In This Issue

• Employee Termination – Search of Possessions
• OSHA Asbestos Standard Applies to Public Employees
• Litigation and the Sunshine Law
• Compensatory Time Off for PHA Employees
• Suits for Lead-Based Paint

Employee Termination – Search of Possessions

Lawrence F.
Feheley

An administrative employee of a PHA hears the phone ring. Her line is occupied and so she walks into a co-worker's cubicle to answer the phone. While there, she notices an attaché case, sitting on top of a can, which is open. Not touching the case, she sees the barrel of a gun. She immediately notifies her supervisor. PHA security arrive and find the case, the zipper still open. When they open the case they find a loaded .22-caliber handgun, the co-worker's checkbook, and a letter addressed to him at his home address.

The PHA, after a pre-termination hearing, discharged the employee. Cut and dry, right? The employee filed suit against the PHA, alleging that the search of the work area and seizure of the firearm violated his 4th, 5th, 6th, and 14th Amendment constitutional rights.

Fortunately, the PHA won this case. In Coats v. Cuyahoga Metropolitan Housing Authority, 2001 Ohio App. Lexis 1699 (Cuy. Co. 2001), the appellate court ruled that a public employer, such as a PHA, does not have to meet a "probable cause" standard and obtain a search warrant to conduct work-related investigations. In this case, the PHA had a reasonable suspicion that the employee was violating its rule prohibiting firearms on the premises. Since the search was limited to the attaché case in question, the search was lawful. In addition, since the work cubicle was open to view and access by others, the employee did not have a reasonable expectation of privacy in the cubicle itself.

Back to top

OSHA Asbestos Standard Applies to Public Employees

As of December 15, 2000, all local and state government units became covered by an EPA rule that, in turn, adopts OSHA's asbestos standard. See, 40 CFR part 763. The OSHA standard is intended to protect workers at construction projects, and those performing maintenance and repair work, from the harmful effects of asbestos. (The EPA Rule incorporates the OSHA standards, which are found at 29 CFR 1926.1101 and 29 CFR 1910.1001). The specific requirements of the Rule vary, depending upon the type of work performed and the nature of the asbestos.

Back to top

Litigation and the Sunshine Law

In a recently-decided case, a public employer (an Ohio township) was involved in a lawsuit. The court scheduled a mediation (settlement) conference, and two of the three township trustees attended the conference. A settlement was reached at the conference, and at its next Board meeting the trustees retroactively adopted the settlement agreement. A citizen filed suit, alleging that the trustees' meetings violated Section 121.22 of the Revised Code, the "Sunshine Law" or "open meeting law."

The Sunshine law requires public officials to conduct meetings in public when the meetings concern official business, and when the public officials discuss public business with one another. A "meeting" for these purposes, is "any prearranged discussion of the public business of the public body by a majority of its members." §121.22(B)(2), Ohio Revised Code. Any resolution or action by a public body is invalid unless it is adopted in an open meeting.

The Court ruled that the meetings that were a part of the mediation proceedings were not improper because they did not fall within the scope of the Sunshine law. The reason, according to the Court, was because the mediation process was a "quasi-judicial" proceeding.

The Court also stated that a meeting with counsel to frame the parameters of a settlement can be conducted in executive session. However, any action to be taken must be authorized in open session. Once a conclusion is reached regarding the litigation, the conclusion must be made public, even though the deliberations leading to the conclusion were private. Carver v. Deerfield Township, 139 Ohio App. 3d 64 (Port. Co. 2000).

Back to top

Compensatory Time Off for PHA Employees

The Fair Labor Standards Act requires that an overtime premium be paid to any non-exempt employee who works more than forty hours in a workweek. Special rules apply to overtime requirements for public employees. While private sector employees cannot satisfy the overtime requirement by "compensatory time off" (i.e., allowing time off in subsequent workweeks), public employers are given greater latitude.

The office of Enforcement Policy of the Department of Labor recently considered a PHA's compensatory time-off policy. The PHA policy provided that employees would accrue one and one-half hours of compensatory time off for each overtime hour worked, in lieu of overtime pay. The policy provided that no employee could accrue more than sixty compensatory hours (representing forty overtime hours), and that the PHA could buy back accrued compensatory time if it chose to do so. The Department of Labor determined that this policy was proper under the federal law. Wage-Hour Opinion Letter No. 2221; May 24, 2000.

Back to top

Suits for Lead-Based Paint

In a recent case, the Department of Health ordered a Section 8 landlord to abate lead-based paint in a unit after children living in the unit were hospitalized with elevated levels of lead in their blood. The tenant then sued the PHA under the federal Lead-based Paint Poisoning Prevention Act (LPPPA) for negligently performing its duties as the Section 8 administrator.

The state court in ruled that tenants do not have a private right of action under the LPPPA. This means that although the LPPPA may impose certain requirements or obligations, tenants do not have the right to sue to enforce the law. Instead, the court ruled, the statute requires HUD to enforce the LPPPA, not private citizens. Gibbs v. Paine, 276 App. Div. 743 (N.Y. App. Div. 2000).

Back to top