Sandulli Grace, PC Wins Reinstatement For Fall River Police Officer

For the second time in a decade, the law firm of Sandulli Grace, PC has secured the reinstatement of Fall River Police Officer terminated for substance abuse. More than a decade ago, the City unilaterally implemented a drug policy, including testing, and fired a police officer for alleged violation of it. With the help of Sandulli Grace, the Union fought the City’s action before the Labor Relations Commission and an independent arbitrator. Drug testing is a mandatory subject of bargaining. Moreover, in a unionized setting any termination, even where a drug test is involved, still must satisfy requirements of just cause, including due process and progressive discipline. The Union prevailed in both settings, securing reinstatement and back wages for the terminated officer.
As a result of these victories, the parties negotiatedcomprehensive drug testing language. The language provided a number of protections to officers suspected of drug use, including an internal appeals process, the use of a certified laboratory, and other mechanisms to challenge the result.
In 2005, the City terminated a (different) police officer foralleged substance abuse. In this case, the City suspected an officer had been abusing drugs and demanded to review his medical records. When his records revealed an allegedly incriminating test result, the City fired him. After hiring Sandulli Grace to fight on his behalf, the officer’s termination was reversed by an arbitrator.
In a decision issued Spring 2006, Arb. Robert J. Canavan found that the City could not circumvent the drug testing language by just plumbing an officer’s medical files. The City, therefore, failed to produce clear and convincing evidence that the officer abused drugs.The Arbitrator ordered the City to reinstate the officer and pay lost wages, including for missed details and overtime opportunities.

Court Clarifies Limit On Earnings Of Disability Retirees

On August 16, 2006, the Massachusetts Appeals Court issued a decision that makes it harder for public employees who had to retire because of a job-related disability to earn income during retirement. In essence, the Court decided that all monies listed on a W-2 form may be considered “income” for purposes of the earnings limitation placed on disability retirees from public employment.
Massachusetts law allows public employees who are disabled because of an on-the-job injury to retire with 72% of their pay at the time of injury or average from most recent 12 months (whichever amount is greater). The 72% amount is non-taxable. (Compare this amount with the 80% taxable benefit they public employees may received if they work until regular retirement age.) Massachusetts law also limits how much money disability retirees can earn from any other employer, whether in the public or private sector. Disability retirees may receive no more than $5,000 beyond the current salary of their position. Disability payments count toward this cap, too.

The question in Gorman vs. Contributory Retirement Appeal Board was how to calculate the income that counts toward the cap. Gorman, a disability retiree, had been working at a job that required him to incur certain job-related expenses. He did not file a submit receipts for expenses so as to receive a check from his employer for these claims. Instead, Gorman received, in addition to his earnings, payments for ‘nonreimbursed expenses’ in his paychecks. The employer included these payments in his W-2 Form. When Gorman did his taxes, he listed the W-2 amount, which included the reimbursements. Hethen properly claimed these job-related expenses as deductible, which reduced his adjusted gross income to reflect his actual earnings. Here’s why the method of reimbursement payments matters to Gorman’s case: the amount of income with the reimbursements was lower than the maximum set by statute; the amount with the reimbursements was over the limit.

The Appeals Court’s decision relied upon a memo by the Public Employee Retirement Administration Commission, which oversees all public employer retirement systems in the Commonwealth. The memo (called PERAC Memo #64/1998) said that income for purposes of the statutory earnings limit included: (1) earned income, which implied some labor, manufacturing or supervision; or (2) profits from the operation of a business, regardless of how the retiree categorizes such income for income tax or other purposes.

Gorman argued that the memo didn’t apply to him Because the reimbursements for his business expenses are not earnings from labor, manufacturing or supervisionand they also are not profits from operating a business. Still, the Appeals Court agreed with the Contributory Retirement Appeal Board it may count all monies listed on a W-2 form, no matter how Gorman categorized some of the money for income tax purposes.

NOTE: The Contributory Retirement Appeal Board did agree that, if Gorman had documentation that he had incurred expenses, provided receipts to the employer and received reimbursements, those payments would not be counted as income. The bottom line of Gorman v. CRAB is that disability retirees who incur work-related expenses should submit receipts to their employers and receive a separate reimbursement check that reflects actual expenses.

— John M. Becker

Attorney Davidson to speak at New England labor conference

Sandulli Grace partner Amy Laura Davidson will speak on the issue of Romance in the Workplace at the 8th Annual Summer Labor & Employment Conference sponsored by the New England Consortium of Labor Relations Agencies in Stratton, Vermont on July 13, 2006. Also speaking on the topic of Romance in the Workplace are Arbitrator Michael C. Ryan and New York attorney Richard K. Zuckerman. “Workplace romances raise complicated issues for employees and the unions that represent them,” said Davidson. “I’m looking forward to a lively and enlightening discussion at the conference.”

The annual conference draws together union and management officials and attorneys, and a variety of private and public neutrals from all the New England states and New York to listen to speakers discuss a wide variety of topics relating to labor-management relations. Attorney John Becker, who is of counsel to Sandulli Grace, spoke on a panel at last year’s New England Consortium conference on the topic of Arbitration and Public Policy.

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

Cops Under Attack: Who Protects The Police?

On April 3, 2006, Sandulli Grace, P.C. and the Massachusetts Coalition of Police, AFL-CIO, presented their fourth educational seminar forpolice officers in Massachusetts. It was entitled, "Cops Under Attack: Who Protects The Police?" This seminar, which took place at the Sheraton Framingham Hotel, was attended by over 125 police officers from cities and towns all over the Commonwealth.

The seminar began with a presentation on the legal rights of police officers who are targeted in internal affairs investigations, including a panel discussion with Arbitrator Allan W. Drachman, the former Chairman of the Massachusetts Labor Relations Commission, and Attorney Kenneth H. Anderson of Finneran, Bryne & Drechsler, L.L.P., a Boston law firm that specializes in providing criminal defense to police officers. After the panel discussion, Sandulli Grace’s attorneys trained the seminar attendees on how to respond to a request for an investigatory interview which may or may not involve criminal allegations. With the assistance of the attorneys, the seminar attendees then planned for and participated in a mock investigatory interview, and the attorneys gave them feedback on the strengths and weaknesses of their performances. The seminar ended with a reception.

Our next educational seminar will be held in the spring of 2007. Like this year’s seminar, it will feature a hands-on approach to learning about your legal rights, which will prepare you to respond more effectively in all situations. Please plan on joining us.

Feel free to contact us with suggestions for topics.

33rd Annual Workshop for Public Sector Labor Relations Specialists

The Boston Bar Association will present its 33rd Annual Workshop for Public Sector Labor Relations Specialists. This program is designed to familiarize labor relations practicioners with current trends in collective bargaining and other issues affecting public employees.

Sandulli Grace Partners Amy Laura Davidson (Co-Chair) and Alan Shapiro
(Panelist on the subject of “Show me the money: The Duty to Fund Public
Sector Collective Bargaining Agreements”) will join a host of their
colleagues at this event.

9:00AM-12:30PM

Harvard Law School

Langdell Hall, North Classroom

Cambridge, Mass

For additional information see www.bostonbar.org or download the Registration Form.

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.

Residency Requirements for Public Employees

Municipalities commonly require, as a term and condition of employment, that municipal employees be residents of the City/Town for whom they are employed. This is a very emotional issue for both citizens and employees. The citizens and elected officials often press for residency requirements on claims that it is a benefit to the community for employees to be residents. The theory is that employees who are residents are more committed to the community. They pay taxes in the community, own homes, use the schools and participate in the civic life. Some argue that it is a fair obligation to be required to be a resident in exchange for public employment. However, such requirements put a large burden on the public employees who lose choice in where they can live. This impacts not only the employee him/herself but also the family of the employee. If a family wants to live together a spouse/partner may be limited in where he/she can work, children are limited as to where to attend school and the employee may be unable to be a close part of his/her extended family, including caring for parents or other family members in need.

Given these important competing interests, there has been a great deal of litigation concerning residency obligations. Nationwide litigation over residency requirements is fairly common. See e.g. Providence Teachers, Union Local 958, AFL-CIO, AFT v. City Council of City of Providence, 888 A.2d 9848 (R. I. 2005) (Rhode Island); Hill v. City of Scranton, 411 F.3d 118 (3rd Cir. 2005) (Pennsylvania); Gusewelle v. City of Wood River, 374 F. 3d 569 (7th Cir. 2004) (Illinois); Eastman v. City of Madison, 117 Wis.2d 106 (1983) (Wisconsin); City of Newark v. PBA Local 3, 272 N. J. Super. 31 (1994)( A.D., New Jersey); New Orleans Firefighters Ass’n Local 632, AFL-CIO v. City of New Orleans, 590 So.2D 1172 (La.1991) (Louisiana); Cleveland Branch, N.A.A.C.P. v City of Parma, 263 F.3d 513 (6th Cir.2001) (Ohio); Morgan v. City of Wheeling, 205 W. Va. 34 (1999) (West Virginia); Lewis v. City of Kinston, 127 N.C.App. 150 (1997) (North Carolina).

The U S Supreme Court has addressed the constitutional issues of a residency requirement and decided that residency requirements do not violate the Due Process Clause or the Equal Protection Clause since they are not “irrational.” In McCarthy v. Philadelphia Civil Service Commission, 424 US 645 (1976), the Court specifically decided that a residency requirement for a public employee does not violate the constitutionally protected right of interstate travel. The Court stated that there is no constitutional right to be employed by the City of Philadelphia while living elsewhere.
Although residency requirements can be proper and enforceable, residency requirements are mandatory subjects of bargaining. City of Worcester and Local 495 SEIU, AFL-CIO MLC (1978). Even in cases where there are city ordinances or charters the duty to bargain should exist. Town of Lee and Lee Police Association, 10 MLC 1262 (1983). Unions are therefore faced with various legal issues. Some examples include:

1. Sudden enforcement of a “dormant” requirement
2. Procedures for measuring compliance with the requirements
3. Definition of residency
4. Exceptions to the requirements

5. Bargaining strategies

Often, the labor relations issues arise when the municipal employer takes action to enforce actively an existing residency requirement. Generally dormant residency requirements can be enforced despite a history of non enforcement or lax enforcement; such lax enforcement does not establish a clear and unequivocal intention on the part of the Employer to forever relinquish its contractual rights with respect to residency. However, individuals who moved believing that they were not required to be residents might be permitted to remain non residents on a reliance theory. Lynn Police Association and City of Lynn (L. Katz, Arbitrator).

Issues also arise over the procedures used for enforcement. Although it is generally accepted that an employer can take action to measure compliance with residency requirements there is much dispute over those mechanisms. Bargaining is also implicated when the Employer changes the procedures or imposes additional obligations. Employers may try to claim that inherent in having a residency requirement is the ability to measure compliance. However enforcement criteria has been found to be bargainable. In re Dracut School Committee 22 MLC 1013 (1995).

Even in cases where compliance procedures are allowed, such procedures cannot require an employee to sign a form consenting to “voluntary termination” for falsification of the residency certification. The employee continues to have contractual just cause protection as well as civil service protection where appropriate. As Arbitrator Roberta Golick found in a case between the City of Boston and the Boston Police Patrolmen’s Association, requiring employees to “voluntarily” terminate their employment is “abhorrent to notions of fairness” and does “violence to the contractual just cause protection.” Therefore enforcement mechanisms should be carefully considered and challenged where they overreach.

The definition of residency for purposes of municipal employee residency requirements is generally stated as “the actual principal residence of the individual, where he or she normally eats and sleeps and maintains normal personal and household effects.” City of Lynn Charter 1999. Even though such a definition may appear straight forward, the application of the residency standards is complicated. For example, there are issues in cases of dual households, where an employer’s family lives outside the city but the employee sleeps at the city residence on workdays. These situations are litigated through city compliance commissions, grievance arbitration or civil service proceedings if the employee is terminated for allegedly being in non compliance with the residency obligation. Determinations are, of course, varied and very fact specific.

Another legal issue that arises is the concept of a “hardship exception” to a residency requirement. Unions can and should take the position that there can be hardship exceptions to any residency requirement. Most often there are employees who have been grandfathered as an exception since they were employed prior to the implementation of a residency requirement. There should therefore be no legal prohibition against creating an exception for hardship as long as that exception has a reasonable basis and is based on principles of fairness.

There are also statutory reasons for a hardship exception. In McDonald v. Menino, 1997 WL 106955 (D. Mass), two disabled employees were fired for violating the Boston residency ordinance. The employees sued for discrimination under the ADA on grounds that the ordinance precluded reasonable accommodations. The City moved to dismiss for failure to state a claim. The court denied the motion finding that the City had provided no reason why the requested accommodation – an exception to the residency ordinance — harmed the City. Therefore even where a residency requirement exists there can be and are exceptions.

Some additional issues can be addressed in bargaining over residency requirements. Unions can negotiate for replacing absolute residency requirements with a requirement that an employee be a resident for a certain number of years and then be permitted to move out of the city. This creates a balance between the claimed benefits to the municipality and the ability of the employee to make choices over where to live. Another method used in bargaining to address the economic burden of residing in an expensive city is for agreements to provide loans or other financing for the purchase of homes in the community. The unions can also establish municipal mortgage programs, such as the one established in Boston by the Boston Unions Residency Coalition.

Considering the clearly emotional and personal aspects to residency requirements it is clear that the challenges will continue.