February 01, 2014 at 7:50 AM, updated February 01, 2014 at 7:52 AM
FLINT, MI -- The attorney for Flint Police Officer Association President Kevin Smith said he plans to appeal a ruling by a Genesee Circuit judge dismissing a portion of Smith's lawsuit against the city that claims he was retaliated against for speaking out against the city's use of public safety millage funds.
Genesee Circuit Judge Joseph J. Farah dismissed Smith's Whistleblower Protection Act claim Monday, Jan. 27.
Smith claimed in the lawsuit that the city assigned him to third-shift patrol in the city's north side after he spoke out publicly and to department leadership about how the city was using $5.3 million in public safety millage funds by claiming that the funds were not being used to hire new officers.
Attorney Tom Pabst, who represents Smith, said he plans to appeal Farah's decision. Smith declined to comment.
Farah could not be reached for comment on the decision.
Smith began legal action against the city after his position as full-time union president was eliminated by the city as part of an April 14, 2012, order issued by former Emergency Manager Michael Brown.
In April 2012, then-Flint Emergency Manager Michael Brown issued order No. 18 that instituted a number of changes to the union's contract with the city, including the immediate elimination of the union president position.
However, Smith said the city waited until Monday, March 11, 2013, to actually terminate the position when he was ordered back to road patrol.
As president, Smith worked from 8 a.m. to 4 p.m. with weekends off in order to handle union business. He was assigned to third shift in the city's north end when he was ordered back to road patrol.
Smith alleges in the lawsuit that police leaders scheduled him to work exclusively in the north end -- a beat that he claims in the lawsuit is more dangerous than others in the city -- as retaliation. Smith claims that no other patrol officers are assigned solely to the city's north end.
City officials challenged Smith's accusations.
"In this case, (Smith) is essentially complaining about a reassignment," city attorneys argue in court records. "His job duties went from full-time president to the duties he was hired to perform: patrol officer."
The city also argued that it is not required to provide a paid union president position.
"By the (emergency manager's) order, he has now been required to carry out the function for which he was hired," the city said of Smith in court records. "He has suffered no reduction in pay or benefits and is doing exactly the job that he was hired by the city to do. Moreover, he was elected by his union to be president -- not hired by the city to be union president, and the city is not responsible for his subjective expectation of being FPOA president forever."
Farah denied a motion filed by the union in April 2013 asking for the judge to reinstate the union president position.
Pabst said Smith's case is similar to one filed by former police Sgt. Rick Hetherington.
Hetherington, a current Flint-area attorney, received a $70,000 settlement from the city in 2012 after he was fired for speaking out as a union leader against appointments former Mayor DonWilliamson made to the police department. The case also overturned the Flint Police Department's "gag rule" that forbade police officers from speaking to the media.
Pabst said Smith still has a pending civil rights claim against the city alleging that he was discriminated against by black police leaders because he is white.
The Flint Police Officer Association in the city's largest police union and boasted 85 members in 2012. |
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Wed Mar 05, 2014 8:21 pm |
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untanglingwebs
El Supremo
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This citation is found among others posted by the Academic Association of University Professors under Legal Cases Affecting Academic Speech
Petrich v. City of Flint and Speer v. City of Flint
In these two related cases decided on the same day, a federal district court in Michigan ruled that the Garcetti “official duties” analysis does not apply when public employees speak on a matter of public concern behalf of a union or another organization, rather than in their capacity as public employees.
In Petrich, a police officer for the City of Flint, Michigan, was also the president of the Flint branch of the African-American Police League (AAPL). After a new acting police chief was appointed, Officer Petrich strongly criticized the appointment in a local newspaper interview in which he was identified as the president of the AAPL. He was then disciplined under a new policy preventing police officers from speaking to the media without prior permission and he sued, claiming that the policy was unconstitutional and that the city had violated his First Amendment free speech rights. The court first ruled that Officer Petrich had spoken on a matter of public concern; in the court’s view, “public safety concerns require a well-run police force, and [Petrich] expressed his view that this expectation would not be met under [the acting chief’s] leadership. Nothing in [Petrich’s] comment indicates a purely personal vendetta . . . .” The court also ruled that Garcetti did not strip Officer Petrich’s speech of protection; because the City of Flint had “no interest in controlling the speech of the AAPL,” where Officer Petrich “spoke to the media in his capacity as president of the AAPL, rather than as a police officer, Garcetti does not bar his First Amendment claims.” Finally, the court ruled that the City failed to show that Officer Petrich’s comments interfered with the operations of the police department or caused disharmony among his co-workers, and that the AAPL’s interest in expressing its views was therefore greater than the City’s in maintaining police discipline. As the court further noted, “Plaintiff’s statements as head of the AAPL do not undermine the authority of the police chief. Although the AAPL’s views may conflict with Defendant’s, this does not constitute insubordination.” The court did emphasize that Officer Petrich was authorized to speak on behalf of the AAPL, and suggested that that was a critical element of its decision.
Speer also involved a police officer for the City of Flint, who was president of the Flint Police Officers’ Association (FPOA), the police officers’ union. Officer Speer spoke to the media – as he had frequently done in the past in his capacity as union president – about his dissatisfaction with the appointment of the new acting police chief. Pursuant to the new media policy, he was disciplined, and he sued, alleging that his First Amendment rights had been violated. The court first concluded that Speer’s speech was on a matter of public concern, observing that “Flint residents have a strong interest in the correct operation of the Flint Police Department because of its central role in maintaining public safety. They therefore have an interest in Defendant’s attempts to silence the police union.” The court also noted that Speer’s comments were “particularly relevant to outsiders, as they would be most affected by Defendant’s decision to restrict statements to the media.” The court next ruled that Speer’s speech remained protected after Garcetti. As the court reasoned, quoting to Garcetti, “the City’s interest in ‘controlling speech’ and ensuring ‘substantive consistency’ is considerably reduced in connection with the speech of a union official, due to the inherent tension between the union and the administration. The collective bargaining system envisions a dynamic between employer and union [that] is unlike the relationship between employer and employee; this includes the expression of sometimes conflicting opinions. An employer cannot expect to control the union’s speech in the same way it would control an employee’s.” Finally, the court ruled that Speer’s speech did not interfere with the performance of his duties or cause disharmony among his coworkers. As the court drily noted, “given the actions taken just prior to Plainitff’s discipline, such as closing the jail and laying off police officers, some discord between the police officers’ union and the administration could be expected.” Because the City did not exercise authority over Speer when he spoke as the president of the FPOA, his statements on behalf of the FPOA did not undermine the police chief’s authority; as the court put it, “although the union’s views may conflict with Defendant’s, this does not constitute insubordination.” |
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Wed Mar 05, 2014 8:26 pm |
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untanglingwebs
El Supremo
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United States v. Wilson - US Court of Appeals for the Sixth Circuit
Sep 27, 2012 ... Flint Police Officer Karl Petrich, investigated citizen complaints of drug activity at 702 ... The police then moved to Apartment 5, where the tenant,.
www.ca6.uscourts.gov/opinions.pdf/12a1036n-06.pdf |
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Wed Mar 05, 2014 8:45 pm |
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untanglingwebs
El Supremo
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In October 20,2009 Officer Karl Petrich obtained a search warrant by a sworn affidavit which was shown in court to be false and inconsistent with his report.
While Petrich denied that he deliberately falsified his report to his supervisors, he did admit to withholding information. When the Prosecutor learned that Petrich's testimony would be inconsistent with the documents provided to the defense, they had an obligation to disclose. The defense wanted Petrich charged with making false statements. However, the Appeals Court ruled that the defense neglected to approach the bench when the changed testimony came to light. Petrich claimed e wanted to hide his confidential informants identity.
Bernice B Donald made a separate writing because she disagreed with the conclusion of no Franks or Brady violation. She believed Wilson would have succeeded a Franks challenge, however his defense did not request one. |
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Wed Mar 05, 2014 9:12 pm |
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untanglingwebs
El Supremo
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Pabst won this case in which Tolbert and Petrich allegedly roughed up and ".. slapped this young Russian man for dating a black female. Yet Petrich was promoted to Sgt. in a contested promotional process under Chief Lock.
06-083204-NO JUDGE FARAH FILE 01/31/06 ADJ DT 01/31/07 CLOSE 01/31/07
GENESEE COUNTY JDF SCAO:SEC C LINE 06
P 001 ZAVALNITSKIY,DEMETRI, VS D 001 TOLBERT,RANDOLPH,
210 EAST 5TH STREET
FLINT MI
ATY:PABST,TOM R., ATY:REISING,H. WILL
P-27872 810-732-6792 P-19343 810-342-7001
DISPOSITION 01/31/07 DIS MAJ
SERVICE/ANS 03/21/06 ANS
D 002 OFFICER JOHN DOE,,
DISPOSITION 06/06/06 NSD MAC
D 003 PETRICH,KARL,,
210 EAST 5TH STREET
FLINT MI
ATY:REISING,H. WILL 02/09/06
P-19343 810-342-7001
DISPOSITION 01/31/07 DIS MAJ
SERVICE/ANS 03/21/06 ANS
Actions, Judgments, Case Notes |
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Wed Mar 05, 2014 9:20 pm |
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