All posts by Sandulli Grace Staff

State Permitted to Spy On Public Employees; Bargaining Rights About Surveillance

The Supreme Judicial Court has held that the government may, in certain
circumstances, spy on public employees, without telling them, even if
the surveillance includes employees dressing and undressing. In Nelson
v. Salem State College (Docket#: SJC-09519) (April 13, 2006), the
state’s highest court ruled that an administrative employee does not
have a reasonable expectation of privacy when she changed clothes after
hours in a remote area of an empty office and when she applied suntan
lotion to her upper chest and neck. The surveillance of the college and
its supervisors in this case did not violate the federal constitution or
state law.

In this case, Gail Nelson worked at a small business development center
of Salem State College in an office that shared space with two other
college programs. A total of nine (9) people worked in the office,
while upwards of 100 people visited for regular meetings. When office
supervisors suspected that former associates were entering the building
after hours without authorization, campus police approved the
installation of hidden cameras. The cameras operated 24 hours a day.

The Court ruled that Ms. Nelson did not have a reasonable expectation
privacy even when she engaged in private activities in areas remote and
not visible to visitors and when no one else was in the building. In
essence, the Court found that the plaintiff could have "no absolute
guarantee" that she was alone, pointing to such factors as:

  • The office was open to the public throughout the day
  • Visitors were not required to check in;
  • Employees and numerous volunteers could access the office with their own keys;
  • Furthermore, Many people, including nonemployees whom the plaintiff did not know, had access to the office.
  • There was no footage of plaintiff being recorded

The Court’s ruling was highly "fact-specific," which means that it might
rule in favor of an employee under a different set of facts. In other
words, surveillance equipment in a office space, where access is highly
restricted, might produce a different analysis.

Even though the actions may not violate Constitutional law, unions may
have the ability to protect the privacy and dignity of employees. In
the private sector, the National Labor Relations Board has ruled that
surveillance, like drug-testing and other work performance issues, is a
mandatory subject of bargaining. Hidden cameras are focused primarily
on the "working environment" that employees experience on a daily basis
and are used to expose misconduct or violations of the law by employees
or others. The Board also found that bargaining about this issue did
not effect any core managerial concerns of the employer. Therefore,
unions can demand to bargain about decisions on whether to use recording
devices (hidden or not) at all, and, if so, where to use them and for
what purpose. Because unions have the right to demand bargaining on
this issue, it necessarily follows that they are entitled to receive
information about the existence and location of any recording devices in
their workplace. (there are certain restrictions that employers
lawfully may impose on this information). National Steel Corp. v. NLRB,
324 F.3d 928, 930 (7th Cir. 2003).

For unions representing Massachusetts public employees, the issue may be
more complex. To our knowledge, the Massachusetts Labor Relations
Commission has addressed the lawfulness of hidden cameras only once,
involving Duxbury School Committee in 1999. (The Commission regularly
prohibits public employers from monitoring union-related activities,
such as meetings). In Duxbury, the school installed a camera on the
timeclock to see if custodians were falsifying timesheets. The
Commission ruled that this installation, which occurred without
notifying or bargaining with the Union, did not violate the law.
"Because the use of the surveillance was limited to recording the
custodians’ departure times and was in response to a specific concern
about the accuracy of the existing method of timekeeping, we find that
the School Committee’s use of video surveillance in this case was merely
a more efficient and dependable means of enforcing existing work rules
and did not affect an underlying term."

While this case could be read to permit unlimited surveillance of public
employees without the union’s knowledge or consent, we would advocate a
narrow reading. First, the Commission, which usually takes guidance
from federal labor law, did not appear to be aware of the federal line
of cases on this issue. (The Commission quoted from an outdated federal
case on a similar issue). Even if the Commission were to reject the federal line, the Duxbury case does not deal with general surveillance of employees not connected to a specific problem.

Decision: nelson_opinion.pdf

Boston Police Patrolmen’s Association negotiate 12 percent raise in detail rate

Sandulli Grace, PC, client the Boston Police Patrolmen’s Association increased the primary detail rate for Boston police officers by 12 percent under an agreement reached with the City of Boston, from $33 to $37.
The settlement caps a decade of litigation regarding the City’s unlawful changes to the detail system. In 1996, the City changed the detail system to prioritize certain assignments and did so without fulfilling its legal obligation to provide notice and an opportunity to bargain with the Union. The Union, with the assistance of Sandulli Grace, PC, charged the City with violating state labor laws. The Massachusetts Labor Relations Commission agreed with the BPPA. In a published decision, the Commission ruled that while the City has the right to set priorities for detail assignments, it must negotiate the implementation of such priorities with the BPPA. Furthermore, the Commission ruled, the City must negotiate any changes in the context of ongoing successor negotiations, if the Union so requests.

The pact establishes two detail rates. The priority rate, $37, applies to all critical details including those on major routes. The second rate, $33, applies to all other details. The BPPA’s research indicates that the far majority of details will use the higher rate.

In addition to agreeing to the higher rate, the City also agreed to eliminate the monthly work (320 hours) cap, Instead, the parties agreed to limit maximum number of weekly number of hours that a police officer may work to 90. This limit applies only to hours actually worked and does not include paid leave, for instance.

BPPA President Tom Nee told the Boston Globe, ”I think the real story here [is that] ‘the city and the union were able to get something done without pointing bazookas at each other."

Base pay for patrol officers was about $46,000 at this time last year, but detail work and overtime pushed numerous salaries to more than $100,000. Unlike in other states, cities in Massachusetts routinely require that police officers direct traffic at construction sites.

As part of the deal, the union also agreed to settle three other smaller pending labor grievances.

SJC Increases Penalties for Public Employee Off-Duty Misconduct

A public employee who engages in private misconduct can lose his or her pension, even if the misconduct is unrelated to any official action, so long as the conduct involves criminal dishonesty. In the much-anticipated decision of State Board of Retirement v. Bulger released Monday, March 6, 2006, the Supreme Judicial Court held that Jack Bulger, brother to Former Senator and U-Mass President Billy and fugitive Whitey, must lose his pension as a result of pleading guilty to charges of perjury and obstruction of justice based on statements made to Federal agents investigating his fugitive brother.
Bulger was a public employee for 37 years, the last 20 as a Clerk-Magistrate of Boston Juvenile Court. Based on statements Jack made during the FBI investigation into the whereabouts of Whitey, the FBI charged him with perjury and obstruction of justice. He ultimately pleaded guilty to four counts.

The SJC case deals solely with the issue of whether, in spite of the guilty pleas, Bulger still may receive benefits under the state retirement system. In a unanimous decision authored by Justice Martha Sosman, the Court answered "NO."

Massachusetts General Laws Chapter 32, §15(4) deprives a public pension to any public employee who receives a "final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance…."

Court cases have frequently held that a convict loses his or her pension if the underlying criminal offense relates to official duties of the public job. In other words, a municipal official who is convicted of skimming funds from the employer obviously loses a pension. See, e.g., Gaffney v. Contributory Retirement Appeal Bd, 423 Mass. 1 (1996). The Bulger case is somewhat unique for the forfeiture arises from indisputably off-duty conduct.

The decision re-affirms the SJC’s view that a) honesty or integrity is fundamental to most public employee jobs, at least those jobs involving courts or law enforcement; and b) dishonesty and interference with law enforcement likely requires loss of the job as well as the pension.

The Bulger case may be troubling in light of another recent SJC case involving public employee misconduct. In City Of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005), a unanimous SJC held that a police officer who was found to have repeatedly lied and abused his authority cannot be reinstated to the police department. This irreversible termination must be the result, even where the Union shows that the City has a clear record of suspending, not terminating, officers who engaged in worse conduct, and said officer has a clean disciplinary record.

While this particular Boston officer was never convicted by a jury of perjury or any other crime beyond a reasonable doubt, the SJC’s decision nevertheless relied on the arbitrator’s findings to conclude that he committed perjury. It found perjury to be a capital crime. "One of the most important police functions is to create and maintain a feeling of security in communities. To that end, 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." City Of Boston v. BPPA, 443 Mass. 813, 819 (2005)

The specific provision of pension forfeiture law discussed in Bulger, Chapter 32, §15(4), clearly requires that an actual conviction of perjury or obstruction of justice occur before an employee’s pension is forfeited. Other forfeiture provisions establish a much lower threshold. An employee may lose his or her pension if found to have "misappropriated funds." The Courts have permitted expansive interpretations of this definition. For instance, in Doherty v. Retirement Board of Medford, 425 Mass. 130 (1997), a police officer was acquitted of federal criminal charges of stealing a police entrance examination for his son. Nonetheless, the retirement board relied on criminal trial testimony to find that he stole the exam. The Board found that by this action, which involved no financial graft, the employee "misappropriated funds." The appropriated funds consisted of "the salary and other payments received by [officer] from the [employer] by virtue of his fraudulently obtained employment as a police officer."

Going forward, we here at Sandulli Grace will argue that off-duty lying or interference, to disqualify an employee from pension, should be limited to a) employees who take an oath for their job; and b) the lie interferes with compliance with laws or government investigations. By contrast, a lie underlying sick leave use, we believe, should not result in either irreversible termination or pension forfeiture. As the law continues to develop, we will continue to keep you informed.

The Bulger case stands as a stark reminder of the severe civil, criminal and financial consequences that face public employees who are found, rightly or wrongly, to have engaged in criminal misconduct, especially perjury or obstruction of justice, whether on or off-duty.