The Massachusetts Appeals Court ruled on January 9, 2009 that the City of Lynn must pay nearly $300,000 in damages to the Lynn Police Association, Massachusetts Coalition of Police Local 302, for violating a memorandum of agreement.  In so ruling, the Appeals Court in City of Lynn v. Lynn Police Assn, MCOP Local 302, #07-P-1090, http://www.socialaw.com/slip.htm?cid=18734&sid=119 rejected the City’s claim that its failure to specifically budget for this expense allowed the City to escape liability for breaching the union contract.  The case vindicates unions that agree in good-faith to wage concessions based upon employer promises to return the favor when circumstances improve.  Sandulli Grace, PC, led by Attorney John Becker, represented MCOP in this proceeding.  Sandulli Grace partner Susan F. Horwitz assisted the Association in negotiating the original memorandum of agreement.

The case arose when the City, facing possible layoffs in 2003, asked the Association for concessions.  The Association agreed to forego approximately $300,000 in negotiated contractual benefits, but only on  condition that if the City later obtained additional state or federal grant funding, then the City would use those funds to offset the Association’s concessions.  As it happened, the police department later obtained a community policing grant of approximately $300,000.  However, the City refused to use the funds to offset the concessions.

An arbitrator agreed that the grant funds should have been paid to officers who had sacrificed their contractual benefits.  The City refused to abide by the arbitrator’s ruling, and appealed the decision to Superior Court and then, after losing at Superior Court, to the Appeals Court.

The City argued that its compliance with the arbitrator’s decision would violate the Lynn Bailout Act, Chapter 8 of the Acts of 1985.  The Lynn Bailout Act, as suggested by its title, was enacted at a time of severe fiscal crisis.  The Bailout Act sets forth a number of procedures for curbing irresponsible spending by the City and holding department heads personally liable for overspending.  According to the City’s argument, complying with the arbitrator’s award would force the City to spend more than the allotted budget for police department personnel for a particular year, and this expenditure was prohibited by the Bailout Act.

The Appeals Court rejected the City’s argument that it could avoid contractual obligations because of the Bailout Act.  First, the Bailout Act only prohibits paying liabilities that arise after the appropriated funds  have been exhausted.  The Appeals Court found that the City of Lynn’s obligation to pay police officers arose before the appropriation was exhausted, so the Bailout Act did not apply. 

Second, the Court pointed out other court cases that ordered municipalities to pay damages for breaching contracts even when they had not appropriated funds to pay the damages.  The Court concluded that the Bailout Act and similar laws (such as G.L. c. 44, § 31, which prohibits municipalities from spending in excess of appropriations) were not designed to protect cities and towns from the consequences of their unlawful actions.  Because Lynn had a contract with the Association, and breached that contract, it was obligated to pay the damages resulting from that breach, whether or not it had appropriated funds to pay for those damages.

The Court agreed with one aspect of the City’s appeal.  The City complained that the Superior Court failed to provide a declaratory judgment – a statement about the respective rights and obligations of the parties – as the City had requested.  The Appeals Court agreed.  In a case of be careful what you wish for, the Appeals Court directed the Superior Court to modify its decision to declare: “the arbitrator’s award does not require the city to violate any law, and payment of that award will not violate chapter 8 of the Acts of 1985 because that statute does not prohibit payment of awards for breach of contract.”

The Appeals Court’s decision is final unless the City asks the Supreme Judicial Court to review the decision and the Supreme Judicial Court agrees to do so.  (The SJC declines to review more than 90 percent of these requests.) 

In a case between the Boston Police Patrolmen’s Association, Inc. (BPPA) and the City of Boston, Arbitrator Michael Ryan found  that the Internal Affairs procedures of the Boston Police Department Rules are “benefits” incorporated into the collective bargaining agreement. And that the Union may grieve the City’s violation of its own IA policy.  The arbitrator explained that the Internal Affairs rules “codified” the Department’s “complaint and investigatory procedures, thereby ensuring consistency and predictability” concerning the handling of complaints of misconduct against officers.  An “inherent purpose” of the rules “is to ensure fair disciplinary procedures.”  He therefore found that “the complaint and investigatory procedures” of the internal affairs rules “are advantageous to officers and constitute benefits” under the contract. 

Relying on the language of the contract that states “benefits” specified in the published rules and regulations, general and special orders in force …” are continued in force, the arbitrator determined that “a benefit,” within the meaning of the contract article, encompasses policies, rules, and regulations that are advantageous to officers.”  Therefore, the “complaint and investigation procedures” of the police department rules constitute such benefits and are incorporated into the collective bargaining agreement.  As result, the internal affairs procedures are enforceable at arbitration.

            Although the arbitrator in this case did not find that the City  violated its IA rules based on the facts at the hearing, his Decision represents a tremendous victory for the BPPA.  The Decision enables the BPPA to require the Boston Police Department to follow its own internal affairs procedures.  It also  guarantees that the officers have an avenue for challenging violations of the internal affairs complaint and investigatory procedures. 

Download the decision

Massachusetts law prohibits employers from requiring employees to violate a religious practice and therefore requires employers to provide a “reasonable accommodation” of their religious practice, so long as the accommodation does not create “undue hardship” for the employer. In Brown v. F.L. Roberts & Co., Inc., SJC-10155 (Dec. 2, 2008), the Supreme Judicial Court of Massachusetts ruled that the owner of a Jiffy Lube facility violated the law, G.L. c.151B, §4(1A), if it refused to provide a religious accommodation to its new grooming policy.

Here, the company implemented a grooming policy as part of a marketing strategy to increase business. Seriously. The new policy required employees who had contact with customers to be “be clean-shaven with no facial hair . . . . Hair should be clean, combed, and neatly trimmed or arranged. Radical departures from conventional dress or personal grooming and hygiene standards are not permitted.” The company, curiously, did not implement this policy at any of the other retail establishments it owned. The plaintiff, Bobby Brown, had occasional employee contact in his position and therefore was subject to the new policy. As Brown’s Rastafarian religion prohibits him from cleaning or shaving his hair, he asked for the employer to exempt him from this policy. The company refused, and instead transferred him to a position that did not involve customer contact, and that provided fewer breaks or certain other perks. Brown also alleged that the company refused to discuss any alternatives to its grooming policy.

The Court concluded that the company here violated the law, if Brown is able to persuade a jury of his version of events. The Court ruled that exemptions to a company grooming policy do not automatically create an “undue hardship” and therefore do not automatically protect a company from liability. The Court also ruled while it is not necessary for the employer to grant an employee’s specific request for an accommodation, the employer has a duty to explore acceptable alternatives with the employee. In reaching this conclusion, the Court discussed a previous case in which the employer refused the employee’s request for an exemption to a grooming policy but proposed several other accommodations. The employer in that case did not violate the law. Here, Brown alleged that the employer refused the request for a complete exemption from the policy and simply re-assigned him without exploring any alternatives. The Court concluded that a jury will have to decide whether the Company’s unilateral re-assignment of Brown qualified as a reasonable accommodation.

The recent decision by the Massachusetts Supreme Judicial Court, Ralph J. Maher v. Retirement Board of Quincy , SJC-10182 (Nov. 6, 2008), serves as a stark cautionary tale to public employees, and as a reminder that courts take a hard line against misconduct that involves an abuse of authority or integrity. Public employees breaking the law must be aware that they risk not only criminal charges, but loss of their pensions as well.

General Laws chapter 32, §15 identifies a number of pension-related penalties awaiting public employees who engage in certain misconduct. Public employees who misappropriate funds or property can lose their retirement allowance up to the cost of their misappropriation and prosecution. G.L. c. 32, §15(1). Public employees convicted of misuse of government funds or property, or crimes related to improper police or licensing duties, lose their retirement allowance as well as their contributions to the system. G.L. c.32, §15(3) & (3A). Public employees who are convicted of crimes that relate to their job lose their pension, but not their contributions to the retirement system, under state law. G.L. c.32, §15(4).

The case of Maher dealt with the last penalty. Here, Quincy’s former chief plumbing and gas inspector broke into the city’s personnel office in order to remove critical portions of his personnel file. He sought to improve his chances of being re-appointed to his position, which paid $125,000 a year. Instead, he was indicted on charges of breaking and entering; stealing in a building; and wanton destruction of property. He ultimately pleaded guilty, served six months of unsupervised probation, and paid a total of $900 in fines and restitution.

After he officially retired, the Quincy Retirement Board instituted proceedings to forfeit the inspector’s pension, under G.L. c.32, §15(4). The Board ultimately voted to forfeit the pension, a loss of approximately $576,000.

The SJC ruled that the loss of the pension did not violate the U.S. Constitution’s prohibition on “excessive fines.” The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Court had little difficulty concluding that forfeiture of a $576,000 pension was not a grossly disproportionate fine for illegal efforts to retain a $125,000 a year job, especially considering the damage inflicted to the public trust by the employee’s criminal conduct.

Interestingly, the SJC did not discuss whether the crimes actually related to his position for purposes of G.L. c.32, §15(4), given that his crimes involved property, as opposed, arguably, to his official job duties.

Public employees who even daydream about engaging in misconduct may want to think twice about whether actions are worth risking losing their job, health insurance, freedom, and pension.

Police officers and firefighters injured in the performance of their jobs are entitled to “leave without loss of pay” under G.L. c.41, §111F. For full-time public safety officers, the amount of wages paid during their period of disability is relatively easy to calculate – the officer’s base pay plus most stipends and differentials (detail and overtime wages are excluded). The wages payable to disabled part-time police officers and firefighters, whose schedules frequently fluctuate from week to week, are relatively harder to determine. In Becker v. Town of Newbury, #07-P-1068 (October 9, 2008), the Appeals Court answered how to calculate the injured-on-duty benefits to part-time officers – municipalities must pay no less than the employee’s average earnings during the 12 months preceding the injury. The Court rejected the argument that the employer must pay weekly wages earned by the employee at the time of the injury. For example, the officer here earned an average of $145 per week during the past year, but was scheduled to earn $400 during the week of her injury. The Court ruled she is entitled to only $145 per week. On the bright side, the rule will benefit officers if the situation was reversed. For example, an employee who earned an average of $400 per week, but was anticipated to receive only $145 during the week of injury, will receive $400 per week for the duration of the disability or until the employee is retired.

Part-time police officers and firefighters injured in the line of duty are eligible for an additional statutory benefit, if the injury is severe enough. Recognizing that a part-time officer disabled from municipal work may be disabled from their “regular occupation” as well, the General Court added G.L. c.32, §85H provides wages of an entry-level police officer or firefighter to part-time officers whose work-related disability disables them from their “regular occupation.” (This payment is in addition to any §111F payment discussed above). The Appeals Court ruled that the outside employment must be a “regular occupation” and must “constitute at least a substantial source of income.” Here, the Court concluded that the part-time police officer’s fledgling private investigator business, which never turned a profit, did not meet this criteria. Therefore, the court ruled, she was ineligible to receive the wages of an entry-level police officer under G.L. c.32, §85H.