In School Comm. of Lowell v Oun, 07-P-184 (Sept. 25, 2008), the Appeals Court upheld an arbitrator’s decision to reinstate three wrongfully-terminated teachers with full back pay and benefits.  In a possibly disturbing signal that could disrupt future judicial review of arbitration cases, the Court hinted that it can freely review evidentiary decisions of an arbitrator and significantly broaden the “public policy” arguments that may overturn arbitration awards.  The decision simultaneously discourages and encourages public employers to litigate “final and binding” arbitration decisions.

            In this case, Lowell schools terminated three teachers pursuant to G.L. c. 71A, § 4, which mandates that “all children shall be placed in English language classrooms” conducted by teachers “fluent and literate in English.” The Massachusetts Department of Education (“DOE”) provides guidelines and regulations for determining a teacher’s fluency.  These guidelines and regulations specify that if a teacher’s fluency is not apparent during classroom observation, then it may be demonstrated through testing. 

Here, all three teachers had professional, or tenured, status and were born outside of the U.S.  Prior to their terminations in 2003, all three teachers had received satisfactory evaluations.  Lowell Schools conducted no classroom observation and instead tested the teachers several times, including exams unapproved by the DOE.  The teachers failed these exams.  As a result Lowell then terminated the teachers.

            In a controversial part of his decision, the arbitrator excluded the teachers’ DoE test scores because they were unable to cross-examine the DoE test graders and because the School failed to evaluate the teachers’ fluency through classroom observation.  Without the DoE scores, the arbitrator concluded that the School could not justify its termination of the teachers.  As a separate basis to reinstate the teachers, the arbitrator reasoned that Lowell’s reliance on the DoE scores, even if valid, violated state anti-discrimination law because Lowell never used the test against native English-speaking teachers. 

            Lowell Schools appealed the arbitrator’s decision to the Superior Court.  The Superior Court ruled in favor of the teachers.  Lowell Schools appealed again.  The Appeals Court upheld the arbitrator’s decision to exclude the test scores.  As the court acknowledged, an arbitrator’s legal conclusions and factual findings, even if incorrect, are beyond judicial review.  Instead of relying on this cornerstone of arbitration law and dismissing Lowell Schools’ complaint out of hand, the Court reviewed the arbitrator’s reasoning in excluding the test results before it concluded that there was no error.  This extended analysis, therefore, should be considered dicta and non-precedential. 

More troubling, however, is the Court’s discussion of the public policy limitation. A court may overturn an arbitration decision on public policy grounds only if (1) the public policy is well-defined and dominant and ascertained by reference to the laws and legal precedents and not from general public interest considerations; (2) the discharged employee’s disfavored conduct must be integral to the performance of employment duties; and, (3) the reinstated employee’s conduct would have required dismissal.  Here, the Schools took issue with the arbitrator’s findings that the decision not to test native English speakers for fluency violated state anti-discrimination law, that the personal qualities of the teachers overrode any fluency problems, and that the Schools retrain and reassign, not terminate, teachers with fluency problems.  In an invitation to public employers to litigate arbitration decisions on this issue, the Court refused to state whether the employer’s assertions, if true, fall within the public policy basis to overturn awards.  The Court ruled that the arbitrator’s conclusion that the Schools inadequately assessed the fluency of the teachers is sufficient to reinstate the teachers and is immune from judicial review.   

In Driscoll v. Worcester Telegram & Gazette, #07-P-344 (September 25, 2008), the Appeals Court has ruled that a 21-year veteran paper deliverer for eight major newspapers is an “employee” and therefore eligible for unemployment benefits. The Court rejected the employer’s gambit of classifying news carriers as “independent contractors.” To support its argument that the newspaper deliverer was not an “employee,” the newspaper actually boasted that the delivererhad the independent authority to decide “whether to wrap the papers in plastic or rubber bands, and where to purchase these supplies.” Thankfully, the Court rejected this evidence as trivial and noted how the terms and conditions of employment were controlled and directly supervised by the employer. This victory for the news carrier entitles him to very modest financial and job assistance as he attempts to transition to a new employer.

In Weinburgh v. Civil Service Commission & City of Haverhill (07-P-1692)(Sept. 4, 2008), the Appeals Court ruled that a candidate for promotion may sit for a promotional exam even if the candidate did not actually serve a full year in the rank immediately below the promotional position. In reaching this interpretation, the Court disregarded the interpretation of the Civil Service Commission, the agency primarily responsible for enforcing Chapter 31.

General Laws Chapter 31, §59 governs the process for competitive promotional examinations for public safety positions in Civil Service communities. The law limits candidates to police officers and fire fighters who have “been employed in such force for at least one year after certification in the lower title or titles to which the examination is open.”

The case of Weinburgh concerned the eligibility of a Haverhill fire lieutenant to sit for the captain’s exam held in November 2004. The examination was open only to lieutenants. The individual firefighter was certified on the lieutenant’s promotion list in Summer 2003, although he was not actually promoted to that rank until December. (To further complicate matters, the Commission backdated his seniority to October 2003). The issue presented by Weinburgh therefore is whether a promotional candidate must actually serve for one year in the lower rank in order to sit for the promotional exam – in other words whether Weinburgh must have worked for one year as a lieutenant prior to taking a captain’s exam limited to lieutenants. The Commission interpreted G.L. c.31, §59 to require one year of “actual service” as a lieutenant.

Courts are supposed to defer to an agency’s interpretations of the law. Yet here, the Appeals Court overruled the Commission’s interpretation of G.L. c.31, §59. The Court ruled that the one year requirement for promotions begins once the employee has been certified for the rank below the rank involved in the examination, even if the employee did not serve an entire year in the inferior rank. In other words, Weinburgh was permitted to sit for the captain’s exam, even though he did not actually work as a lieutenant for one year before the exam. The Appeals Court ruled that Weinburgh met the statutory one-year requirement because he was certified for lieutenant’s position more than a year prior to the exam (Summer 2003) and subsequent to this certification he actually worked for one year for the Department (as a firefighter or lieutenant – though the exam was limited to lieutenants).

Weinburgh’s emphasis on technical service in rank above actual service in rank stands in provocative contrast to the SJC case of Police Com’r of Boston v. Cecil, 431 Mass. 410 (2000). In Cecil, the SJC interpreted a one-year requirement under Civil Service laws – this time dealing the probationary period of police officers under G.L. c.31, §61. The SJC ruled that the police officer must actually work as a police officer for 12 months in order to obtain tenure, even if the officer had been on the Department rolls for more than one year (the SJC excluded the officer’s time spent on paid administrative leave).

In a sharply worded decision, the Civil Service Commission reversed the Boston Police Department’s bypass of a candidate who tested “positive” for cocaine in a hair test and strenuously denied any use of illicit drugs. In short, the Commission’s decision Justiniano Plaza v. Boston Police Department http://www.mass.gov/csc/csc_cases/plazajustiniano.pdf (July 10, 2008), indicates that police departments cannot blindly hide behind a laboratory’s written assertion that an officer tested “positive,” especially where the test process has generated enormous controversy. The decision is a daring vindication of the basic merit principles behind Civil Service and a refusal to kowtow to mindless hysteria or adopt the illogic of management when confronting allegations of substance abuse.

In this case, Suffolk County Correctional Officer Justiniano Plaza tested “positive” for cocaine on a hair test administered by the Sheriff. The Sheriff used the same policy and laboratory, Psychemedics, as used by the Boston Police Department (“BPD”). Despite the “positive” result, Plaza vehemently denied using cocaine. In order to spare himself from termination, Plaza agreed to a 45-day suspension and subjected himself to three years of random urine drug testing (he tested negative). Otherwise, Plaza, a former Marine, had a very strong employment record and a history of passing all employment drug tests without difficulty.

The BPD relied almost exclusively on the Sheriff’s hair test result and subsequent suspension to bypass Plaza. On appeal, a majority of the Civil Service Commission (two of whom were appointed by Gov. Deval Patrick) reversed the BPD’s bypass and ordered the Department to reconsider Plaza for appointment to the next vacancy. (The two dissenting Commissioners originally were appointed by Gov. Romney). This majority decision rested primarily on three reasons: 1) a drug test result, unsubstantiated by any scientific testimony, is insufficient to justify a bypass or other adverse action, or even to require the officer to disprove the result; 2) a “positive” test result cannot automatically disqualify an applicant, where the BPD claims to consider an applicant’s entire record; and 3) the BPD cannot permanently disqualify applicants for past drug test results if the applicants successfully rehabilitated themselves, especially where the BPD permits its police officers to rehabilitate themselves following a positive drug test result.

The Commission majority acknowledged the ongoing federal litigation by several African American BPD officers who were terminated on basis of “positive” hair tests for “cocaine.” It also noted that 18 cases pending before the Commission challenge the validity of hair testing for cocaine. The Commission majority was careful to note that its decision does not prejudge the outcome of these appeals. Sandulli Grace, PC, represents many of these officers (members of or represented by the Boston Police Patrolmen’s Association, Inc.) at the Commission.

The City of Boston is likely to appeal the Commission’s decision to court.

In a surprisingly anti-employer decision, the Civil Service Commission enforced a preference for formerly disabled retirees at the expense of existing employees ready, willing and able to immediately accept a promotion appointment. In Faggiano, Jones & Cappuccio v. City of Medford and Human Resources Division, issued on July 3, 2008, the Commission backed the Human Resources Division (HRD)’s decision to bar the City of Medford from promoting one of the three top-ranked firefighters to a vacant lieutenant’s position. In denying the appeals of the top three firefighters on the promotional list, the Commission accepted HRD’s logic that preserving job openings for returning disability retirees while they are undergoing retraining sometimes means denying promotional opportunities to current employees.

The case involves the public employee disability retirement law, which, after a 1996 overhaul, requires employers to reinstate retirees once they are determined to be fit for the jobs and no longer disabled. Formerly disabled retirees who have been out longer than two years must be reinstated only if a vacancy in the same or a similar position exists. If no such vacancy exists, then the retiree is “granted a preference for the next available position. . . .” G.L. c. 32, § 8(2)(a). For civil service employees (such as the Medford firefighters), the law adds another twist: anyone retired for at least five years must successfully complete retraining. The retraining program must be designed by the employer and approved by HRD.

In Medford, three fire lieutenants who had been granted disability retirements 15 years ago or more were cleared by Public Employee Retirement Administration Commission (PERAC) to return to work. Because they were all retired for so long, the Fire Chief designed a retraining program that required successful completion of the Massachusetts Fire Academy. HRD approved the plan. The Fire Academy, however, refused to enroll the firefighters. Fire Academy policy apparently prohibits firefighters with five years or more of seniority to attend its full-time program.

When a vacancy later arose in a lieutenant’s rank, HRD refused to certify a list containing the top-ranked three firefighters. According to HRD, the returning and formerly-disabled retirees had a statutory preference for the next vacant lieutenant’s position. The three firefighters in line for the promotion filed appeals with the Civil Service Commission, which their fire union local supported..

The Commission sided with HRD and the returning retirees. It agreed that HRD had the right to refuse to provide a promotional list as long as at least one PERAC-approved retiree waited to return. The Commission also rejected the existing firefighters’ argument that the retirees’ right to a preference does not materialize until after they successfully completed a retraining program. The Commission also criticized the City for failing to work with HRD to construct a retraining program that did not require the use of the Fire Academy, especially after the City learned of the Fire Academy’s refusal to retrain the retirees. Ultimately, the Commission prohibited the City from using anyone but one of the formerly disabled retirees to fill the vacancy.

The Commission’s decision contrasts with recent court cases that have outlined when retirees are entitled to their former positions. The SJC ruled in Sullivan v. Town of Brookline, 435 Mass. 353 (2001), that a returning retiree does not have the right to reinstatement until he completes the required retraining program. Just last year, the Appeals Court, in Facella v. City of Newton, 69 Mass. App. Ct. 459 (2007) concluded that a returning retiree reinstated before completing her retraining program is only conditionally reinstated and has no “just cause” protections under civil service law to appeal her termination. When PERAC amended its regulations to require that disability retirees seeking to return to work must obtain a unanimous vote of a medical panel, not merely a majority (thus making it more difficult to return), the Appeals Court approved the change in Pulsone v. PERAC, 60 Mass. App. Ct. 791 (2004). Also in 2004, the Appeals Court acknowledged in Thomas v. Department of State Police, 61 Mass. App. Ct. 747 (2004), that an existing collective bargaining agreement governs the terms of employment of the returning former retirees. The court rejected an argument by the returning retirees that the retirement laws guaranteed them better wages and benefits than the CBA.

It remains to be seen whether the Faggiano case signals a trend away from these pro-employer cases and back toward the pro-retiree cases of the late 1990s. One of the appellants has appealed the case, which means a court will have an opportunity to weigh in on the Commission’s new interpretation of Chapter 32, Section 8.

Riding the media tidal wave of hostility toward public safety employees receiving workers compensation-type benefits, the Appeals Court of Massachusetts has ruled that a police dispatcher permanently disabled from her job as a result of unsolicited roughhousing at work by a police officer is ineligible for an accidental disability retirement.

In Damiano v. CRAB , 07-P-520 (July 23, 2008), a dispatcher got up from her seat intending to use the restroom and grab work-related forms. As she rose, a police officer jokingly placed her in a headlock and then dragged her eight feet. This action resulted in two employees falling against the wall and the floor. The dispatcher injured her wrist and elbow, which never fully recovered. She never returned to work as a result of the injuries from this incident.

Under Massachusetts General Laws, Chapter 32, §7, public employees are entitled to an accidental disability retirement if they are “unable to perform the essential duties of [their] job by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of, [their] duties at some definite place and at some definite time ….” Accidental disability retirees are eligible for 72 percent of their salary for the duration of their permanent disability. In exchange for this payment, these retirees are barred from full-time jobs in the Massachusetts public sector, and also face limitations on what they can earn from outside work.

In the new case, the Appeals Court narrowly interpreted the phrase “in the performance of duty” to deny disability benefits to the dispatcher. Although the dispatcher was working at the time of the injury, was in no way at fault for the injury, and was engaging in conduct permitted by the employer, the Court held that she was not performing actual productive work in a traditional sense and therefore cannot receive accidental disability retirement. The Court seemed to acknowledge that her injury qualified for workers compensation benefits, but stated there is a higher standard of proof to qualify for accidental disability retirement.

The Court seemingly adopted a narrow view of the occasionally mundane day-to-day responsibilities of public safety employees. The Court associated work-related disability incidents with the public safety heroics popularized by the media:

A firefighter who is injured while rushing into a burning building, or fighting a fire, as well as the police officer who is injured while directing traffic, or apprehending a fleeing felon, can easily be understood to have been injured while ‘in the performance of’ duties undertaken on behalf of the public.” The same cannot be said of the dispatcher.

One wonders if the court will recognize the benefits intended by the Legislature to employees injured (for whatever reason) while completing a report, cleaning department equipment, or performing any of the many incidental, unglamorous but indispensable tasks of public safety work. In the future, retirement boards and courts will need to be educated about what actual public safety work entails, and claimants for accidental disability retirement will need to emphasize the key job functions they performed at the time of the injury.