In Weinburgh v. Civil Service Commission & City of Haverhill (07-P-1692)(Sept. 4, 2008), the Appeals Court ruled that a candidate for promotion may sit for a promotional exam even if the candidate did not actually serve a full year in the rank immediately below the promotional position. In reaching this interpretation, the Court disregarded the interpretation of the Civil Service Commission, the agency primarily responsible for enforcing Chapter 31.

General Laws Chapter 31, §59 governs the process for competitive promotional examinations for public safety positions in Civil Service communities. The law limits candidates to police officers and fire fighters who have “been employed in such force for at least one year after certification in the lower title or titles to which the examination is open.”

The case of Weinburgh concerned the eligibility of a Haverhill fire lieutenant to sit for the captain’s exam held in November 2004. The examination was open only to lieutenants. The individual firefighter was certified on the lieutenant’s promotion list in Summer 2003, although he was not actually promoted to that rank until December. (To further complicate matters, the Commission backdated his seniority to October 2003). The issue presented by Weinburgh therefore is whether a promotional candidate must actually serve for one year in the lower rank in order to sit for the promotional exam – in other words whether Weinburgh must have worked for one year as a lieutenant prior to taking a captain’s exam limited to lieutenants. The Commission interpreted G.L. c.31, §59 to require one year of “actual service” as a lieutenant.

Courts are supposed to defer to an agency’s interpretations of the law. Yet here, the Appeals Court overruled the Commission’s interpretation of G.L. c.31, §59. The Court ruled that the one year requirement for promotions begins once the employee has been certified for the rank below the rank involved in the examination, even if the employee did not serve an entire year in the inferior rank. In other words, Weinburgh was permitted to sit for the captain’s exam, even though he did not actually work as a lieutenant for one year before the exam. The Appeals Court ruled that Weinburgh met the statutory one-year requirement because he was certified for lieutenant’s position more than a year prior to the exam (Summer 2003) and subsequent to this certification he actually worked for one year for the Department (as a firefighter or lieutenant – though the exam was limited to lieutenants).

Weinburgh’s emphasis on technical service in rank above actual service in rank stands in provocative contrast to the SJC case of Police Com’r of Boston v. Cecil, 431 Mass. 410 (2000). In Cecil, the SJC interpreted a one-year requirement under Civil Service laws – this time dealing the probationary period of police officers under G.L. c.31, §61. The SJC ruled that the police officer must actually work as a police officer for 12 months in order to obtain tenure, even if the officer had been on the Department rolls for more than one year (the SJC excluded the officer’s time spent on paid administrative leave).

In a sharply worded decision, the Civil Service Commission reversed the Boston Police Department’s bypass of a candidate who tested “positive” for cocaine in a hair test and strenuously denied any use of illicit drugs. In short, the Commission’s decision Justiniano Plaza v. Boston Police Department http://www.mass.gov/csc/csc_cases/plazajustiniano.pdf (July 10, 2008), indicates that police departments cannot blindly hide behind a laboratory’s written assertion that an officer tested “positive,” especially where the test process has generated enormous controversy. The decision is a daring vindication of the basic merit principles behind Civil Service and a refusal to kowtow to mindless hysteria or adopt the illogic of management when confronting allegations of substance abuse.

In this case, Suffolk County Correctional Officer Justiniano Plaza tested “positive” for cocaine on a hair test administered by the Sheriff. The Sheriff used the same policy and laboratory, Psychemedics, as used by the Boston Police Department (“BPD”). Despite the “positive” result, Plaza vehemently denied using cocaine. In order to spare himself from termination, Plaza agreed to a 45-day suspension and subjected himself to three years of random urine drug testing (he tested negative). Otherwise, Plaza, a former Marine, had a very strong employment record and a history of passing all employment drug tests without difficulty.

The BPD relied almost exclusively on the Sheriff’s hair test result and subsequent suspension to bypass Plaza. On appeal, a majority of the Civil Service Commission (two of whom were appointed by Gov. Deval Patrick) reversed the BPD’s bypass and ordered the Department to reconsider Plaza for appointment to the next vacancy. (The two dissenting Commissioners originally were appointed by Gov. Romney). This majority decision rested primarily on three reasons: 1) a drug test result, unsubstantiated by any scientific testimony, is insufficient to justify a bypass or other adverse action, or even to require the officer to disprove the result; 2) a “positive” test result cannot automatically disqualify an applicant, where the BPD claims to consider an applicant’s entire record; and 3) the BPD cannot permanently disqualify applicants for past drug test results if the applicants successfully rehabilitated themselves, especially where the BPD permits its police officers to rehabilitate themselves following a positive drug test result.

The Commission majority acknowledged the ongoing federal litigation by several African American BPD officers who were terminated on basis of “positive” hair tests for “cocaine.” It also noted that 18 cases pending before the Commission challenge the validity of hair testing for cocaine. The Commission majority was careful to note that its decision does not prejudge the outcome of these appeals. Sandulli Grace, PC, represents many of these officers (members of or represented by the Boston Police Patrolmen’s Association, Inc.) at the Commission.

The City of Boston is likely to appeal the Commission’s decision to court.

Riding the media tidal wave of hostility toward public safety employees receiving workers compensation-type benefits, the Appeals Court of Massachusetts has ruled that a police dispatcher permanently disabled from her job as a result of unsolicited roughhousing at work by a police officer is ineligible for an accidental disability retirement.

In Damiano v. CRAB , 07-P-520 (July 23, 2008), a dispatcher got up from her seat intending to use the restroom and grab work-related forms. As she rose, a police officer jokingly placed her in a headlock and then dragged her eight feet. This action resulted in two employees falling against the wall and the floor. The dispatcher injured her wrist and elbow, which never fully recovered. She never returned to work as a result of the injuries from this incident.

Under Massachusetts General Laws, Chapter 32, §7, public employees are entitled to an accidental disability retirement if they are “unable to perform the essential duties of [their] job by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, [their] duties at some definite place and at some definite time ….” Accidental disability retirees are eligible for 72 percent of their salary for the duration of their permanent disability. In exchange for this payment, these retirees are barred from full-time jobs in the Massachusetts public sector, and also face limitations on what they can earn from outside work.

In the new case, the Appeals Court narrowly interpreted the phrase “in the performance of duty” to deny disability benefits to the dispatcher. Although the dispatcher was working at the time of the injury, was in no way at fault for the injury, and was engaging in conduct permitted by the employer, the Court held that she was not performing actual productive work in a traditional sense and therefore cannot receive accidental disability retirement. The Court seemed to acknowledge that her injury qualified for workers compensation benefits, but stated there is a higher standard of proof to qualify for accidental disability retirement.

The Court seemingly adopted a narrow view of the occasionally mundane day-to-day responsibilities of public safety employees. The Court associated work-related disability incidents with the public safety heroics popularized by the media:

A firefighter who is injured while rushing into a burning building, or fighting a fire, as well as the police officer who is injured while directing traffic, or apprehending a fleeing felon, can easily be understood to have been injured while ‘in the performance of’ duties undertaken on behalf of the public.” The same cannot be said of the dispatcher.

One wonders if the court will recognize the benefits intended by the Legislature to employees injured (for whatever reason) while completing a report, cleaning department equipment, or performing any of the many incidental, unglamorous but indispensable tasks of public safety work. In the future, retirement boards and courts will need to be educated about what actual public safety work entails, and claimants for accidental disability retirement will need to emphasize the key job functions they performed at the time of the injury.

Most employees, public and private, are entitled to overtime compensation under the Federal Labor Standards Act (FLSA) for every hour actually worked beyond 40 hours in a seven-day period. As another needless reminder of the second-class status of police officers and firefighters, Congress permits public safety employers to pay less overtime so long as the employer adopts a “partial overtime exemption,” under the FLSA (commonly known as a “§207(k)” work period,” in reference to the relevant section of the Act). Where a public safety employer lawfully adopts a §207(k) work period, police officers may not be entitled to FLSA overtime unless they work 171 actually hours in a 28-day work period, while firefighters may not receive FLSA overtime until they actually work 212 hours within that same period. Considering that paid leave time (sick, vacation, etc) does not count toward the 171 or 212 hours, public safety officers are functionally denied the benefits of the FLSA through this exemption.

As a credit to the strength of union solidarity and collective action, most labor contracts provide overtime compensation in more circumstances than the minimum required by the FLSA. However, the FLSA overtime rate, when applicable, frequently is more generous than labor contract rates, because the FLSA rate must include many differentials, stipends, etc. That’s why the issue of whether an employer properly adopted a §207(k) work period is the most critical piece of FLSA litigation involving police and firefighters. Sandulli Grace, P.C. (on behalf of its client the Boston Police Patrolmen’s Association, Inc.) won a landmark decision , when the Labor Relations Commission (now the Commonwealth Employment Relations Board), ruled that the voluntary adoption of a partial overtime exemption under §207(k) is a mandatory subject of bargaining and cannot be unilaterally implemented by the employer. The City of Boston has appealed this decision, and it is now pending before the Supreme Judicial court.

In O’Brien v. Town of Agawam (on which Sandulli Grace, PC, while not directly involved. consulted on the briefs), the U.S. Circuit of Court of Appeals ruled that the §207 work period does not apply in the case of a 4-and-2 schedule, absent an affirmative adoption of this partial overtime exemption by the employer. In O’Hara v. Menino, Sandulli Grace leveraged the O’Brien decision to impose damages against the City of Boston, based upon a 40-hour work period. In neither case did the employer purport to affirmatively adopt a valid §207(k) work period.

We now are seeing cases litigating whether and when an employer lawfully adopted the partial overtime exemption. In Calvao v. Framingham, (July 3, 2008) , a class action involving Framingham police officers, the Federal Trial Court in Massachusetts affirmed that a §207(k) exemption applies only if the employer adopts an applicable work period (or there exists a regular, recurring work period consistent with §207(k), AND it takes affirmative steps to implement this period). In Calvao, the Court ruled that a Town Administrator’s memo adopting a period sent to the Police and Fire Chiefs and Town Counsel was sufficient to adopt a period, even though the former Town Counsel and Administrator had no memory of the memo and the work period was inconsistent with the terms of the collective bargaining agreement and Town Bylaws. Finally, the Court suggests that an employer adequately implements a §207(k) work period, simply by distributing the memorandum periodically and filing it in relevant places, even if the employer apparently never actually complied with the memo or applied a §207(k) work period.

The Calvao decision was issued by a federal trial judge and may be appealed to the U.S. First Circuit Court of Appeals. It also is possible for another federal trial judge in Massachusetts to adopt a different interpretation of the law on the same issue. (Massachusetts federal trial judges have issued differing interpretations of FLSA before).

An arbitrator has ruled that the Peabody Police Chief violated the past practice clause of a collective bargaining agreement and his own department rule when he unreasonably denied the request of a local union official to work as a reserve officer in another town. This arbitration victory highlights the benefits of having past practice clauses inside labor contracts.

For years, Peabody officers worked any outside job they wanted, so long as the job did not conflict with their police duties. Peabody officers worked successfully as athletic coaches, small business owners, and even police officers in other communities. The Chief even issued a department rule permitting officers to work outside jobs so long as they obtained his permission.

This longstanding and consistent practice suddenly changed when the vice president of the Peabody Police Benevolent Association, MCOP Local 351, AFL-CIO asked to work as a reserve officer in another town (a position he used to hold prior to accepting a full-time appointment in Peabody). The Chief denied the request without explanation. Later, the Chief provided new and different reasons every time he was asked to explain his handling of the request.

The Association grieved the Chief’s actions (it also filed a charge of unfair labor practice). While the Agreement contains no specific clause entitling officers to work outside employment, it does contain a “past practice” clause: “Employee benefits, privileges or working conditions existing prior to this Agreement not specifically covered by this Agreement shall remain in full force and effect.” It also has a broad definition of grievance. The practical benefits of broad arbitration and past practice clauses are very real: parties can settle workplace disputes in a relatively quick manner. As the arbitrator observed, “It is difficult to envision what type of dispute would be excluded from the grievance procedure.”

Following a hearing, the arbitrator credited the Association’s testimony and nearly rejected every argument and fact raised by the City. Over the City’s objections, the arbitrator found that he had the authority to resolve the grievance under the past practice clause. The Arbitrator refused to be cowed by assertions of management rights. Instead of finding that Management Rights language serves as a magic wand for employer actions, the arbitrator found that the Chief is obligated to exercise managerial authority in a non-arbitrary, non-capricious, and reasonable manner. The Chief here failed to do so.

The arbitrator rejected practically each and every defense asserted by the Chief. He rejected the fanciful claim that the Association and Chief previously agreed that officers could not work for other police departments. The arbitrator wrote, “There is no reliable evidence that the City notified the Union of its intent to discontinue the practice of allowing full-time City police officers to work as reserve officers in other communities” (emphasis added),

The arbitrator further found that the bizarre reasons cited by the Chief (e.g., training, liability, etc) to prohibit the Association official’s request to work as a reserve officer basically were bogus. He wrote, “There was no evidence that the Chief’s concerns were rooted in fact.”

Most damning of all perhaps is that the arbitrator found that the Chief fundamentally mishandled the officer’s request to supplement his income. The Chief failed to conduct a “reasonable inquiry” into the officer’s request, failed to raise any legitimate concerns, and failed even to talk to the officer, union and outside employer about any obstacles to working an outside job. In sum, the arbitrator found that the Chief abused his discretion in denying a request for no verifiable reason and therefore violated the collective bargaining agreement. For a remedy, the arbitrator ordered the chief to let the officer accept employment as a reserve officer for another town.

Download the decision

The Supreme Judicial Court has ruled that a public employee’s personal use of a municipal vehicle, which also is used for official purposes, does not count as “regular compensation” for purposes of retirement. The decision (http://socialaw.org/slip.htm?cid=18192&sid=120) is Pelonzi v. Retirement Board of Beverly, SJC-10098 (May 21, 2008.

The retirement allowance of public employees generally is based upon a percentage of the “regular compensation” paid to employees. “Regular compensation” generally includes base wages and other wage enhancements, such as specialty stipends and shift differentials, and excludes (contrary to media reports) overtime and details. Over the years, the Public Employee Retirement Administration Committee has held changing positions on whether the personal-use value of an employer-supplied vehicle qualifies as “regular compensation.”

In the case of Bulger v. Contributory Retirement Appeal Bd., 447 Mass. 651 (2006), the SJC ruled that housing payments paid to former UMass President William Bulger counted as “regular compensation” and ordered that these payments be figured into his retirement allowance. This decision naturally led many persons to conclude that all knowing personal use of a company vehicle qualified as “regular compensation.” The SJC’s decision now disabuses legal practitioners of this notion and reminds us that William Bulger’s case exists in a special class by itself.

The court agreed that “the personal use value of the city-supplied automobile [qualified] as a “regular” benefit, in the sense that it was recurring and not incurred as a bonus or in lieu of payment for special services.” This same benefit, however, did not qualify as “compensation . . . for the individual service” of the employee as that phrase is defined under General Laws Chapter 32, §1. Under the SJC’s analysis, a benefit qualifies as compensation apparently to the degree that the employee doesn’t need the benefit. To wit, Bulger didn’t really need a housing allowance, so it really serves as a financial incentive to him. Whereas, vehicles for public safety executives are “required by the fundamental nature” of the job. As the SJC wrote, “Employers routinely supply employees with other noncash job related accessories and benefits (e.g., cellular telephones, personal computers, facsimile machines, parking spaces) to enable their employees to perform their jobs more efficiently, and may authorize the personal use of these benefits as a matter of convenience.”

Therefore, personal-use value of a company car is unlikely to count toward public employee retirement in Massachusetts unless the employee can show that a written agreement with the employer provided a company vehicle as an enticement for the employee to improve his or her performance and that the employer could take away the vehicle (for either personal or official purposes) as a result of underperformance.

In a decision highly anticipated by the law enforcement community in Massachusetts, the Supreme Judicial Court Wednesday ruled that the state’s ban on lie detectors does not apply to police officers suspected of “criminal activity” – even to police officers who have received full immunity from state criminal prosecution.

General Laws Chapter 149, §19B prohibits public and private employers from subjecting employees to lie detectors for any reason. The law was first enacted by the legislature in the 1950’s. At that time, polygraph proponents (including many manufacturers) were aggressively pushing these magic boxes. The legislature, recognizing that polygraphs then, as they are now, are nothing more than junk science, passed the law to protect workers. The statute does contain a narrow exception for “lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.” Although this language clearly limits polygraphs to the context of criminal investigations, the SJC basically ruled that the situation need not involve criminal investigation or prosecution, so long the employee is a police officer.

In the case of Furtado v. Town of Plymouth (SJC-10049) (May 28, 2008) [http://socialaw.org/slip.htm?cid=18212&sid=120], the police department suspected that Police Officer Furtado sexually abused two minors. (He later was cleared of these allegations.) During its administrative investigation, the Town ordered Furtado to submit to a polygraph. Facing criminal allegations, the officer duly exercised his right to remain silent unless granted full transactional immunity from any criminal prosecution. (This right derives from Article 12 of the Massachusetts Constitution, and is broader than the right against self incrimination contained in the Fifth Amendment to the US Constitution. It was affirmed by the SJC in the case Carney v. Springfield, 403 Mass. 604 (1988), and is now generally referred to as “Carney” rights.) The Town successfully arranged for Furtado to receive this immunity.

As a result of being immune from criminal prosecution, the officer reasonably argued that he could not be subject to a polygraph. After all, Section 19B’s narrow exception for lie detector tests should not apply if there is no “criminal investigation.” The Appeals Court disagreed. The SJC opted to review the decision and affirmed the result. Sandulli Grace, PC Attorney Bryan Decker, along with John Becker and Patrick Bryant, filed a friend-of-the-court brief on behalf of the Massachusetts Coalition of Police, AFL-CIO.

Decker’s brief presented a wealth of evidence that underscored the scientific unreliability of the polygraph. (Indeed, the SJC itself has deemed polygraphs to be inadmissible in court.) Decker also presented cases from other jurisdictions that have struck down polygraph statutes as unconstitutional where the statute treats police officers differently than other public employees. The SJC, which has a record of being indifferent to the civil rights of police officers, ignored these arguments.

The SJC ruled that a public employer may subject an officer to a polygraph test so long as there is “an alleged crime in the picture (not, for example, mere violation of a departmental regulation).” The Court said it is irrelevant if criminal prosecution, as in Furtado, is impossible.

Given the skimpiness of statutory language to support its argument, the SJC supported its argument through the extraordinary measure of citing draft bills that the legislature never enacted. In order to reach the result that police officers may be polygraphed, the SJC looked at language in amendments to the polygraph law that had been rejected by the Legislature years ago. Distressingly, the SJC did not rely on ACTUAL amendments to the law, amendments that show a steady intent of the legislature to protect police officers along with other employees. Nothing in the legislative history suggests that the legislature intended to create an entitlement for Chiefs to harass employees through junk science.

In a bizarre logical twist, the SJC claimed that public employers would face “a Catch-22 situation” if forced to apply the laws as written. According to the Court, prohibiting polygraphs to officers immune from state criminal prosecution “would deprive police departments of their ability to order the lie detector tests of officers accused of serious misconduct violating the criminal laws of the Commonwealth, a tool that the Legislature has expressly granted them.” This is simply not true. A “Catch 22” is when “you’re da#$ed if you do and you’re da#$ed if you don’t.”  Here, the legislature has made it clear that employers’ cannot require polygraphs absent a criminal.  A grant of immunity AUTOMATICALLY means that no criminal investigation is possible.  Put simply, if there is no criminal, how can there be a “criminal investigation?” Thus, no criminal investigation, no polygraph.  So, the ultimate impact of the collision of Article 12 and the polygraph statute is that you can’t coerce a public employee into being polygraphed.  That result is consistent with the legislative intent of both protections, and is the opposite of a Catch 22. The Court takes this position even though the statute expressly permits the police to use the polygraph only in actual criminal investigations, and a decision in Furtado’s favor would not have changed that the legislature’s intent to limit the use of polygraphs to this situation. Someone reading the decision might conclude that the SJC is more sensitive to the needs of public employers than police officers.

There is still hope. The SJC suggested that polygraphs of police officers may be permitted only where “the crime being investigated [has] some connection to the employee’s job.” Arguably, polygraphs about certain off-duty conduct remain illegal.

Continuing its relative and seemingly endless streak of anti-union arbitration decisions, the state’s highest appellate court reversed an arbitrator’s promotion of a bargaining unit employee. In Somerville v. Somerville Municipal Employees Association, SJC-10089 (May 22, 2008) (http://socialaw.org/slip.htm?cid=18195&sid=120), the Supreme Judicial Court ruled that an arbitrator exceeded his authority when he ordered that the City of Somerville appoint a union employee to the position of Director of Veterans’ Services. The relevant collective bargaining agreement provided a promotional preference to the most senior unit employee, so long as no other candidate (either union or non-union) was significantly more qualified. Instead of following the contract, the Mayor promoted a non-union member who was no more qualified than the most senior union employee. The arbitrator upheld the union’s grievance and ordered the City to appoint a particular union employee. The Superior Court and the Appeals Court upheld the arbitrator’s decision. (Our blog entry on the fleeting Appeals Court victory is here: http://www.sandulligrace.com/sgblog/?p=92)

The SJC reversed. Thankfully, the SJC’s decision relies principally on the peculiar language of a statute applicable exclusively to Director of Veterans’ Services, G. L. c.115, § 10, rather than any broad principle of managerial rights. The statute states that the Director “shall be a veteran and shall be appointed in a city by the mayor, with the approval of the city council.” The SJC interpreted this statute as providing the mayor with an unambiguous right to appoint the director. The Court declined to interpret the collective bargaining agreement’s union preference as similar to “procedural” or “ancillary” union contract terms, which courts have generally permitted to be enforced.