If You Don’t Have Anything Nice to Say . . .

If You Don’t Have Anything Nice to Say . . .

Like many people nowadays, Natalie Munroe had a blog where she shared tips about cooking and child rearing.  The high school English teacher from Doylestown, PA, also used her blog to sound off about her students, referring to them as “jerks,” “rat-like,” and “frightfully dim.”  Her students’ parents fared no better on her blog; she wrote that parents were “breeding a disgusting brood of insolent, unappreciative, selfish brats.”  In one post, Munroe made a list of comments she wished she could write about her students including “a complete and utter jerk in all ways,” “though academically ok, your kid has no other redeeming qualities,” “liar and cheater,” and “utterly loathsome in all imaginable ways.”

Students started sharing the blog posts on social media.  Once the school administration caught wind of the blog in February 2011, Munroe was placed on an immediate, unpaid suspension.  By that time Munroe’s plight had been covered by several major news outlets and her appearances on television did nothing but fan the flames.  After taking a maternity leave for the rest of the semester, Munroe returned to work in August 2011.  In the meantime, she received her first-ever negative performance evaluation from the Superintendent.  She continued to receive negative evaluations after her return to work and was required to submit overly detailed lesson plans.  Munroe was terminated on June 26, 2012 for her supposed poor performance and she filed suit alleging that the school district retaliated against her for her exercise of her First Amendment rights.

In Munroe v. Central Bucks School District, the U.S. District Court for the Eastern District of PA granted summary judgment to the school district on July 25, 2014, meaning that Munroe could not pursue her case.  It is well settled that a public employee’s speech is protected when he or she speaks as a private citizen upon a matter of public concern and the employee’s interest in exercising his or her First Amendment rights is greater than the employer’s interest in the efficient operation of the public agency.  Unfortunately for Munroe, the court found that while her blog occasionally touched upon matters of public concern, the harm caused by the blog’s “personal invective” outweighed the potential public value of her other posts.  The court noted that Munroe’s speech, “in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and thus her expression was not protected.”  The lesson for public employees here is that if you want to join the blogosphere, stick to sharing your best zucchini bread recipes.

Policing and Emergency Medical Services

Policing and Emergency Medical Services

The nature of policing is evolving again as departments are getting more involved in providing emergency medical services.  Traditionally the police service has focused on responding to criminal acts, investigating them, and arresting the perpetrators.  That concept changed somewhat with the advent of community policing which asked officers to involve themselves with the community in ways that might prevent crime or assist in investigating it.  The dramatic change is that now departments are asking police officers to make their first priority the delivery of emergency services, ahead of and even to the exclusion of investigation of crime.  Such a change will require a significant change in the skills and the mindset of the patrol officer.

The change in policing arises first from the introduction of three new technologies. First on the scene was the AED (Automated External Defibrillator).  This is the device which delivers an electrical charge to the heart of a person suffering from cardiac arrest. Its use requires a determination that the subject is suffering from cardiac arrest.  The second new technology is the nasal Narcan.  This device allows the officer to spray a chemical into the nose of a person suffering from an overdose of heroin or other opioid and to instantly revive him.  This requires the officer to make a determination that the subject is suffering from an overdose.  Finally, there is the epi-pen which is used to inject epinephrine into the muscle of a person suffering from an allergic reaction.  Use of this device also requires the medical determination that the person is indeed suffering an allergic reaction.   Some departments are now requiring officers to carry some of these devices in their cruisers for use in the appropriate circumstances.

However, the truly dramatic change in policing comes from the recently enacted statute, Massachusetts General Law Chapter 94, Section 34A which immunizes from prosecution both an addict suffering the overdose and the person who calls for medical assistance[1].  When a police officer is called to the scene of an overdose, the purpose of the response is no longer the investigation of a crime; the purpose is now to furnish medical care.  The assumption by police of this new, different, and complex responsibility adds value to their service to the community and is worthy of additional compensation.  While there are not yet many examples of police unions which have bargained benefits for medical services, our firm has negotiated the following provisions for our clients:

Weymouth Police             3% Medical Technology premium

Gloucester Police   1% Narcan; $725 Defibrillator premiums

Braintree  Police              $600 Defibrillator (expires in July 2014)

Brookline  Police            $400 Defibrillator premium

Peabody Police                  $500 Defibrillator premium



[1] Section 34A. (a) A person who, in good faith, seeks medical assistance for someone experiencing a drug-related overdose shall not be charged or prosecuted for possession of a controlled substance under sections 34 or 35 if the evidence for the charge of possession of a controlled substance was gained as a result of the seeking of medical assistance.

(b) A person who experiences a drug-related overdose and is in need of medical assistance and, in good faith, seeks such medical assistance, or is the subject of such a good faith request for medical assistance, shall not be charged or prosecuted for possession of a controlled substance under said sections 34 or 35 if the evidence for the charge of possession of a controlled substance was gained as a result of the overdose and the need for medical assistance.

 

Who’s The Boss?

McDonald’s isn’t “loving it” anymore.  In a ruling made public on July 28, 2014, the National Labor Relations Board’s General Counsel, Richard F. Griffin, Jr., found that McDonald’s is a joint employer under the law with its franchisees and therefore liable for the franchisees’ anti-worker behavior.  Over the last two years, 181 McDonald’s employees filed unfair labor practices against the company and its franchisees alleging that they were illegally fired, disciplined and/or threatened for their union organizing activity.  Mr. Griffin found merit in forty-three of the complaints and authorized them to go forward against McDonald’s as a joint employer.  Sixty-four complaints are still under investigation.

At least ninety percent of McDonald’s restaurants in the United States are franchises.  McDonald’s, and presumably other fast-food restaurants with similar business models, will no longer be able to hide behind their franchisees and blame them when workers challenge their working conditions before the NLRB.  Fast-food workers, who make an average of $8.90 per hour, have been pushing for a wage floor of $15.00 per hour in a nation-wide movement for several years.  Many of the workers, with the help of the Service Employees International Union, are trying to unionize their restaurants.  Advocates hope that this latest NLRB ruling will help empower more fast-food workers to stand up for their rights and improve their working conditions.

Jamie Goodwin Recognized as HLA Lawyer of the Month

Sandulli Grace’s Jamie Goodwin

Sandulli Grace, PC is very proud to announce that Jamie Goodwin was recognized as the Health Law Advocates’ “Lawyer of the Month” for the outstanding representation he has provided through the HLA’s pro bono legal network.

Health Law Advocates is a 501(c)(3) public interest law firm whose mission is to provide pro bono legal representation to low-income residents experiencing difficulty accessing or paying for needed medical services.  The work Jamie does for the HLA provides life-sustaining assistance to vulnerable clients to help them avoid financial catastrophe.

If you would like to learn more about the HLA, and their immeasurably critical work, please visit their website, here: http://www.healthlawadvocates.org/.  Below, you can learn more about Jamie’s efforts for the HLA, as described in the July 14, 2014 HLA Legal Network Update.

 Attorney Goodwin of Sandulli Grace, P.C. has been an All-Star since joining HLA’s Pro Bono Legal Network in 2012. Over the past few years Jamie has continuously taken on referrals and is currently working on his fifth matter from HLA.

A specialist in Labor Law, Jamie’s efforts have helped clients with both public and private insurance to breakdown barriers from employers, insurers and providers, and get his clients the services they deserve.

In 2013, Attorney Goodwin was successful in restoring full nursing services for KB, a severely disabled 17-year-old girl, after her state subsidized insurance reduced both the hours and level of her care.

His dedication to helping the community goes beyond his work with HLA’s Legal Network. Attorney Goodwin also volunteers several nights a week teaching English at Rosie’s Place. Thank you for your outstanding support and contribution to the Legal Network, and most importantly to our clients.  Congratulations on being named this month’s Lawyer of the Month!

Supreme Court Rules That First Amendment Protects Employee’s Truthful Testimony

Chalk this one up to “this wasn’t already settled law?”  Yes, it was only last week that the US Supreme Court ruled that the First Amendment to the Constitution protects an employee’s right to testify truthfully in a court case.

In 2006, Central Alabama Community College hired Edward Lane to be the Director of a statewide program for underprivileged youth.  An audit revealed that Alabama State Representative Suzanne Schmitz had a “no show” job at the program. Continue reading

If You Worked as a Reserve Police Officer or a Call Firefighter – You Need To Read This.

All MASSC.O.P. members who have worked as a reserve officer or a call firefighter need to read this article. In Massachusetts, retirement system members who worked as call firefighters or reserve police officers can be credited with a maximum of five years of service for the time they held those positions. This has not changed. However, now the State is requiring members to buy back those five years of service in order to use them to calculate their pension. This is a significant change because, during the last forty years, this type of service was automatically credited to members without any contributions.

This change began last summer when the Contributory Retirement Appeal Board (“CRAB”) issued a decision in Brenton MacAloney v. Worcester Regional System and Public Employee Retirement Administration Commission CR No. 11-19 (2013). That case involved a retired Fire Chief who was required to make payments for his service as a call fire fighter in order for that service to be credited in the calculation of his pension. Since CRAB’s decision, the State (through its agency PERAC) has issued guidance to the Retirement Boards advising them that officers now need to provide make up payments for any reserve/call service for it to be considered creditable in calculating their pension.

This guidance applies only to officers retiring after June 21, 2013. For officers who actually worked as reserves or call firefighters in regular service each of the relevant five years, they will have to remit make up payments based upon the income they earned with interest accruing after June 21, 2013. Though the new change might not stand, officers should err on the side of making any such buy back payments if their board gives them that opportunity. Better to over pay and be reimbursed then to underpay and lose years of creditable service.

Things get more complicated for officers who did not work in regular service when they were on a list or possibly for officers who only worked details when on a reserve list. Previously, this time on the list was credited regardless of whether a reserve officer had worked. However, PERAC has now issued guidance to the boards stating that if an officer did not perform any reserve service in one or more of the relevant five years that the member should be required to remit contributions as if they earned three thousand dollars of regular compensation for each year.

PERAC chose three thousand dollars because it is the amount used to calculate disability pensions for reserve officers and call firefighters when there is no other comparable amount available. As the two relevant sections of the statute are not directly linked, this guidance could be flawed. Indeed, some boards are not following that portion of PERAC’s guidance and it is currently the subject of litigation.

This article is a starting point. Everyone who worked as a reserve officer or a call fire fighter needs to be aware of this change and what position their board is taking with respect to it. This is necessary to be able to properly plan for retirement. If a member encounters a problem, he or she should notify his or her local MASS C.O.P. leadership.

NLRB: SCHOLARSHIP COLLEGE FOOTBALL PLAYERS CAN UNIONIZE

Yesterday, the Chicago regional office of the National Labor Relations Board, the federal agency which regulates private sector employees and labor unions, ordered that a union election be held among the scholarship college football players at Northwestern University.  The 24-page decision chronicles the life of a Division I college football player.  Essentially, they are paid (in the form of scholarships worth over $60,000 per year) to play football.  As anyone who has played a college sport knows, the time requirements to maintain these scholarships are enormous.  During much of the year, players are expected to spend 40-50 hours per week on football-related activities.  The decision goes into great depth in analyzing the daily, weekly, and seasonal commitments required of players.

While scholarships at Northwestern are four-year arrangements, other NCAA schools are permitted to offer one-year scholarships renewable at the college’s discretion.  But the fundamental point is that the scholarship is a quid pro quo for abiding by the rules and continuing to play football:

But the fact remains that the Head Coach of the football team, in consultation with the athletic department, can immediately reduce or cancel the players’ scholarship for a variety of reasons. Indeed, the scholarship is clearly tied to the player’s performance of athletic services as evidenced by the fact that scholarships can be immediately canceled if the player voluntarily withdraws from the team or abuses team rules. Although only two players have had the misfortune of losing their scholarships during the past five years, the threat nevertheless hangs over the entire team and provides a powerful incentive for them to attend practices and games, as well as abide by all the rules they are subject to.

Decision at 15.

It is this fundamental fee for service relationship that caused the Board to define the scholarship players as “employees,” and therefore subject to the federal labor laws.

Technically, the decision applies only to athletes receiving scholarships to play football at Northwestern.  “Walk-ons,” those without scholarships, are ineligible to be part of the bargaining unit (the group the union represents), since they receive no scholarships and hence no compensation to justify being classified as employees.  By extension, it would seem to apply to any other Division I college football program, as well as other similar programs, such as college basketball.  For public universities, which comprise the bulk of Division I schools, unionization rights would depend on the law of the jurisdiction where that school is located.  If, for instance, U. Mass. basketball players operated under a regimen similar to Northwestern’s, I see no reason why they could not petition the Commonwealth Department of Labor Relations for union recognition.

What will happen with this ruling depends on the extent that Northwestern wants to contest it.  As the decision of the Board’s Chicago region, it can be appealed to the 5-member NLRB in Washington, which, currently staffed with Obama appointees, would seem much more receptive than previous Boards.  If affirmed in Washington, the university could only appeal by refusing to bargain with the union (the “College Athletes Players Association”), thereby generating a “technical refusal to bargain,” which would eventually reach a federal appeals court, a less union-friendly environment than the current NLRB.

While the decision obviously does little for the millions of unrepresented workers toiling without bands or cheerleaders in far less glamorous jobs, perhaps it sends a fundamental message that too many people have either forgotten or never known:  If you want to improve your job, get a union.

Alan Shapiro, Esq.

Sandulli Grace, P.C.

Salem City Council Stands For Public Safety

Based on the diligence of MASS C.O.P. locals in Salem, the Salem City Council took a stand for public safety this week.  Recently, Salem Mayor Kim Driscoll proposed to the City Council that the Police Chief and Fire Chief positions be removed from Civil Service.  This proposal was timed closely with the decision by Police Chief Paul F. Tucker to vacate his position.  Realizing the damage to autonomous public safety operations that could be wrought by this unnecessary and ill conceived change, the Salem Police Patrolmen’s Association, MASS C.O.P. Local 426 and the Salem Superior Officers’ Association, MASS C.O.P. Local 425 joined with their brothers and sisters in Fire to fight against the Mayor’s proposal.   Recognizing good sense, the City Council voted 10 to 0 to send the matter to a full City Council meeting with a negative recommendation.
 
Congratulations to MASSC.O.P. Local 426 and MASS C.O.P. Local 425, and, respectively, President Rob Phelan and President James Walker for working so diligently together.  When locals in the Massachusetts Coalition of Police work together to agitate and organize – good things follow!   
 
http://www.salemnews.com/local/x1387860848/civil-service-PROPOSAL-defeated   
 

Waltham News Program Highlights Recent MCOP Win

The television news program Waltham Newswatch last night reported on the Waltham Police Union, Massachusetts Coalition of Police’s recent superior court victory upholding an arbitration award in favor of Officer Paul Tracey. The program recounted the events that led to the Waltham Police Department suspending Officer Tracey based on the allegations of a wholly unbelievable “victim,” from the start of the investigation through to the Union’s victory at arbitration and then in superior court (following the City’s inexplicable appeal of a “final and binding” decision).

Sandulli Grace attorney Bryan Decker successfully litigated the case with assistance from Attorney Ken Anderson, of Byrne & Drechsler, L.L.P. You can watch the story here: youtu.be/6fMmbKJDKbs

Read the full decision of the appeal HERE

Read the original arbitration decision HERE

Superior Court Upholds Arbitrator’s Decision Overturning Suspension of Police Officer

In a case brought by the Waltham Police Union, Local 161, Massachusetts Coalition of Police, and argued by Sandulli Grace Attorney Bryan Decker, Middlesex Superior Court judge S. Jane Haggerty has upheld the decision of an arbitrator overturning the suspension of a Waltham Police Officer. (Read the full decision HERE). 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 lost detail and overtime opportunities (based on earnings from the prior year). Officer Tracey 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. The allegation was advanced by a witness who was not even believed by the City’s hired hearing officer. As a result, the Arbitrator concluded that Officer Tracey had not committed misconduct, overturned the suspension and also ordered that Officer Tracey should be compensated for having been inappropriately kept on administrative leave.

Rather than comply with the contractually “final and binding” decision of the arbitrator, the City instead appealed the decision to superior court.  Following briefing and a hearing, Judge Haggerty rejected this attempt, and ordered the Award upheld.  Judge Haggerty’s decision is an exemplification of the deference that courts are to pay to the decisions of arbitrators.  Judge Haggerty first points out that “the court is confined to accept the factual findings of the Arbitrator.”  Given that the Arbitrator had found that Officer Tracey did not violate the complainant’s rights, the Judge rejected the City’s claims that the decision violated public policy:

 

Here, the Arbitrator found that Tracy did not engage in any type of conduct that could potentially corrode the public trust, as he did not find Gonzalez’s complaint against Tracy credible.  Given that the court must accept this factual finding, the Arbitrator’s award did not require the Chief or the City to break the law.

 

The City also complained that the Arbitrator had infringed on the Waltham Police Chief’s “inherent authority” when he ordered that Officer Tracey be compensated for having been improperly kept on administrative leave.  Again, the Judge rejected the claim, finding that the arbitrator’s decision was proper:

 

Here, the Arbitrator’s decision did not infringe on the Chief’s authority.  The Arbitrator never ordered the Chief to remove Tracey from administrative leave…  The Arbitrator found that Tracy did not commit any serious misconduct.  Thus, the Arbitrator used the overtime pay award to sanction the Chief for extending the administrative leave after September 1, 2011 because the Arbitrator found that this extension was without any basis.

 

In this case, the City of Waltham spent almost a year investigating the claims of a patently unbelievable “victim” in an effort to discredit a long serving police office.  The City then imposed a lengthy suspension, which was properly overturned by a respected Arbitrator.  Rather than accept this factually based decision, the City then appealed, citing a myriad of far-fetched claims in an “everything and the kitchen sink” attempt to overturn the decision.  Fortunately, Superior Court Judge Haggerty faithfully applied the proper standard in reviewing the award.  She considered each and every argument advanced by the City, and she then concluded:

 

The award is logically based on the facts as found by the Arbitrator.  Given the broad discretion afforded arbitrators, there is simply no basis for this court to vacate the Arbitrator’s award.