This is what the Republicans call a “Moderate?”

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.

Labor Relations Commission Finds that a Captain Should Be Included in a Superior Officers’ Bargaining Unit

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.

That’s a Bad Use of Your Cell Phone

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.[1]  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.

 

 


[1] Maybe they are submitted by spurned lovers?

 

 

 

Arbitration Trend: Unduly Long Administrative Leave May Very Well Be Discipline.

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.[1]  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.[2]  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).[3]  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.”


[1] 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.

[2]  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.

 

[3]  Officer Tracey was on a paid administrative leave for over nine months (April 20, 2011 – January 30, 2012).

 

Never Let The Truth Get In The Way Of A Good Story: David Williams And BPD Commissioner Ed Davis

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.[1]

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.

 


[1] I also served as counsel for the BPPA in that arbitration case, written by a different, but equally prominent, arbitrator, Lawrence Holden.

Scott Walker Setting His Sights On Police And Fire?

When Wisconsin Governor Scott Walker and the Republican state legislature virtually eliminated collective bargaining for public sector workers two years ago, they largely spared police and fire unions.  But now, it appears that the honeymoon is over.  In a story in the Milwaukee-Wisconsin Journal Sentinel entitled “Scott Walker opens door – then downplays – limiting public safety unions,” reporter Patrick Marley wrote,

Two and a half years after mostly sparing police officers and firefighters from his union restrictions, Gov. Scott Walker said this week he is open to the idea of limiting their ability to collectively bargain.

The article goes on to point out that some, but not all, of the public safety unions, endorsed Walker, apparently because he spared them from the onerous limitations he placed on their fellow public workers.

The moral of this story is clear.  When the rights of any group of workers are successfully eroded, it is only a matter of time before the same strategy is applied to other groups.  The concept is embodied in a slogan adopted by many American trade unions: “An injury to one is an injury to all.”

Massachusetts Civil Service Residency Amended

The Governor has just signed the budget which includes an amendment to MGL c. 31 sec 58.

C. 31 sec 58 is a section of the Civil Service Law and addresses “Municipal police officers and firefighters; qualifications.”  It includes a residency requirement for civil service police officers and firefighters, stating that within 9 months of appointment a person must reside within the city or town where he/she is employed or at any other place in the Commonwealth that is within 10 miles of the perimeter of such city or town. The Amendment to sec 58, included in the budget, provides that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E. Therefore, police and firefighter unions in civil service cities and towns may now negotiate to expand the civil service 10 mile residency requirement of sec 58 beyond the 10 miles.

What remains unclear is the relationship of this amendment and the residency requirement of MGL c. 41 sec 99A which requires police officers and firefighters to reside “within fifteen miles of the limits of said city or town.”  For any city or town where the police and fire departments are not covered by the civil service statute, this new amendment will have no impact and those police officers and firefighters continue to be covered by c. 41 sec 99A and must reside within 15 miles of the City or Town where he/she is employed. As for civil service communities, at a minimum, the amendment to c. 31 sec 58 certainly provides for collective bargaining in order to increase the 10 mile limit of sec 58 to the 15 mile limit of sec. 99A.

Based upon the case Mulrain v. Board of Selectmen of Leicester, 13 Mass App Ct. 48 (1982) it is reasonable to take the position that the 15 mile limit of c. 41 sec 99A already superseded the 10 miles requirement of c. 31 sec 58 since the Mulrain  case addressed the conflict between the 2 statutes and stated that:

“We hold that the more specific provisions of the new sec 99A control the more general provisions of new c. 31 sec 58, concerning the effect of town by-laws.”

However, the Mulrain decision did not specifically address the conflict between the 10 mile and 15 mile limits.

When the Civil Service Commission recently decided the case of Erikson v. Rockland Fire Department, I-12-100, (January 24, 2013), it found that c. 31 sec 58 continued to require civil service firefighters to reside within 10 miles of the city or town where he/she was employed. That case did not address the conflict with c. 41 sec 99A and was a Civil Service Commission decision, not a judicial determination. Furthermore, when the Appeals Court in City of Lynn vs. Lynn Police Association, 12-P-1122 (March 27, 2013), addressed the applicability of c. 41 sec 99A to the City of Lynn police officers, it affirmed that the 15 mile limit of c. 41 sec 99A applied and that under the provisions of c. 41 sec 99A the only way that a city or town can impose a more stringent residency requirement is through collective bargaining. Therefore the Appeals Court made it clear that the 15 mile limit of c. 41 sec 99A governed even though Lynn is a civil service community.  The Court made no reference to c. 31 sec 58.

Therefore, as a result of this amendment to c. 31 sec 58, public safety unions can now bargain over the appropriate distance for a residency obligation.  At a minimum the bargaining can move the 10 mile requirement to 15 miles so as to reconcile c. 41 sec 99A with c.31 sec 58.  However, since this amendment is the Legislature’s most recent action concerning residency for civil service police and firefighters, under the principles of the Mulrain case, it certainly can be argued that municipal employers and public safety unions can bargain for a distance in excess of the 15 mile limit since the new amendment does not put any cap on the appropriate distance for a residency requirement and merely says that the distance may be increased under a collective bargaining agreement negotiated under chapter 150E.

In addition, there continue to be bills being considered by the Legislature to further address residency requirements for police and firefighters.  Some would increase the mile limitation and others would limit the residency requirement to a period of years and still others would preclude requiring residency within a city or town. We will continue to monitor the progress of these other bills and inform you if anything else changes.  Stay tuned..

Residency Victory For Massachusetts Coalition Of Police And The Lynn Police Association

After a nearly 20 year battle between the Lynn Police Association and the City of Lynn, the Appeals Court has finally confirmed that State Law, MGL c. 41 sec 99A, concerning the residency of police officers and fire fighters controls any residency obligations for police officers or firefighters and that a City Charter does not have any relevance or control.

In this case, the Appeals Court ruled that the Decision issued by the Superior Court in 2000 between the Lynn Police Association and the City of Lynn is controlling.  That Decision determined that MGL c. 41 sec 99A establishes residency as a term or condition of the employment of police officers and firefighters in Massachusetts and imposes a 15 mile statutory limit.  The only way that a City or Town can impose a more stringent residency requirement is through collective bargaining.  As Judge Grasso explained “the court finds an explicit indication of the legislature’s intent to tie local residency requirements to the collective bargaining process.”

Anticipating that the Appeals Court would agree with the Union and require bargaining over any residency requirement, the Union and the City bargained last year and reached agreement for the residency requirement for police officers in Lynn.  Officers must now maintain residency in Lynn for the first 10 years of their employment.

This Decision by the Appeals Court confirms that any municipal employer who wants to require residency for police officers or firefighters more stringent than the 15 mile requirement of MGL c. 41 sec 99A must bargain with the Union.

The case is City of Lynn vs. Lynn Police Association, 12-P-1122, issued March 27, 2013 pursuant to Rule 1:28.  The Union was represented by Sandulli Grace Attorneys Susan F. Horwitz and Jennifer Rubin.  Attorney Horwitz also represented the Union in the original Superior Court case in 2000.

Civil Service Overturns Discharges Of Six Boston Police Officers: Hair Testing Not Ready For Prime Time

In a landmark ruling with national and even international implications, the Massachusetts Civil Service Commission upheld the appeals of six former Boston Police Officers who had been fired solely because a California drug testing company (Psychemedics Corporation) claimed their hair samples showed they had ingested cocaine.  The 132 page decision, written by Commissioner Paul Stein, concluded that hair testing lacks the necessary reliability to be the sole basis for terminating a tenured Massachusetts civil servant:

The present state of hair testing for drugs of abuse, while potentially useful in clinical assessment settings, and in the context of child custody, criminal probation and pre-employment hiring decisions, does not meet the standard of reliability necessary to be routinely used as the sole grounds to terminate a tenured public employee under just cause standards governing civil service employees under Massachusetts law. [page 107]

Unfortunately, four other officers’ appeals were denied, although those cases stand to be appealed.  All appellants were represented by Sandulli Grace Attorneys Alan Shapiro and Jennifer Rubin and with the unflinching and steadfast support of their union, the Boston Police Patrolmen’s Association (BPPA).

As thoroughly laid out in this sweeping and studiously crafted decision, the BPPA and the City of Boston/Boston Police Department, both desirous of maintaining a “zero-tolerance” policy for drug use, negotiated an annual hair testing policy, starting in 1999.  Because random urine testing was constitutionally impermissible under state law, the City/BPD sought an alternative testing modality.  At the time, the Union and the City/BPD believed the claims of Psychemedics Corporation that its hair tests could successfully ferret out illegal drug use going back months, as opposed to the hours or days of urine tests.  Urine testing was then, as it is now, the only approved testing method under the Mandatory Guidelines (covering approximately 10 million workers) of the Federal Drug-Free Workplace Program,

Under the hair testing protocol implemented by the Police Department, it collected a hair sample from every officer once a year, within 30 days of his/her birthday.  The sample was flown to the Psychemedics laboratory in California, where it was subjected to various laboratory tests and analyses, and then pronounced either positive or negative for various illegal drugs, including cocaine.  If deemed positive, the officer was given the opportunity to submit to Psychemedics a second hair sample, which was run through the same tests.  Unbeknownst to the Union (and probably, at least initially, the BPD), the second sample was declared a positive confirmation of the original sample if it had only 40% of the cocaine levels of the first sample.  Later, Psychemedics lowered the positive confirmation of the second (“safety net”) test to 4% of the level found in the original sample.

If an officer could not explain to a physician hired by the Department why s/he had tested positive (for cocaine there was virtually no explanation that would be accepted, since it is rarely utilized by physicians and other “caine” drugs, such as xylocaine or lidocaine, do not trigger cocaine positives), the officer was faced with the choice of termination or a 45-day suspension, mandatory drug counseling, and years of random urinalysis.  A second positive, either in a urine test or another hair test, resulted in termination.

From 1999 through 2006, approximately 90 officers tested positive for illegal drugs, most for cocaine.  Many accepted the 45-day suspensions and continued their careers.  Some accepted the suspensions and were later terminated for a second positive test.  Some, including 7 of the 10 officers involved in this case, refused to accept the suspensions for something they insisted they did not do and were terminated.

A key problem with hair testing that had only begun to emerge when BPD began this program is that hair absorbs certain substances, in particular cocaine, not just from internal consumption but also from external exposure.  While companies such as Psychemedics have developed elaborate laboratory procedures and mathematical formulae to eliminate the effects of external exposure, because the quantities at issue are so infinitesimal, there has yet to develop a scientific verification of their efficacy.  In other words, a positive hair test for cocaine can indicate external, atmospheric exposure, not necessarily ingestion.  The quantities being measured are on the scale of measuring one second over a period of 27 years.  In these quantities, scientific studies have shown measurable levels of cocaine in 92% of U.S. paper currency in five Ohio cities and on the school desks of elementary school children in both urban and suburban schools in the Washington D.C. area.

The BPPA’s initial attempts at challenging these decisions were largely unsuccessful.  Various arbitrators rejected challenges to the Psychemedics testing methodologies, including the use of the lowered standards for the “safety net test.”  But in 2003, in a decision written by former Commissioner Daniel Henderson, the Civil Service Commission overturned the discharge of an officer who refused to accept the 45-day suspension after Psychemedics claimed that his hair test positively confirmed that he had ingested cocaine.  Although the case was reversed and remanded in 2004 by a Superior Court judge on procedural grounds, several of Commissioner Henderson’s holdings proved prophetic, including the lowered safety net standard and the lack of acceptance in the scientific community for hair testing as the sole determinant of illegal drug ingestion.

In addition, many of the civil service appellants were also plaintiffs in a federal lawsuit contending that hair-testing is racially biased.  There, they were supported by the Massachusetts Association of Minority Law Enforcement Officers (MAMLEO), and represented by attorneys from the Lawyers’ Committee for Civil Rights of the Boston Bar Association, Inc., and by attorneys and staff at a large Boston law firm, Bingham McCutcheon.  Although the federal case was rejected at the trial level based on statistical analysis (an appeal is pending), the work of these attorneys provided valuable discovery that we were able to utilize in the civil service appeals.

By the time the Commission began the 18 days of hearing in October 2010, additional scientific evidence and other developments further challenged the efficacy of hair testing as a “stand alone” employment test.  Scientific studies done under grants by the U.S. Department of Justice caused the FBI to suspend using hair testing in all cases, except criminal cases involving children.  In addition, in 2008, after four years of study, the federal agency charged with overseeing the federal workplace drug programs rejected hair testing, leaving only urine testing as the approved testing modality.

Of enormous assistance to Attorneys Shapiro and Rubin at Sandulli Grace were two expert witnesses: Dr. Douglas Rollins and Dr. J. Michael Walsh.  Dr. Rollins, in addition to publishing numerous scientific papers regarding the incorporation of drugs into hair, had served as the medical review officer for drug testing in the 2002 Salt Lake City Winter Olympics.  Dr. Walsh served in both the Reagan and Clinton administrations and was an important contributor to the design and implementation of the federal workplace drug program.  Dr. Walsh’s company has since gone on to consult with numerous industries, including the National Football League.  Both experts challenged the BPD’s use of hair testing as a “stand alone” measurement.  Neither believe that hair testing has yet advanced to the level that, solely based on a hair test, an employer can conclusively state that an employee has ingested cocaine and proceed to fire him/her.  The Commission gave great weight to the testimony of these two scientists.

Supporting the BPD’s hair tests were Dr. Thomas Cairns, an employee of Psychemedics, and Dr. Leo Kadehjian, “a biochemist, with no direct drug testing experience or research credentials.”  (Decision at ¶131).  Although the decision did approvingly cite some of Dr. Kadehjian’s testimony, Commissioner Stein flatly rejected some of this expert’s opinions:

Where, however, the Appellants showed that the underlying source material on which Dr. Kadehjian relied did not support his opinions, I give those particular opinions no weight. For example, Dr. Kadehjian opined in his initial expert report that the SAMHSA “published” procedures for hair drug testing that, although not “formally implemented”, have “recognized the utility of hair as a suitable specimen . . . with the same level of confidence that has been applied to the use of urine”. The evidence showed that this opinion was hyperbole, at best, and possibly could be called misleading. Similarly, Dr. Kadehjian opined that “the United Nations has recognized the role of hair drug testing . . . and has provided hair testing guidelines.” In fact, the role that the UN recognized for hair drug testing was as “a complementary test for urinalysis”, not as a stand-alone test. Dr. Kadehjian?s outdated opinions about the scientific consensus CE as a distinct metabolic marker of ingestion were noted in the findings above on that subject. (¶132)

Sifting through the scientific evidence with extraordinary precision and intellectual energy, Commissioner Stein eventually concluded that while the Psychemedics hair tests could provide some evidence of illegal drug use, sole reliance on them as the basis for discharge does not meet the requisite “just cause” standard of the civil service law.

This finding has enormous consequences.  To date, we are unaware of any other case where the reliability of hair testing has been challenged, examined and litigated as it was in this case.  Psychemedics Corporation undoubtedly understood what was at stake, since a mini-phalanx of its executives and attorneys faithfully attended the hearings.[1]

      Where the decision breaks down is in the final result.  After finding that these hair tests did not suffice to establish just cause for discharge, the Commissioner parsed the extremely skimpy record to decide who should be believed and who not believed with respect to ingesting cocaine.  While a penetrating investigation might have been a valid inquiry by the BPD when it fired these officers between six and eleven years ago, it had never been done.  The BPD stipulated that the only reason it fired these officers, many of whom had spotless personnel records, some of which included medals for heroism, were the Psychemedics test results. 

Asked on the stand to speculate why they may have tested positive, some appellants recited situations where they had come into contact with cocaine, either at work or other locations.  In finding some of these explanations not credible, the Commission essentially was forcing the appellants to prove their innocence rather than insisting the BPD prove just cause.  There is no reliable scientific article which has yet to study, let alone pinpoint, the specific mechanisms by which cocaine permeates human hair.  Just as we know that cigarette smokers contract lung cancer in far greater percentages than non-smokers, we also know that some non-smokers also get lung cancer.  So too, we do not know why some react more than others to environmental cocaine exposure.  We know that darker hair, with more melanin, theoretically will bind more with cocaine, but this has received little study.

Therefore, a strong argument can be mounted that where the BPD relied solely on these hair tests, and these hair tests do not scientifically warrant such reliance, the BPD lacked just cause to terminate any of the appellants.

For the six successful appellants, there is also the limited remedy, extending back only to the beginning of the hearings.  If allowed to stand, this remedy would not only deprive these officers of lost earnings but also years of pension service credit – all due to no fault of their own.

While there will undoubtedly be further litigation, it is vital to recognize what has been accomplished.  Ten former officers, with the vital support of the BPPA, their union, stood up to not only their employer but also a multi-million dollar company, and six of them won.  Here is an excerpt from the Psychemedics web site:

Over the years, Psychemedics has performed millions [sic] employment-related hair tests, not including tests used in research, quality assurance, or other internal purposes. At Psychemedics, hair testing is not a sideline or one of many clinical offerings. Psychemedics specializes in hair analysis. We pioneered and developed hair testing in the workplace.

For over 25 years, Psychemedics has also successfully defended hair test results in lawsuits, union arbitrations, and government agency hearings. Our test has been routinely upheld in employment cases, where the test results generally stand alone as proof of drug use, as opposed to family court and child custody situations where the test result is usually only part of a number of pieces of evidence.

Now, there is one government agency hearing where the test results were not upheld as stand alone proof of drug use.



[1] At one point, an attorney representing Psychemedics made a caustic reference to Attorney Shapiro’s eating a bagel, perhaps under-appreciating the nutritional value of this food staple and overstating its cultural significance to his heritage.

Peabody Police Department Found to Have Violated the Law by Assigning Junior Sergeants Rather than Senior Sergeants to be Officer-In-Charge

By decision dated February 5, 2013, the Massachusetts Department of Labor Relations found that the City of Peabody violated Section 10(a)(5) and 10(a)(1) of the Law by failing to bargain in good faith when it assigned junior Sergeants rather than senior Sergeants to vacant Watch Commander (also called OIC: Officer-In-Charge) shifts without giving the Union prior notice and an opportunity to bargain to resolution or impasse.

The Peabody Police Department has three daily shifts: morning, day, and evening.  The Police Department requires that each shift have a Watch Commander or Officer-in-Charge.  When a Lieutenant is in charge on a shift, the Lieutenant is called the Watch Commander.  When a Lieutenant is absent from a shift and there are two sergeants on that shift, the Sergeant in charge is called the OIC.  For at least 20 years prior to July 5, 2009, when there was no Lieutenant on duty for a particular shift and there were two or more Sergeants on that shift, the senior Sergeant assumed the duties of Watch Commander (or OIC), making the senior Sergeant eligible for out of grade pay at the OIC level.  The Union put on two Patrol Officers and a Sergeant to testify regarding this consistent practice.   Although the Chief testified that he was “not aware of any instances of only senior sergeants always getting OIC assignments,” the hearing officer credited the Union’s witnesses, stating that they testified consistently and unequivocally in support of the long-standing practice.  The hearing officer further stated that the City failed to present additional evidence rebutting that point other than the Chief’s testimony.  As a result, the hearing officer found that the Chief authorized the assignment of junior Sergeants to the OIC position with OIC pay in violation of the Law.

The City made three arguments: (1) that there was no past practice, (2) that the Union waived its right to bargain under the managements rights clause, and (3) that the City had the right to assign who the OIC was pursuant to statute and ordinance.  The hearing officer rejected all three arguments, finding that (1) there has been a past practice, crediting the Union’s witnesses over the Chief’s testimony, (2) that the Union did not waive its right to bargain with the general management rights clause  that was in the collective bargaining agreement, and (3) that the City’s reliance on statute and ordinance was wrong because the Chief’s decision to assign junior Sergeants rather than senior Sergeants to the OIC position was outside the scope of the City’s core managerial prerogative.

The hearing officer ordered the City to cease and desist from changing the past practice of assigning senior Sergeants to the OIC position and to make whole all affected employees that suffered economic losses as a result of the City’s failure to adhere to the parties’ past practice of assigning senior Sergeants to the OIC position.  This is an important decision and reminder to all Chiefs and Police Departments that past practice must be adhered to and cannot be unilaterally changed without first bargaining in good faith with the union.