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MUST VACANCIES BE FILLED ?

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With the economy making a slooooow recovery, and the Michigan economy making an even slooooooooower recovery, many police departments have faced layoffs and almost all have left positions vacant. With what can be described as de-facto layoffs, is there any legal requirement that vacancies be filled?

There are several methods that establish intermediate ranks between entry level officers and chiefs. The method seen most commonly in the mid-Michigan area is by the department’s Table of Organization. This typically is in conjunction with the budget process in most jurisdictions. We usually see command structures based on the military command structure, however, without the multiple levels of sergeants, lieutenants, etc.

Most promotional procedures are established by either civil service rules or by a collective bargaining agreement. As your labor representative, we strive to establish a promotional process that is fair and transparent. Most are based on a written exam, an oral board with some credit for seniority and maybe some credit for military service.  In addition some departments may require a psychological evaluation and maybe a credit report.

Now that we have the command structure in place and a promotional process does the department have to fill a vacancy in the table of organization?  The answer, for the most part, is no!  This problem is rearing it’s ugly head more and more often. To state the problem in another way, does a person have a “property right” to a promotion?

The courts have been very consistent in their rulings that there is no property right to a promotion. The courts have repeatedly ruled that there is no cause of action for failure to promote. If no one is promoted, and everyone dies on the list as it expires, then everyone was treated the same, that is, no one was promoted.

There are a couple of areas in which promotions may be mandated. One is where a person is assigned to a “promotion” on a temporary basis for long periods of time.  The courts view this as an obvious attempt to avoid the permanent promotion and have ruled that the department must make the promotion permanent.

A second area is where a collective bargaining agreement has minimum staffing levels. In this case, unless the union and management come to some different agreement the opening must be filled pursuant to the CBA.

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