I had a police officer client in my office a few days ago who insisted that Question 1, which would repeal the Massachusetts state income tax, will definitely pass.  When I heard that, I knew I had to at least write something to try to convince that tiny proportion of the population that listens to what I say to vote against this.

            Why is Question 1 so bad?  The facts are well-presented by the Massachusetts AFL-CIO in its aptly titled “Times Are Hard Enough. Let’s Not Make Them Worse”.  The facts include: 

  • The income tax proposal will cost the Commonwealth more than $12 billion in revenues, about 40% of the state budget.
  • This is a binding proposal that will become law effective January 1, 2009
  • It will have dire consequences for our communities, putting:
    • Education at risk with:
      • Larger class sizes
      • Fewer after school programs
      • More school closings
    • Health care at risk for:
      • Seniors
      • Working families
      • People with disabilities
    • Public safety at risk with:
      • Fewer emergency response personnel
      • Longer 911 wait times
      • Fewer police officers and firefighters
    • Our infrastructure at risk with:
      • Unsafe bridges
      • Broken roads and more potholes
      • Cuts in service to public transportation
  • Put our fragile economy and job market at even greater risk

            For those of you who believe that eliminating $12 billion from the budget will get rid of the supposedly inefficient state workers, consider that the entire state payroll is about $7 billion.  That leaves $5 billion left to cut with no more state workers to lay off!

            Where does the $28 billion state budget go if not to the state workforce?  It goes to places like nursing homes to care for elderly and disabled, to hospitals to pay half the cost (the Federal Government pays the other half) of the care for those on Medicaid (many of whom are elderly), to contractors to build roads and bridges and schools, to local aid to cities and towns, and to pension funds for retirees.

            There is a common misperception in this state, fueled by the ideologues on talk radio, that we pay more taxes than the rest of the country.  Actually, the state and local tax burden in Massachusetts is 9.5% of income, slightly below the 9.7% national average.  This places us 23rd nationally among the states.  (If you don’t believe me, check out the web site of the nonpartisan Tax Policy Institute).

            So while there are many good factual reasons not to vote for this, it is disturbing to me that something like this is even on the ballot.  We used to be a country where people banded together to try to make everyone’s lives better.  My grandparents’ generation agreed to tax themselves to have a strong economy and get out of the Great Depression.  My parents’ generation agreed to pay taxes for a strong military to defeat the Fascists in World War II.  Rich people used to pay a lot of taxes in the U.S.  In the 1940’s and 1950’s, the highest wage earners paid over 80% on income over $200,000.  As recently as the 1970’s high income earners paid 70% or more on what they earned over $200,000.  [For a chart on tax rates, see].

            Since the Reagan presidency and its mantra that “government is the problem” and “the less government, the better,” taxes have become the third rail of American politics.  This has worked out great for the very wealthy, who have seen their tax rates decline to less than half what they once were.  For some super-rich, who make billions of dollars running hedge funds, all of their income is taxed as capital gains at the 15% federal rate.  While their tax rates have been reduced, those earning the most money have seen their incomes soar.  In 2006, Chief Executive Officers of large companies averaged over $10 million in total compensation, 364 times that of the average worker.  As recently as 1980, those CEO’s made 42 times what the average worker made.

            So, while the rich have gotten richer and paid lower tax rates, what has happened to the rest of society?  We have, at least for the past 10 years, basically tread water.  But while our wages have been flat, our expenses have increased: medical, housing, transportation, education.  Caught in this squeeze, it is no wonder that some of us jump at an opportunity to stop paying state income tax.  But eliminating state income tax is not the solution; it will only reduce services that we all need and make things worse.  What is really needed is an overhaul of the tax policy to put more burden on the rich and an increase in the real wages (adjusted for inflation) of working people.  Hopefully, a reform of our labor laws can help with the wage problem.  But that’s for another article.

            Bottom Line: VOTE NO ON QUESTION 1!

MassCOP To Serve As Only Police Labor Rep On Police Training Commission

Sandulli Grace, PC, congratulates its longtime client, the Massachusetts Coalition of Police, AFL-CIO (“MassCOP”), on its recent appointment as the only police labor representative to a special commission on local police training. Earlier this year, the Massachusetts Legislature passed Chapter 3 of the Resolves of 2008 to establish a special commission. The Commission’s dozen or so members will study the creation of a statewide law enforcement training program and improvement of municipal law enforcement training. Commission members include representatives from the Massachusetts House and Senate Joint Committee on Public Safety, the State Police Colonel, the Massachusetts Chiefs of Police Association, and several other entities related to law enforcement. MassCOP, which represents more than 3,200 police officers and police employees in the Commonwealth, was named in Chapter 3 as the only representative of rank-and-file police officers and police unions. MassCOP Vice President and Legislative Committee Chair Kenneth J. Scanzio will serve as MassCOP’s representative to the Commission. Sandulli Grace again congratulates MassCOP and Vice President Scanzio on yet another recognition of their status as leaders in advocating for sworn police officers.

Anxiety/Depression in Response to Work-Related Events May Qualify for Accidental Disability Retirement

The Massachusetts Appeals Court recently highlighted the difficulty a public employee applying for accidental disability retirement faces when trying to establish a mental disability was caused by work.  Fender v. CRAB, 07-P-0621 (Oct. 3, 2008).    To establish entitlement to accidental disability retirement benefits, a member of a Massachusetts public employment retirement system must show that that the employee is “unable to perform the essential duties of his job and that such inability is likely to be permanent . . . by reason of a personal injury sustained . . . as a result of, and while in the performance of, his duties.”  G.L. c. 32, § 7(1).  Emotional and mental disabilities qualify as “personal injury” under the law, as well as under the workers’ compensation act.  Therefore, to establish that the series of events at work caused his disability, the applicant must show that the disability stemmed from (A) “a single work-related event or series of events” OR (B) the employee was exposed to “an identifiable condition . . . that is not common and necessary to all or a great many occupations” and this resulted in gradual deterioration.

 In the case of Fender v. CRAB, the acting superintendent of a municipal Department of Public Works claimed that he experienced a series of stressful events between 2001 and 2003, including:  (1) a record snowfall; (2) the sudden death of the key department head of the town’s operations department; (3) an unexpected and expensive seaweed cleanup that raised environmental concerns and upset beachgoers; (4) a suicide attempt by the successor to the operations department director position; (5) a fatal case of Legionnaire’s disease, which is highly infectious, in the town; (6) an onerous work schedule during the late summer months of 2003; (7) a threatened strike by DPW employees reporting to him; and (8) a DPW board meeting during which his superiors criticized him.

 Despite a three-person medical panel unanimously endorsing the applicant’s claim that his anxiety/depression disability was caused by the above events, the Plymouth County retirement board rejected the application for accidental disability retirement.  The Contributory Retirement Appeal Board (“CRAB”) and the Superior Court affirmed this decision. 

 The Appeals Court agreed here that the employee could not show that these events were a unique “identifiable condition” entitling him to retirement benefits:  demanding and critical supervisors and unfilled job vacancies created by the deaths and suicide attempt of his employees are common and necessary job pressures for managers.  However, the Court left open the possibility that the employee could show that the 8 numerated incidents above could qualify under the other definition of “personal injury”: “a single work-related event or series of events.”  CRAB found that the deaths and suicide attempt by co-workers were not “personal injuries”, but the agency failed to explain why or how it reached this conclusion.  The Court disagreed with CRAB’s interpretation of what constitutes a “personal injury” under the law, noting that “a mental or emotional disability stemming from a series of work-related events has long been recognized as a ‘personal injury’.”  The case is not over:  the Court sent it back to CRAB for more proceedings.  (The Court criticized CRAB for its failure to provide facts or argument to explain why these events did not qualify as a “personal injury”).

 The Appeals Court ordered CRAB to decide whether the claimed series of work-related events “caused” the applicant’s disability.  Even if CRAB agrees that these events “caused” his disability, the applicant still could be denied accidental disability retirement benefits.  In a footnote, the Court discussed an argument raised by CRAB that the DPW board meeting qualified as a “bona fide, personnel action,” thereby excluding the event from the definition of “personal injury” and supporting a claim for work-related disability.  The Court’s discussion indicates that CRAB conceivably could find that some or even all the events cited are “bona fide, personnel actions”.  The Court declined to rule on whether any event meets the definition of “bona fide, personnel actions”, thereby increasing the possibility that there will be further litigation on this issue.



Disabled Part-Time Officer Entitled To Average Earnings From Town

Police officers and firefighters injured in the performance of their jobs are entitled to “leave without loss of pay” under G.L. c.41, §111F. For full-time public safety officers, the amount of wages paid during their period of disability is relatively easy to calculate – the officer’s base pay plus most stipends and differentials (detail and overtime wages are excluded). The wages payable to disabled part-time police officers and firefighters, whose schedules frequently fluctuate from week to week, are relatively harder to determine. In Becker v. Town of Newbury, #07-P-1068 (October 9, 2008), the Appeals Court answered how to calculate the injured-on-duty benefits to part-time officers – municipalities must pay no less than the employee’s average earnings during the 12 months preceding the injury. The Court rejected the argument that the employer must pay weekly wages earned by the employee at the time of the injury. For example, the officer here earned an average of $145 per week during the past year, but was scheduled to earn $400 during the week of her injury. The Court ruled she is entitled to only $145 per week. On the bright side, the rule will benefit officers if the situation was reversed. For example, an employee who earned an average of $400 per week, but was anticipated to receive only $145 during the week of injury, will receive $400 per week for the duration of the disability or until the employee is retired.

Part-time police officers and firefighters injured in the line of duty are eligible for an additional statutory benefit, if the injury is severe enough. Recognizing that a part-time officer disabled from municipal work may be disabled from their “regular occupation” as well, the General Court added G.L. c.32, §85H provides wages of an entry-level police officer or firefighter to part-time officers whose work-related disability disables them from their “regular occupation.” (This payment is in addition to any §111F payment discussed above). The Appeals Court ruled that the outside employment must be a “regular occupation” and must “constitute at least a substantial source of income.” Here, the Court concluded that the part-time police officer’s fledgling private investigator business, which never turned a profit, did not meet this criteria. Therefore, the court ruled, she was ineligible to receive the wages of an entry-level police officer under G.L. c.32, §85H.

Joe Sandulli Receives Cushing-Gavin Award, The Highest Honor For Mass. Labor Lawyer

Sandulli Grace, PC founder Joe Sandulli has been awarded the 2008 Cushing-Gavin Award for Union Attorneys, the highest honor bestowed upon members of the New England labor management  community.  He will receive the award at the Labor Guild’s 42nd Annual Awards dinner on November 20 at the Sheraton Boston.

            Since 1946, the Labor Guild has advanced the interests of Massachusetts workers and strengthened bonds between representatives of labor and management.  In 1952, the Guild started offering classes to workers through its School of Industrial Relations.  In 1967, the Guild established the Cushing Awards Dinner to honor achievement in the field of labor management.  The Dinner has grown to be the largest annual event in the Boston labor management community and provides financial support to its School.

            Joe has actively supported the Labor Guild since he began his career in the Boston labor community more than 35 years ago.  He has served as a Faculty member of the Labor Guild’s School for many years, teaching courses ranging from “Law and Labor Relations” to “Labor Strategies,” his current course offering.  His selection as a Cushing-Gavin Awardee highlights not only his standing in the community, but also his commitment to labor education and to the Labor Guild.

            Upon learning of his selection, Joe was, as usual, quick to credit the whole team at Sandulli Grace.  “While it’s a great personal honor to be selected for this award, what it shows is the standing that Sandulli Grace has in the labor management community,” Sandulli stated.  “The legacy of quality representation that Sandulli Grace provides to labor unions and their members is the proudest achievement of my legal career.”

            Thanks Joe, but why don’t you take a while to let us all be proud of you for a change.

Arbitrator Finds That City Violated Clear, Plain Language Of Police Union Contract On Overtime

Massachusetts Arbitrator Mary Ellen Shea ruled that the City of North Adams is required to offer certain overtime shifts first to full-time police officers, under a collective bargaining agreement between the City and the North Adams Police Union, Massachusetts Coalition of Police Local 382, AFL-CIO.  In light of this interpretation of the labor contract, Arbitrator Shea found that the City violated its contractual obligations when it refused to offer full-time officers the overtime caused by single-day training and vacation absences.  The case involved the well-settled principle that clear contract language trumps a past practice, regardless of the duration of the past practice.

 MCOP Local 382’s contract entitles full-time officers to work overtime shifts.  The overtime provision states that the City, however, may offer vacancies to part-time reservists when it is reasonably determined that the full-time officer “will not be available for more than two continuous days.”  The City claimed that this language permitted it to offer overtime shifts caused by vacation and training to part-timers because “not be available” refers only to when a full-time officer is physically incapable of working.  Under the City’s interpretation, an officer on vacation or training is physically able to work, unlike an officer on sick leave.  The Arbitrator rejected the City’s interpretation as seeming “strained and does not produce a logical and consistent result.”  She concluded that the plain language required the City to offer these vacancies to full-time officers, regardless of the reasons for the vacancy.

Because the arbitrator found that the contract language was unambiguous and not susceptible to any reading offered by the City, she ruled that the City’s claims of a 30-year past practice were irrelevant and unpersuasive.  In addition to the golden rule that clear contract language trumps past practice, Arbitrator Shea found that the City failed to produce credible evidence to show that its alleged practice of offering vacation and training vacancies to reservists was clear, consistent or accepted by the Union.

After concluding that the City violated the contract, the arbitrator ordered the City to pay the Union for the amount of the overtime shift lost to the reservist.  

Download the Decision…

Selectmen May Be Sued for Demoting Chief

The Massachusetts Appeals Court has waded into the seemingly never-ending internal strife in the Town of Stoughton Police Department.  In the case of Cachopa v. Town of Stoughton, #07-P-1247 (Sept. 15, 2008), the Court interpreted the little-used legal theory of “intentional interference with contractual relationship” and ruled that the Chief may sue the Town and Individual Selectmen for demoting him.  The case underscores the risks faced by Town employees who also serve in elected positions. 

 For the past several years, the Stoughton Police Department has been beset by various public controversies, including sting operations of a liquor store run by a future Selectman, a police officer’s suicide, no confidence votes against the liquor-store-owning Selectman, the demotion of the Chief, and his subsequent reinstatement as Chief.  Following his demotion by the Board of Selectmen, the Chief sued the Town and Selectmen – including one who works as a Stoughton police officer – for “intentional interference with contractual relationship.”  The Chief produced evidence showing that a Selectman – whose store was prosecuted by the Chief for selling alcohol to minors – told the Chief that he would be reinstated if the Chief appointed another Selectman – the one who is a police officer – back to a plum police assignment.

 The Court ruled that these two Selectmen may be individually liable for their actions to demote and/or replace the Chief.  To support a theory of intentional interference with contractual relationship, there must be evidence that the infliction of economic harm was motivated by malice.  Here, the Court ruled that a jury could find that the Selectman/liquor store owner was improperly retaliating against the Chief for the repeated prosecution of his liquor store, the Chief’s refusal to assign the other Selectman to a plum assignment, and the no-confidence votes.  Meanwhile, the Court found that police officer/Selectman also may be liable. Although the officer abstained from voting to terminate the Chief, his vote to name an acting chief was equivalent to demoting the Chief and these actions could be interpreted by a jury to have been motivated by his anger and frustration over the Chief’s bypass of him as Deputy Chief and for a particular assignment. 

 The Appeals Court technically did not find that the individual selectmen are liable.  The Court’s ruling merely says there is enough evidence for a jury to decide whether “malice,” rather than job performance, was the reason for the Chief’s temporary demotion.

 The Cachopa case also highlights the financial risks assumed by elected officials.  The Appeals Court ruled that the individual selectmen, when sued in their personal capacity, did not qualify for governmental immunity under the Massachusetts