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.
I’m not sure if you are aware, but the Republican National Committee is actually voluntarily meeting in Boston this week. I’m a little surprised that they are here, I’m sure that they’re worried that just being in the Bay State might lead them to accidentally enter into a gay marriage. But here they are, and it’s led to some amusing news coverage of the “struggle” within the Grand Old Party.
It seems that ever since last November, the GOP has been soul searching about how the heck it can ever hope to win a national election. Notwithstanding the fact that the GOP kicked the snot out of the Democrats in 2010 and look to have a lock on the House and a decent shot of regaining the Senate in 2014, no one can figure out how a candidate can win both the Republican nomination and then go on to win a national election. Remember when all of the candidates for the Republican nomination said that they firmly reject evolution? That plays great in the primaries, not so great in the regular election.
So, the big question that the media is asking the Republicans in Boston is, “can a “moderate” candidate win the GOP election?” And the “moderate” they keep mentioning is Chris Christie, the corpulent New Jersey Governor. Christie made a visit up to Boston to speak to the assembled CEO’s, right-wing Christian fundamentalists, and Ron and Rand Paul libertarians. Christie told the GOP faithful that the party doesn’t need to “sacrifice the base” to win. In other words, the GOP doesn’t need to budge on civil rights, women’s rights, workers’ rights, immigration, or any of the other areas where the positions they hold are in the minority. So, how can the GOP win if it isn’t going to actually support positions in line with the majority of Americans? According to Christie its simple – JUST SCAPEGOAT PUBLIC EMPLOYEES!
An article in today’s Wall Street Journal describes Christie’s plan of divide and conquer. (“Christie Lays Out His Plan for GOP Revival,” 8/16/2013, p. A5). The Article states:
“You don’t have to sacrifice your base voters to win Latino votes,” [Christie] said, according to a recording of the closed-door speech reviewed by The Wall Street Journal. “You don’t have to sacrifice your base voters to win a share of the African-American vote.”
He contrasted his long-running feuds with the state’s public-sector unions with his friendliness toward the private-sector unions, noting that he had won the endorsement of 24 building-trade unions.
“We have an opportunity as a party to drive a wedge in the union movement,” he said. “And the laboratory where that is happening right now is in my state.”
Now I’m not sure I really understand how systematically working to destroy public sector workers is going to make Latinos and African-Americans more likely to vote for a Republican. But put that aside for a minute to ponder that Chris Christie is what passes for “moderate” these days. Yikes.
On August 7, 2013 the Department of Labor Relations (DLR) issued a decision finding that the Captain in the Hudson Police Department ought to be included in a new bargaining unit of superior officers recently organized by Mass COP.
Up until December 2012, the sergeants, lieutenants and the captain in Hudson were not organized as a union. Mass COP gathered authorization cards and filed a petition for a Written Majority Authorization at the DLR. Mass COP’s petition included all sergeants, lieutenants and the captain. The petition was approved by the DLR on December 10, 2012. The Town challenged the inclusion of the captain in the bargaining unit. Accordingly, the issue went to hearing before the DLR Board Chair Marjone F. Wittner, Esq.
The Town claimed that the captain was a “managerial” employee who was excluded from bargaining under G.L.c. 150E. In order to establish that the captain is managerial, the Town had to demonstrate that he (1) participated in a substantial degree in formulating policy; or (2) assists in a substantial degree in collective bargaining on behalf of the Town; or (3) has substantial responsibility in the administration of the collective bargaining agreement. The Town failed to establish any of the above elements.
Board Chair Wittner determined that the captain had no role in collective bargaining or in the grievance procedure. The lieutenants participate in the hiring process with the captain. According, there is no distinction between the captain and other members of the bargaining unit.
Wittner also held that the captain did not prepare or formulate policy. In fact, a lieutenant worked with the chief to formulate and update departmental rules and regulations.
Finally, Wittner determined that the captain did not have substantial responsibility in the administrative of the collective bargaining agreement. Since the captain did not meet any of the criteria to be considered a managerial employee, he was included in the unit of sergeants and lieutenants.
A new tumblr that began in July 2013 is growing in popularity and unfortunately it is mocking public safety officers all over the world. http://copselfies.tumblr.com/ If you’re unfamiliar with the concept of a “selfie” (http://en.wikipedia.org/wiki/Selfie) basically it’s a digital self-portrait (that is almost universally embarrassing and ridiculous). Copselfies twists the mostly harmless and inane practice by reposting selfies of police officers in uniform.
Needless to say, if you are a police officer, taking a selfie in uniform might violate your department’s internet policy or social media policy, as would texting or emailing your selfie to your sweetie, or posting it on your facebook/twitter/tumblr.
It isn’t clear where Copselfies are getting these pictures. But it is clear that the people behind it are no friends of law enforcement. The bottom of every page features a quote by Evan Calder Williams, “Let us be plain: Cops are comic objects. And not just in film, not just in comedies. They are comic objects, period.” More than that, copselfies brags that the only way to have your selfie removed is to fill out a form and wait 4-6 weeks, or “turn in your badge and gun.”
There is one important thing you can do to prevent this type of embarrassing incident that might negatively impact your career: DO NOT TAKE A SELFIE IN UNIFORM. If it’s too late to un-take these pictures, delete the ones you have.
Including a provision in your collective bargaining agreement that requires any and all discipline to be issued for “just cause” is not a novel idea. Simply stated, the “just cause standard” demands that all discipline be fairly and consistently administered. Traditionally the only employer actions reviewed by the just cause standard were run of the mill disciplines: warnings, reprimands, suspensions, demotions, transfers, and terminations. However, recent arbitration decisions may indicate a willingness by arbitrators to expand the type of employer action reviewed by the “just cause standard” to include paid administrative leave, when the administrative leave is unreasonably lengthy or tainted in some manner.
Many public safety officers augment their base wages with income from working overtime and details. Often, while on an administrative leave, an employee will be ineligible to work overtime and details. This limitation to paid overtime and detail opportunities often has a significant impact on an officer’s ability to earn a livelihood. Nevertheless, the management of a department has a right to use paid administrative leave to investigate serious allegations of wrongdoing by employees. However, more and more arbitrators are beginning to recognize that departments sometimes abuse administrative leave as a def facto discipline, intentionally curtailing an officer’s wages. Understanding the impact of administrative leave on an officer’s life and income, arbitrators are beginning to examine the length and duration of administrative leaves under the just cause standard.
In a decision issued in June 2013, Arbitrator Betty E. Waxman found that the Town of Millbury had violated the collective bargaining agreement by failing to compensate Officer Dan Daly for lost overtime and details during the period of his almost 8-month administrative leave. Officer Daly, a member of the Millbury Police Association, MassCOP Local 128, was placed on administrative leave in July 2011 while Millbury conducted an internal affairs (IA) investigation of various allegations about Officer Daly’s professional and personal life, following a four month investigation of the same allegations by the Massachusetts State Police that had already concluded that no criminal charges were appropriate. The IA investigation of Officer Daly was conducted on a part time basis, by a fulltime officer of the Worcester Police Department. At the conclusion of his investigation, after interviewing every officer in the Millbury Police Department (“MPD”), interviewing approximately 45 civilians, reviewing all of the MPD personnel files, general orders, rules and regulations, as well as the MPD logs and videotapes, the Lieutenant issued a 140-page report that determined that there was insufficient evidence to prove any of the allegations, with the exception of a single charge that Officer Daly made a comment that was “disrespectful” about a superior officer. Based on the Lieutenant’s report, Millbury issued a written reprimand to Officer Daly for his comment. At the conclusion of the investigation in March 2012, Officer Daly returned to work after missing over approximately $16,000 in overtime and detail opportunities. Following his return to work, the Union elected to challenge the length of Officer Daly’s administrative leave, based on the impact of the administrative leave on his opportunity to work overtime and details. The Arbitrator ruled that the length of the administrative leave and the scope of Lt. Bates’ investigation amounted to de facto discipline, issued without just cause.
In her decision, Arbitrator Waxman cautioned that other paid administrative leaves of reasonable duration that were tailored to investigate timely allegations might withstand a challenge, but the investigation Millbury conducted, “deprived [Officer Daly] of substantial income in order to explore more than a decade’s worth of allegations and gossip about on duty and off-duty conduct.”
The Arbitrator was moved by the part-time nature of the investigation, and was compelled to issue her decision, because the investigation’s “scope was bloated by the lack of any restrictions on time or subject matter. [the Lieutenant] was charged with exploring any and all matters that came to light during his investigation. In doing so, he sifted through all manner of gossip about [Officer Daly’s] police career and personal life — even matters that were undeniably stale.” Ultimately, Arbitrator Waxman noted that although the Lieutenant conducted a meticulous and comprehensive investigation, “the outcome […] stands for the proposition that justice delayed is justice denied.”
While the award in the Millbury case is the most dramatic statement by an arbitrator of the principle that an employer cannot let the administrative leave process drag out unreasonably, the police union’s across the Commonwealth have been pressing this issue for the last few years. In a November 2012 decision Arbitrator Michael Stutz converted Waltham Police Officer Paul Tracey’s 15 day suspension to a written reprimand, and ordered the Waltham Police Department to pay Officer Tracey for the approximate value of five months of lost detail and overtime opportunities (based on earnings from the prior year). Officer Tracey, a member of MassCOP Local 160, was placed on administrative leave while the City investigated the allegation that he had assisted a Mayoral Candidate and City Council President in intimidating one of the politician’s tenants. However, the City’s investigation was unusually and unnecessarily long; Officer Tracey was not interviewed promptly; and finally, the internal investigation continued for more than five months after the District Attorney and the Attorney General had both concluded their investigations without taking any action. Arbitrator Stutz concluded that although some investigation by the City was warranted, the entire nine month administrative leave was unnecessary and unjustified. Based on the foregoing, Arbitrator Stutz determined that Officer Tracey should be compensated for five months (out of 9 months) of lost overtime and detail opportunities.
The lesson here is if your contract includes a just cause provision, overtime and detail opportunities are distributed equitably between members of your bargaining unit, and you believe your department is using administrative leave as a covert discipline tool, your department’s action regarding administrative leave might be ripe for a challenge under the just cause theory. Preserve your rights: when a bargaining unit member is placed on administrative leave, file a grievance immediately to preserve the timeline and circumvent your employer from raising untimeliness as a defense in the event the administrative leave drags on longer than one could file a Step 1 grievance. Remember, placing and maintaining bargaining unit members on long-term administrative leaves without a compelling justification is discipline – and in many cases it can be reviewed by an arbitrator.
Note: A version of this post appeared in the Summer 2013 issue of Mass C.O.P.’s newsletter “Roll-Call.”
 In 1964, Arbitrator Carrol Daugherty outlined a seven part test of “just cause,” that is commonly, although not universally, applied. According to Arbitrator Daugherty to be issued with “just cause” discipline must be: 1. Based on a reasonable work rule; 2. Employees must have adequate notice of the work rule; 3. The incident giving rise to the discipline must be investigated; 4. The investigation must be fair and objective; 5. The discipline must be based on sustainable proof; 6. The work rule must be evenly and uniformly applied to all bargaining unit members; and 7. The penalty provided must be proportionate to the offense/circumstances.
 The Union grieved Officer Daly’s written reprimand through to arbitration. In October 2012 Arbitrator Mary Ellen Shea, ruled that the written reprimand was issued without just cause, and ordered Millbury to remove it from Officer Daly’s personnel file.
 Officer Tracey was on a paid administrative leave for over nine months (April 20, 2011 – January 30, 2012).
On June 20, highly respected Arbitrator Michael Ryan issued a decision overturning the discharge of Boston Police Officer David Williams. All of the facts are meticulously set out in the decision’s 44 pages but are briefly summarized here.
On March 16, 2009, Michael O’Brien was a Middlesex Deputy Sheriff/Corrections Officer coming off his Providence bachelor party and St. Patrick’s Day celebrations. After spending up to five hours at the Black Rose, a noted Fanueil Hall bar, he and two buddies headed to the North End, where one of them lived. While trying to back his car down Hanover Street (the major two-way thoroughfare through the densely populated commercial area), his friend crossed the double-yellow line into a double-parked BMW. The BMW owner called 911 as he saw O’Brien drive off in the car that had just struck his. His recorded 911 comments included observations that O’Brien’s group were “drunk” and that although he was a “federal agent,” they were not in any trouble.
When Officers David Williams and Diep Nguyen responded to the call, their efforts to simply have the parties exchange papers were met by the seeming drunken hostility of O’Brien and his friends. O’Brien held out his cell phone while yelling at the officers to do their jobs. Inexplicably, he insisted the officers investigate the struck driver’s claims of federal agency. Told that he could record them all he wanted but not in the middle of Hanover Street, O’Brien continued standing in the busy street. When Officer Nguyen attempted to place him under arrest, O’Brien’s resistance caused Officer Williams, across the street writing a citation in his parked cruiser, to come to his fellow officer’s assistance. Surrounded by O’Brien’s two friends, one of whom had to be physically pushed away from the officers, Williams made an “officer in trouble” call just as Nguyen was about to do the same. Other officers arrived and O’Brien was placed under arrest.
The next business day, O’Brien, charged with disorderly conduct, resisting arrest, and assault and battery on a police officer (Nguyen), appeared in the Boston Municipal Court without notice to any of the arresting officers. He plead not guilty and all charges were dismissed a month later after he performed 50 hours of community service.
O’Brien eventually filed a lawsuit against the officers and the city, claiming, among other allegations, that he had been nearly choked to death that night by Officer Williams. That night, he had made no complaint of having been choked to the lieutenant who carefully inspected him at booking nor to the EMT’s who transferred him to the hospital. Early on, he retained prominent civil rights attorney Howard Friedman. As it turned out, for him, that was his best decision of all.
Three days after the incident, O’Brien filed an on-line complaint against the officers who arrested and subdued him. The BPD’s vaunted Internal Affairs Division (“IAD”) conducted no investigation. In September 2009, Atty. Friedman filed a complaint in Federal District Court against the City, Nguyen, Williams, and four other officers. Friedman also initiated a second Internal Affairs complaint with the same allegations. Still no investigation by the crack IAD unit. In January, 2010, Friedman wrote a letter to Internal Affairs castigating them for failing to investigate the complaint. In April 2010, IAD sprang into action, interviewing Williams and Nguyen for the first time about the incident that had occurred over a year earlier. Shortly after receiving another irate letter from Atty. Friedman, BPD placed Williams on paid administrative leave. IAD reassigned the case to another Lt. Det., who re-interviewed the officers, spent 20 minutes with BPD Dr. Kristian Arnold, and concluded that (a) Williams had choked O’Brien and (b) Williams had lied about it.
Following internal hearings before a Deputy Superintendent appointed by Commissioner Davis at which O’Brien, Williams, and Nguyen testified, Davis fired Williams in January 2012. Shortly thereafter, the City paid O’Brien $1.4 million. Williams had received unwanted notoriety after his discharge in the celebrated beating of Police Officer Michael Cox had been overturned by a different arbitrator in 2005.
After hearing three days of testimony from all of the key witnesses, including O’Brien, Williams, and Nguyen, Arbitrator Ryan concluded:
After examining all of the evidence with great care, it is clear to me that O’Brien’s account of the incident was not truthful. If the officers became aggressive, and there is no doubt that they did, it was because the behavior of O’Brien and his friends warranted it. I do not believe that the grievant used excessive force, or that he choked or strangled O’Brien. He fully complied with Department Rule 304, Section 2, by using only the amount of force that was reasonably necessary to overcome O’Brien’s resistance to arrest.
He found further:
Since the grievant handled the incident of March 16, 2009, appropriately and did not use excessive force on O’Brien, it follows that he was not guilty of untruthfulness during the IAD investigation. There was no just cause for his termination.
The Arbitrator ordered Williams reinstated with back pay. In addition, finding no explanation from the BPD for placing Williams on administrative leave 17 months after the incident, and relying on arbitration precedents between the parties, he ordered that Williams be made whole for the extra work (paid details and overtime) he was not allowed to earn while he had been on administrative leave.
The decision itself was not surprising. Arbitrators, especially experienced and nationally prominent ones such as Michael Ryan, decide the cases based on the evidence before them, not on how they will be received by police commissioners or their friends in the media. For that matter, Arbitrator Ryan, who has been hearing cases between the Boston Police Patrolmen’s Association and the City/BPD for more than 15 years, has decided many cases against the BPPA, including terminations and major suspensions. He does his job: he calls them as he sees them.
What followed this decision is unfortunate, if predictable. To Commissioner Davis, who attended none of the hearings, either at the BPD or the arbitration, the decision was “outrageous.” Boston Globe editorial writer and columnist Lawrence Harmon chimed in with his column entitled, “Do arbitrators give violent cops a pass?” I spent more than a few hours on the phone with Mr. Harmon trying to educate him with facts and analysis about the vagaries, biases, and shortcomings of the BPD internal affairs process. When he called me just before submitting his story for a final quote and I asked him why the information I had given him was largely omitted from his analysis, he replied that what I gave him was “inside baseball” that nobody cared about. I was reminded of the adage, “Never let the truth get in the way of a good story.”
The real story, largely ignored by the press, is why did the City pay $1.4 million to someone a neutral factfinder, after hearing all the evidence, pronounced “untruthful.” The Police Commissioner likes to trumpet his campaign of intolerance for untruthfulness among police officers. No one disagrees; police officers charged with the power to deny people their liberty must be truthful. But what about civilians who lie in order to line their pockets with enormous sums of money from the City?
Continuing its insistence on ignoring reality, the City/BPD has now filed an appeal of the arbitration decision in the Superior Court. Its court complaint cloaks its disagreement with the arbitration decision in the dross of “contravening the City’s inherent and non-delegable authority, the Police Commissioner’s statutory right to manage and administer the Police Department…and a clearly established and defined public policy.” Although unstated, the “clearly established and defined public policy” being violated is apparently that whatever Commissioner Davis says, goes. The complaint flaunts black letter law. Arbitration awards are appealable on very narrow grounds; disagreement with the arbitrator’s factual findings is decidedly not one of them.
This case could not have proceeded this far without the unflinching support of the Boston Police Patrolmen’s Association, and in particular its President Tom Nee and Vice President Ron MacGillivray. In addition to my work in the case, Attorney Kenneth Anderson of Byrne & Drechsler, LLP, represented Officer Williams from the initial internal affairs interviews through the last day of arbitration and assisted in the Union’s arbitration brief with his usual combination of astute preparation, dogged litigation skills, and unfailingly gentlemanly demeanor.
I, at least, hold out hope that someone in authority will see the futility of ignoring the obvious, return Officer Williams to his rightful place on the police force, and allow him to finish his career with the dignity and respect he deserves.
 I also served as counsel for the BPPA in that arbitration case, written by a different, but equally prominent, arbitrator, Lawrence Holden.