THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, February 19, 1995 TAG: 9502190087
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JON FRANK, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Long : 134 lines
One of the last things a city with a crime problem needs is a labor dispute with its police officers.
But that is exactly the worst-case-scenario Portsmouth city officials are confronting. Last week, the first depositions were taken for a lawsuit filed a year ago by more than 160 police officers alleging that the city of Portsmouth owes them for overtime hours worked since 1989.
Since the suit was filed on Feb. 3, 1994, the number of officers has grown to more than 200. Portsmouth's entire force consists of 220 officers.
The lawsuit couldn't have come at a worse time for Portsmouth. The city had the region's highest violent-crime rate last spring, and this year was listed as one of the top 25 cities by murder rate in the country. To top off the negative crime statistics, a recent analysis of regional murders found that the city solved only 40 percent of 1994's homicides, by far the lowest percentage in Hampton Roads.
Now, the city must find a way to fight crime while settling a thorny legal matter that threatens to destroy police morale. And Portsmouth officials must accomplish this double feat without breaking the municipal bank in a city already financially strapped.
Although the case isn't scheduled to be tried until April 24 in Norfolk's U.S. District Court, the dispute's effect already is being felt by cops and citizens.
Police Chief Dennis A. Mook this month ended a Portsmouth Redevelopment and Housing Authority program that used about 20 off-duty cops to arrest drug dealers in the city's seven housing projects. Mook says the city attorney's office advised him to make the move because of the police lawsuit.
Mook also has stopped allowing police officers on two of the department's units - tactical response and narcotics - from taking police cars home if they live outside the city. Several police officers claim this move is related to the lawsuit and they say it has adversely affected response time of the two units.
Officers also say Mook has threatened to restrict them from coming to work more than 15 minutes before a shift starts because of the lawsuit. Officers worry this will hurt communication between shifts by cutting into the traditional time that officers use to bring each other up to date between shifts on what is happening in the city.
And last March, City Manager V. Wayne Orton froze a $101,000 account made up of proceeds from federal and state drug-case seizures that is supposed to be used to improve law enforcement. Orton directed that the fund be frozen until the police lawsuit is settled.
For their part, police may retaliate against the city's decision to fight the lawsuit, some officers say, by ignoring certain kinds of misdemeanor violations they observe.
``It is going to happen,'' says a Portsmouth policeman who asked not to be identified. ``It's because we are so mad at the city.''
The dispute centers on the current interpretation of the 57-year-old federal Fair Labor Standards Act, which has evolved enormously over the last five decades.
When first enacted, the FLSA set the minimum wage at 25 cents an hour and was aimed at private employers who were exploiting workers. Over the years, the minimum wage has been changed 27 times within the act, and by the mid-1980s, the act had been rewritten to include many other workers, including those who work for municipal police departments.
``Ever since 1985, most state and local governments are subject to the law,'' says Walter Steinmann, an expert on the FLSA with the Department of Labor.
Since then, Steinmann says, cities have been forced to hire more police officers or pay overtime.
Some FLSA lawsuits are relatively small. But police officers in the Portsmouth lawsuit constitute nearly the entire force and they are demanding compensation for overtime worked since at least 1989. Some claims could go back to 1987, and the dollar amount of the claims could total in the millions. One officer, for instance, claims the city owes him $60,000.
Det. Ronnie Davis - whose mother, father and brother also served in the Portsmouth Police Department - believes the city owes him close to $30,000 for overtime performed since the late 1980s. Some of the hours he logged, Davis says, were paid at the regular, hour-for-hour rate. Those hours should have been at the overtime rate of time-and-a-half, he says. For other work he did, Davis says, he got no pay.
``The bottom line is that all we want the city of Portsmouth to do is to obey the law, no more and no less,'' says Davis, who has been on the police force for 31 years. ``It's not like we are out here trying to run up money for not doing anything.''
The two basic claims in Portsmouth, Davis says, are that the city did not and does not pay properly for regularly scheduled events like the city's annual Seawall Festival. Also, he says, the city does not pay time-and-a-half for hours worked over the federally mandated amount of 171 hours within a 28-day work period.
The Portsmouth police are represented in the suit by a law firm in Alexandria. A small group of police officers also has hired Norfolk attorney Andrew M. Sacks to handle what they consider to be special overtime claims against the city.
The city maintains that it has complied with the FLSA, and leaders believe that Portsmouth should not be penalized because the law changed in the mid-1980s. George Wilson of the city attorney's office refused to comment on the lawsuit.
It is difficult to avoid FLSA lawsuits, experts say, because of the unique work that policemen are asked to perform. Even the FLSA has special overtime provisions specifically written for policemen.
In Hampton Roads, FLSA lawsuits filed by police departments are nothing new.
A group of supervisors in the Norfolk Police Department that includes 37 sergeants, lieutenants and captains filed an FLSA suit in January asking that the city pay three years of overtime.
And last summer K-9 officers in the Norfolk Police Department filed suit asking for three years' worth of overtime pay.
The city of Newport News was sued by police officers in the late 1980s under the FLSA and again in the early '90s, according to Verbena Askew, city attorney. None of the lawsuits came to trial, Askew says.
``We settled our cases,'' Askew explains, ``by working out what we owed them.''
But indications are that the city of Portsmouth is digging in its heels to fight the lawsuit. This month, city leaders hired the Norfolk law firm of Kaufman and Canoles to lead the city's legal defense.
Former chief of police Leslie K. Martinez, whose 16-month tenure as chief ended last spring, says the threat of a lawsuit hovered over the city during most of her time in Portsmouth. She says the city manager and his advisers never thought the police would sue.
Det. Davis agrees. He believes that city leaders gambled that the city's police officers would never organize themselves well enough to sue.
It continues a pattern of disrespect, Davis says, that has become a tradition in the city. Portsmouth has been taking advantage of policemen for decades by not treating them like professionals who respond when called, regardless of the time or location.
``Crime doesn't have hours,'' Davis says. ``It doesn't have a schedule.'' ILLUSTRATION: Graphic
THE CLAIMS
[For complete graphic, please see microfilm]
KEYWORDS: PORTSMOUTH POLICE DEPARTMENT by CNB