HRD Gives Up On Banding, For Now

In case anyone hasn’t seen it, the following is now posted on the HRD web site:

2008 Police & Fire Promotional Exam Info Update

Due to the recent preliminary injunction issued by the Suffolk Superior Court in regard to the police promotional exams, the Human Resources Division (HRD) will not band scores for the October, 2008 promotional exams or the November, 2008 fire promotional exams. HRD is planning on moving forward with rulemaking for score banding in the future.

HRD has finally agreed to do what we asked them to do in the first place: not change the scoring system without changing their rules.

As always, we will keep you updated when we get more information.

Alan Shapiro

SJC Gives Public Employers New Tool For Blocking Disability Retirements

In a recent decision, the Massachusetts Supreme Judicial Court has allowed a public employer to block an injured employee’s attempt to retire on disability by modifying his work duties so that they no longer resemble his original core job duties.  The decision, Foresta v. Contributory Retirement Appeal Board, was issued on April 24, 2009 as 453 Mass. 669 and can be found here . Sandulli Grace, PC, filed a friend-of-the-court brief on behalf of the Boston Police Patrolmen’s Association, Inc. and the Massachusetts Coalition of Police, in support of the disability employee.

 Foresta involves an employee of the Mass. Turnpike Authority who sought a disability retirement after two job-related lower back injuries.  His job as safety inspector primarily involved driving around the state inspecting fire extinguishers.  A small portion of his job involved teaching courses and doing paperwork.  After Foresta suffered two on the job injuries, his doctors concluded that he was disabled from lifting the fire extinguishers, or driving for significant periods of time.  In other words, the work injuries prevented him from performing his essential job duties.  As a result of his disability, the Authority gave the fire extinguisher duties to another employee and assigned clerical/desk duties to Foresta, which used to be a minute function of his job.  Although a panel of doctors agreed that Foresta could not perform his core duties, it concluded that he could perform the duties of his new job. Foresta still sought a disability retirement, arguing that he was entitled to it because his job injuries prevented him from performing the essential functions of the job as it existed at the time of his injuries.

 The SJC disagreed with Foresta and instead ruled in favor of the Massachusetts Turnpike Authority Employees’ Retirement Board’s decision to deny the accidental disability retirement application.  The SJC found that the Board’s denial was consistent with the history and purpose of the disability retirement laws.  In particular, those laws encourage employers to make accommodations for injured employees and provide rehabilitation for them to keep them on the job, which allegedly limits the Commonwealth’s liability and prevents possible abuses of the system.

 Foresta argued that anti-discrimination laws such as the Americans with Disabilities Act only require employers to make reasonable accommodations, and changing the essential duties of the job is unreasonable.  The SJC ruled instead that the employer may make accommodations that go beyond its obligations under anti-discrimination law, as the Turnpike Authority did here.  Therefore, the SJC held, Foresta was not disabled if he could perform the essential duties of the job after the Turnpike Authority modified it into a desk job.  The bottom line of the SJC’s distinction between an employer’s rights and responsibilities under ADA and disability retirement law is that the public employer gets the final word on the employee’s employment– a public employer can deny a request to change the essential functions of the job when sought by an employee or applicant without violating the ADA, but the employer may force an injured employee to change the essential duties of his or her job in order to prevent him from leaving work on a disability retirement. 

 The SJC did place some limits on the changes that an employer may make to accommodate an injured employee.  “The essential duties of the job as modified must be similar in responsibility and purpose to those performed by the employee at the time of the injury, and must result in no loss of pay or other benefits,” the Court stated.  Presumably, then, there must be some continuity between the original job and the modified position in terms of duties performed.

 The SJC’s decision leaves a number of questions unanswered, notably, How will employers and retirement boards determine which duties are similar in responsibility and purpose to those the employee performed at the time of the injury?  What if other employees with the same job title performed the duties but the injured employee did not?   Does this case extend to light duty assignments for police and fire fighters, whose essential functions involve physically demanding crime and fire prevention/suppression?  Unfortunately, further litigation may be required to answer these and other questions that arise from the SJC’s vague language.  Only time will tell how severely public safety employees will be affected.  But there is no question that the right has been restricted by the Foresta decision: if a public employer wants to block an employee from getting a disability retirement – even where the disability results from the employee’s public service – the employer now has one more weapon in its arsenal.



Another Year, Another Successful MCOP Educational Seminar

On April 27, 2009, The Massachusetts Coalition of Police hosted its annual Police Educational Seminar for a packed audience in Westborough.  As in the past, the attorneys of Sandulli Grace, joined by outside experts, presented on a variety of timely legal topics.  Over the years, the annual seminar has become a premier educational event for Massachusetts police officers.

As usual, the topics this year were informative and timely.  (See the program here – See photos from the seminar here).  After a welcome from MCOP President Hugh Cameron and MCOP In House Counsel Tim King, Sandulli Grace Attorneys Susan Horwitz, Amy Davidson and Ken Grace talked about creative alternatives for bargaining in these tough economic times.  Joining them was Carol Chandor from Boston Benefits Partners.  Carol is an expert in public sector health care and gave an incredibly informative talk about how to judge various health plan alternatives, including the GIC.

After a break, Sandulli Grace Attorneys Joe Sandulli and John Becker discussed how to deal with the reality of layoffs, a topic that’s unfortunately too current.  SG’s Alan Shapiro and Bryan Decker then gave a blow-by-blow of the historic injunction MCOP and the BPPA were granted against the “banding” of police promotional scores.

The educational portion of the event ended with Sandulli Grace attorneys Leigh Panettiere and Patrick Bryant, joined by Police Lawyer Extraordinaire Thomas Drechesler and noted Psychologist Leo Polizoti, discussing the pitfalls of off duty misconduct.  Dr. Polizoti’s frank, behind-the-scene look at what goes into a psychological fitness for duty exam was the highlight of the day.

The day was capped off with a late lunch, during which Ken Grace recognized the winners of this year’s Sandulli Grace/MCOP Scholarship Essay Contest.  The annual event, open to the children of all MCOP members, awards 4 scholarships based on essays in response to a police related topic.  This year’s topic was the value of having sworn police officers providing traffic coordination at construction sites.  All of the essays were excellent.

Stay tuned next Spring for the announcement of the 2010 MCOP / Sandulli Grace police educational seminar.


State Agency Rules Police Union Violated Duty Of Fair Representation To Police Officer Fired For Beating His Wife – Sandulli Grace Offers Tips For Unions To Defeat DFR Claims

The Commonwealth Employment Relations Board has ruled that the Amherst Police League – which is NOT a client of Sandulli Grace, PC and is NOT represented by any Sandulli Grace client – violated its duty of fair representation in its handling of a grievance concerning the termination of police sergeant.  The case, Amherst Police League, MUP-05-4521(April 23, 2009), underscores the need for Unions to adhere to internal procedures for grievances, even for grievances that seem downright worthless.  As a result of the DFR violations, the police union here could suffer significant financial damages.  Amherst Police League serves as an unfortunate playbook in how NOT to process a grievance. 

In this case, an alcohol-fueled Amherst Police Sergeant beat his wife at home during an off-duty argument.  His repeated hits resulted in injury to his wife.  The Sergeant fled the scene to his mother’s Vermont residence.  He turned himself into police the next day.  He subsequently admitted himself to hospital for depression, anxiety, and later treated by a psychologist for those issues and alcohol abuse.  He was charged criminally with domestic assault and battery, a misdemeanor.  He ultimately admitted to sufficient facts on this criminal charge, which was continued without a finding and later dismissed after a year of probation. 

 During the Town’s investigation, the Sergeant and a Union attorney met with the Town.  At the meeting, the Union attorney advised the Sergeant to say nothing because any statement could be used in a criminal proceeding against him.  Subsequently, the Town fired the Sergeant. 

 As a non-civil service town, the Sergeant’s primary way to challenge the termination was through the grievance procedure.  The grievance process here involved four levels: Step 1 (immediate supervisor) Step 2 (Chief), Step 3 (Town Manager) and Step 4 (arbitration).  The contract permits only the Union Grievance Committee to pursue a grievance beyond Step 1. 

 After being fired, the Sergeant then filed a grievance with his immediate supervisor and with the Town Manager.  His letter to the Town Manager said his private attorney would contact the Town Manager.  The private attorney never did.  After Step 1, the Union Grievance Committee then tabled the grievance for several months, without getting the Town’s written agreement to hold off.  The Union failed to communicate with the Sergeant or his attorney about the termination grievance for several months.

 During this grievance process, the Union’s attorney (a novice in labor law) promised the Sergeant’s private attorney that the Union will demand arbitration and will let the Sergeant’s attorney litigate the case (so long as the Sergeant pays the legal fees).  The Town expressed a general willingness to meet with the Sergeant about settlement, but the Union never relayed this offer to the Sergeant.  The Union also never invited the Sergeant to grievance meetings.

The Union Grievance Committee met with the Chief and the Town’s HR Director without the Sergeant.  Both the Chief and the HR director denied the grievance in writing.  The HR director’s response relied in part on the Sergeant’s refusal to speak on his own behalf.  The Union did not seek any legal advice on the merits of the grievance, although the Union’s lawyer (who primarily did real estate work) advised them to go to arbitration.  The Union then voted not to appeal this decision to arbitration and in part, relying on the Sergeant’s silence.  It failed to notify the grievant about its decision for two months.

 The Sergeant then filed a charge of prohibited practice with the Division of Labor Relations/CERB, alleging that the Union violated its duty of fair representation under the Law. CERB agreed with the Sergeant.  It ruled that the Union violated its duty of fair representation to the Sergeant through the following acts:


  • The Union failed to notify the Sergeant during the grievance process about the Town’s willingness to meet with the Sergeant to discuss his employment situation, even though there is no evidence that the Town would have altered its stance during such a meeting.  CERB wrote, “The Union’s failure to alert [him] to this pivotal opportunity to challenge his termination shows a reckless disregard for [his] grievance and his contractual rights”
  •  The Union unfairly combined Steps 2 and 3 of the grievance process.  CERB wrote, “The Union made this assumption without taking steps to ascertain whether [the Town Manager] had authorized [the HR Director] to act as his Step 3 representative at the meeting, or whether the Town had intended and agreed to merge the grievance steps.” 
  •  As a result, CERB concluded that the Union failed to timely file an appeal of the grievance to the Town Manager, which allegedly resulted in the termination being upheld.
  •  The Union promised to proceed to arbitration and then failed to do so.


There are several questionable facets to CERB’s decision.  Although CERB noted that the contract grants the Union with the exclusive right to process grievances, CERB seemingly disregarded G. L. c. 150, §5, a state law that entitles employees to individually process grievances without relying on labor organizations.  As a result of this state law, CERB placed inordinate emphasis on the Union’s handling of the grievance and less on the employee’s failure to assert his own rights. 

CERB also unnecessarily faulted the Union for believing that Steps 2 & 3 were combined.  The Union had a plausible argument that the Town, via its actions, agreed to merge these steps.  Finally, CERB appeared to impose a duty on Unions to relay detailed messages between employees and employers – such as the detailed reasons in support of a grievance and the employer’s offer to discuss the termination.  This duty appears to be higher than we believe previously existed for Unions.

CERB thankfully included a note in its opinion warning employees and unions that this case is highly unusual given the volume of errors made by the Union.  In other words, a Union that committed only one of the above errors might not be found to have violated its duty of fair representation.  CERB noted,“[W]e nevertheless affirm the general principle that a union that initially files a grievance for arbitration retains the discretion to subsequently withdraw it, so long as it makes a reasoned, non-negligent judgment, untainted by improper motives, about the merits of the grievance.”

As a result of the decision, the Union was ordered to see if the Town is willing to arbitrate the termination. If the Town is willing, then the Union has to pay for an independent attorney to represent the Sergeant.  If the Town is unwilling – and it is unlikely to imagine the Town will volunteer to expose itself to liability for terminating the Sergeant– the Union will be forced to pay lost wages to the Sergeant.  The only way the Union can avoid liability is for it to show that an arbitrator likely would have upheld the termination In other words, the Union has an incentive to show that the Town deservedly terminated one of its members.

Even though the case involved a highly unusual amount of errors, the case reminds Unions of the benefits of using best practices for resolving grievances.  The following practices are not necessarily strictly mandated by a duty of fair representation they may help defeat claims.


  • Review your by-laws and constitution to determine your procedure for handling grievances and then follow this procedure.
  • Notify the grievant of his or her ability to file his or her own grievance.
  • Unless fully persuaded after an investigation that a grievance is meritless, file a grievance and process it through all steps up to arbitration.
  • Vigilantly observe and enforce grievance deadlines (or seek extensions from the employer).
  • Consider inviting the grievant to participate at steps of the grievance process and let the grievant present any non-frivolous argument on his or her own behalf (that does not mean the Union has to agree with the grievant)
  • Notify the grievant in writing about relevant steps or developments of the process.
  • Provide the grievant with an opportunity to present an argument in support of the grievance prior to(or during) Union deliberations about whether to demand arbitration.
  • Demand arbitration even if (or especially if) the Union has not completed its decision-making process for proceed to arbitration and permitted the grievant to appeal the Union’s decision.  The Union can always withdraw its demand later!
  • If the Union demands arbitration, notify the grievant in writing that the Union has the right to withdraw arbitration.
  • If the Union declines to demand arbitration, notify the grievant in writing about any appeal process and the reasons for the Union’s decision to forgo arbitration.

Again, a Union’s failure to adopt any or all of the above policies does not necessarily violate its duty of fair representation.  

HRD Appears To Have Given Up On Banding

Based on the attached memo sent to the police chiefs by HRD, it appears the agency has finally relented and will establish promotional lists from the October 2008 exam in the traditional “whole number” formula.

As the memo goes on to state, HRD will attempt through rulemaking to change the current rule requiring scores in whole numbers.  If the rule is changed, they would then, presumably, band results of the next promotional examinations.

 I know that within seconds of this entry’s going out, we will be asked these questions:  (1) “Will you challenge banding in rulemaking?” and (2) “What is the likelihood of winning such a challenge?”  The answer to Question 1 is simple: we will do what our clients ask us to do.  To stop banding of this exam, our clients Mass. Coalition of Police and Boston Police Patrolmen’s Association jointly retained us.  Whether to contest the issue in rulemaking will be their decision.  As for the likelihood of a successful legal challenge to the rulemaking, I will say only that there are arguments that could be raised on both sides of the issue.

We (my law partner Bryan Decker and myself) again want to thank all of you for your support, but most especially our clients, MCOP and BPPA, without whom HRD would have been able to run roughshod over its own rules and the merit-based system Civil Service is supposed to be.

Download Memo

White House Honors Police Officers, Bppa President Tom Nee; Mcop Officers Recognized

On May 12, 2009, President Barack Obama and Vice President Joe Biden honored the Top Cops of the National Association of Police Organizations (NAPO).  In addition to praising the daily heroism of police officers, President Obama singled out Boston Police Patrolmen’s Association, Inc. President Tom Nee for his leadership as NAPO President.  Sandulli Grace, PC, is proud to have the BPPA and Tom Nee as a client.  Massachusetts Coalition of Police President Hugh Cameron, another Sandulli Grace client, also attended the ceremony as a NAPO Area Vice President.  MCOP member Richard Cochrane of the Peabody Police Department received an honorable mention from Top Cops whereas Dalton Police Department’s Geoff Powell, also a MCOP member, was a nominee.

            Sandulli Grace congratulates Nee, Cameron, Powell and Cochrane, in addition to all other police officers, for their quiet service and dedication to the public good. 

            Below is the official transcript of the ceremony for NAPO’s Top Cops released by the White House.            


Office of the Press Secretary
For Immediate Release                               May 12, 2009


Rose Garden

2:38 P.M. EDT

THE VICE PRESIDENT:  Welcome to the Rose Garden.  Ladies and gentlemen, let me begin by saying —

THE PRESIDENT:  They can sit down.

THE VICE PRESIDENT:  They can sit — yes, you can sit down.  (Laughter.)  I just assumed you were going to sit down.  I apologize.  Thank you, Mr. President. Tommy — you stay standing up, though, for me.  I don’t want you — (laughter.)

Let me begin by saying congratulations.  It’s an honor to be in the presence of the best of the best here standing behind us.  You’re all been an inspiration to the men and women of not only this country, but your fellow officers.  You’ve been an inspiration to the thousands and thousands of people who strap on a sidearm and go out every day to do their job.

When you strap on that sidearm and you walk outside your home every morning — every morning, or evening, depending on their shift — your wives and your husbands that you leave behind know that you are literally putting yourselves in harm’s way, every time you walk out that door.

And the President and I recognize the bravery you display simply by putting on that badge every day — just putting the badge on.  The officers honored here today have been singled out for going above and beyond the call of duty and we commend you all. But we also know that there are thousands more like you in communities throughout this country, large and small, doing their part every single day — as we speak right now — in their communities, making them safer but also making the community stronger.

Today is a day for every man and woman in uniform to feel proud of you, and to feel proud of themselves. Today is a day for the entire community of police officers to see how much America appreciates their courage, and to let you know that the President and this administration appreciate your courage, as well.  Your sacrifices and acts of heroism don’t go unnoticed.  I think sometimes you must feel like they do.  You do your job every day, you don’t expect any particular thanks or gratitude, you change people’s lives for the better and — but it’s warranted on a day like today to pay special recognition.

You’ve already seen some evidence of the President’s commitment, beyond his entire career of being committed to law enforcement.  The President’s commitment to the level of support for law enforcement can be seen in the Recovery Act.  Over $4 billion was placed in that emergency legislation to hire new officers, for new equipment such as bulletproof vests, and for new technologies, to give you the tools to do your jobs more safely and more efficiently.

You keep us safe.  We owe you.  (Applause.)  We owe you to put you in a position where you can keep yourselves safe, as well.

And you’ve seen the President’s commitment to you by bringing this ceremony back to the Rose Garden.  Mr. President, in the Roosevelt Room you said you wanted to let the public know.  And I was about to say — which I’ll say here — and that’s why the President wanted it back here in the Rose Garden.

So there’s no mistake, there’s no mistake that this President and this administration appreciates what you’ve done.  We know this commitment — (applause.)  I’ll conclude by saying, you should know this commitment will not stop today or tomorrow or next month or next year.  We’re going to work and continue to work, as the President has his entire career, for what serves you best so that you can serve us as best and as bravely as you have.

Ladies and gentlemen, while we don’t say it nearly enough, thank you, thank you, thank you for all what you do.

So Mr. President, the Top Cops for 2009, a superior group of real heroes, are waiting to hear from you, boss.  It’s all yours.  (Applause.)

THE PRESIDENT:  Well, thank you, Joe, for the wonderful introduction.  Welcome, all of you, to the White House, and for joining us on this beautiful spring day.  It is an extraordinary privilege to celebrate these Top Cops who have traveled here to be recognized for incredible acts of courage and quick thinking, which prevented harm and saved lives.

Before I speak more about these outstanding officers, there are just a few wonderful members of Congress that I want to introduce.  Representative John Conyers, one of the deans of the House of Representatives — (applause) — Republican Emanuel Cleaver from Kansas City — (applause) — and Representative Lucille Roybal-Allard, great to see you.  Thank you so much.  Please give them a big round of applause.  (Applause.)

Now, I don’t know if you guys are aware that we have a nickname for Joe Biden around here in the White House.  Joe has been overseeing the way funds are being used under the American Recovery and Reinvestment Act to ensure tax dollars are going toward the intended purpose of creating jobs and aren’t being wasted.  So we’ve taken to calling him “the sheriff” — because nobody messes with Joe.

And I want you to know that he is making sure that money is getting on the ground helping local communities, including making sure that money is going to allow local communities to hire more police officers and make sure that they’ve got the equipment and the training they need to succeed.

I also want to thank Attorney General Eric Holder for being here and for his leadership at the Department of Justice, which oversees much of the funding in the recovery plan and the budget that will be providing local law enforcement the resources they need.

And finally, I want to give a particular welcome to the leaders of the National Association of Police Organizations, including their outstanding president, Tom Nee.  Thank you so much for being here.

This is an event that we are glad, as Joe mentioned, to bring back to the White House — after a period of absence — in honor of these fine officers and the folks across the country they represent:  the men and women who walk the beat, who answer the call, and do the difficult work of keeping our neighborhoods safe.  And it’s no surprise that many police officers — including many of you -– have served in our military, or are serving still as members of the Reserve.

Of course, it’s not a difficult thing for a President, or a Vice President, or anyone one of us to praise you.  You deserve it.  You’ve rescued hostages held at gunpoint.  You’ve ended violent standoffs.  You’ve taken on gunmen in the face of grave danger, refusing to give up or back down even after suffering serious injuries.  You’ve reacted quickly in crisis to protect the innocent.  You’ve reacted with compassion for those that were in need.  And you’ve literally walked through the fire to help your neighbors escape disaster.

That’s what police officers do.  You step into harm’s way to form — officer by officer, block by block, neighborhood by neighborhood — the line between safety and violence, calm and chaos, hope and despair.  And for that it’s not difficult to offer our praise.  But you deserve more than just praise.  For it’s far more important that we actually support you; that we match these words which come so easily with the work that can and must follow.

Right now, for example, at this moment of economic challenge, one of the greatest concerns is that we’ll see state and local governments forced to lay off police officers — even though we know that crime has a tendency to go up when the economy is in dire straits.  We’ve seen that in my own hometown of Chicago and many other cities.

So we can’t back down, because the job of every American depends on the job you do — and the resources that enable you to do that job well.  Police officers know better than anyone:  A neighborhood that isn’t safe is a neighborhood that isn’t growing, that won’t see old businesses hiring new workers, or new businesses opening their doors.  You know how devastating crime can be; how it can shatter lives and undermine whole communities.

And that’s why the American Recovery and Reinvestment Act includes $1 billion to save or create about 5,500 jobs through the COPS program.  And there’s another $2 billion in grants which will help keep police officers on the beat and in the job.

In fact, in March I went to Columbus, Ohio, to speak at their police academy’s graduation ceremony. And these new officers are now protecting the streets of Columbus because of those grants — and there are similar stories being told in precincts all over America.

The budget we passed builds on the recovery plan, providing additional funding for the COPS program as well as for Justice Assistance Grants, also known as the Byrne-JAG program.  Taken together, we’re making a significant down payment towards my administration’s goal of adding 50,000 police officers across this country. (Applause.)  And that’s only part of what we’re doing to provide law enforcement with the tools and resources necessary to keep people safe.

As you know, this is a difficult moment for our nation.  But at a time when we face economic crisis born partially from irresponsibility on Wall Street and in Washington, I’m heartened by the folks who are standing behind me today who’ve demonstrated, with acts of selflessness and bravery, what it means to be responsible; what it means to be a problem-solver, a mediator, an investigator, and protector all wrapped into one; what it means to wave goodbye to your families and start another shift unsure of how it will end; and what it means to put your life on the line for a partner or a stranger in order — in other words, what it means to serve.

So I want to thank all of you for this extraordinary service.  I am honored to welcome you to the White House.  I’m proud to offer my congratulations, my appreciation, and most importantly my administration’s unwavering support.

God bless you and God bless the United States of America.  Thank you, all, for joining us here today.  Thank you.  (Applause.)

HRD Now Reporting Scores In Whole Numbers

Some good news today on the Banding case front, as officers who log onto the HRD website to see their exam scores are now being given whole number scores.  As far as we know, lists are not yet established.  We spoke with the Assistant Attorney General representing HRD in our lawsuit today, and she indicated that we should know within a week. 

Several people have called or written to inquire whether our suit prohibits HRD’s delay in producing lists.  They point to G.L. c. 31, §25, which requires that lists be compiled within six months of the administration of the exam (a statute that HRD itself raised to the Court in urging speedy action on the case).  The bottom line is “no.”  Our case only protested the banding of test scores.  Any challenge to the timing of the certification of lists would need to occur via a separate action.  Given that it is likely that lists will be released before any action could be heard, we are unaware of any present plans to file such an action.  However, keep tuned, as we realize that the patience of those waiting for lists cannot last forever.

As always, we’ll let you know as soon as we know.  To get notification of blog updates, enter your e-mail in the box under “Join our Mailing List” in the upper left corner of this (or any blog) page.

And a very happy May Day to all.