Retired Malden police sergeant and member of MassCOP Local 479, Paul McLeod, successfully appealed the Malden Retirement Board’s decision to exclude hazardous duty pay from regular compensation for purposes of computing retirement benefits. In January 2022, following an audit from the Public Employee Retirement Administration Commission (PERAC), the retirement board stopped treating hazardous duty pay as regular compensation; PERAC had recommended this change because it found there was “no service” associated with hazardous duty pay.
McLeod, represented by Sandulli Grace attorney Laurel Goldstein, appealed the retirement board’s decision to exclude hazardous duty pay from his regular compensation. McLeod argued that hazardous duty pay is regular compensation because it is compensation received as wages, specifically, pre-determined, non-discretionary, guaranteed payments received because of the character of police work. See 840 CMR 15.03 (3). The retirement board argued that it properly excluded hazardous duty pay because regular compensation is “received exclusively as wages…for services performed in the course of employment.” See M.G.L. Ch. 32, § 1, 840 CMR 15.03 (3). The retirement board argued that hazardous duty pay is not regular compensation because it is not for any additional service outside employees’ regular duties of being a police officer, despite having its own pay code, line on the pay check, and provision in the collective-bargaining agreement.
The Division of Administrative Law Appeals (DALA) agreed with McLeod that hazardous duty pay is regular compensation. It found that hazardous duty pay “obviously” satisfied the regulatory requirements for regular compensation:
- It was disbursed once every pay period;
- Its amount was predetermined and unvarying throughout each fiscal year;
- It was not in any way extraordinary, adventitious, or ad hoc;
- It did not depend on any discretion or contingency; and
- It was available to all similarly situated employees.
DALA also rejected the retirement board’s position that hazardous duty pay is not regular compensation because it is a separately negotiated item, not part of officers’ contractual base pay. It credited the testimony of Lieutenant Evan Tuxbury, president of MassCOP Local 479, who explained that it is common practice in bargaining for municipal employers to agree to pay increases based on the specific features of work certain unions perform (e.g. hazardous duty pay for police officers), instead of including every pay increase in the contractual base pay. The full decision is available here.
On April 2, 2020, a federal court judge dismissed a discrimination lawsuit against Local 950, International Association of Firefighers (the Brookline firefighters’ union) brought by one of its members. In granting the Union’s motion for summary judgment in Alston v. Town of Brookline, NO. 15-13987-GAO, the Court (Judge George O’Toole) found that there is no genuine issue of material of fact between the parties that needs to be settled through a trial and the matter could be resolved as a matter of law. In reaching this conclusion, the Court stated that the Plaintiff “fails to cite to competent, non-conclusory evidence in support of his objections to the defendant’s cited evidence.”
In 2015, the Plaintiff filed three federal civil rights claims against the Town of Brookline, various town officials, and the Union under Chapter 42, sections 1981, 1983, and 1985 of the U.S. Code. The gist of the claims was that the Union retaliated against the Plaintiff after he protested the discriminatory conduct of another Union member and that the Union failed to file grievances on his behalf because of his race. The Court rejected the 1983 claim, which requires government action, because, as the Court found, ““[t]he factual record does not support a conclusion that the Union was in any way acting under the color of state law… There is simply no evidence that would raise a genuine issue of fact that the Union became so allied with the Town’s actions toward [the Plaintiff] that it effectively became a state actor.” The Section 1985 claim, which requires a finding of a conspiracy between two or more parties, also failed after the Court concluded that “[t]here is no evidence that the Union and the Town were conspiring against [the Plaintiff] to retaliate or discriminate against him” and “there is no evidence in the extensive record that could support a conclusion … that the Union conspired with [the Town] to deprive [the Plaintiff] of his rights.”
The Court also dismissed the Section 1981 claim. To state a claim under Section 1981 a plaintiff must show that they are a racial minority, that they were discriminated against on the basis of their race and that the discrimination implicated one of the activities enumerated in the statute. One activity is the enforcement of contracts; the Plaintiff alleged that the Union had failed to enforce its contract with him because of his race and in retaliation for protesting the actions of other Union members. The Court rejected the Section 1981 claim, noting that “[s]ubstantively, the record lacks evidence that … the Union retaliated against [the Plaintiff] for any protected activity or otherwise itself discriminated against [the Plaintiff] (emphasis included).” The Court noted that the Plaintiff did not approach the Union for assistance: “It cannot be said to have been materially discriminatory for the Union not to have acted when it appeared [the Plaintiff] did not want it to act on his behalf.” Judge O’Toole also pointed out that many of the allegations against the Union were barred by the statute of limitations because they occurred too far in the past.
In addition to dismissing the Plaintiff’s claims against the Union, the Federal Court also dismissed the claims against the Town of Brookline and individual Brookline officials. The Plaintiff has already filed a notice of appeal to the U.S. Court of Appeals for the First Circuit, where the Court will review Judge O’Toole’s rulings. In the meantime, this victory for the Union is an affirmation of their consistent position that they fight hard for the benefit of their members – all their members – regardless of race, creed or color.
READ THE DECISION HERE
Sandulli Grace, P.C. and the Massachusetts Coalition of Police are proud to announce our third 2019 police union training. Sandulli Grace and MassCOP believe in empowering MassCOP’s local unions through education, to create a stronger, safer environment for members. Our 2019 training sessions will give you tools to enforce your rights and improve your members’ working conditions.
In the past two years, MassCOP and Sandulli Grace have presented multiple “basics” trainings to our police unions. We believe there is a continued need for these trainings, as unions continue to elect new leaders, and new legal challenges present themselves every day. Topics include:
- Grievance Processing
- Stress in the Workplace
Whether you are newly elected, or a seasoned union leader looking for ideas on how to make your job easier and more effective, these basics trainings can give you helpful information about issues that local unions face every day.
Bring Your Contract!
We intend this training to be interactive and practical, so we ask each person to please bring a copy of your collective bargaining agreement so that we can discuss real situations. PARTICIPATION IS NOT NECESSARY, BUT IT ADDS TO EVERYONE’S EXPERIENCE! WE STRONGLY ENCOURAGE IT! We will help you interpret your contract’s provisions on grievance processing and appealing discipline, and we will discuss what proposals you might want to make in your next round of bargaining.
How to Register
Our next 2019 training will be held on Wednesday, December 4, 2019 from 10:00 a.m. – 2:00 p.m. at the American Legion Hall, 199 Federal Furnace Rd, Plymouth, MA 02360. Please see the attached flyer. The cost is $55 per person. Payment can be by check mailed to Gia Capozzi at Sandulli Grace, P.C., 44 School Street, Suite 1100, Boston, MA 02018, or by credit card at this link:
We welcome your feedback regarding the location and content of these training sessions. Please do not hesitate to contact us with questions or suggestions at firstname.lastname@example.org.
Download the event flyer