Appeals Court Upholds Power of Arbitrators to Decide Whether a Teacher has Professional Teacher Status

Today, the Appeals Court issued a decision holding that arbitrators, acting pursuant to their authority under G.L. c. 71, § 42, have the authority to determine if a dismissed teacher held professional teacher status at the time of his/her dismissal. Under G.L. c. 71, § 42, teachers who have three consecutive years of service with a school district are entitled to professional teacher status, which confers upon them certain procedural and substantive rights, including the right to challenge their dismissals before an arbitrator under a just cause standard.

The case, Plymouth Public Schools vs. Education Association of Plymouth, involved a special education teacher, who worked for the school district for five years. During those five years, the teacher took maternity leave twice, under the Family Medical Leave Act (“FMLA”). At the end of her fifth year, the school district notified her of its decision not to renew her for the upcoming year. The district believed that the teacher had not obtained professional teacher status because her service was interrupted by the two periods of maternity leave. The teacher and the union took the position that she had acquired professional teacher status by virtue of her five years as an employee of the school district. Accordingly, the union petitioned the Commissioner of Elementary and Secondary Education for arbitration. The Commissioner forwarded the petition to the American Arbitration Association for an arbitration to determine first, whether the teacher had professional teacher status, and, if she did, whether or not the district had just cause to terminate her employment.

The district filed suit in Superior Court. There, the district argued that the teacher did not have professional teacher status, that she had no right to arbitrate her dismissal, and that the question of whether or not she had professional teacher status could only be answered by the courts, rather than by an arbitrator. After the Superior Court ruled in the district’s favor, the teacher and the union appealed to the Appeals Court. The Appeals Court reversed the Superior Court’s decision and declined to decide whether or not the teacher had professional teacher status. In doing so, the Court ruled that the question of whether or not she had professional teacher status was one appropriately answered by an arbitrator, rather than the courts. As a result, the dismissal will be reviewed by an arbitrator who will have the power to determine whether the teacher had professional teacher status and, if so, whether she was dismissed for just cause. Had the court not decided in the union’s favor, teachers in a similar position would have to file suit in court to determine their professional teacher status, and then, if the court ruled in their favor, proceed to arbitration to obtain a determination on the merits of their dismissal. This decision reaffirms the Legislature’s intent to have arbitrators decide issues relating to the termination of teachers and avoids forcing teachers into costly, duplicative litigation.

The case was successfully litigated by Atty. Matthew Jones of the Legal Services division of the Massachusetts Teachers Association.

Here is a link to the decision.

Public Records Law Overhauled For First Time In 43 Years

The state’s public records law was updated today for the first time in 43 years. The new law, “An Act to Improve Public Records,” puts pressure on municipalities and agencies to respond quickly and adequately to public record requests by establishing strict timeline requirements and allowing for significant judicial measures in the event of noncompliance.

Most notably, the law allows judges to award attorney fees and costs, as well as punitive damages up to $5,000 for a lack of good faith, to requesters who succeed in court against an agency or municipality that fails to produce records according to the statute. This change accompanies a new timeframe for responding to requests. Like the current law, the new law requires a response within 10 business days. However, the new law will require a municipality or agency, if it cannot produce the requested records, to identify a reasonable timeframe for turning them over. That timeframe cannot exceed 15 days for an agency and 25 days for a municipality following the initial receipt of the request, unless otherwise agreed to by the requestor.

Additional provisions call for the use of electronic and digital transmission of records when possible (preferably in ‘searchable’ form), the designation of one or more employees as ‘records access officers,’ and the creation of a Public Records Assistance Fund. Further, agencies must host websites providing records of proceedings, annual reports, winning bids for public contracts, grant awards, agency budgets, minutes of open meetings, and more.

The law specifically clarifies that personal information of law enforcement and public safety personnel, including their home address, personal email address, and home telephone number, “shall not be public records” and “shall not be disclosed,” with limited exceptions that include requests made by public employee organizations such as unions. Section 10B. Similar personal information relating to family members of law enforcement and public safety personnel are explicitly not public records and should never be disclosed, without exception. Id.

The bill, House No. H.4333, passed unanimously in both the House and Senate on Wednesday and signed today by the governor, after being formed as a result of a compromise between two bills originating separately in each chamber. Most of the provisions of the new law take effect on January 1, 2017.

Court of Appeals for the Second Circuit Reverses District Court’s “Deflategate” Decision, Reinstates Brady’s Suspension

By a 2-1 decision, a panel of three judges of the Court of Appeals for the Second Circuit overturned District Court Judge Richard Berman’s decision that overturned the NFL’s suspension of New England Patriots’ quarterback Tom Brady.

In its decision, the majority held that Judge Berman ignored the exceptional deference federal law afford decisions of labor arbitrators and acted beyond the narrow scope of review federal courts are required to adhere to. Specifically, the Court held that in suspending Brady, NFL Commissioner Roger Goodell properly exercised the broad discretion given to him by Article 46 of the collective bargaining agreement to suspend players for “conduct detrimental” to the NFL and/or the integrity of the game.

In its decision, the Court highlighted and rejected each of the three bases upon which Judge Berman overturned Brady’s suspension: 1) that Brady was not given proper notice that his actions could result in a four-game suspension, 2) that testimony excluded from the arbitration made the decision fundamentally unfair, and 3) that the NFL’s denial of access to the investigative notes from the NFL’s General Counsel also amounted to fundamental unfairness. In the case of each, the Court ruled that Judge Berman acted beyond his authority and did not afford Goodell’s decision the deference it was entitled to under the federal Labor Management Relations Act and the Federal Arbitration Act. The Court noted that under federal law, so long as the arbitrator is “even arguably construing or applying the contract and acting within the scope of his authority” the decision must be upheld, and that a judge cannot simply substitute his judgment for that of the arbitrator.

It is worth noting that the point of controversy which received a large bulk of the media attention in this case, that Goodell was able to serve as arbitrator in a dispute involving discipline he himself meted out, was a relatively minor issue to the Court. The Court that found this arrangement is extremely unusual, but noted that it was the process explicitly called for by the collective bargaining agreement. This is consistent with a long line of cases emphasizing that when parties to a collective bargaining agreement agree to a grievance process which ends in final and binding arbitration, that the decision of an arbitrator should be just that: final, binding, and free from interference by the courts. It seems that if the NFL and the NFL Players Association are to fix what many agree is a broken system of disciplinary appeals, they will have to do so at the bargaining table, rather than in a courthouse.

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)

SJC Determines That State Pension Forfeiture Statute Is A Fine, Subject To The Eighth Amendment

The Supreme Judicial Court has ruled that G.L. c. 32, § 15(4) is a fine and therefore subject to the restrictions of the Eighth Amendment of the United States’ Constitution. Section 15(4) provides for the forfeiture of a public employee’s pension and health insurance benefits if he/she is convicted of a crime relating to his/her position. The Court’s decision means that individuals convicted of minor crimes may not be subject to a complete forfeiture of their pension and retiree health insurance.

The case, Public Employee Retirement Administration Commission v. Bettencourt, involved, a lieutenant and twenty-five year veteran of the Peabody Police Department, who was convicted of twenty-one counts of unauthorized access of a computer system. Shortly after his conviction (which has since been appealed), the lieutenant applied for a superannuation retirement. However, as a result of the conviction, the Public Employee Retirement Administration Commission (“PERAC”) denied his application on the grounds that his retirement benefits and continuing health insurance were forfeited under G.L. c. 32, § 15(4). The issue before the Court was whether Section 15(4), as applied to this officer’s case, was an excessive fine under the Eight Amendment of the United States’ Constitution.

In determining that the forfeiture was an excessive fine, the Court held that Bettencourt had a property interest in his retirement benefits, that the forfeiture was a punishment (and hence, a fine), and that the fine as applied to him was disproportionate to the harm caused by the crimes for which he was convicted. As a result, the Court ruled that Section 15(4)’s forfeiture would not apply to Bettencourt’s pension and health insurance, allowing him to receive both in their entirety. Rather than determine what a non-excessive fine would be in this case, the Court deferred to the Legislature to determine how cases such as Bettencourt’s would be handled after forfeiture is deemed to be excessive.

This case is an important one, as the Court held for the first time that forfeiture under G.L. c. 32, § 15(4) is a fine subject to the restrictions of the Eighth Amendment. While the case did not strike down Section 15(4), unless and until the Legislature answers the Court’s call to create a remedy for individuals who have been excessively fined under Section 15(4), excessive forfeitures should result in an employee receiving the entirety of their retirement and health insurances benefits.

You can find the case details here.

Masscop Prevails In Arbitration Of Injury That Re-Emerged Twenty Four Years Later

On February 22, 2016, Arbitrator Marc Greenbaum issued an injury leave award in favor of Mass Coaltion of Police and Rehoboth Police Lt. Bruce Dube. A copy of the Award is attached. Mass COPs case was presented and argued by Sandulli Grace Attorney Amy Laura Davidson.

The case involved a reoccurrence and exacerbation of a previous injury that Lt. Dube had suffered in a cruiser accident in 1990. The accident damaged one of his cranial nerves causing him to have double vision. He was able to compensate for it for many years by tilting his head or blinking. Last December, Bruce’s condition deteriorated and he was no longer able to compensate for the double vision.

Lt. Dube had 27 years of unblemished service. He rose through the ranks to Lieutenant. The medical evidence that his condition was work related was uncontroverted. Even the Town’s doctor found that to be the case. Although the Chief originally placed Bruce on IOD, he reversed that decision and deducted his sick leave back to February 2015. The Town dragged its feet causing Lt. Dube to run out of all of his accumulated sick and vacation time. He went off the payroll in early December 2015 and remained so until the Award issued.

Arbitrator Greenbaum issued his award in under two weeks. He found that the Town violated the contract by failing to place Lt. Dube on injured on duty leave. He also held that the Town violated the contract by switching Bruce’s shift assignment to the day shift while he was incapacitated resulting in a loss of @ $95/week. Arbitrator Greenbaum issued a make whole order requiring the Town to restore all the accumulated time that Bruce was forced to use, compensate him for back pay and place him on IOD status going forward.

The parties are currently engaged in discussions about the damages owed under the Award. The amount owed is in excess of $50,000. In addition, the Town has agreed to reimburse Lt Dube nearly $9,000 for the taxes that were unlawfully withheld from his pay while he was incapacitated.

Read the arbitrator’s award.

43rd Annual Workshop for Public Sector Labor Relations Specialists

On Saturday May 7th, the Boston Bar Association will be holding its 43rd Annual Workshop for Public Sector Labor Relations Specialists at Langdell Hall, Harvard Law School. The program is designed to familiarize lay people and attorneys who specialize in labor relations with current trends in collective bargaining and other issues affecting public employees. This year’s program features a review of significant labor law decisions issued in the past year followed by a panel of representatives from the Department of Labor Relations and the Joint Labor Management Committee who will review recent developments in their agencies. A second panel addresses the perils and pitfalls of workplace investigations including Weingarten and Fifth Amendment Rights. The conference is co-chaired by Amy Laura Davidson of Sandulli Grace, P. C., Brian Magner of Deutsch, Williams, Brooks, DeRensis & Holland, P. C., and Suffolk University Professor of Law Marc Greenbaum.

The Supreme Court Hands Down An Unexpected Public Sector Union Victory

An evenly divided Supreme Court upheld a ruling from the Ninth Circuit Court of Appeals ruling supporting the right of public sector unions to collect fair share fees from employees they represent who are not members of the union. Friedrichs v. California Teachers Association. The result leaves intact a near 40 year old precedent in Abood v. Detroit Board of Education. Abood held that the First Amendment only applies to forced contributions to the union’s political activities. Public sector unions are the exclusive representative and are bound by a duty of fair representation to all bargaining unit members without regard to their union membership. Accordingly, the Court in Abood held that non-members should be required to pay their fair share of the costs of negotiating and administering the contract on their behalf.

Conservative antiunion organizations have been trying to get the Court to overturn Abood since it issued in 1977, whittling down it principles by imposing increasing burdens on unions seeking to collect fair share fees from non-members. When Friedrichs was argued on January 11th the Court seemed poised to overrule precedent. The conservative Justices expressed skepticism about virtually all of the major arguments proffered in support of fair share fees. It seemed almost certain that the high court would rule 5-4 that fair share fees are unconstitutional. But with Justice Scalia’s death there were no longer five justices to do so.

The result of the ruling is a victory for unions. But the decision was a one sentence opinion affirming the 9th Circuit “by an equally divided Court.” It does not set precedent at the Supreme Court level. The next appointment to the Court will have considerable power over this critical issue which undoubtedly will be raised again.

Appeals Court Upholds Arbitrator’s Award Reinstating Employee, Even Where Arbitrator Found He Sexually Harassed A Co-Worker

The Massachusetts Appeals Court today upheld an arbitrator’s reinstatement of a City of Springfield employee who was found to have sexually harassed a co-worker. The case is City of Springfield v. United Public Service Employees Unions, No. 15-P-742. The three judge panel, adhering to the high deference afforded an arbitrator’s decision, refused to find that the award violated public policy. The court found that while there is certainly a strong public policy against sexual harassment, the reinstatement of the grievant did not violate that public policy as he was still subject to remedial action for his behavior.

The grievant, a twenty-two year employee of the Springfield housing office with an “unblemished” record, was a messenger for the office. He suffers from “significant physical and mental health problems” and has a “mildly impaired overall [IQ] of 74.” He was fired over one incident, in which he made lewd statements and gestures toward a female employee, causing her significant upset. His union filed a grievance, and following a two day hearing, an arbitrator found that there was not just cause for the termination, and ordered him “reinstated to his position without loss of compensation or other rights.” The arbitrator found that the grievant’s conduct did amount to sexual harassment, but that termination was not justified. The arbitrator based her decision on the grievant’s work history, his physical and mental limitations, and also on the fact that another employee “engaged in a six-month course of sexual harassment directed at a co-worker” and received only a reprimand.

The City first claimed that the failure to uphold termination violates public policy. The court quickly rejected this, pointing out that employers are not required to terminate an employee who sexually harasses another employee, as long as other “appropriate remedial action” is taken. The City next claimed that the award violated public policy in that it ordered the grievant reinstated with no loss of compensation. The City argued that public policy required a sexual harasser to be punished in some way. The Court rejected this argument, noting that “counseling and training” are appropriate remedial responses to sexual harassment, and that the arbitrator’s award did not impede the employer’s right to require such. Again properly noting its limited role in review of an arbitrator, the panel noted that upholding the award “does not suggest that we agree with the arbitrator’s resolution of the matter without loss of compensation or other employment rights, as ‘even our strong disagreement with the result [would] not provide sufficient grounds for vacating the arbitrator’s award.”

The Court’s decision in this case again demonstrates that arbitrator’s awards are subject to great deference on review. Judges properly uphold such awards, even when they disagree with them, as the parties to an arbitration agreement have submitted to the “final and binding” nature of the process.

Read the decision.

The Daily Life Of A Policeman

In October 1969 the Boston Globe ran a five article series titled “The Daily Life of a Policeman.” The articles include interviews with members of the Boston Police Department, a psychiatrist, and policy pieces summarizing the problems facing the police, along with possible solutions. While these articles are fascinating because they provide a rare look into what it meant to be a police officer in Boston almost fifty years ago, they are also relevant because they describe many pressing problems and dilemmas that mirror many of the issues facing law enforcement today. We were lucky to get our hands on a copy of a pamphlet published by the Globe compiling these articles, and this blog will be a summary of its contents.

Part-1: Society’s New Scapegoat

This series begins with a narrative written from the perspective of an officer working the night shift responding to calls coming from across the city. For the officers working the night shift, it is a “nightmare of being incessantly alert, tense, ready for the unknown, the hidden, the madman, the criminal, the occasional accident, the desperate and the lonely.” While the incidents themselves, including street fights, fatal car accidents, and staring down the barrel of a shotgun at a domestic disturbance, are horrifying and dramatic, the most striking part of this article is the palpable anxiety caused by police work. Even on calls that seem routine, the author emphasizes the need to be ever alert to the unexpected, and the grave danger faced by the officers if they let their guard down for even a second. The author Daniel juxtaposes the rigors of the job with newspaper articles like, for example, “Ridicule, Low Prestige Blamed for Police Recruit Shortage” demeaning the profession. The drama of this article helps transition into the interviews that make up the majority of the series.

Part-2: You Always Know the Smell of Death

The second article in this series is an interview with 41 year old Patrolman Thomas B. Moran. Officer Moran, who was stationed at District 4 in the South End. The article begins with Officer Moran’s experience working the beat as a member of the department’s drug unit, including several vivid descriptions of the tragedy and danger he frequently encountered. The majority of the article, however, deals with psychological stress that comes with being a police officer, and Officer Moran’s thoughts regarding the relationship between the department and the public at that time. The Officer effectively described officer’s struggles with suppressing the human need to lash out at members of the public who attack them and describe them as “pigs” and “fascists” because of their professional obligation to hold themselves to a higher standard than the public. Before opining on the deteriorating conditions of the streets, the ineffectiveness of the prison system to rehabilitate offenders, and do-nothing politicians, Officer Moran stated “I said it before and I’ll say again. Nobody cares. This is the feeling of the police, that nobody cares one way or another.”

Part-3: The Pressures of the Job—Are They Too Great?

The next article includes an interview with Police Superintendent William Bradley. In this interview Juda discussed with Supt. Bradley how the stress of day-to-day police work takes a physical and mental toll on officers, and the need and demand for psychiatric care in the department. While the Superintendent expressed his strong faith in the exceptional maturity and mental strength of his officers, he described the need to make mental health care more accessible so that access to a psychiatrist would no longer be a “luxury” most officers could not afford. Balancing human needs and professional obligations also plays a role in this interview. According to the Superintendent, one of the hardest tasks asked of officers is to set aside his empathy and emotion when responding to tragedy in order to adequately perform necessary tasks like securing the scene and beginning an investigation. Although times change, the unique stresses of police work have not. As a result, police officer access to mental health care will likely always be an important issue.

Part-4: Mental Pressures Make Job Tougher

The last interview of the series is a conversation with Dr. Ruick Rolland, a psychiatrist in the Roxbury Court Clinic. At the outset of the interview, Dr. Rolland described the unique psychological stresses facing police officers, and the effect of those pressures on their performance. The theme of the doctor’s analysis is that officers respond to being overstretched but under appreciated by the public by becoming defensive and becoming apathetic towards their jobs and the people they serve. The Doctor warned that police departments facing an increasingly antagonistic public tend to become increasingly militarized, hampering their ability to work with, not against, the community. In the present era in which there is ever increasing tension between the police and the public, this last point still seems relevant today.

Part-5: Reforms Needed on Basic Problems

The last installment in this series include a list of the most pressing issues the author saw as facing the police department, and his solutions to remedy those problems. The biggest problems he identified are workplace complaints like lack of pay, long hours, the unresponsiveness of management and politicians, and the combativeness of the public. His direct reforms include increasing pay to attract better applicants, raising the prestige of the force, better access to mental health services, and giving officers a mechanism to voice their complaints about the force. Other indirect reforms include adequate facilities for helping alcoholics and drug addicts, better domestic violence protocols, and more money for rehabilitation programs in prison. The author takes an urgent tone in this final article, stressing the grave public safety implications of not implementing reforms as soon as possible. Despite the age of these pamphlets and the irrelevancy of some of the issues they contain, their main theme still holds true today: if society expects the police to effectively support them, the people, department, and politicians need to give them a certain amount of support and respect back.