In Our Opinion..., Labor In The News, Sandulli Grace In The News

I’m shocked, SHOCKED, to learn that the Globe doesn’t like the Quinn Bill

Sandulli Grace Staff November 18, 2011

OK, just when you thought it was okay to put aside the Quinn bill case until the SJC issues a ruling, our “friends” over on Morrissey Boulevard decide they need to chime in on the case – by writing an editorial urging the SJC to rule against the right of officers to be paid according to the law.  Yes, the Globe’s editorial board (not sure how many lawyers on that one) ran an editorial telling the state’s Supreme Judicial Court how to rule on a case.  Here’s the editorial. http://bostonglobe.com/opinion/editorials/2011/11/17/dispute-over-police-benefit-don-leave-cities-holding-bag/b5lHRrNsAoIvC2sg6IFYNO/story.html

Totally apart from the merits of the Quinn Bill (many cities and towns, in addition to the vast majority of educated police officers, probably would disagree with calling the program a “boondoggle.”), the Globe is suggesting that the Court ignore the law because cities and towns are facing tough times.  That’s a bit scary.  Anyway, here’s what I wrote in a letter to the editor (wasn’t printed today, maybe they’ll print it tomorrow):

To the editor,

 

The Globe advocates that the Supreme Judicial Court disregard the law due to a fiscal crisis when it urges the Court to rule against Boston Police Officers seeking to enforce their statutory right to receive Quinn bill payments.  Unfortunately for the Globe, the SJC is the ultimate arbiter of Massachusetts law; it is not the ultimate fiscal watchdog for the legislature and municipalities.

 

The Globe correctly points out that the officers’ unions agreed that the city would reduce benefits if the state did not reimburse the City for Quinn bill payments.  However, because the law specifies the benefits levels, the parties were not free to enter into agreements that violate it.  This is not a “narrow argument,” as the Globe suggests, it is the law.  As John Adams so concisely stated, we are a nation of laws, not men.

 

The Globe has long editorialized against the virtue of the Quinn Bill.  However, this case is not about the merits of that law, it is about whether the City of Boston can disregard the law during tough economic times.  The Globe suggests the SJC turn down a dangerous path in advocating that the City be allowed to do just that.

 

Sincerely,

Bryan Decker

Sandulli Grace, PC

(the author is counsel to the plaintiff officers in Adams v. Boston, the case at issue here, and argued the case before the Supreme Judicial Court)

 

In any event, the SJC has taken the matter under advisement.  I don’t for a minute think that the Court will decide the case based on a directive from the Globe, but it’s disconcerting that the Globe editors would let their longstanding disdain for the Quinn program cause them to recommend that the law be ignored.  If they want to take their case to the state house, they should.  And we’ll be there, hopefully with Bob Quinn leading the charge, to continue to explain why and educated police force is in EVERYONE’s best interest.  And you, as police officers, can also explain to the Globe how the law needs to be followed, even when they disagree with it.

Oh, and since the Globe’s editorial was less than unbiased, I feel fully justified in passing along this link about the paper’s circulation:  http://www.theonion.com/video/boston-globe-tailors-print-edition-for-three-remai,17572/

Labor In The News, Sandulli Grace In The News

Watch The Supreme Judicial Court Argument In The Boston Quinn Bill Case

Sandulli Grace Staff November 14, 2011

Thanks to the good folks at Suffolk Law, video of last week’s oral argument in the Boston Quinn Bill case is now available for viewing. Just follow this link to watch Sandulli Grace’s Bryan Decker argue on behalf of the Boston officers who had their statutory educational incentive payments cut by the City of Boston – http://www.suffolk.edu/sjc/archive/2011/SJC_10861.html .

Can’t get enough of the Quinn case? You can also read all of the briefs at the SJC’s page on the case, http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-10861 . While we’re partial to our own handiwork – Brief of the Appellants and Reply Brief of the Appellants – the Amicus brief filed in favor of the officers by the Massachusetts Coalition of Police gives a great history of the Quinn. The MCOP brief also discusses the creative solutions developed in other cities and towns in response to the State’s local aid cut masquerading as Quinn underfunding.

We promise that we’ll let you know as soon as we get word of a decision in this case.

In Our Opinion..., Labor In The News

Greater Lowell Regional Teachers Organization And Greater Lowell Technical School Committee

Sandulli Grace Staff November 9, 2011

Arbitrator rules that a teacher without professional teacher status is entitled to procedural protections under the collective bargaining agreement before a School Committee can non-renew the teacher’s appointment.

In this case, the teacher was notified of the intention to non-renew her appointment on May 26, 2009 and then dismissed on June 7, 2009. The arbitrator found that the teacher was denied reappointment as a consequence of the evaluation process and that the procedures followed in that evaluation process violated the provisions of the collective bargaining agreement. The collective bargaining agreement required that the information that formed the basis for the recommendation to non-renew a teacher must be properly documented before the notice of intent to non-renew. The arbitrator also specifically relied on DESE regulations which provide that a teacher must be given “a reasonable amount of time… to implement the recommendations for improvement of performance and to meet performance standards.” In this case the arbitrator found that the teacher’s supervisor failed to give the teacher anything in writing to establish any deadlines. The arbitrator noted that “Experience demonstrates that parties to a conversation often draw different impressions about the substance and tenor of the discussion. And, consequently, it is generally a good practice to follow-up important conversations with confirmatory letters or memoranda.”

Therefore, the School Department’s failure to document the teacher’s claimed deficiencies and give the teacher proper written notice of those alleged deficiencies along with an opportunity to correct the issues violated the collective bargaining agreement.

The teacher was therefore ordered to be reinstated with full back pay and benefits.

Labor In The News, Sandulli Grace In The News

Supreme Judicial Court Hears Arguments in Quinn Bill Case

Sandulli Grace Staff November 9, 2011

Sandulli Grace Partner Bryan Decker argued yesterday before the Massachusetts Supreme Judicial Court in the “Quinn bill case.” As previous posts have discussed, Decker represents a group of Boston Police Officers challenging the City of Boston’s reduction of educational benefits to officers in 2009. The case argues that the city cannot cut Quinn bill incentive payments to officers, even where the collective bargaining agreement in place allows for such a cut. Sandulli Grace union client Boston Police Patrolmen’s Association is supporting the officers. Sandulli Grace union client Massachusetts Coalition of Police filed a “friend of the court” brief also in support. The SJC should issue a decision within a few months.

Video of the oral argument has already been archived by Suffolk University Law School. You can view it here.

The decision could impact police collective bargaining statewide. Acknowledging this, the Boston Globe ran a front page story on the case on Monday, the day before the oral argument. You can read Boston Globe Police Beat Reporter Maria Cramer’s story here.

As always, we’ll keep you posted.

In Our Opinion..., Labor In The News

Reconsidering a Ticket: An Exercise of Discretion or a Criminal Act?

Sandulli Grace Staff November 3, 2011

A New York grand jury has charged ten New York City police officers with crimes for “fixing” traffic tickets. The charges resulted from a wiretap for unrelated matters during which investigators overheard discussions of fixing tickets. The crimes charged were the alteration or destruction of the public records and official misconduct.

Massachusetts has similar laws which might be applied to ticket fixing. M.G.L. c. 66, s. 15 establishes criminal penalties for destroying public records. Likewise M.G.L. c. 268A, s. 26 (the employee ethics law) imposes criminal penalties for use of your position to gain benefit for yourself or others and for acting or failing to act based on kinship or influence. M.G.L. c. 268A, s. 23 (b) (2) & (3). The Boston Globe is already investigating ticket fixing in Massachusetts and their reporters have called local police officers to ask for comment.

A police officer in Massachusetts still has discretion whether or not to issue a traffic ticket. Newton Police Association v. Police Chief of Newton, 63 Mass. App. Ct. 697 (2005):

If a police officer observes…a civil motor vehicle infraction, the officer may issue a written warning or may cite the violator for a civil motor vehicle infraction…

M.G.L.c. 90C, s. 3(A)(1). Once the officer issues a ticket, however, there is no guidance about what circumstances justify revoking it. While we would argue that the officer retains broad discretion to reconsider and revoke the ticket, we would urge special caution in this environment. If you reconsider and decide to revoke a ticket, you should consider documenting an appropriate reason for your action and/or getting documented approval from a superior officer. If you are a supervisor or court officer, you should likewise document an appropriate reason for any decision not to prosecute a violation.

Labor In The News, Sandulli Grace In The News

Arbitrator Reverses Discipline – Finds MassCOP Officer Was Not Insubordinate

John Becker
John Becker October 16, 2011

Arbitrator Nancy Peace recently issued an arbitration award reversing disciplinary action issued to a Concord police sergeant. In the award, Arbitrator Peace found that the sergeant – who had a spotless 20 year record with the Concord Police Department – did not commit the offense he was accused of. The case includes some important language regarding the nature of insubordination, an offense that often leads to employee discipline. The Union was represented by Sandulli Grace attorney John M. Becker

The case involves the police department’s planning for a large public event in Concord. Sgt. Joseph Connell was not involved in the planning, but two other sergeants were. Sgt. Connell and his Union – the Concord Police Association, Local 260 of the Massachusetts Coalition of Police – understood these sergeants to be acting on a voluntary basis. At one point, the Police Chief asked Sgt. Connell to help with the planning on a voluntary basis. Sgt. Connell provided some assistance, but eventually e-mailed the Chief stating that there was nothing more to do. The Chief e-mailed back, “I want you to handle the scheduling for us.” Sgt. Connell responded (also by e-mail) that he did not want to volunteer to work on the planning, and he expressed concerns that the process had begun so late. The next thing Sgt. Connell knew, he was brought in to the Chief’s office and issued a written reprimand for insubordination. He was also reassigned from his midnight shift to the day shift where he would allegedly undergo training for an undetermined period. As it turned out, he was reassigned for seven weeks and received very little training. Interestingly, Sgt. Connell was required to take part in the event planning during his reassignment.

Sgt. Connell and the Union grieved the discipline and the reassignment and the grievance proceeded to arbitration before Arbitrator Nancy Peace. After hearing testimony from Sgt. Connell, Union President Chuck DiRienzo, the Police Chief and others, the Arbitrator ruled in the Union’s favor. According to the Arbitrator, insubordination must be determined by looking at the understanding of the person receiving the alleged order. Here, while the Chief may have believed he was giving an order, Sgt. Connell, based on all the facts, believed he was being asked to volunteer. The Arbitrator reasoned, “It is the responsibility of a superior officer to insure that his or her orders are clear and have been received. Where there is any indication that there may be some confusion or misunderstanding, as there certainly was here, it is the responsibility of the superior officer to investigate and clarify.” The Arbitrator concluded, “This grievance and arbitration could have been avoided had Chief Neal responded to Sgt. Connell’s August 25, 7:59 a.m. e-mail by clarifying that he was not asking Connell to volunteer to handle the scheduling; he was ordering or directing him to do so.”

Arbitrator Peace found that the Town violated the just cause provision of the collective bargaining agreement between the Town and the Union by issuing the discipline and reassigning Sgt. Connell to the day shift. She ordered the discipline removed from Sgt. Connell’s record and ordered him compensated for financial losses as the result of the reassignment.

Read the decision…

In Our Opinion..., Labor In The News, Sandulli Grace In The News

SJC To Hear Quinn Oral Argument On November 8

Sandulli Grace Staff October 5, 2011

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

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

In Our Opinion..., Labor In The News

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

Alan Shapiro
Alan Shapiro October 5, 2011

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

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

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

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

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

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

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

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

In Our Opinion..., Labor In The News

NEW CERTIFICATION (EMD TRAINING) REQUIRED FOR DISPATCHERS

Sandulli Grace Staff September 28, 2011

Effective July 1, 2012, dispatchers must be trained in the Emergency Medical Dispatch Protocol Reference System (EMDPRS).  EMDPRS is a system that “includes a protocol for emergency medical dispatcher response to calls, including structured caller questioning for patient condition, incident facts, and scene safety, pre-arrival instructions, post-dispatch instructions, selection of appropriate field resources to dispatch (such as first responder, basic life support, and/or advanced life support), and a continuous quality assurance program that measures compliance with the protocol through ongoing random case review of each emergency medical dispatcher.”  560 CMR 5.03.

In other words, if you answer 911 calls, you must be EMD certified.  This new training involves a process that is much more detailed than before.  Dispatchers will have to provide pre-arrival instructions and dispatch life support in compliance with written text of scripts and other processes within a Department-approved EMDPRS.  So, every request for medical assistance will involve the dispatcher following a set of policies and procedures for the safe and effective use of the Department-approved EMDPRS.

Furthermore, under these new regulations, each EMD resource must establish a continuous quality assurance, improvement, and management program that, at a minimum, must include: documentation of the quality assurance case review process utilized to identify EMD compliance with the EMDPRS; written approval of the EMD medical director; ongoing random case review in accordance with the guidelines of the EMDPRS; and regular feedback of performance results to emergency medical dispatchers.  In other words, there is the potential for liability and discipline.

If you are a dispatcher and are (or will be) in negotiations, I would advise that you raise these new regulations at the table when bargaining.  They add significant responsibilities and duties to your job.  Although it is mandated by the State, the Department should recognize the added work you are doing.

If you are not a dispatcher (e.g., a patrol officer) but are being asked to comply with these new certifications, call your union representative to discuss the probability that these new duties could be a change in your working conditions and thus should be bargained.

Labor In The News, Sandulli Grace In The News

YET ANOTHER QUINN BILL UPDATE SJC WILL LIKELY HEAR CASE IN NOVEMBER

Sandulli Grace Staff September 20, 2011
Since we filed our brief in the Boston Quinn Bill case, the City filed its opposition, and we filed our reply on behalf of the plaintiff officers.  Again, the suit claims that the City of Boston violated the Quinn Bill when it reduced educational stipends to officers.  The City responds that it reduced the payments due to the Commonwealth’s shortfall in Quinn reimbursement, and that it was entitled to do so due to the collective bargaining agreements with the three Boston Police Unions.  The only problem with the City’s response is that the law is clear that parties can’t bargain about everything, and can’t bargain to cut Quinn.  The only state court judge to reach this issue found just that, and we believe the SJC will too.

The most recent development is that the Massachusetts Municipal Association has filed an Amicus brief in the case defending the city.  This brief is amazing in that the MMA’s counsel waxes poetic about the virtues of bargaining over EVERYTHING.  This is the same MMA that for over 30 years has claimed that it CANNOT bargain about most things – that everything is “an inherent managerial right.”  The MMA saying we should bargain everything is like Michele Bachmann saying something sane.  It’s like the Boston Globe saying that Police Details are great.  It’s like Snookie saying she thinks sobriety is way cool.  You get the idea – it’s a complete 180.

We’re getting ready for, and looking forward to, the argument.  As always, we’ll keep you posted.

Don’t take my word for it.  Here are all of the briefs in the case: