Civil Service Knocks Out Quincy Mayor’s Choice for Fire Chief and a Judge Agrees

Alan Shapiro December 1, 2011

Based on many recent Civil Service decisions and, even more poignantly, the courts’ reaction to those decisions, many of us concluded that challenging a bypass promotional case was about as promising as hitting a trifecta at your local race track. ^[1] That perception, however, may no longer be accurate. A 60 page decision by Commissioner Paul Stein in September in the case of Smyth v. City of Quincy, not only upheld a bypass appeal for the position of Quincy Fire Chief, but also removed the appointee from the permanent position and, in very specific terms, ordered the city how to go about properly selecting the next chief from the three highest scores on the certification. When the city appealed to Superior Court to enjoin the Commission’s decision from taking effect, the judge, in a decision issued on November 21, refused to intervene on the grounds that the city was likely to lose its appeal.

By way of background, civil service law, all contained in Mass. General Laws Chapter 31, compels that promotions be made from among the three highest scoring applicants on a certification (a list of candidates with passing scores ranked numerically by the state Human Resources Division [HRD]). If the appointing authority, in the case of Quincy Fire, the mayor, selects a candidate other than one with the highest score, s/he must supply the reasons for doing so. The higher scoring candidates may then lodge bypass appeals with the Civil Service Commission.

The Civil Service decision concluded that Quincy’s mayor was predisposed to appointing a politically well-placed candidate and that his proffered rationale was a smokescreen to obfuscate his predisposition. The case contains an excellent primer, with abundant citations, on what an appellant needs to show in order to prevail in a bypass appeal.

The remedy is particularly noteworthy. Ordering that the permanent appointment be rescinded is rare but not unique. Prescribing how the city must make the next appointment in order to remove any bias and instill the process with integrity is virtually unprecedented. Commissioner Stein has set out a blueprint for what appointing authorities must do to insulate themselves from bypass challenges, and a road map for future appellants to follow in asserting such challenges. The specific requirements (quoted directly from the decision) are:

(a) candidate interviews must be conducted by a panel to be selected and arranged by an independent outside individual or firm that has experience in the review and selection of public safety and/or senior public sector personnel in Massachusetts;

(b) neither the outside individual or firm, nor any member of the interview panel shall have any present or prior contractual, employment or familial relationship to the Mayor of Quincy or to any of the candidates;

(c) the candidates will be provided, also reasonably in advance of the interview, a description of the criteria by which their credentials and their interview performance will be evaluated;

(d) the evaluation criteria shall be established by the independent individual or firm selected to arrange the interviews, and shall contain such procedures and criteria that the outside individual or firm deems appropriate in consideration of a candidate for Fire Chief, provided that Quincy may contribute its input to the independent individual or firm as to any aspect of the interview process, including evaluation criteria, as it deems appropriate, and further provided that any communications between Quincy and the independent individual or firm shall be disclosed to each of the candidates;

(e) the interview panel shall render a written report of the interviews which shall be made available to each of the candidates and to the public; and

(f) the written report shall include a specific rating of each candidate?s performance in each component or question during the interview, an overall ranking of the candidates, and a description of any unique positive and/or negative qualities or experience noted about any of the candidates.

Attorney Betsy Ehrenberg is to be highly commended for her excellent work in not only attaining this favorable precedent but also in successfully defending it, at least through this initial phase, in the courts.

It is also hoped that the specificity of the remedy will send a message to the public safety community: the days of perverting what is supposed to be a merit-based promotional system based on who someone is rather than what the person knows and has done are over.

^[1] In the interest of full disclosure, I did hit one on my first visit to Saratoga, however, subsequent visits have confirmed it was beginner’s, or dumb, luck.

Labor In The News

Evergreen “Fix” Signed into Law

Amy Laura Davidson November 23, 2011

On November 22^nd, Governor Patrick signed the Evergreen “Fix” bill into law. The bill was passed as an emergency act so it immediately goes into effect. Accordingly, municipal employers are bound to the terms of collective bargaining agreements with an evergreen clause until a new contract is negotiated. This is now the law, even if an evergreen clause extends a collective bargaining agreement beyond three years.

In Our Opinion..., Labor In The News

“Evergreen” Problem Fixed by Legislature

Amy Laura Davidson November 18, 2011

Last fall, the state Supreme Judicial Court overturned 30 years of history and held that “evergreen clauses” – clauses that extend collective bargaining agreements until a new contract is negotiated – were unlawful and unenforceable if the clause operated to extend a collective bargaining agreement beyond three years. This wreeked havoc in some communities because employers took advantage of the ruling by refusing to arbitrate grievances after a three- year contract expired. In addition, some employers took the position that they were not bound by any of the terms of the contract after three years, despite the fact that the employer had agreed to an evergreen provision.

This problem was corrected by the legislature on November 17thin House 3789-11. As a result of diligent efforts, persistence and lobbying by a broad coalition of public sector unions over the past year, the legislature enacted a bill that reverses the SJC ruling — reaffirming that evergreen clauses are enforceable even if they operate to extend the contract beyond three years. In addition, and again due to the extraordinary efforts of the labor coalition, the legislation contains a retroactivity provision. Section 2 of the new law restores evergreen clauses to any collective bargaining agreement that contained an evergreen provision and had expired after three years under the SJC decision. Evergreen clauses in such agreements are resurrected and enforceable going forward – even as to matters that arose prior to this legislation. So, if you are under a three year contract with an evergreen clause that had expired under the SJC ruling, the contract has been restored and is enforceable until a new contract is negotiated.

There is a narrow exception the retroactivity provision. The law does not apply are “specific matters” that “were pending or adjudicated in a court of competent jurisdiction” at the time that law was passed. There will undoubtedly be litigation about which cases fall under that exception. But the vast majority of matters are back under the umbrella of evergreen clauses. This bill is now awaiting the Governor’s signature.

Read The Bill…

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 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.