All posts by Alan Shapiro

Social Media Will Ruin Your Whole Life, Again

More than four years ago, my colleague Jennifer Smith wrote a blog entry entitled “Social Media Will Ruin Your Whole Life.” The blog detailed how one corporate executive lost her job over one “stupid tweet.” Atty. Smith’s advice to police officers, teachers, and firefighters was “delete your social media accounts now, if you haven’t already.” That advice is even more critical today.

A group called “The Plain View Project” has compiled a database of “public Facebook posts and comments made by current and former police officers” from eight cities around the country. An article disseminated today by LRIS (Labor Relations Information System) explains that, in June, 72 Philadelphia police officers were placed on administrative leave after the department began investigating allegations of racist and offensive Facebook posts by these officers. Since then, 13 of those officers have been notified that the department intends to terminate them; 7 of those 13 have just resigned. Four other officers were suspended for 30 days, three face no discipline, and the remaining face disciplinary action ranging between reprimand and five-day suspension.

Whether you like groups like Plain View Project prying into your Facebook posts or not, it is a reality that these groups exist. In addition, any FB post you’ve ever made is potentially something that could be used to make you look bad by jealous colleagues, spiteful relatives, or anybody else who has an ax to grind with you. The same must be said about all social media, including, but not limited to, Facebook, Twitter, Snapchat, Instagram, Tumblr, Pinterest, Imgur, Yelp, and the many others I’ve never heard of.

As a public employee, and particularly one who daily deals directly with the public, you are called upon to evenhandedly and judiciously ply your trade. Whether intended or not, any action you take which in any way calls into question your evenhandedness can potentially get you into trouble.

And, you may ask, what about my First Amendment rights? In 1892, Supreme Court Justice Oliver Wendell Holmes tersely articulated a police officer’s First Amendment rights: he “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” While there certainly are lines that can be drawn to distinguish public employees’ protected from unprotected speech, do you really want to be a constitutional test case? Are you sufficiently knowledgeable about the intricacies of free speech rights of public employees to be sure that what you post on social media can’t get you in trouble? I would strongly suggest that rather than play Russian Roulette with your career, you stay off social media. Whatever you might gain from participating in social media is dwarfed by what you might lose.

Supreme Court’s Janus Decision: What Does It Mean?

On June 27, 2018, the US Supreme Court issued its long expected decision in the case of Janus v. AFSCME, Council 31. By a 5-4 majority, the Court ruled that it is unconstitutional for a union representing public employees (federal, state, or municipal) to require its members to pay anything to their union, even though, in most states, that union still has a duty to represent them. If it seems odd for the Supreme Court to rule that unions, private organizations funded by workers’ dues, should have to provide free services to fellow workers who choose not to pay dues, welcome to the current political landscape. But, first, how does the case affect unions now?

Janus has no effect on unions representing private employees. It deals only with public employee unions, such as police officers, fire fighters, teachers, municipal and state workers.

If you are a union member, you continue being a member. There is no direct effect on you.

The immediate impact is: there is no more required agency service fee. What, you may ask, is an agency service fee?

In certain states with public sector collective bargaining laws, such as Massachusetts (governed by Chapter 150E), when a union is chosen by a group of workers to represent them for collective bargaining purposes, that union is obligated to represent all of the employees in that particular group. The group represented by the union is called a bargaining unit. For example, when the police in, say, Lynn, voted to be represented by the Lynn Police Association, that Association (for our purposes, “Association” and “Union” are the same thing) became the “exclusive collective bargaining representative” of the bargaining unit of all of the police in Lynn. Under Chapter 150E, that Association became legally obligated to represent all of the Lynn police, because they are all part of its bargaining unit.

Under preexisting law, public employees could not be compelled to join a union, even when that union has a duty to represent them. However, in Massachusetts and other states with fully developed labor laws, bargaining unit employees who did not want to join their union could be required to pay their fair, proportionate share of the union’s cost of representing them. As members of the bargaining unit, agency fee payers receive the same wages and contractual benefits as union members. Their grievances had to be processed the same as members’ grievances. This “fair share” payment is an agency service fee.

Generally, the amount of the agency service fee was somewhere around 80-85% of the union dues. Not being union members, employees who paid agency service fees could not run for union office, serve in any union position, or have any say in how their unions were run. They also received considerably fewer services than union members, but more about this below. Suffice it to say that, in Massachusetts, not many workers opted to be agency fee payers and, among public safety unions, they were virtually non-existent.

The Janus decision says members of a bargaining unit who refuse to join their union can no longer be required to pay an agency service fee. In fact, they cannot be required to pay anything. Yet their union, under existing Mass. law, still has a duty to represent them in the areas where the union serves as the exclusive collective bargaining representative. Those areas are contract negotiations and grievance processing.

While the case was supposedly decided on First Amendment (“free speech”) grounds, anyone who thinks it a product of refined legal reasoning and scholarship should consider applying to Trump University. The decision is designed to cripple public sector unions, who provide both funds and foot soldiers for causes which ultra-conservative billionaires like the Koch Brothers oppose. We need only look at the 62-38 trouncing of the charter school referendum in the 2016 Mass. election. Only the human and economic resources of teacher and other unions (both public and private sector) succeeded in countering the tens of millions of dollars the charter school proponents pumped into the campaign. These ultra-rich also don’t particularly enjoy paying taxes so that police officers, fire fighters, teachers, and other public workers can lead decent lives with decent benefits and retire on livable pensions. In short, Janus is only superficially about free speech; what it’s really about is breaking unions.

While quitting your union and letting your co-workers’ dues pay for the cost of negotiating your contract and handling your grievances may be an option for some, there are significant downsides to this approach. In many unions, particularly public safety, union members receive significant benefits outside of the contract which are not provided to non-members. Unions represent their members in civil service, retirement, unemployment, and other areas where non-members receive no services. For police officers, in particular, unions provide legal representation at critical incidents and defend their members in civil and criminal cases arising out of their employment. Union members also receive representation in both departmental (“internal affairs”) and external (state and/or federal) investigations. Since these services are provided outside of the collective bargaining agreement, non-members receive none of them. Teachers in Massachusetts who are wrongly terminated can appeal only through an individual arbitration process. The union will fight to get its members their jobs back; non-members can either represent themselves or mortgage their homes to hire their own counsel.

Besides these specific and practical reasons, public workers, at least in Massachusetts, need only look at the benefits they have gained through collective bargaining. During this past year, we have seen teachers in states without union bargaining rights (West Virginia, Oklahoma, Kentucky) marching on their state capitals to achieve even the most modest wage and benefit improvements. While public employees in Mass. have not gotten rich, they have at least been able, for the most part, to be able to lead decent lives, raise and support their families, and retire with some modicum of financial security.

You can anticipate that anti-union groups will conduct a negative campaign to try and convince you to abandon your union and stop paying dues. Groups like the NRTW (National Right to Work) organization, (an oxymoron if ever there was one) will undoubtedly conduct a campaign. They will likely start with the teachers, but all other public employee unions will come next. Members who want to abandon their union must, in Massachusetts, provide at least 60 days’ notice of cancellation. This will provide you and others from your union an opportunity to educate your colleague. The message is very simple: Your union is only as strong as its members; working together we can make our lives better and have some say in our destiny.

Not too long ago, when you bought a house, you got a 30 year mortgage. You paid the same amount every month and, over time, you gained some equity. If you stayed in the house, eventually you paid it off and not only had a place to live but also something to pass on to your children. Then, about 20 years ago, some Wall Street sharpies got a lot of people to refinance or buy new houses. For the first few years, there were very low monthly payments on artificially low interest rates with no payments of principal. The sharpies made a lot of money creating and selling complex financial instruments with these mortgages. If your house went up in value and you sold it, it was a great deal. But in 2008 and 2009, when you couldn’t sell your house, all of a sudden the principal payments and higher interest rates kicked in and the monthly payments were crushing. A lot of people lost their homes.

This is what Janus is all about. On the surface, getting some of the benefits without paying anything looks great. But, over the long haul, you’re just being taken for a sucker. Let’s not get fooled again.

Why Can’t The Boston Teachers Get A New Contract?

Last week, I was talking with a business agent for a large public sector union which represents thousands of employees in the City of Boston. When our conversation turned to city negotiations, I asked why the Boston teachers couldn’t get a new contract, since the mayor had already settled with the firefighters and police officers (represented by the Boston Police Patrolmen’s Association with the expert legal guidance of my colleague Susan Horwitz). He said that it had something to do with the teachers’ union protecting the jobs of 100 teachers who were in some kind of “rubber room.” Since I knew the “rubber room” refers to a place where New York City dumped lots of teachers awaiting disciplinary hearings for accusations of serious misconduct, I could only conclude that the union must be trying to protect problem teachers. Wanting to find out what is really going on, through a mutual friend, I went straight to the source. Below is a detailed explanation from Richard Stutman, President of the Boston Teachers Union. The bottom line is: the City wants to be able to get rid of many, perhaps 100, perfectly good teachers, many of whom have been rated as not just adequate, but exceptional teachers. Instead, they would rather hire those who are younger, cheaper, and less experienced. All unions, union members, and people who care about maintaining a system where qualified professionals can make a career in public service without fear of being cast aside for no reason, need to support the BTU’s fight for justice for all of its members. Below is a detailed explanation from President Stutman:

-Alan Shapiro

Each year in the Boston Public Schools we have school closings, programmatic readjustments (e.g., a school needs one fewer English Language Arts teacher, two more math teachers, and so on), a school (or two or three) converting to “Turnaround” status (a provision under state law which allows (in some cases, mandates) large staff turnover at a school, regardless of individual teacher competence), or other events, all of which ‘excess’ or push out a teacher or a group of teachers and thrust them into the land of the unassigned. This year we had one school closing, two schools forced into Turnaround status, and another school that underwent a status change (Level 5 to Level 5+) – altogether 150 teachers excessed from these four schools alone. At different changes in a school’s status, no less than 50% of the staff have to leave the school; at yearly intervals staff turnovers of up to 100% can occur. What does this mean?

Simply, because of these school status changes, we have perhaps hundreds of people forced to vacate schools each year – not because of individual performance or anything related to individual conduct or discipline – but because the school is undergoing a transformation ordered by the state or federal government.

So these teachers get ‘excessed’ and in a few cases, schools can take some of them back, either after or without an application process. In the vast majority of cases, those excessed become unassigned teachers looking for a permanent placement. This year there are 350 excessed teachers currently without an assignment. Regardless of how they got into this status, they are, as measured on the performance scale , similar to all other teachers in the system – no better, no worse.

A little background on the current group of 350 unassigned teachers. They were noticed in February and have from February to September to apply for a position. Most diligently apply for placement where there is a suitable position in their field.

Some have no place to apply. They may, for example, be in an ‘exotic’ field, teaching a subject that is not widely taught. Or they may teach a not-so-exotic field, but in a grade level where that subject is not needed. While most of the 350 will predictably find a position by September, some will not, and they’ll become “SPC’s” or people who will be assigned to a “Suitable Professional Capacity” on the first day of school.

People assigned to an SPC role get full pay and benefits and remain eligible to seek and accept any posting that opens up in the school system. While unassigned to a ‘real’ position, they work in a school in a variety of capacities: as a second teacher, teacher’s helper, paraprofessional, small group instructor, or in a similar support role. This year there are around 45 SPC’s. Next year, given the inevitable whittling down of the 350 unassigned now, there will be another 50 to 75 SPC’s (but we cannot be sure how many) added to the group of current 45 SPC’s. Let’s assume there will be 100 or so SPC’s next year, as some of the current SPC’s will undoubtedly resign, retire, or naturally find a position.

Here, then, is the issue:

Given the above, there is a steady, though fluctuating, core of 50 to 100 SPC’s, who remain in that status each year, costing the district annually $5 to $10M. This year, 2/3 of these teachers have been rated proficient or exemplary. Some have been SPC’s for a few years, some for a year. To a person, they want to get out of the status, obtain a ‘real’ position, and get on with their careers. But they are not guaranteed placement as principals retain the right to say ‘no’ to any particular applicant.

Some of the SPC’s apply to many schools looking for virtually anything, others are more selective. Unless an SPC finds a school and is accepted there, s/he remains in this status without a time limit.

Why aren’t these folks laid off? Under the BTU contract each SPC is guaranteed this status (full pay and benefits) for years without limit. This guarantee is seniority-based and means that the SPC can continue in the status provided there is a person in the same subject area who is junior to the SPC, even if that junior person has a ‘real’ position. There is no time limit.

Under the state law, the SPC has a right, as well, to continue in the same status – notwithstanding the provisions of the BTU contract — provided a non-permanent or provisional employee is working in that subject area. This adds to their protection.

Bottom line: the SPC has a right to stay in that position indefinitely, even without a real spot to claim.

From our point of view, these SPCs should be working in productive, real positions. Each has been trained and vetted, each has been rigorously evaluated under a new state Performance Evaluation system that the district has agreed to, and each is in his/her predicament through no fault of his/her own. Each has undergone anywhere from 30 to hundreds of hours of yearly Professional Development. None of those in this capacity are there as a result of any disciplinary proceeding. This is no rubber room.

(There are teachers awaiting disciplinary proceedings, and this small group is sent home to await the disciplinary process. None of these is an SPC.)

From the school district’s point of view, a principal should have the right to hire any person s/he chooses and these excessed teachers (SPC’s) are never forced into a school. The normal teaching turnover is approximately 500 teaching positions per year. The existence of SPC’s adds another 50 to 100 positions that have to be filled. This year the department has hired 600 new teachers.

We’d like to see the district put the SPC’s to work at their full capacity as teachers in the fields in which they are fully trained and qualified, and save anywhere from $5-10M per year. The school district, hiding behind the ideology of “not-forcing-a-person-into-a-position,” has the cash to withstand the cost of paying the unnecessary $5-$10M in yearly costs. We’d like to see the money used elsewhere.

Final point, in a circular twist to all of this – if the school department could redistribute the $5 to $10M that is spent on this issue, it would allow schools to add back teaching positions and cut back on the programmatic excessing that helps create the SPC problem in the first place.

In negotiations, we seek to keep the SPC’s employed in productive capacity until a ‘real’ vacancy opens up. The school district wishes to put a time limit on each SPC’s status and have us waive their contractual and statutory rights to employment. If that were to happen, eventually, dozens or even hundreds of fully qualified, experienced teachers would end up unemployed, while the school district hires new, generally inexperienced, and much cheaper teachers (starting teachers make about 35% less than those at the top of the salary schedule) to replace them.

What People Say When They Get Arrested

The Boston Globe has a front page story on April 10 titled “Arresting Words.” Written by columnist Yvonne Abraham, the story weaves the words from Boston police reports into a tapestry of what police officers face daily on the streets and in the health clinics and within the homes of people to whom they are called to respond. Most are poor, many suffer from mental or physical illness, some are violent or threaten violence.

We see and hear a lot about victims of police abuse. This story gives some small bit of insight into the world into which society sends its police officers. Perhaps because it thrives on sensationalism, the press usually fails to convey a true picture of the milieu in which police officers work. Police must at once be legal experts and social workers. Split second decisions are parsed by appellate judges and clinical psychologists years later, but only after they have spent weeks, months, and years poring over enormous amounts of data, much of which the officer on the scene had no knowledge of in the moment.

And how does society value the men and women in police work? It compensates them like other public employees – fire fighters, teachers, sanitation workers – but nowhere near the level of the judges or bureaucrats who sit in judgment over therm.

One would think that having an educated police force would be a good idea. In fact, in 1967, the President’s Commission on Law Enforcement and Criminal Justice (the Johnson Crime Commission) recommended more education for police officers. Massachusetts responded in 1970 by passing the Quinn Bill, now known as the Police Career Incentive Pay Program, codified as Mass. Gen. Laws Chapter 149, Section 108L. A local option law, it provided additional compensation ranging from 10% to 20% to 25% for an Associates’, Bachelor’s, and Masters/JD degree. When many municipalities accepted the program, thousands of police officers seized the incentive to gain college degrees. But the program’s Achilles heel was that, although its cost was supposed to be split between the state and the community, starting in the late 1980’s and continuing to the present day, the Legislature has underfunded the program to the point that it makes virtually no contribution to its one-half share.

In Boston, where one would think educated police officers would be a priority, the Boston Police Patrolmen’s Association and the City had negotiated for this benefit in 1998. But when the Commonwealth underfunded the program in 2009, the City simply shortchanged its educated police officers, reducing their salaries by thousands of dollars. The Supreme Judicial Court, which has no problem opining on the lofty standards to which police are held (“it is extremely important for the police to gain and preserve public trust, maintain public confidence, and avoid an abuse of power by law enforcement officials.” 1 ) voted unanimously to uphold these pay cuts for educated police officers.

The current solution to address police abuse is to put body cameras on police officers. If and when that happens, and if people actually watch 99+% of what the police see, they will perhaps gain some insight into the world into which this Globe article peers. As one veteran officer remarked to me, people would be horrified to actually have to look at some of what police see on a daily basis. He mentioned entering a house where multiple people and domestic animals had relieved themselves everywhere, creating a visual and olfactory experience that could only induce nausea.

The social and economic conditions depicted in this column were not created by the police. But it is the police who must spend much of their working lives dealing with them. As Jesse Jackson has written,

The president has created a Task Force on 21st Century Policy, with instructions to report in 90 days. He’s committed millions to put cameras on police. But he might be better advised to put cameras on bankers.

By putting this article on its front page, the Globe perhaps opened a few readers’ eyes. But there is much more that must be done

1 City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005)

U.S. Department Of Labor About To Issue New Regulations Expanding Overtime Coverage To Over 5 Million Workers

Sometimes, I start thinking there isn’t much difference between Democrats and Republicans, since a lot of them remind me of the kids in high school who were running for student council president. But then, when I look at some federal regulations, I am reminded that who is in the White House can make a real difference for millions of people. The recent overtime rules issued by the U.S. Department of Labor show that there can be a clear difference between the political parties.

In the private sector, workers must be paid time and a half for all hours worked beyond 40 in a week. Passed in the 1930’s, this law was designed to encourage employers to hire more workers, since millions were thrown into unemployment by the Great Depression[1]. The statute exempted from the overtime laws “executive, administrative and professional” employees, but left government regulators to enact rules distinguishing employees exempt from overtime from non-exempt ones.

In 2004, the Bush Administration passed rules which “updated” these regulations in a way that left millions of workers without overtime protection. A salaried employee who spent 99% of her time performing manual labor could still be exempt from overtime as long as she made over $455/week. See In Re: Family Dollar FLSA Litigation.

Under the new regulations in the process of becoming law, not only does an “executive” really have to work as one, but s/he must make at least $50,440/year. Regardless of what title or job duties the employer gives the employee, unless s/he makes at least $50,440/year, s/he must receive overtime pay after working 40 hours in a week.

The new regulations, however, are not a panacea, since many companies have reacted by either reducing wages or reducing the hours of employees about to become eligible for overtime for the first time. Since virtually all of these employees are not covered by union contracts, they are powerless to do anything about it. Nevertheless, some formerly exempt employees will receive a raise, and, in some instances, more employees will be hired to fill in for the unlimited hours employers were formerly able to require of their supposed “managers” without any increased cost. As one economist said, “Trust me on this: you’d be very hard pressed to come up with [another] rule change or executive order to lift the pay of this many middle-wage workers.”

[1] In 1933, the U.S. unemployment rate was 25%.


Yesterday, the Chicago regional office of the National Labor Relations Board, the federal agency which regulates private sector employees and labor unions, ordered that a union election be held among the scholarship college football players at Northwestern University.  The 24-page decision chronicles the life of a Division I college football player.  Essentially, they are paid (in the form of scholarships worth over $60,000 per year) to play football.  As anyone who has played a college sport knows, the time requirements to maintain these scholarships are enormous.  During much of the year, players are expected to spend 40-50 hours per week on football-related activities.  The decision goes into great depth in analyzing the daily, weekly, and seasonal commitments required of players.

While scholarships at Northwestern are four-year arrangements, other NCAA schools are permitted to offer one-year scholarships renewable at the college’s discretion.  But the fundamental point is that the scholarship is a quid pro quo for abiding by the rules and continuing to play football:

But the fact remains that the Head Coach of the football team, in consultation with the athletic department, can immediately reduce or cancel the players’ scholarship for a variety of reasons. Indeed, the scholarship is clearly tied to the player’s performance of athletic services as evidenced by the fact that scholarships can be immediately canceled if the player voluntarily withdraws from the team or abuses team rules. Although only two players have had the misfortune of losing their scholarships during the past five years, the threat nevertheless hangs over the entire team and provides a powerful incentive for them to attend practices and games, as well as abide by all the rules they are subject to.

Decision at 15.

It is this fundamental fee for service relationship that caused the Board to define the scholarship players as “employees,” and therefore subject to the federal labor laws.

Technically, the decision applies only to athletes receiving scholarships to play football at Northwestern.  “Walk-ons,” those without scholarships, are ineligible to be part of the bargaining unit (the group the union represents), since they receive no scholarships and hence no compensation to justify being classified as employees.  By extension, it would seem to apply to any other Division I college football program, as well as other similar programs, such as college basketball.  For public universities, which comprise the bulk of Division I schools, unionization rights would depend on the law of the jurisdiction where that school is located.  If, for instance, U. Mass. basketball players operated under a regimen similar to Northwestern’s, I see no reason why they could not petition the Commonwealth Department of Labor Relations for union recognition.

What will happen with this ruling depends on the extent that Northwestern wants to contest it.  As the decision of the Board’s Chicago region, it can be appealed to the 5-member NLRB in Washington, which, currently staffed with Obama appointees, would seem much more receptive than previous Boards.  If affirmed in Washington, the university could only appeal by refusing to bargain with the union (the “College Athletes Players Association”), thereby generating a “technical refusal to bargain,” which would eventually reach a federal appeals court, a less union-friendly environment than the current NLRB.

While the decision obviously does little for the millions of unrepresented workers toiling without bands or cheerleaders in far less glamorous jobs, perhaps it sends a fundamental message that too many people have either forgotten or never known:  If you want to improve your job, get a union.

Alan Shapiro, Esq.

Sandulli Grace, P.C.

Waltham Police Conduct Informational Picket

On Friday afternoon, the Waltham Police Patrol Officers and Superior Officers, both locals of the Massachusetts Coalition of Police, the largest police union in New England, held an informational picket at Waltham City Hall.  Their message was simple: after more than three years since the last contract expired and more than four years without a raise, we want a contract. Continue reading

Never Let The Truth Get In The Way Of A Good Story: David Williams And BPD Commissioner Ed Davis

On June 20, highly respected Arbitrator Michael Ryan issued a decision overturning the discharge of Boston Police Officer David Williams. All of the facts are meticulously set out in the decision’s 44 pages but are briefly summarized here.

On March 16, 2009, Michael O’Brien was a Middlesex Deputy Sheriff/Corrections Officer coming off his Providence bachelor party and St. Patrick’s Day celebrations.  After spending up to five hours at the Black Rose, a noted Fanueil Hall bar, he and two buddies headed to the North End, where one of them lived.  While trying to back his car down Hanover Street (the major two-way thoroughfare through the densely populated commercial area), his friend crossed the double-yellow line into a double-parked BMW.  The BMW owner called 911 as he saw O’Brien drive off in the car that had just struck his.  His recorded 911 comments included observations that O’Brien’s group were “drunk” and that although he was a “federal agent,” they were not in any trouble.

When Officers David Williams and Diep Nguyen responded to the call, their efforts to simply have the parties exchange papers were met by the seeming drunken hostility of O’Brien and his friends.  O’Brien held out his cell phone while yelling at the officers to do their jobs.  Inexplicably, he insisted the officers investigate the struck driver’s claims of federal agency.  Told that he could record them all he wanted but not in the middle of Hanover Street, O’Brien continued standing in the busy street.  When Officer Nguyen attempted to place him under arrest, O’Brien’s resistance caused Officer Williams, across the street writing a citation in his parked cruiser, to come to his fellow officer’s assistance.  Surrounded by O’Brien’s two friends, one of whom had to be physically pushed away from the officers, Williams made an “officer in trouble” call just as Nguyen was about to do the same.  Other officers arrived and O’Brien was placed under arrest.

The next business day, O’Brien, charged with disorderly conduct, resisting arrest, and assault and battery on a police officer (Nguyen), appeared in the Boston Municipal Court without notice to any of the arresting officers.  He plead not guilty and all charges were dismissed a month later after he performed 50 hours of community service.

O’Brien eventually filed a lawsuit against the officers and the city, claiming, among other allegations, that he had been nearly choked to death that night by Officer Williams.  That night, he had made no complaint of having been choked to the lieutenant who carefully inspected him at booking nor to the EMT’s who transferred him to the hospital.  Early on, he retained prominent civil rights attorney Howard Friedman.  As it turned out, for him, that was his best decision of all.

Three days after the incident, O’Brien filed an on-line complaint against the officers who arrested and subdued him.  The BPD’s vaunted Internal Affairs Division (“IAD”) conducted no investigation.  In September 2009, Atty. Friedman filed a complaint in Federal District Court against the City, Nguyen, Williams, and four other officers.  Friedman also initiated a second Internal Affairs complaint with the same allegations.  Still no investigation by the crack IAD unit.  In January, 2010, Friedman wrote a letter to Internal Affairs castigating them for failing to investigate the complaint.  In April 2010, IAD sprang into action, interviewing Williams and Nguyen for the first time about the incident that had occurred over a year earlier.  Shortly after receiving another irate letter from Atty. Friedman, BPD placed Williams on paid administrative leave.  IAD reassigned the case to another Lt. Det., who re-interviewed the officers, spent 20 minutes with BPD Dr. Kristian Arnold, and concluded that (a) Williams had choked O’Brien and (b) Williams had lied about it.

Following internal hearings before a Deputy Superintendent appointed by Commissioner Davis at which O’Brien, Williams, and Nguyen testified, Davis fired Williams in January 2012.  Shortly thereafter, the City paid O’Brien $1.4 million.  Williams had received unwanted notoriety after his discharge in the celebrated beating of Police Officer Michael Cox had been overturned by a different arbitrator in 2005.[1]

After hearing three days of testimony from all of the key witnesses, including O’Brien, Williams, and Nguyen, Arbitrator Ryan concluded:

After examining all of the evidence with great care, it is clear to me that O’Brien’s account of the incident was not truthful. If the officers became aggressive, and there is no doubt that they did, it was because the behavior of O’Brien and his friends warranted it. I do not believe that the grievant used excessive force, or that he choked or strangled O’Brien. He fully complied with Department Rule 304, Section 2, by using only the amount of force that was reasonably necessary to overcome O’Brien’s resistance to arrest.

He found further:

Since the grievant handled the incident of March 16, 2009, appropriately and did not use excessive force on O’Brien, it follows that he was not guilty of untruthfulness during the IAD investigation. There was no just cause for his termination.

The Arbitrator ordered Williams reinstated with back pay.  In addition, finding no explanation from the BPD for placing Williams on administrative leave 17 months after the incident, and relying on arbitration precedents between the parties, he ordered that Williams be made whole for the extra work (paid details and overtime) he was not allowed to earn while he had been on administrative leave.

The decision itself was not surprising.  Arbitrators, especially experienced and nationally prominent ones such as Michael Ryan, decide the cases based on the evidence before them, not on how they will be received by police commissioners or their friends in the media.  For that matter, Arbitrator Ryan, who has been hearing cases between the Boston Police Patrolmen’s Association and the City/BPD for more than 15 years, has decided many cases against the BPPA, including terminations and major suspensions.  He does his job: he calls them as he sees them.

What followed this decision is unfortunate, if predictable.  To Commissioner Davis, who attended none of the hearings, either at the BPD or the arbitration, the decision was “outrageous.”  Boston Globe editorial writer and columnist Lawrence Harmon chimed in with his column entitled, “Do arbitrators give violent cops a pass?”  I spent more than a few hours on the phone with Mr. Harmon trying to educate him with facts and analysis about the vagaries, biases, and shortcomings of the BPD internal affairs process.  When he called me just before submitting his story for a final quote and I asked him why the information I had given him was largely omitted from his analysis, he replied that what I gave him was “inside baseball” that nobody cared about.  I was reminded of the adage, “Never let the truth get in the way of a good story.”

The real story, largely ignored by the press, is why did the City pay $1.4 million to someone a neutral factfinder, after hearing all the evidence, pronounced “untruthful.”  The Police Commissioner likes to trumpet his campaign of intolerance for untruthfulness among police officers.  No one disagrees; police officers charged with the power to deny people their liberty must be truthful.  But what about civilians who lie in order to line their pockets with enormous sums of money from the City?

Continuing its insistence on ignoring reality, the City/BPD has now filed an appeal of the arbitration decision in the Superior Court.  Its court complaint cloaks its disagreement with the arbitration decision in the dross of “contravening the City’s inherent and non-delegable authority, the Police Commissioner’s statutory right to manage and administer the Police Department…and a clearly established and defined public policy.”  Although unstated, the “clearly established and defined public policy” being violated is apparently that whatever Commissioner Davis says, goes.  The complaint flaunts black letter law.  Arbitration awards are appealable on very narrow grounds; disagreement with the arbitrator’s factual findings is decidedly not one of them.

This case could not have proceeded this far without the unflinching support of the Boston Police Patrolmen’s Association, and in particular its President Tom Nee and Vice President Ron MacGillivray.  In addition to my work in the case, Attorney Kenneth Anderson of Byrne & Drechsler, LLP, represented Officer Williams from the initial internal affairs interviews through the last day of arbitration and assisted in the Union’s arbitration brief with his usual combination of astute preparation, dogged litigation skills, and unfailingly gentlemanly demeanor.

I, at least, hold out hope that someone in authority will see the futility of ignoring the obvious, return Officer Williams to his rightful place on the police force, and allow him to finish his career with the dignity and respect he deserves.


[1] I also served as counsel for the BPPA in that arbitration case, written by a different, but equally prominent, arbitrator, Lawrence Holden.

Scott Walker Setting His Sights On Police And Fire?

When Wisconsin Governor Scott Walker and the Republican state legislature virtually eliminated collective bargaining for public sector workers two years ago, they largely spared police and fire unions.  But now, it appears that the honeymoon is over.  In a story in the Milwaukee-Wisconsin Journal Sentinel entitled “Scott Walker opens door – then downplays – limiting public safety unions,” reporter Patrick Marley wrote,

Two and a half years after mostly sparing police officers and firefighters from his union restrictions, Gov. Scott Walker said this week he is open to the idea of limiting their ability to collectively bargain.

The article goes on to point out that some, but not all, of the public safety unions, endorsed Walker, apparently because he spared them from the onerous limitations he placed on their fellow public workers.

The moral of this story is clear.  When the rights of any group of workers are successfully eroded, it is only a matter of time before the same strategy is applied to other groups.  The concept is embodied in a slogan adopted by many American trade unions: “An injury to one is an injury to all.”

Civil Service Overturns Discharges Of Six Boston Police Officers: Hair Testing Not Ready For Prime Time

In a landmark ruling with national and even international implications, the Massachusetts Civil Service Commission upheld the appeals of six former Boston Police Officers who had been fired solely because a California drug testing company (Psychemedics Corporation) claimed their hair samples showed they had ingested cocaine.  The 132 page decision, written by Commissioner Paul Stein, concluded that hair testing lacks the necessary reliability to be the sole basis for terminating a tenured Massachusetts civil servant:

The present state of hair testing for drugs of abuse, while potentially useful in clinical assessment settings, and in the context of child custody, criminal probation and pre-employment hiring decisions, does not meet the standard of reliability necessary to be routinely used as the sole grounds to terminate a tenured public employee under just cause standards governing civil service employees under Massachusetts law. [page 107]

Unfortunately, four other officers’ appeals were denied, although those cases stand to be appealed.  All appellants were represented by Sandulli Grace Attorneys Alan Shapiro and Jennifer Rubin and with the unflinching and steadfast support of their union, the Boston Police Patrolmen’s Association (BPPA).

As thoroughly laid out in this sweeping and studiously crafted decision, the BPPA and the City of Boston/Boston Police Department, both desirous of maintaining a “zero-tolerance” policy for drug use, negotiated an annual hair testing policy, starting in 1999.  Because random urine testing was constitutionally impermissible under state law, the City/BPD sought an alternative testing modality.  At the time, the Union and the City/BPD believed the claims of Psychemedics Corporation that its hair tests could successfully ferret out illegal drug use going back months, as opposed to the hours or days of urine tests.  Urine testing was then, as it is now, the only approved testing method under the Mandatory Guidelines (covering approximately 10 million workers) of the Federal Drug-Free Workplace Program,

Under the hair testing protocol implemented by the Police Department, it collected a hair sample from every officer once a year, within 30 days of his/her birthday.  The sample was flown to the Psychemedics laboratory in California, where it was subjected to various laboratory tests and analyses, and then pronounced either positive or negative for various illegal drugs, including cocaine.  If deemed positive, the officer was given the opportunity to submit to Psychemedics a second hair sample, which was run through the same tests.  Unbeknownst to the Union (and probably, at least initially, the BPD), the second sample was declared a positive confirmation of the original sample if it had only 40% of the cocaine levels of the first sample.  Later, Psychemedics lowered the positive confirmation of the second (“safety net”) test to 4% of the level found in the original sample.

If an officer could not explain to a physician hired by the Department why s/he had tested positive (for cocaine there was virtually no explanation that would be accepted, since it is rarely utilized by physicians and other “caine” drugs, such as xylocaine or lidocaine, do not trigger cocaine positives), the officer was faced with the choice of termination or a 45-day suspension, mandatory drug counseling, and years of random urinalysis.  A second positive, either in a urine test or another hair test, resulted in termination.

From 1999 through 2006, approximately 90 officers tested positive for illegal drugs, most for cocaine.  Many accepted the 45-day suspensions and continued their careers.  Some accepted the suspensions and were later terminated for a second positive test.  Some, including 7 of the 10 officers involved in this case, refused to accept the suspensions for something they insisted they did not do and were terminated.

A key problem with hair testing that had only begun to emerge when BPD began this program is that hair absorbs certain substances, in particular cocaine, not just from internal consumption but also from external exposure.  While companies such as Psychemedics have developed elaborate laboratory procedures and mathematical formulae to eliminate the effects of external exposure, because the quantities at issue are so infinitesimal, there has yet to develop a scientific verification of their efficacy.  In other words, a positive hair test for cocaine can indicate external, atmospheric exposure, not necessarily ingestion.  The quantities being measured are on the scale of measuring one second over a period of 27 years.  In these quantities, scientific studies have shown measurable levels of cocaine in 92% of U.S. paper currency in five Ohio cities and on the school desks of elementary school children in both urban and suburban schools in the Washington D.C. area.

The BPPA’s initial attempts at challenging these decisions were largely unsuccessful.  Various arbitrators rejected challenges to the Psychemedics testing methodologies, including the use of the lowered standards for the “safety net test.”  But in 2003, in a decision written by former Commissioner Daniel Henderson, the Civil Service Commission overturned the discharge of an officer who refused to accept the 45-day suspension after Psychemedics claimed that his hair test positively confirmed that he had ingested cocaine.  Although the case was reversed and remanded in 2004 by a Superior Court judge on procedural grounds, several of Commissioner Henderson’s holdings proved prophetic, including the lowered safety net standard and the lack of acceptance in the scientific community for hair testing as the sole determinant of illegal drug ingestion.

In addition, many of the civil service appellants were also plaintiffs in a federal lawsuit contending that hair-testing is racially biased.  There, they were supported by the Massachusetts Association of Minority Law Enforcement Officers (MAMLEO), and represented by attorneys from the Lawyers’ Committee for Civil Rights of the Boston Bar Association, Inc., and by attorneys and staff at a large Boston law firm, Bingham McCutcheon.  Although the federal case was rejected at the trial level based on statistical analysis (an appeal is pending), the work of these attorneys provided valuable discovery that we were able to utilize in the civil service appeals.

By the time the Commission began the 18 days of hearing in October 2010, additional scientific evidence and other developments further challenged the efficacy of hair testing as a “stand alone” employment test.  Scientific studies done under grants by the U.S. Department of Justice caused the FBI to suspend using hair testing in all cases, except criminal cases involving children.  In addition, in 2008, after four years of study, the federal agency charged with overseeing the federal workplace drug programs rejected hair testing, leaving only urine testing as the approved testing modality.

Of enormous assistance to Attorneys Shapiro and Rubin at Sandulli Grace were two expert witnesses: Dr. Douglas Rollins and Dr. J. Michael Walsh.  Dr. Rollins, in addition to publishing numerous scientific papers regarding the incorporation of drugs into hair, had served as the medical review officer for drug testing in the 2002 Salt Lake City Winter Olympics.  Dr. Walsh served in both the Reagan and Clinton administrations and was an important contributor to the design and implementation of the federal workplace drug program.  Dr. Walsh’s company has since gone on to consult with numerous industries, including the National Football League.  Both experts challenged the BPD’s use of hair testing as a “stand alone” measurement.  Neither believe that hair testing has yet advanced to the level that, solely based on a hair test, an employer can conclusively state that an employee has ingested cocaine and proceed to fire him/her.  The Commission gave great weight to the testimony of these two scientists.

Supporting the BPD’s hair tests were Dr. Thomas Cairns, an employee of Psychemedics, and Dr. Leo Kadehjian, “a biochemist, with no direct drug testing experience or research credentials.”  (Decision at ¶131).  Although the decision did approvingly cite some of Dr. Kadehjian’s testimony, Commissioner Stein flatly rejected some of this expert’s opinions:

Where, however, the Appellants showed that the underlying source material on which Dr. Kadehjian relied did not support his opinions, I give those particular opinions no weight. For example, Dr. Kadehjian opined in his initial expert report that the SAMHSA “published” procedures for hair drug testing that, although not “formally implemented”, have “recognized the utility of hair as a suitable specimen . . . with the same level of confidence that has been applied to the use of urine”. The evidence showed that this opinion was hyperbole, at best, and possibly could be called misleading. Similarly, Dr. Kadehjian opined that “the United Nations has recognized the role of hair drug testing . . . and has provided hair testing guidelines.” In fact, the role that the UN recognized for hair drug testing was as “a complementary test for urinalysis”, not as a stand-alone test. Dr. Kadehjian?s outdated opinions about the scientific consensus CE as a distinct metabolic marker of ingestion were noted in the findings above on that subject. (¶132)

Sifting through the scientific evidence with extraordinary precision and intellectual energy, Commissioner Stein eventually concluded that while the Psychemedics hair tests could provide some evidence of illegal drug use, sole reliance on them as the basis for discharge does not meet the requisite “just cause” standard of the civil service law.

This finding has enormous consequences.  To date, we are unaware of any other case where the reliability of hair testing has been challenged, examined and litigated as it was in this case.  Psychemedics Corporation undoubtedly understood what was at stake, since a mini-phalanx of its executives and attorneys faithfully attended the hearings.[1]

      Where the decision breaks down is in the final result.  After finding that these hair tests did not suffice to establish just cause for discharge, the Commissioner parsed the extremely skimpy record to decide who should be believed and who not believed with respect to ingesting cocaine.  While a penetrating investigation might have been a valid inquiry by the BPD when it fired these officers between six and eleven years ago, it had never been done.  The BPD stipulated that the only reason it fired these officers, many of whom had spotless personnel records, some of which included medals for heroism, were the Psychemedics test results. 

Asked on the stand to speculate why they may have tested positive, some appellants recited situations where they had come into contact with cocaine, either at work or other locations.  In finding some of these explanations not credible, the Commission essentially was forcing the appellants to prove their innocence rather than insisting the BPD prove just cause.  There is no reliable scientific article which has yet to study, let alone pinpoint, the specific mechanisms by which cocaine permeates human hair.  Just as we know that cigarette smokers contract lung cancer in far greater percentages than non-smokers, we also know that some non-smokers also get lung cancer.  So too, we do not know why some react more than others to environmental cocaine exposure.  We know that darker hair, with more melanin, theoretically will bind more with cocaine, but this has received little study.

Therefore, a strong argument can be mounted that where the BPD relied solely on these hair tests, and these hair tests do not scientifically warrant such reliance, the BPD lacked just cause to terminate any of the appellants.

For the six successful appellants, there is also the limited remedy, extending back only to the beginning of the hearings.  If allowed to stand, this remedy would not only deprive these officers of lost earnings but also years of pension service credit – all due to no fault of their own.

While there will undoubtedly be further litigation, it is vital to recognize what has been accomplished.  Ten former officers, with the vital support of the BPPA, their union, stood up to not only their employer but also a multi-million dollar company, and six of them won.  Here is an excerpt from the Psychemedics web site:

Over the years, Psychemedics has performed millions [sic] employment-related hair tests, not including tests used in research, quality assurance, or other internal purposes. At Psychemedics, hair testing is not a sideline or one of many clinical offerings. Psychemedics specializes in hair analysis. We pioneered and developed hair testing in the workplace.

For over 25 years, Psychemedics has also successfully defended hair test results in lawsuits, union arbitrations, and government agency hearings. Our test has been routinely upheld in employment cases, where the test results generally stand alone as proof of drug use, as opposed to family court and child custody situations where the test result is usually only part of a number of pieces of evidence.

Now, there is one government agency hearing where the test results were not upheld as stand alone proof of drug use.

[1] At one point, an attorney representing Psychemedics made a caustic reference to Attorney Shapiro’s eating a bagel, perhaps under-appreciating the nutritional value of this food staple and overstating its cultural significance to his heritage.