All posts by Alan Shapiro

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%.

NLRB: SCHOLARSHIP COLLEGE FOOTBALL PLAYERS CAN UNIONIZE

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.

Civil Service Knocks Out Quincy Mayor’s Choice for Fire Chief and a Judge Agrees

Based on many recent Civil Service decisions and, even more poignantly, the courts’ reaction to those decisions, many of us concluded that challenging a bypass promotional case was about as promising as hitting a trifecta at your local race track. [1] That perception, however, may no longer be accurate.  A 60 page decision by Commissioner Paul Stein in September in the case of Smyth v. City of Quincy, not only upheld a bypass appeal for the position of Quincy Fire Chief, but also removed the appointee from the permanent position and, in very specific terms, ordered the city how to go about properly selecting the next chief from the three highest scores on the certification.  When the city appealed to Superior Court to enjoin the Commission’s decision from taking effect, the judge, in a decision issued on November 21, refused to intervene on the grounds that the city was likely to lose its appeal.

By way of background, civil service law, all contained in Mass. General Laws Chapter 31, compels that promotions be made from among the three highest scoring applicants on a certification (a list of candidates with passing scores ranked numerically by the state Human Resources Division [HRD]).  If the appointing authority, in the case of Quincy Fire, the mayor, selects a candidate other than one with the highest score, s/he must supply the reasons for doing so.  The higher scoring candidates may then lodge bypass appeals with the Civil Service Commission.

The Civil Service decision concluded that Quincy’s mayor was predisposed to appointing a politically well-placed candidate and that his proffered rationale was a smokescreen to obfuscate his predisposition.  The case contains an excellent primer, with abundant citations, on what an appellant needs to show in order to prevail in a bypass appeal.

The remedy is particularly noteworthy.  Ordering that the permanent appointment be rescinded is rare but not unique.  Prescribing how the city must make the next appointment in order to remove any bias and instill the process with integrity is virtually unprecedented.  Commissioner Stein has set out a blueprint for what appointing authorities must do to insulate themselves from bypass challenges, and a road map for future appellants to follow in asserting such challenges.  The specific requirements (quoted directly from the decision) are:

(a) candidate interviews must be conducted by a panel to be selected and arranged by an independent outside individual or firm that has experience in the review and selection of public safety and/or senior public sector personnel in Massachusetts;

(b) neither the outside individual or firm, nor any member of the interview panel shall have any present or prior contractual, employment or familial relationship to the Mayor of Quincy or to any of the candidates;

(c) the candidates will be provided, also reasonably in advance of the interview, a description of the criteria by which their credentials and their interview performance will be evaluated;

(d) the evaluation criteria shall be established by the independent individual or firm selected to arrange the interviews, and shall contain such procedures and criteria that the outside individual or firm deems appropriate in consideration of a candidate for Fire Chief, provided that Quincy may contribute its input to the independent individual or firm as to any aspect of the interview process, including evaluation criteria, as it deems appropriate, and further provided that any communications between Quincy and the independent individual or firm shall be disclosed to each of the candidates;

(e) the interview panel shall render a written report of the interviews which shall be made available to each of the candidates and to the public; and

(f) the written report shall include a specific rating of each candidate?s performance in each component or question during the interview, an overall ranking of the candidates, and a description of any unique positive and/or negative qualities or experience noted about any of the candidates.

Attorney Betsy Ehrenberg is to be highly commended for her excellent work in not only attaining this favorable precedent but also in successfully defending it, at least through this initial phase, in the courts.

It is also hoped that the specificity of the remedy will send a message to the public safety community: the days of perverting what is supposed to be a merit-based promotional system based on who someone is rather than what the person knows and has done are over.

 

[1] In the interest of full disclosure, I did hit one on my first visit to Saratoga, however, subsequent visits have confirmed it was beginner’s, or dumb, luck.

Civil Service Suspensions: 5 Days Can Be 8 But Not 16

While, for the Beatles, eight days a week may not have been enough to show they cared, the Appeals Court has said that it is enough for a five-day suspension.

Civil Service law, Mass. Gen. Laws Chapter 31, § 41, allows a police or fire chief to suspend a tenured civil servant “for just cause for a period of five days or less without a hearing prior to such suspension.” [emphasis added]. The statute goes on: “Saturdays, Sundays and legal holidays shall not be counted in the computation of any period of time specified in this section.” The employee is forced to serve the suspension but may (within 48 hours) appeal to the appointing authority for a hearing on whether the chief did indeed have just cause for the punishment. To suspend employees for more than five days or to demote or terminate them, the appointing authority must first hold a hearing before issuing those greater disciplines.

When the Andover fire chief issued a four-day suspension to a Lt. Thornton, he ordered that the four days be served on the lieutenant’s next four scheduled 24-hour shifts, spanning a 16 day period. Not surprisingly, the Civil Service Commission, by a 3-2 vote in an opinion written by Chairman Bowman, had no problem with allowing the chief to take away two weeks’ pay and prevent the lieutenant from working overtime or details for 16 days, all as part of a four-day suspension without a hearing.

This punitive interpretation was first overturned by the Superior Court and then, last week, by the Appeals Court. In Thornton v. Civil Service Commission, Justice Rubin, writing for a 2-1 majority of the three-judge panel, made this Solomonic observation: “Whatever a suspension of ‘a period of five days or less’ is, it is not a suspension under which an employee may not work for sixteen days.”

The Appeals Court decided that the five-day suspension period means five consecutive calendar days, excluding weekends and holidays. A five-day suspension could run from Monday through Friday, Tuesday through the next Monday (remember weekends don’t count), etc. The decision has the practical effect of letting the chief, for the most part, take away a week’s pay and prevent the employee from working overtime/details for the same week. This does raise the question: If weekends and holidays don’t count as part of the suspension period, why should employees also be suspended on those days and prohibited from performing extra work on them?

While the decision is not perfect, it is a reasonable attempt at applying a statute obviously geared to people who work Monday through Friday, nine to five, to the “four and two” and “24 hour” shifts, which did not become prevalent until long after 1978, when the statutory language was written.

One problematic aspect of the Appeals Court decision is language permitting the chief to begin the suspension on a particular day of his/her choosing.  An overreaching chief could, therefore, begin an alleged miscreant’s five-day suspension on Tuesday, October 4. Because of the weekend/holiday exclusion and the October 10 Columbus Day holiday, it could run through Tuesday, October 11.  If the employee were returning to his/her “four-and-two” on the 4th, it could actually cost six days’ pay and, depending on the contract, the holiday pay also.

Suffice it to say that the Appeals Court has reduced a “five-day suspension” from sixteen to, at most, eight days. It’s at least a step in the right direction