Tag Archives: Police

Supreme Court Rules That First Amendment Protects Employee’s Truthful Testimony

Chalk this one up to “this wasn’t already settled law?”  Yes, it was only last week that the US Supreme Court ruled that the First Amendment to the Constitution protects an employee’s right to testify truthfully in a court case.

In 2006, Central Alabama Community College hired Edward Lane to be the Director of a statewide program for underprivileged youth.  An audit revealed that Alabama State Representative Suzanne Schmitz had a “no show” job at the program. Continue reading

Amendment To MGL C. 31 sec 58 Allowing Bargaining To Increase The 10 Mile Limit For Residency For Police And Firefighters Is In Effect

This is in follow up to our blog post concerning the amendment of the civil service residency statute, MGL c. 31 sec 58.  Since this amendment was part of the State Budget and since the Budget has an emergency preamble, the amendment to 31 sec 58 was also effective immediately.  Therefore the amendment is in effect and it would be appropriate for a police and/or fire fighter unions in civil service communities to request bargaining with their municipal employers to increase the 10 mile residency requirement as the amendment allows.

Residency Victory For Massachusetts Coalition Of Police And The Lynn Police Association

After a nearly 20 year battle between the Lynn Police Association and the City of Lynn, the Appeals Court has finally confirmed that State Law, MGL c. 41 sec 99A, concerning the residency of police officers and fire fighters controls any residency obligations for police officers or firefighters and that a City Charter does not have any relevance or control.

In this case, the Appeals Court ruled that the Decision issued by the Superior Court in 2000 between the Lynn Police Association and the City of Lynn is controlling.  That Decision determined that MGL c. 41 sec 99A establishes residency as a term or condition of the employment of police officers and firefighters in Massachusetts and imposes a 15 mile statutory limit.  The only way that a City or Town can impose a more stringent residency requirement is through collective bargaining.  As Judge Grasso explained “the court finds an explicit indication of the legislature’s intent to tie local residency requirements to the collective bargaining process.”

Anticipating that the Appeals Court would agree with the Union and require bargaining over any residency requirement, the Union and the City bargained last year and reached agreement for the residency requirement for police officers in Lynn.  Officers must now maintain residency in Lynn for the first 10 years of their employment.

This Decision by the Appeals Court confirms that any municipal employer who wants to require residency for police officers or firefighters more stringent than the 15 mile requirement of MGL c. 41 sec 99A must bargain with the Union.

The case is City of Lynn vs. Lynn Police Association, 12-P-1122, issued March 27, 2013 pursuant to Rule 1:28.  The Union was represented by Sandulli Grace Attorneys Susan F. Horwitz and Jennifer Rubin.  Attorney Horwitz also represented the Union in the original Superior Court case in 2000.

Radio Broadcast On Medical Marijuana Features Sandulli Grace Attorney

Sandulli Grace attorney Bryan Decker was featured in a WBUR-FM radio broadcast regarding Massachusetts’ new medical marijuana law on Tuesday morning, February 19, 2013.  The report by WBUR radio journalist Martha Bebinger, explores various implications of the new law, including its effects on police officers, who are bound by federal laws making marijuana an illegal substance, and their families. “The federal law is the federal law,” Decker told Bebinger. “In Massachusetts, it is a job condition for police officers to carry a firearm. I think that is clear.”  A transcription of the story can be found here: http://www.wbur.org/2013/02/19/marijuana-laws.

Medical Marijuana – Not for Cops?

(Please note, a version of this article will appear in the upcoming edition of the Pax Centurion, the paper of the Boston Police Patrolmen’s Association, a client of Sandulli Grace, PC)

As I’m sure you are aware, Massachusetts voters approved a medical marijuana ballot question last November.  Despite inaction from Beacon Hill or the executive in the form of regulations regarding the new law, it went into effect on January 1.  So, Massachusetts residents may now become medical marijuana users.  However, before making a run on the Doritos in the vending machine at the station, officers should be aware that many departments are already taking steps to prohibit sworn police officers from using medical marijuana.  The purported basis for this action is that the drug remains a Schedule I controlled substance under federal law.

Several departments have put forth detailed, and very similar draft policies, leading to speculation that the Massachusetts Chiefs of Police Association or another management group is coordinating a response.  Whatever the reason, this issue is one that all police unions in the state will likely need to address.

The ballot question which passed last year sets up a registration system whereby “qualifying patients” apply for a “registration card” to be issued by the state Department of Public Health allowing them to grow and/or possess a “sixty-day supply” of marijuana.  Under the law “a ‘Qualifying patient’ shall mean a person who has been diagnosed by a licensed physician as having a debilitating medical condition.”  A “debilitating medical condition” is one of a number of conditions or “other conditions as determined in writing by a qualifying patient’s physician.”  A “‘ sixty day supply’ means that amount of marijuana that a qualifying patient would reasonably be expected to need over a period of sixty days for their personal medical use.’”  In addition to defining qualifying patients, the statute also anticipates that others will care for the patients.  A “‘personal caregiver’ shall mean a person who is at least twenty-one (21) years old who has agreed to assist with a qualifying patient’s medical use of marijuana. Personal caregivers are prohibited from consuming marijuana obtained for the personal, medical use of the qualifying patient.’”

As a union lawyer, I won’t attempt to get into the law enforcement implications of the medical marijuana law.  However, the employment implications are obvious – what if an officer, or an officer’s loved one, seeks to become a medical marijuana user?  Many departments are already announcing an intention to “Just Say No!”

The purported ability of departments to prohibit officers from becoming medical marijuana users is the federal classification of marijuana as a Schedule I controlled substance.  While this may be enough to prohibit medical marijuana use, such use may also prevent officers from lawfully possessing a firearm, which would lead departments to contend that they are ineligible to be officers.  Specifically, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has issued an “Open Letter to All Federal Firearms Licensees” indicating that the DOJ takes the position that medical marijuana users are prohibited from possessing firearms.  The Letter, issued in September, 2011, over a year before the Massachusetts vote, states in relevant part:

A number of States have passed legislation allowing under State law the use or possession of marijuana for medicinal purposes, and some of these States issue a card authorizing the holder to use or possess marijuana under State law…

As you know, Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law…

Therefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.

Therefore, departments are likely to take the position that officers may not be medical marijuana users, as such a status would revoke their right to possess a firearm, which is a condition of employment.

Even apart from the question of whether an officer may be a “qualified patient,” it is likely that departments will further seek to prohibit officers from being “personal caregivers.”  While personal caregivers are not marijuana users, under the definition in the statute it is likely that they will possess marijuana.  Again, marijuana possession remains a federal crime.  Given the amount of federal money relied upon by most departments, departments will likely want to prohibit officers from engaging in activities that in any way violate federal law.

Finally, at least one department has proposed a rule that an officer must notify the department if any member of his or her household is a medical marijuana user.  This type of requirement, which would require an officer to provide private medical information regarding a family member, shows just how thorny the issues raised by this statute can get.

Whatever position that a department stakes out, police unions should demand to bargain before any medical marijuana policy is implemented.  Regardless of federal law, such a policy impacts on health care decisions by officers and potentially their families.  As such, the policies implicate terms and conditions of employment, and must be bargained before being implemented.  As always, Sandulli Grace stands ready to assist our clients to ensure that no policy is implemented that unnecessarily infringes on the rights of union members.

Quinn Bill Eligibility of Rehired or Transferred Police Officers

Once a police officer qualifies for Quinn Bill benefits, the benefits cannot be terminated if the officer is rehired or transferred after the Quinn Bill cut-off date of July 1, 2009.

Under the recent Quinn Bill amendments police officers hired after July 1, 2009 are no longer eligible to participate in the Quinn Bill benefits.  Municipal employers have contended that officers eligible for the Quinn Bill who are rehired or transferred after that date lose their Quinn Bill eligibility.  This issue has arisen in the following ways for officers hired before July 1, 2009 who qualified for Quinn Bill: 1) The officer resigns from the police service, but is then rehired by the same municipality after July 1, 2009; 2) The officer transfers to another department after July 1, 2009; 3) The officer is laid off and is recalled into another department after July 1, 2009.

The Massachusetts Department of Higher Education, which administers the Quinn Bill, has now definitively answered that all of these rehired and transferred police officers remain eligible for Quinn Bill Benefits.   In a recent communication with our office the Department has stated that it is their policy “that an approved PCIPP (Police Career Incentive Payment Policy) eligibility status is never revoked.  Thus, if an approved PCIPP officer leaves employment and returns at a later date, or transfers from one department to another, the officer retains his or her PCIPP eligibility.”    

What is the Heart Bill?

The Heart Law presumption, commonly called the “Heart Bill” presumes that a police officer’s heart ailment is work-related for purposes of accidental disability retirement, unless there is sufficient evidence to rebut it.  In other words, if you have a heart ailment (e.g., you have a heart attack), you are entitled to accidental disability retirement benefits unless the entity opposing the presumption can provide “competent evidence” proving that it was not work related.  Even if there is absolutely no evidence that the impairment is work-related, the presumption stands.  Attempts to overcome the presumption by pointing out numerous risk factors such as high cholesterol, obesity, or smoking arte typically unsuccessful because the mere existence of risk factors does not in and of itself rebut the presumption.  The impact of the risk factors must include substantial evidence of how the risk factors affected the individual.

Even in the event that a heart ailment could not be said to have arisen in the line of duty, Massachusetts law provides that if a pre-existing condition is accelerated as a result of a hazard on the job, causation for the injury is established, even if the pre-existing condition is not work-related.  For example, court cases have ruled that a police officer’s hypertension was exacerbated by normal police duties and thus work-related and that a fire fighter’s degenerative disc disease was exacerbated by working on a fire truck and thus work-related.

Furthermore, if you have a collective bargaining agreement that applies the Heart Law presumption to “injured-on-duty” leave, you may be entitled to 111F leave if you have a heart ailment and decide to go back to work.  For example, if you have a heart attack and take 4 weeks to recover, you may be entitled to receive 111F pay for that time period instead of being forced to use your sick days.  You should contact your union representative if you believe this may affect you.

Supreme Judicial Court Hears Arguments in Quinn Bill Case

Sandulli Grace Partner Bryan Decker argued yesterday before the Massachusetts Supreme Judicial Court in the “Quinn bill case.” As previous posts have discussed, Decker represents a group of Boston Police Officers challenging the City of Boston’s reduction of educational benefits to officers in 2009. The case argues that the city cannot cut Quinn bill incentive payments to officers, even where the collective bargaining agreement in place allows for such a cut. Sandulli Grace union client Boston Police Patrolmen’s Association is supporting the officers. Sandulli Grace union client Massachusetts Coalition of Police filed a “friend of the court” brief also in support. The SJC should issue a decision within a few months.

Video of the oral argument has already been archived by Suffolk University Law School. You can view it here.

The decision could impact police collective bargaining statewide. Acknowledging this, the Boston Globe ran a front page story on the case on Monday, the day before the oral argument. You can read Boston Globe Police Beat Reporter Maria Cramer’s story here.

As always, we’ll keep you posted.

Reconsidering a Ticket: An Exercise of Discretion or a Criminal Act?

A New York grand jury has charged ten New York City police officers with crimes for “fixing” traffic tickets. The charges resulted from a wiretap for unrelated matters during which investigators overheard discussions of fixing tickets. The crimes charged were the alteration or destruction of the public records and official misconduct.

Massachusetts has similar laws which might be applied to ticket fixing. M.G.L. c. 66, s. 15 establishes criminal penalties for destroying public records. Likewise M.G.L. c. 268A, s. 26 (the employee ethics law) imposes criminal penalties for use of your position to gain benefit for yourself or others and for acting or failing to act based on kinship or influence. M.G.L. c. 268A, s. 23 (b) (2) & (3). The Boston Globe is already investigating ticket fixing in Massachusetts and their reporters have called local police officers to ask for comment.

A police officer in Massachusetts still has discretion whether or not to issue a traffic ticket. Newton Police Association v. Police Chief of Newton, 63 Mass. App. Ct. 697 (2005):

If a police officer observes…a civil motor vehicle infraction, the officer may issue a written warning or may cite the violator for a civil motor vehicle infraction…

M.G.L.c. 90C, s. 3(A)(1). Once the officer issues a ticket, however, there is no guidance about what circumstances justify revoking it. While we would argue that the officer retains broad discretion to reconsider and revoke the ticket, we would urge special caution in this environment. If you reconsider and decide to revoke a ticket, you should consider documenting an appropriate reason for your action and/or getting documented approval from a superior officer. If you are a supervisor or court officer, you should likewise document an appropriate reason for any decision not to prosecute a violation.

Arbitrator Reverses Discipline – Finds MassCOP Officer Was Not Insubordinate

Arbitrator Nancy Peace recently issued an arbitration award reversing disciplinary action issued to a Concord police sergeant. In the award, Arbitrator Peace found that the sergeant – who had a spotless 20 year record with the Concord Police Department – did not commit the offense he was accused of. The case includes some important language regarding the nature of insubordination, an offense that often leads to employee discipline. The Union was represented by Sandulli Grace attorney John M. Becker

The case involves the police department’s planning for a large public event in Concord. Sgt. Joseph Connell was not involved in the planning, but two other sergeants were. Sgt. Connell and his Union – the Concord Police Association, Local 260 of the Massachusetts Coalition of Police – understood these sergeants to be acting on a voluntary basis. At one point, the Police Chief asked Sgt. Connell to help with the planning on a voluntary basis. Sgt. Connell provided some assistance, but eventually e-mailed the Chief stating that there was nothing more to do. The Chief e-mailed back, “I want you to handle the scheduling for us.” Sgt. Connell responded (also by e-mail) that he did not want to volunteer to work on the planning, and he expressed concerns that the process had begun so late. The next thing Sgt. Connell knew, he was brought in to the Chief’s office and issued a written reprimand for insubordination. He was also reassigned from his midnight shift to the day shift where he would allegedly undergo training for an undetermined period. As it turned out, he was reassigned for seven weeks and received very little training. Interestingly, Sgt. Connell was required to take part in the event planning during his reassignment.

Sgt. Connell and the Union grieved the discipline and the reassignment and the grievance proceeded to arbitration before Arbitrator Nancy Peace. After hearing testimony from Sgt. Connell, Union President Chuck DiRienzo, the Police Chief and others, the Arbitrator ruled in the Union’s favor. According to the Arbitrator, insubordination must be determined by looking at the understanding of the person receiving the alleged order. Here, while the Chief may have believed he was giving an order, Sgt. Connell, based on all the facts, believed he was being asked to volunteer. The Arbitrator reasoned, “It is the responsibility of a superior officer to insure that his or her orders are clear and have been received. Where there is any indication that there may be some confusion or misunderstanding, as there certainly was here, it is the responsibility of the superior officer to investigate and clarify.” The Arbitrator concluded, “This grievance and arbitration could have been avoided had Chief Neal responded to Sgt. Connell’s August 25, 7:59 a.m. e-mail by clarifying that he was not asking Connell to volunteer to handle the scheduling; he was ordering or directing him to do so.”

Arbitrator Peace found that the Town violated the just cause provision of the collective bargaining agreement between the Town and the Union by issuing the discipline and reassigning Sgt. Connell to the day shift. She ordered the discipline removed from Sgt. Connell’s record and ordered him compensated for financial losses as the result of the reassignment.

Read the decision…