Article About Lying Still Rings True After a Decade

Ten years ago, I wrote an article for the Massachusetts Coalition of Police’s Roll Call publication about a recent decision by the Supreme Judicial Court with important implications about police officers accused of untruthfulness. In the intervening decade, the predictions I made in 2005 have unfortunately come to pass. More and more Police Chiefs and municipalities are relying on this case and others that followed to discharge police officers found to have been untruthful. So it was extremely good timing when, at MassCOP’s annual convention in Hyannis last week, former MassCOP business agent Tom Smith mentioned the article, called “The Truth About Lying” and told the conventioneers that he made copies of it to give to police officers under investigation for misconduct. I recently reread the article and found that while the case it mentions is 10 years old, the advice is still timely. As a service to those who didn’t get the Roll Call in 2005, we have reprinted the article below.

 THE TRUTH ABOUT LYING

Recent SJC Decision Puts Spotlight on Police Officer Untruthfulness

By John M. Becker

Sandulli Grace, P.C.

“We can defend the truth, but we can’t defend a lie.” – Tom Smith, MCOP Business Agent (ret.)

From the point of view of your union representatives and attorneys, the hardest thing to defend is a lie. When an officer engages in misconduct and lies when confronted or questioned about it, either orally or in writing, or leaves damaging facts out of a report in a situation when they normally should be recorded, the officer has made the job of the union rep and lawyer many times more difficult and has jeopardized his job security that much more. It is always easier to defend the misconduct than to defend the officer’s decision to lie about it. Many arbitrators agree with the oft-repeated refrain of management that a police officer’s credibility is essential to his ability to do his job, which involves testifying in court. So, while arbitrators may apply normal principles of progressive discipline and disparate treatment to most misconduct cases, they are more likely to treat a police untruthfulness case with a higher standard.

If anyone doubted Tom Smith’s words of wisdom quoted above, they should be persuaded by a recent decision of the Massachusetts Supreme Judicial Court that says an arbitrator could not put a police officer who lied back on the job. (The case is City of Boston v. Boston Police Patrolmen’s Association, 443 Mass. 813 (2005).) In the case, the Boston Police Department fired an officer for alleged misconduct during an encounter with two citizens who were in a double-parked car. The union grieved the discipline and took it to arbitration. The arbitrator decided that the officer lied about what happened when he wrote his police report, when he filed for criminal charges against the citizens, when he spoke to internal affairs investigators, when he testified at a Departmental hearing and when he testified at the arbitration. But the arbitrator ordered the officer reinstated with a one-year suspension, primarily because there was evidence of disparate treatment: other officers had committed similar or worse misconduct and had received only suspensions. The City appealed the decision to court – the Superior Court and Appeals Court upheld the arbitrator, but the Supreme Judicial Court overruled the lower courts and overturned the arbitrator’s award. The SJC found that it violated public policy to force the City to reinstate this officer, after the arbitrator found that he misused his official position to file false police reports and take out false criminal charges against innocent civilians and then told his false version of the story again and again to investigators, hearing officers and the arbitrator herself. The court noted that lying on a police report, filing criminal charges and lying under oath are all felonies and there is a law saying convicted felons cannot be police officers. So, even though the officer was never charged with any felony, the court said that reinstating him would violate a public policy against allowing someone who commits these kinds of acts from working as a police officer. The disparate treatment evidence was irrelevant in this kind of a case, the court said. Unless you have evidence that the Department discriminated against the officer because of his race or sex or some other protected category, you could bring in evidence of two dozen other cases of more lenient discipline, or non-enforcement of the rules against other officers and it would not make a difference. Cases like these, the court said, are evaluated on their own and without regard to what happened to other officers in the past.

The case was shocking to many because courts so rarely overturn arbitrator’s awards. Most observers agree that what so angered the court was the fact that the case involved an untruthful police officer. It would be wrong to generalize too much from the case – it does not mean that every termination for untruthfulness will be upheld on appeal, nor does it mean that every allegation of acts that could be the basis for a felony charge will lead to a discharge. But the case does mean that when a police officer is disciplined for misconduct that involves untruthfulness, arbitrators and courts are going to be much more likely to uphold the discipline. So if it was hard to defend a lie before, now it will be even harder.

Psychologists tell us that everybody lies. But most of the lying we do falls into the category of ‘white lies.’ Charles V. Ford, Ph. D., an expert on lying, describes five categories of lies:

  • White lies are used to make social interactions more comfortable. They include self-protective lies (“Sorry, I can’t go to the party, I’m feeling sick”) and altruistic lies (“Nice haircut”; “You’ll be fine.”)
  • Humorous lies are harmless exaggerations used to embellish a story or joke. In these cases, what matters isn’t the truth, but whether the story is funny or not.
  • Defensive lies are the most dangerous lies and are almost never harmless. “I didn’t do it.” “I wasn’t there.” “I didn’t see anything.”
  • Aggressive lies are the stuff of rumormongers and bad guys in the movies – you’re not just defending yourself, you’re attacking someone else. “I saw him do it.” “Did you know that he is a [fill in the blank].”
  • Pathological lies are those told for no rational purpose, but just because the person can’t seem to stop himself. “They’re going to build a movie theater in that lot – sometime next summer.”

There is a sixth category – lies of omission.            Although the experts don’t like to call these lies technically, they are just as dangerous for your job. When you have an obligation to speak up and you remain silent, that is a type of untruthfulness. These can be divided into at least two categories – silence on your own behalf (you did it but you aren’t admitting it) and on behalf of someone else (you know who did it but you won’t say). Both types of silent lies can subject you to disciplinary action.

Note that lies that seem harmless in some contexts can turn serious when told in an employment context. “I can’t go to the party because I’m sick” may be a white lie, but “I can’t come to work because I’m sick” can subject the officer to disciplinary action. Exaggerations when you’re describing the fish that got away are fine, but work-related exaggerations or downplaying can lead to discipline (“he was yelling at the top of his lungs” “she hit me several times” “the car was going about 90 miles an hour” “I barely touched it” “I did not raise my voice”).

The time to stop the lying is at the beginning, because the more you lie about the misconduct, the harder it is to tell the truth about it. The psychologists tell us that liars are often trying to convince themselves that they did not commit the misconduct – it is much easier to lie convincingly to others if you’ve already convinced yourself that the lie is true. According to Doctor Ford, “the lie facilitates self-deception; people lie to others in order to lie to themselves.” If you find yourself telling people, “I know it’s hard to believe, but …” take a step back and ask if maybe it’s hard to believe because it’s not true. Don’t become the victim of your own deception.

Knowing that many of us have a tendency to lie in our own defense when we do something wrong is not an excuse. Instead, it should put us on notice that, when we engage in misconduct, the temptation to lie will be strong. We should be prepared to fight it. Remember: almost no one who tells a lie believes that they will be caught, yet think of how many lies are exposed on a regular basis. Knowing the wrongdoers have a tendency to lie in their own defense also means that those investigating the misconduct will be looking for signs of lying and self-deception, just as you do when investigating crimes. So, if you screw up, ‘fess up. You may take a hit, but your union and your union attorneys will do our best to see that you get a fair shake. If you screw up and lie about it too, you’re not avoiding the pain, you’re only postponing it, while making it much harder for us to defend you.

 

 

 

 

New Study Says Employee Health Care Costs Are Skyrocketing – Attention Contract Negotiators!

On September 22, 2015, the Kaiser Family Foundation released a Health Benefits Survey of employer health plans demonstrating that health care costs for an individual employee have grown seven times as fast as wages and inflation from January to June of 2015. The survey itself can be found here and an interesting article discussing the survey by Carolyn Johnson in the Washington Post can be found here.

This type of survey information is compelling can be both compelling as anecdote and demonstrates an effective way to analyze health insurances costs for employees negotiating with employers.

Court Decision Reinstating Boston Police Officer Wins Sandulli Grace Press Coverage

Court Decision Reinstating Boston Police Officer Wins Sandulli Grace Press Coverage
The case involved the firing of veteran Boston police officer and BPPA member David Williams for allegedly using excessive force during an arrest. The arbitrator found that Williams had not used excessive force and had acted in compliance with the Police Department’s rules and policies in arresting a belligerent intoxicated citizen in the North End of Boston on the night before St. Patrick’s Day. Specifically, the arbitrator rejected the City’s claim that Williams had used a chokehold on the arrestee.

The City of Boston appealed the arbitrator’s ruling to the Superior Court, arguing that the Boston Police Commissioner had unfettered power under state law to determine when an officer had used excessive force and that arbitrators did not have the power to overturn his disciplinary which upheld the award. Judge Dennis J. Curran in the Superior Court threw out the City’s claims. Instead, the judge agreed with the BPPA and its attorneys that disciplinary actions and the factual underpinnings thereof are subject to review through the grievance and arbitration procedures that the City and the BPPA have collectively bargained. In particular, the findings of a neutral arbitrator selected by the parties on matters of fact, such as whether or not Williams used a chokehold, are sacrosanct, and may not be overturned by a reviewing court.

Judge Curran issued his decision in City of Boston v. BPPA on June 29, 2015. The Boston Globe ran the story on the front page of the Metro section on July 22, 2015 with a picture of David Williams and a quote from Attorney Becker. You can find the link here.
Massachusetts Lawyer’s Weekly ran a front-page article on the case in its July 27, 2015 edition in which Attorney Becker was quoted extensively. The link is here.

One might speculate that the media attention to the Williams case might stem from the chokehold allegation – even though the arbitrator found otherwise – given the press coverage of incidents in New York and elsewhere. Some commentators raised concerns about those incidents because the police officers involved were white and the people they arrested were black. In this case, interestingly, the press did not draw attention to the fact that Williams is black and the person he arrested is white.

Deflategate From A Labor Law Perspective: Sandulli Grace Attorney Nick Pollard In Boston Globe And On WRKO Radio

Sandulli Grace Attorney Nick Pollard was prominently quoted in the August 1st Boston Sunday Globe. Nick was interviewed for a front-page article on New England Patriots’ quarterback Tom Brady’s appeal of the suspension imposed on him by NFL Commissioner Roger Goodell. Brady was suspended by the Commissioner for four games after the NFL found that it was “more probable than not” that Brady was “at least generally aware” that game balls were deflated during last year’s AFC Championship game against the Indianapolis Colts. Nick highlighted the important legal issues surrounding Brady’s appeal and opined that while Brady’s case is fairly strong, he still faces an uphill battle.

Continuing his media tour, Nick appeared on 680AM WRKO’s Boston.com Morning Show where he assessed Brady’s chances. He explained that while there were a number of procedural flaws in the NFL’s handling of Brady’s suspension, the award of an arbitrator interpreting a collective bargaining agreement entitled to a high degree of deference by federal judges. Nick explained how fundamental tenets of labor law such as “the law of the shop” and the requirement of notice come into play in the unique disciplinary system created by the collective bargaining agreement between the NFL and the Players’ Association. Links to the article and the interview can be found below. All and all, Nick did a fine job of explaining the Deflategate controversy from a legal perspective, especially for a Jets fan.

Appeals Court Affirms Decision of Superior Court Upholding Arbitrator’s Decision Overturning Suspension of Police Officer

Ever feel like you don’t quite get it? Where something seems so simple, but maybe, just maybe, there’s something you’re missing? Like, in the case of the Waltham Police Contract where it says that a decision of an arbitrator will be “final and binding,” doesn’t that mean that it should be, well, final? Or, binding? Well, unfortunately the City seems to have different definitions for that word, as it continues to challenge the November 2012 decision of Arbitrator Michael Stutz overturning the fifteen day suspension of Officer Paul Tracey. It was a straightforward decision, the arbitrator overturned a suspension finding that the alleged victim was no believable. Couldn’t have been more run of the mill. Unfortunately, the City appealed in true “throw everything at the wall and see if something sticks” fashion.

Back on March 4, 2014, I blogged about how Superior Court Judge S. Jane Haggerty summarily upheld the decision, rejecting all of the City’s arguments (that blog entry is here).

Surprisingly, the City was not done, and appealed Judge Haggerty’s decision to the Appeals Court. Last week, in a summary decision a panel of Appeals Court justices upheld the Superior Court upholding the Arbitrator (you can read the decision here). Similar to the Superior Court, the Panel rejected all of the City’s myriad arguments, concluding “we discern no error in the Superior Court judge’s reasoned decision and conclusions of law in denying the city’s motion for summary judgement.”

The City could still ask the Massachusetts Supreme Judicial Court to consider the case (the SJC could decline to do so). On behalf of the Waltham Police Union, Officer Tracey, the taxpayers of Waltham (who continue to foot the bill for the absurd appeals), myself, and good people everywhere who understand what “final and binding” means, here’s hoping the City decides to simply comply with the award instead.

Download theTracey appeals court decision

Legal Update: New Changes for Parental Leave

Many workers in Massachusetts do not qualify to take leave under the Family Medical Leave Act (“FMLA”).[1]  Yet, at the same time, in a country where automatic leave to attend to the birth or adoption of child is rare, millions of employees rely on the FMLA to guarantee that their jobs will be available when they return work.

The Massachusetts Maternity Leave Act (MMLA), applies only to employees working in the Commonwealth, and was designed to fill in some of the FMLA’s coverage gaps for Massachusetts workers. This week new amendments expanded, clarified, and renamed the MMLA, “the Parental Leave Act.”  Besides the snazzy gender neutral name, there are two big changes to the act: Continue reading

The Month of March in Labor History

March 4, 1801: In his inaugural address, President Thomas Jefferson declares: “Take not from the mouth of labor the bread it has earned.”

March 31, 1840: President Martin Van Buren issues an Executive Order providing for a 10-hour work day for all employees on federal public works projects.

March 7, 1860: Several thousand shoemakers in Lynn, Massachusetts begin a strike that soon spreads to 20,000 shoe workers all over New England. The strikers, who include men and women, eventually win Continue reading

Social Media Will Ruin Your Whole Life

An in-depth examination of the career-crushing power of social media in the New York Times Magazine last month, “How One Stupid Tweet Blew Up Justine Sacco’s Life,” (http://nyti.ms/1FC8BfG), illustrates just how fatal off-hand remarks (or ill-advised photos) on social media platforms (Twitter, Facebook, Instagram, Tumblr, Pintrest, Imgur, Yelp, Google+, and so on) can be. Continue reading

MassCOP Wins Significant 111f Injury Recurrence Arbitration

On January 14, 2015, arbitrator Richard Boulanger issued an important injury leave award in favor of the Massachusetts Coalition of Police and its affiliate, the Ipswich Police Association, Local 310.  The arbitrator granted Ipswich Police Officer Aaron Woodworth injury leave for a three month period in 2014 when Officer Woodworth was out of work recovering from Continue reading