All posts by Sandulli Grace Staff

Medical Marijuana – Not for Cops?

Sandulli Grace Staff January 9, 2013

(Please note, a version of this article will appear in the upcoming edition of the Pax Centurion, the paper of the Boston Police Patrolmen’s Association, a client of Sandulli Grace, PC)

As I’m sure you are aware, Massachusetts voters approved a medical marijuana ballot question last November. Despite inaction from Beacon Hill or the executive in the form of regulations regarding the new law, it went into effect on January 1. So, Massachusetts residents may now become medical marijuana users. However, before making a run on the Doritos in the vending machine at the station, officers should be aware that many departments are already taking steps to prohibit sworn police officers from using medical marijuana. The purported basis for this action is that the drug remains a Schedule I controlled substance under federal law.

Several departments have put forth detailed, and very similar draft policies, leading to speculation that the Massachusetts Chiefs of Police Association or another management group is coordinating a response. Whatever the reason, this issue is one that all police unions in the state will likely need to address.

The ballot question which passed last year sets up a registration system whereby “qualifying patients” apply for a “registration card” to be issued by the state Department of Public Health allowing them to grow and/or possess a “sixty-day supply” of marijuana. Under the law “a ‘Qualifying patient’ shall mean a person who has been diagnosed by a licensed physician as having a debilitating medical condition.” A “debilitating medical condition” is one of a number of conditions or “other conditions as determined in writing by a qualifying patient’s physician.” A “‘ sixty day supply’ means that amount of marijuana that a qualifying patient would reasonably be expected to need over a period of sixty days for their personal medical use.’” In addition to defining qualifying patients, the statute also anticipates that others will care for the patients. A “‘personal caregiver’ shall mean a person who is at least twenty-one (21) years old who has agreed to assist with a qualifying patient’s medical use of marijuana. Personal caregivers are prohibited from consuming marijuana obtained for the personal, medical use of the qualifying patient.’”

As a union lawyer, I won’t attempt to get into the law enforcement implications of the medical marijuana law. However, the employment implications are obvious – what if an officer, or an officer’s loved one, seeks to become a medical marijuana user? Many departments are already announcing an intention to “Just Say No!”

The purported ability of departments to prohibit officers from becoming medical marijuana users is the federal classification of marijuana as a Schedule I controlled substance. While this may be enough to prohibit medical marijuana use, such use may also prevent officers from lawfully possessing a firearm, which would lead departments to contend that they are ineligible to be officers. Specifically, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has issued an “Open Letter to All Federal Firearms Licensees” indicating that the DOJ takes the position that medical marijuana users are prohibited from possessing firearms. The Letter, issued in September, 2011, over a year before the Massachusetts vote, states in relevant part:

A number of States have passed legislation allowing under State law the use or possession of marijuana for medicinal purposes, and some of these States issue a card authorizing the holder to use or possess marijuana under State law…

As you know, Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law…

Therefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.

Therefore, departments are likely to take the position that officers may not be medical marijuana users, as such a status would revoke their right to possess a firearm, which is a condition of employment.

Even apart from the question of whether an officer may be a “qualified patient,” it is likely that departments will further seek to prohibit officers from being “personal caregivers.” While personal caregivers are not marijuana users, under the definition in the statute it is likely that they will possess marijuana. Again, marijuana possession remains a federal crime. Given the amount of federal money relied upon by most departments, departments will likely want to prohibit officers from engaging in activities that in any way violate federal law.

Finally, at least one department has proposed a rule that an officer must notify the department if any member of his or her household is a medical marijuana user. This type of requirement, which would require an officer to provide private medical information regarding a family member, shows just how thorny the issues raised by this statute can get.

Whatever position that a department stakes out, police unions should demand to bargain before any medical marijuana policy is implemented. Regardless of federal law, such a policy impacts on health care decisions by officers and potentially their families. As such, the policies implicate terms and conditions of employment, and must be bargained before being implemented. As always, Sandulli Grace stands ready to assist our clients to ensure that no policy is implemented that unnecessarily infringes on the rights of union members.

Labor In The News

Judge Strikes Parts of Wisconsin Collective Bargaining Law

Sandulli Grace Staff October 2, 2012

A circuit court judge in Wisconsin struck down parts of the controversial law curbing collective bargaining rights on September 14, 2012. The law, Wisconsin Acts 10 and 32, which was passed by the Legislature in March 2011, limited collective bargaining to wages only and further imposed a restriction that collectively bargained wage increases could not exceed the inflation rate. Furthermore, the law prohibited collective “fair share” agreements in which all bargaining unit members pay a proportionate share toward collective bargaining; and imposed stringent certification requirements, among other restrictions.

In Madison Teachers Inc., et al. v. Scott Walker, et al., Dane County Circuit Court Judge Juan Colas held that the law violates both the Wisconsin and U.S. constitutions. The case posits that although the law does not outright restrict the freedom of speech or association, two constitutionally protected rights, the law burdens the exercise of those rights. For example, since the employees who choose to become members of the union are restricted from bargaining wages and further limited to how much they can seek, and those who do not join the union are not restricted, the law effectively burdens exercise of those constitutional protections by rewarding those who give up their free speech and freedom of association rights. As such, the law also infringes upon the constitution’s equal protection clause by creating two classes of similarly situated employees (members and non-members of the union) who are treated differently and unequally. The decision also invalidates the portion of the law that prohibits the City of Milwaukee from paying employees’ share of contributions to the City of Milwaukee Employee Retirement System.

The lawsuit’s plaintiffs are a teachers’ union and municipal employees’ unions as well as members of those unions; the defendants are Governor Scott Walker, who spearheaded the law six weeks after he took office, and the three members of the Wisconsin Employment Relations Commission. Since the decision was issued, public-sector unions have been trying to bargain new contracts in case the decision gets overturned. The case is now pending before the Wisconsin appeals court.

The law spurred controversy since its inception. All of Wisconsin’s Democratic senators boycotted a vote on the bill by fleeing the state. After the bill was passed, protests erupted in Wisconsin and around the country and several other lawsuits have been filed concerning other portions of the legislation. In June 2012, Governor Scott Walker survived a recall election, an initiative backed by labor unions.

Labor In The News, Sandulli Grace In The News

Sandulli Grace and MCOP Protect the Collective Bargaining Rights of Sergeants

Sandulli Grace Staff September 13, 2012

Sandulli Grace, P.C. and the Massachusetts Coalition of Police are litigating two ULP cases this fall for police sergeants who have been the targets of retaliation for exercising their protected speech rights as union members.

The first is Town of Mansfield and Mansfield Police Association, MCOP Local 298, MUP-11-6146, which is scheduled for hearing on September 25, 2012. The Mansfield Police Association represents patrol officers and sergeants. Sergeant Tracey Juda was assigned to investigate an incident in which a patrol officer under her command was accused of misconduct. In the process of investigating the incident, Sergeant Juda advised the officer to contact his union representative, and gave him an opportunity to do so. Chief of Police Arthur O’Neill presented her with a written reprimand accusing her of incompetence and excoriating her for acting as a “union friend” rather than a sergeant by advising the officer to seek union representation. Sergeant Juda’s union filed a charge of prohibited practice, and the Department of Labor Relations issued a complaint alleging that the Chief of Police had retaliated against Sergeant Juda for her protected activity. (A copy of the Complaint of Prohibited Practice and the union’s charge may be viewed here.)

The second case to appear this fall is City of Attleboro and Attleboro Police Association, MCOP Local 352, MUP-11-1161, which is scheduled for hearing on October 16, 2012. The Attleboro Police Association represents patrol officers, sergeants, lieutenants and captains. In February 2011, the City fired a police officer based on the statements of a fellow officer. Chief of Police Kyle Heagney told the fellow officer that he should obtain the investigation report leading to the termination, and the fellow officer submitted a public records request through Sergeant Michael McDonnell. Sergeant McDonnell, perceiving that the Chief was pitting union members against each other to weaken the union’s defense of the terminated officer, advised the union president of the public records request. The Chief issued Sergeant McDonnell a scathing reprimand, accusing him of “disloyalty,” saying that the union should not have been informed of the public records request, and punishing him for trying to “provide the union with some kind of advantage.” Sergeant McDonnell’s union filed a charge, and the Department of Labor Relations issued a complaint alleging that Chief Heagney had discriminated against Sergeant McDonnell for engaging in concerted, protected activity, and interfered with his exercise of rights protected under the law. (A copy of the Complaint of Prohibited Practice and the union’s charge may be viewed here.) The APA has two other ULP charges pending based on retaliatory conduct by Chief Heagney. Those charges are still in the investigatory stage.

Every police officer has the right to encourage fellow officers to seek union assistance. These Department of Labor Relations decisions support our belief that sergeants and other supervisory police personnel are entitled to the same collective bargaining and protected speech rights as non-supervisory employees. Sandulli Grace, P.C. and MCOP will continue to advocate for their rights.

Leigh Panettiere, Esq.

Sandulli Grace, P.C.

Labor In The News, Sandulli Grace In The News

Salem Mayor Again Found To Violate Union Contract And State Law

Sandulli Grace Staff September 5, 2012

City of Salem, Mayor Driscoll continues to disregard her legal obligations to the City of Salem employees and its Unions. In March 2012 an arbitrator found that the City of Salem violated the Salem Police Superior Officers contract and past practice when Mayor Driscoll refused to pay a Police Captain, retiring after 30 years of service to the City’s Police Department for the earned benefits which all other retirees had received for over 25 years. The Mayor again disregarded her legal obligations when she removed Police Sergeant Peter Gifford from the Harbormaster position which he had held since 2001 and replaced him with a civilian employee. This was done without any bargaining with the Union as is required by state law. On August 24, 2012, the second arbitrator found, that based on 10 years of past practice that “the Superior Officers’ ‘own’ the Harbormaster work and the Employer is constrained from unilaterally removing that work from the bargaining unit.” The Arbitrator also stated that the “City violated the collective bargaining agreement and state law when it removed Sergeant Peter Gifford from the position of Harbormaster and replaced him with a civilian, non bargaining unit employee.”

Therefore twice in one year the Mayor has been found by an arbitrator to be in violation of her legal obligations to the working men and women of the City of Salem. By disregarding her legal obligations and ignoring the rights of the employees, the Mayor has also compelled the Salem Police Superior Officers Association and the City of Salem to expend its resources to fight over its employees clear rights. The mayor’s approach is clearly wrong and it is not working. Hopefully, the Mayor will finally learn to show the Union workers some respect and will act to meet her legal and contractual obligations.

The Salem Police Superior Officers Association is a Local of the Massachusetts Coalition of Police (MCOP) and is represented by Sandulli Grace Attorney Susan Horwitz.

Labor In The News, Sandulli Grace In The News

Sandulli Grace Attorney Bryan Decker Wins Reinstatement for an Unjustly Terminated Boston Police Officer

Sandulli Grace Staff August 9, 2012

Sandulli Grace Attorney Bryan Decker recently won reinstatement for an unjustly terminated Boston Police Officer. In a case involving the City of Boston and the Boston Police Patrolmen’s Association, arbitrator Richard Boulanger ordered the immediate reinstatement with full back pay of Officer Baltazar DaRosa. Arbitrator Boulanger found that the Boston Police Department did not have just cause to terminate Officer DaRosa in December 2010. The Department charged DaRosa with involvement in a 2004 murder that occurred at a Cape Verdean Night at a night club in Randolph. DaRosa’s cousin is the main suspect in the crime, of which DaRosa has steadfastly denied any knowledge.

Arbitrator Boulanger found that although the Department investigated the case for almost seven years, it produced no evidence that DaRosa knew of or was involved in the crime in any way. He found that DaRosa did not violate any department rules justifying termination. He ordered DaRosa reinstated and made whole – with full back pay and lost detail and overtime earnings. You can read the Boston Globe’s article regarding the case here

Labor In The News, Sandulli Grace In The News

Salem Police Superior Officers Association Wins Important Victory For Retiring Members

Sandulli Grace Staff March 13, 2012

In an arbitration case, the Arbitrator found that the City of Salem violated the contract and past practice when Mayor Driscoll refused to pay a Captain, retiring after 30 years of service to the City’s Police Department, for the various benefits and stipends which all other retirees had received for over 25 years. The Mayor claimed that there was not explicit contract language requiring payment for the various benefits and stipends upon retirement and therefore, even though every retiree had received the benefits and stipends when he/she retired, the Mayor refused to pay the benefits and stipends to this Captain.

In his Decision, the Arbitrator explained that it is clear that the City officials including the Mayor, Personnel, Finance, Treasury officials and Police Chiefs were aware of the payments and that the City Council funded the payments when it voted appropriations to fund the contracts and Department budgets. The Arbitrator found further that the evidence discloses that the benefit/stipend payment practices up to the grievant’s retirement “were unequivocal, clearly enunciated and acted upon for a considerable period of time, easily discernible over a long period of time as a fixed and established practice accepted by both parties.” In addition, the Arbitrator found that the “past practice” concerning unpaid benefits and stipends “had become an implied-in-fact contract term.” “As a binding past practice is an enforceable, implied-in-fact contract term, it may only be altered by the collective bargaining process.” Therefore, the retired Captain was entitled to be paid fully for the unpaid benefits and stipends as the other retirees before him received and the City of Salem must continue to comply with the pertinent contract provisions and the parties’ past practices unless and until the parties properly negotiate to amend or alter the parties past practices. The Union was represented by Sandulli Grace Attorney, Susan Horwitz.

It should also be noted that the Salem Police Superior Officers Association has recently affiliated with the Massachusetts Coalition of Police, AFL-CIO.

In Our Opinion..., Labor In The News

SJC Rules Quinn Bill Statute Only Requires Municipality To Pay One Half Of Benefit

Sandulli Grace Staff March 7, 2012

In a disappointing decision, the Supreme Judicial Court today ruled that the Quinn Bill Statute, M.G.L. c. 41, §108L, only requires a municipality that adopts it pay one half of the benefits enumerated in the statute, and that the other half is contingent on state funding.

The Court ruled that the phrase “shall be granted” education benefits actually only means “shall be granted” half of the benefits when read in conjunction with the “shall be reimbursed” language later in the decision. You can read the decision in Adams v. Boston by linking from the SJC website, http://www.massreports.com/slipops/default.aspx .

The decision just issued, and we are still digesting it fully. We will post a thorough analysis of the Court’s decision soon.

In Our Opinion..., Labor In The News

No Decision Yet In Quinn Bill Case – Sign Up To Get Notified ASAP When Decision Issues

Sandulli Grace Staff March 5, 2012

Today, the Massachusetts Supreme Judicial Court did NOT issue a decision in Adams v. Boston, the case considering whether municipalities may cut Quinn Bill benefits to officers. Obviously, no news is not news, but I write because I am asked about a decision at least 5 times a day. If you are a union steward, or a member of the BPPA House of Representatives, I’ll bet you wish you only got asked 5 times a day.

But there are ways that you can know about the decision AS SOON AS IT IS ISSUED. Easiest would be to subscribe to Sandulli Grace’s e-mail notification process. Rest assured that I’m checking for a decision each day, and will post a notice of the decision as soon as I get it. Just go to http://sandulligraceonline.com and add your e-mail address in the box at the upper left of the page. By signing up, you will get notice of the decision, and will get periodic notices of other issues of import and interest to the union community.

The Supreme Judicial Court also issues a daily e-mail notification of all cases issued. You can also sign up for that at the Court’s website, http://www.massreports.com/ .

Finally, please note that there is no deadline for the Court’s consideration of the case. According to the Court’s website, “most opinions are released within 130 days of oral argument,” but some decisions can take longer. I had the opportunity to hear one of the justices speak last year on the inner workings of the SJC. I have to admit that I was humbled at the amount of work that each and every one of the seven justices puts into the many cases the court hears each year. The Court’s Justices (and their able staffs) are not sitting idly around. Rather, they are digesting thousands of pages of briefs, listening to hours and hours of arguments, and writing hundreds of pages of decisions each month. So, while we’d all like to have the decision, please know that the SJC isn’t sitting on the case, it is being carefully considered along with all of the other cases before our state’s highest court.

In Our Opinion..., Labor In The News

Quinn Bill Eligibility of Rehired or Transferred Police Officers

Sandulli Grace Staff January 12, 2012

Once a police officer qualifies for Quinn Bill benefits, the benefits cannot be terminated if the officer is rehired or transferred after the Quinn Bill cut-off date of July 1, 2009.

Under the recent Quinn Bill amendments police officers hired after July 1, 2009 are no longer eligible to participate in the Quinn Bill benefits. Municipal employers have contended that officers eligible for the Quinn Bill who are rehired or transferred after that date lose their Quinn Bill eligibility. This issue has arisen in the following ways for officers hired before July 1, 2009 who qualified for Quinn Bill: 1) The officer resigns from the police service, but is then rehired by the same municipality after July 1, 2009; 2) The officer transfers to another department after July 1, 2009; 3) The officer is laid off and is recalled into another department after July 1, 2009.

The Massachusetts Department of Higher Education, which administers the Quinn Bill, has now definitively answered that all of these rehired and transferred police officers remain eligible for Quinn Bill Benefits. In a recent communication with our office the Department has stated that it is their policy “that an approved PCIPP (Police Career Incentive Payment Policy) eligibility status is never revoked. Thus, if an approved PCIPP officer leaves employment and returns at a later date, or transfers from one department to another, the officer retains his or her PCIPP eligibility.”

In Our Opinion..., Labor In The News

NLRB Withdraws Lawsuit Against Boeing

Sandulli Grace Staff December 19, 2011

The National Labor Relations Board (“NLRB”; “the Board”) dropped its retaliation lawsuit against Boeing at the urging of the International Association of Machinists and Aerospace Workers (“Machinists”) after it signed a contract with Boeing on Dec. 9, 2011. The NLRB brought the case in April 2011, after Boeing moved a production line from Washington state to a non-union shop in South Carolina in retaliation against workers for staging a strike in 2008.

The NLRB decision to file a complaint drew controversy from the outset. The NLRB found that Boeing’s motives were retaliatory after Boeing executives admitted that the Machinists’s history of striking (workers in Washington state have staged five strikes since 1977) was an “overriding factor” in deciding to open the South Carolina plant. The National Labor Relations Act (“the Act”) forbids employers from retaliating against and intimidating unions from protected activities such as engaging in strikes. However, the Act also allows employers to make decisions on hiring and building new facilities so long as the decision is not unlawful. Since the NLRB issued the complaint, the House, in response, passed the Protecting Jobs from Government Interference Act, which would strip the Board of its authority to order a shutdown of corporate operations, even if an employer violates labor law. The bill is now awaiting a Senate vote. Additionally, Congressional Republicans have threatened to block President Obama’s nominations to the Board. The five-member board currently has two openings, and another seat will open later this month.

In the end, NLRB v. Boeing is a victory for unions and serves as a testament to the effectiveness of collective bargaining. Workers successfully sought to enforce their rights through available legal means. The NLRB complaint armed the Machinists with a huge bargaining chip at the negotiation table, and as a result, the parties were able to mutually agree to a contract and settle the case. The parties achieved all this without the need for a strike, litigation, or third-party intervention, which is the ultimate goal of collective bargaining.