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…

SJC To Hear Quinn Oral Argument On November 8

We just got word that the Supreme Judicial Court has scheduled oral argument for Adams v. Boston for November 8, 2011 at 9:00a.m. At issue in the case is whether a municipality can cut Quinn Bill payments to officers based on the underfunding of reimbursements by the state. Sandulli Grace Attorney Bryan Decker will be arguing the case for the Boston Officers challenging cuts to their educational benefit.

Suffolk University provides a live videocast of SJC oral arguments at . If you miss the live broadcast, Suffolk will post an archive copy of the video within a few days of the argument. The case number is SJC-10861 if you’d like to watch. While the SJC courtroom is open to the public, there is very little seating available, and we do not encourage folks to attend the oral argument in person.

Civil Service Suspensions: 5 Days Can Be 8 But Not 16

While, for the Beatles, eight days a week may not have been enough to show they cared, the Appeals Court has said that it is enough for a five-day suspension.

Civil Service law, Mass. Gen. Laws Chapter 31, § 41, allows a police or fire chief to suspend a tenured civil servant “for just cause for a period of five days or less without a hearing prior to such suspension.” [emphasis added]. The statute goes on: “Saturdays, Sundays and legal holidays shall not be counted in the computation of any period of time specified in this section.” The employee is forced to serve the suspension but may (within 48 hours) appeal to the appointing authority for a hearing on whether the chief did indeed have just cause for the punishment. To suspend employees for more than five days or to demote or terminate them, the appointing authority must first hold a hearing before issuing those greater disciplines.

When the Andover fire chief issued a four-day suspension to a Lt. Thornton, he ordered that the four days be served on the lieutenant’s next four scheduled 24-hour shifts, spanning a 16 day period. Not surprisingly, the Civil Service Commission, by a 3-2 vote in an opinion written by Chairman Bowman, had no problem with allowing the chief to take away two weeks’ pay and prevent the lieutenant from working overtime or details for 16 days, all as part of a four-day suspension without a hearing.

This punitive interpretation was first overturned by the Superior Court and then, last week, by the Appeals Court. In Thornton v. Civil Service Commission, Justice Rubin, writing for a 2-1 majority of the three-judge panel, made this Solomonic observation: “Whatever a suspension of ‘a period of five days or less’ is, it is not a suspension under which an employee may not work for sixteen days.”

The Appeals Court decided that the five-day suspension period means five consecutive calendar days, excluding weekends and holidays. A five-day suspension could run from Monday through Friday, Tuesday through the next Monday (remember weekends don’t count), etc. The decision has the practical effect of letting the chief, for the most part, take away a week’s pay and prevent the employee from working overtime/details for the same week. This does raise the question: If weekends and holidays don’t count as part of the suspension period, why should employees also be suspended on those days and prohibited from performing extra work on them?

While the decision is not perfect, it is a reasonable attempt at applying a statute obviously geared to people who work Monday through Friday, nine to five, to the “four and two” and “24 hour” shifts, which did not become prevalent until long after 1978, when the statutory language was written.

One problematic aspect of the Appeals Court decision is language permitting the chief to begin the suspension on a particular day of his/her choosing.  An overreaching chief could, therefore, begin an alleged miscreant’s five-day suspension on Tuesday, October 4. Because of the weekend/holiday exclusion and the October 10 Columbus Day holiday, it could run through Tuesday, October 11.  If the employee were returning to his/her “four-and-two” on the 4th, it could actually cost six days’ pay and, depending on the contract, the holiday pay also.

Suffice it to say that the Appeals Court has reduced a “five-day suspension” from sixteen to, at most, eight days. It’s at least a step in the right direction