Recently, in Furtado v. Town of Plymouth, 69 Mass.App.Ct. 319 (June 11, 2007), the Massachusetts Appeal court ruled that a police officer can be forced to submit to a lie detector examination under threat of discipline in most circumstances. As noted in our report of the case on June 28, Sandulli Grace attorneys, on behalf of the Massachusetts Coalition of Police, conferred with the officer’s attorneys and filed an amicus (friend of the court) brief with the Supreme Judicial Court, urging that the Court accept review of the case and overturn this troubling decision.
On September 11, 2007, the Supreme Judicial Court granted the request to review the case, and it will now be heard by the full Court. We will, of course, continue to work with Officer Furtado’s attorneys, and will be filing a full Amicus Brief addressing all issues in the case. It is our hope that the SJC will overturn the Appeals Court decision, and affirm the legislature’s intent to prohibit employers from even trying to force their employees to undergo these junk science tests. As always, we’ll keep you posted.
In Massachusetts, public school teachers do not obtain Professional Teacher Status (otherwise known as tenure or protection against discharge without just cause) until they teach four consecutive years without being terminated. Teachers automatically attain PTS if they are appointed for the fourth consecutive year. The decision to reappoint a teacher for four consecutive years is vested exclusively with the School and generally is not be subject to arbitration. Schools are mandated by statute to conduct performance evaluations of non-tenured teachers (G.L. c.71, §38). This same statute permits teacher unions to negotiate with school employers about the process used to evaluate a teacher’s suitability for reappointment or PTS. In the recent decision of the School Committee of Hull v. Hull Teachers Ass’n, MTA/NRA (issued August 27, 2007), the Massachusetts Appeals Court affirmed that a public employer’s violation of a negotiated evaluation procedure may be remedied by reinstating the teacher to his or her job.Here, a school principal in the Town of Hull declined to rehire a particular teacher. Contrary to the express terms of the contract with the local affiliate of the Massachusetts Teachers Association, the school committee never formally observed the teacher in her classroom or never evaluated her performance in writing. In other words, the teacher had no idea that she failed to meet the employer’s expectations and was provided no opportunity to improve her performance. The arbitrator upheld the grievance and ordered the teacher to be reinstated. Despite agreeing to final and binding arbitration, the school committee appealed the decision to superior court and then the appeals court. The Appeals Court had little sympathy for the School’s arguments and ruled that the arbitrator did not impinge upon managerial rights. Quoting an old case which set forth similar principles under the former teacher tenure law the Court stated, “The award merely requires that . . . [the board of education] follow procedures it has agreed to adopt in its decision-making process in the area of tenure.”
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