Many police chiefs and public employers have misinterpreted the DiSciullo decision (perhaps willfully) to claim that they must fire law enforcement officers who make any lie or misstatement. A recent decision shows that once again, public employers have it wrong.
In Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 03-P-1154 (Feb. 1, 2007), the Appeals Court affirmed its previous decision that resulted in the reinstatement of a corrections officer. The Suffolk County Sheriff terminated a corrections officer after it found that he observed a scuffle between fellow officers and a pretrial detainee, failed to report these observations and then lied about the matter to investigators. On appeal, the arbitrator found that punishment of the corrections officer warranted no more than a six-month suspension. The arbitrator specifically found that the corrections officer failed to "file some form of a report of an unusual and significant event (i.e., the assault) and that he did not cooperate with the investigation and filed incomplete, misleading or false reports."

The Sheriff appealed. The Appeals Court expressly rejected the suggestion that the arbitrator’s award was illegal under DiSciullo.

In the Boston Police case, DiSciullo was the original perpetrator of bad acts, who then went on to "shroud his own misconduct in an extended web of lies and perjured testimony." In contrast, Upton’s conduct was the result of trying to cover up the misdeeds of his fellow correction officers, and not the result of trying to cover up his own misconduct. Such conduct, while condemnable, and requiring substantial discipline, did not compel termination, as it did not "present one of those ‘rare instances’ in which an arbitrator’s award must be vacated as contrary to ‘an explicit, well-defined, and dominant public policy.’ "
While this case involved a corrections officer, it seems to have equal application to police officers. As such, this decision should make public employers reconsider their threats of termination when they assert that police officers have lied in the course of an internal affairs investigation.

Download The Decision

In another case involving the Suffolk County Sheriff, Sheriff of Suffolk County v. AFSCME Council 93 (Feb. 13, 2007), the Massachusetts Appeals Court rejected another effort to void a public employer’s attack on an arbitrator’s award of reinstatement.
This case dealt with a corrections officer terminated for excessive sick leave – sick leave, incidentally, caused by a work-related injury (restraining an unruly prisoner). The arbitrator interpreted the sick leave policy and found that, contrary to the Sheriff’s claims, the absences were not “undocumented” as the officer provided supporting medical documentation. The arbitrator ordered reinstatement.

The Sheriff appealed under the principle that an arbitrator cannot ignore the contract’s plain language. In essence, the arbitrator claimed that an erroneous interpretation is tantamount to ignoring contract language. The Appeals Court rejected this contorted logic.

In this case, there is no doubt that the arbitrator focused on the correct language in the [policy], but his interpretation of that language, that an employee who lacked sufficient accrued sick leave could avoid being charged with an "undocumented" sick day by providing appropriate medical documentation, may have been incorrect. The judge essentially ruled that the arbitrator’s interpretation was erroneous. In short, the arbitrator may simply have got it wrong. The sheriff’s argument, therefore, boils down to a claim that the arbitrator exceeded his authority by erroneously interpreting the contract provision. If that were the test for vacating an arbitration award, G. L. c. 150C, § 11 … would be drained of any meaning, so that any and all awards would be vulnerable to attack, merely on a complaint by a party who claims error on the part of an arbitrator in interpreting the particular contract language at hand. The settled rule, however, is that a court has "no business overruling an arbitrator because [it] give[s] a contract a different interpretation."

In a world guided by logic, this decision should caution public employers from frivolously challenging arbitration losses. Of course, if only all public employers inhabited such a world.

Download The Decision

SJC Reinstates Excessive Punishment For Employee Misconduct

In December, the Supreme Judicial Court severely narrowed the ability of employees to obtain meaningful relief from the Massachusetts Civil Service Commission. As a result of today’s unanimous decision from the highest state court, employees should consider alternatives to the Commission, such as grievance/arbitration (when provided by a collective bargaining agreement) and/or wrongful termination claims under various anti-discrimination and anti-retaliation laws.

In Town Of Falmouth v. Civil Service Commission, SJC-09652 (December 7, 2006), the public employer suspended an officer for 180 days as a result of the officer’s assault on a teenager that had been harassing the officer’s son. The officer did not testify at the town hearing, but he did before the Commission. Where the alleged victim claimed that the officer grabbed him by the throat, threw him against the cruiser and repeatedly threatened the teen’s life, the officer denied the above allegations before the Commission and testified that he merely placed his hand to the teen’s chest to prevent the teen from leaving. The Commission largely found the officer’s testimony credible, finding that he placed his hand in a way that caused the teen “to fall back into a tree trunk." The Commission reduced the suspension from 180 days to 60 days.

In a decision that could reverberate throughout the Commonwealth, the SJC criticized the Commission and reinstated the 180 day suspension. Public employers will read the case as making it easier for a town to prove its case before the Commission. First, although the SJC acknowledged that the Commission hearing is “de novo” (meaning that the hearing is conducted anew at the Commission and is not bound by the Town’s decision), the SJC suggested the Commission must consider the facts as found by the town. If a town’s create a presumption of validity, then an employee is denied the promise of a new hearing. Second, public employers will contend that under this decision, the SJC mandates the Commission to draw a negative inference from an officer’s lawful invocation of his right to remain silent under state and federal law. Here, the Town did not appear to draw any negative inference from the officer’s silence; the SJC did so on its own.

This latter development may be most troubling if applied to mean that the invocation of your right to protect yourself against incriminating yourself in criminal prosecution comes at the cost of your pay or your job. This view ignores the reality for many public employees – most town hearings are simply kangaroo courts that deny due process. In these settings, an employee speaking out on his or her behalf is unlikely to make a difference. If anything, the testimony will serve to support a charge by the employer that you “lied.”

Finally, public employers will read the decision as suggesting that a town’s findings and discipline must be upheld unless the Commission finds facts that are materially different. Here, the Town found that the officer choked the teen and violated the use-of-force policy. By contrast, the Commission found that only tapped the teen’s chest and did not violate the Town policy. Remarkably, the SJC found that these differences were immaterial.

The above decision sadly reinforces that employees are more likely to receive a fair hearing under a grievance/arbitration procedure and/or from a wrongful termination lawsuit premised upon anti-discrimination or anti-retaliation laws.

Read The Decision

Although the Superior Court did not presently enjoin the lateral transfer of the Municipal Police into the Boston Police Department, he essentially agreed with the fundamental argument laid out by the Boston Police Patrolmen’s Association (BPPA), represented by the attorneys of Sandulli Grace. In the first instance of judicial review, Judge Brassard basically agreed with the principle argument laid out by the BPPA: Boston Municipal Police Officers, regardless of whatever status may have been conferred on them by the Human Resources Division (HRD) did not get on their jobs in the same way as Boston Police Patrol Officers. Therefore, they are not eligible to “lateral” from their jobs into the BPD. The Judge left it to HRD and the Civil Service Commission to perform their oversight responsibilities, and he therefore saw no need presently for an injunction. Stay tuned for further developments.

Municipal_Police_Superior_Court_Decision.pdf

This New Hampshire Supreme Court case shows what happens in a jurisdiction without a state supreme court that protects individual rights. In this New Hampshire case, the NH Supreme Court upheld the discharge of a state trooper for refusing to take a polygraph (lie detector) in the face of accusations of threatening her supervisors. Although she was granted criminal protection for whatever she might say in the polygraph exam, there was no prohibition on its use in administrative proceedings against her. This is the federal law, as determined by the U.S. Supreme Court in the 1967 Garrity decision. Were she a state trooper in Massachusetts, she would have obtained a different result. Here, our state Supreme Judicial Court, in Carney v. Springfield, 403 Mass. 604 (1988), interpreted Article 12 of the Massachusetts Declaration of Rights to be more protective of individual rights than the Federal Constitution. Consequently, a Massachusetts public employee confronted with the same dilemma as this N.H. trooper could exercise her right to receive transactional immunity before being compelled to submit to questioning about a matter that could lead to criminal prosecution. Transactional immunity forecloses criminal prosecution altogether for the subject matter of the interrogation. While some, including police officers, may criticize our Massachusetts courts for their asserted overprotection of defendants’ rights, it is this same protection of individual liberty that may make the difference between surviving an investigation and unemployment.

Supreme Court of New Hampshire.
Appeal of Tracy WATERMAN (New Hampshire Personnel Appeals Board).
No. 2005-592.
Argued: Oct. 11, 2006.
Opinion Issued: Nov. 30, 2006.

Background: State employee appealed decision of the state Personnel Appeals Board (PAB) affirming her dismissal as a state trooper.

Holdings: The Supreme Court, Dalianis, J., held that:
(1) in a matter of first impression, demand made to employee to take polygraph examination regarding her alleged threats regarding her superiors was a lawful order, and
(2) demand to submit to polygraph examination was not illegal retaliatory action.

Affirmed.

Donchess & Notinger, P.C., of Nashua (James W. Donchess on the brief and orally), for the petitioner.
Kelly A. Ayotte, attorney general (Nancy J. Smith, senior assistant attorney general, on the brief and orally), for the respondent.

DALIANIS, J.
*1 The petitioner, Tracy Waterman, appeals a decision of the New Hampshire Personnel Appeals Board (PAB) affirming her dismissal by the respondent, the New Hampshire Department of Safety, Division of State Police (Division), from her employment as a state trooper for willful insubordination because she refused to take a polygraph test. N.H. Admin. Rules, Per 1001.08(a)9. We affirm.

The PAB found or the record reflects the following facts. On August 29, 2003, Vicky Lamere, the wife of a state trooper, informed one of the petitioner’s supervisors, Lieutenant Nedeau, that the petitioner had made threats against her supervisors. Lamere said that the petitioner had said that she did not know how she might react or what she might do if Nedeau or her other supervisor, Sergeant McCormack, yelled at her. The petitioner told Lamere that she would “like to put a bullet in Lieutenant Nedeau’s head” and “deck Sergeant McCormack.”

The Division began an internal investigation of these allegations on September 3, 2003. Investigators interviewed several witnesses, including Lamere and the petitioner, who denied making any threats. The investigators found Lamere to be more credible than the petitioner, and, therefore, they recommended that the petitioner be ordered to submit to a polygraph examination. Colonel Gary Sloper, the Division director, authorized the investigators to conduct a polygraph test of the petitioner on September 15, 2003.

The petitioner arrived for the polygraph examination with her attorney and advised that she would not take the test. The investigating officer explained that her refusal could mean that she violated an order from Colonel Sloper and that she could receive discipline for this, up to and including dismissal. The petitioner indicated that she understood and still would not take the test.

In a September 18, 2003 memorandum, Colonel Sloper notified the petitioner of his intent to dismiss her from her employment as a state trooper because of willful insubordination for failing to take the polygraph examination as he had ordered. Colonel Sloper met with the petitioner and her attorney on September 22, 2003; her employment was terminated that day.

The petitioner appealed her termination to the PAB. The petitioner acknowledged that the Division’s professional conduct standards authorized the use of polygraph examinations during internal investigations. Specifically, section 26-E.5.1 of those standards provides, in pertinent part:

During the course of internal affairs investigations, if conditions are such that certain investigatory procedures are appropriate, Division members may be compelled to provide specialized information or submit to testing or examinations. These procedures shall be specifically directed and narrowly related to the matter under investigation···· Examples of special investigative procedures which may be compelled during the course of an administrative internal affairs investigation include ··· polygraph examinations.

*2 She further acknowledged that Colonel Sloper had ordered her to take a polygraph test and that she had refused. She also admitted that she was advised in the presence of counsel that her refusal to comply with Colonel Sloper’s order could result in disciplinary action, which could include dismissal.

The petitioner urged the PAB to rule that her termination for refusing to take the polygraph test was unlawful because the test is unreliable and degrading and its results are inadmissible in court. She also argued that the order that she submit to the polygraph test was retaliatory. The PAB disagreed and upheld her termination. The petitioner filed a motion for rehearing, which the PAB denied.

This is an appeal from a final decision of the PAB pursuant to RSA 21-I:58, II (2000), RSA 541:6 (1997) and Supreme Court Rule 10. The petitioner has the burden of demonstrating that the PAB’s decision was clearly unreasonable or unlawful. RSA 541:13 (1997). The PAB’s findings of fact are deemed to be prima facie lawful and reasonable. Id. We will affirm the decision unless we are satisfied, by a clear preponderance of the evidence before us, that it is unjust or unreasonable. See RSA 541:13; Appeal of Armaganian, 147 N.H. 158, 162, 784 A.2d 1185 (2001).

Under Section 1.3.4 of the Division’s professional standards of conduct, an employee is willfully insubordinate when he or she “deliberately and/or intentionally disobeys a lawful order.” The petitioner contends that, contrary to the PAB’s finding, she did not engage in willful insubordination because the order that she take the polygraph test was unlawful. The petitioner argues that the order was unlawful because: (1) it involved a polygraph test, which she contends is unreliable, unfair and degrading; and (2) the order was motivated by retaliation.

I

We first address whether the order was unlawful because it involved taking a polygraph test. Whether a police officer may be terminated for failing to take a polygraph test is an issue of first impression in New Hampshire. We therefore look to other jurisdictions for guidance. See Stateline Steel Erectors v. Shields, 150 N.H. 332, 334, 837 A.2d 285 (2003).

“[C]ourts have generally held that a public employer can require a policeman to submit to a polygraph test as part of an investigation of his conduct.” D. Nagle, The Polygraph in the Workplace, 18 U. Rich. L.Rev. 43, 68 (1983); see also Annotation, Refusal to Submit to Polygraph Test, 15 A.L.R.4th 1207, 1209-18 (1982). “Courts have concluded that, since a police officer must be above suspicion of violation of the laws that he is sworn to enforce ··· and must perform his duty to investigate crime and maintain the public trust, questions concerning the propriety of his conduct must be resolved promptly.” Nagle, supra at 68. “In furtherance of this objective, polygraph tests can be administered, and an officer’s refusal to submit to such an examination can result in his dismissal.” Id.

*3 Thus, in Eshelman v. Blubaum, 114 Ariz. 376, 560 P.2d 1283, 1285 (1977), for instance, the court reasoned, “[T]he compulsory use of the polygraph during departmental investigations is consistent with the maintenance of a police or sheriff’s department that is of the highest integrity and beyond suspicion.” Therefore, the court ruled that a police officer may be ordered to submit to a polygraph test upon penalty of dismissal provided that there are reasonable grounds for demanding such a test, the answers are not used in any subsequent criminal prosecution, and the questions relate specifically and narrowly to the performance of the police officer’s official duties. Eshelman, 560 P.2d at 1285-86; see also Roux v. New Orleans Police Department, 223 So.2d 905, 912 (La.Ct.App.1969) (“While appellant’s refusal to obey the order is not evidence of guilt or of knowledge of the identity of the guilty party, he may not be permitted to refuse to take the polygraph test in view of his sworn duty to cooperate in the investiga
tion of crime.”), cert. denied, 397 U.S. 1008, 90 S.Ct. 1236, 25 L.Ed.2d 421 (1970).

While numerous courts, including this court, have ruled that polygraph test results are inadmissible as evidence of guilt or innocence in criminal trials, see State v. Ober, 126 N.H. 471, 471-72, 493 A.2d 493 (1985), courts have found that the unreliability of polygraph test results for these purposes does not negate their utility for other purposes. In City of Warrensville Heights v. Jennings, 58 Ohio St.3d 206, 569 N.E.2d 489, 492 (1991), for instance, the court observed that polygraph tests “can be a useful tool in internal department investigations of police misconduct.” At issue in Jennings was whether a police dispatcher’s refusal to obey an order to take a polygraph constituted “just cause” for his dismissal, thus, making him ineligible for unemployment insurance benefits. Jennings, 569 N.E.2d at 491. The court ruled that because polygraph test results are reliable enough for some purposes, there was just cause for the dispatcher’s termination because he refused to take a polygraph after being ordered to do so. Id. at 492; see also Fichera v. State Personnel Board, 217 Cal.App.2d 613, 32 Cal.Rptr. 159, 164 (1963) (observing in case involving investigation of officer misconduct, that a polygraph test “might have proved useful in limiting and channeling the investigation in this case”). But see Farmer v. City of Fort Lauderdale, 427 So.2d 187, 190 (Fla.) (“[T]he possible investigative benefit of building a case upon the foundation of the results of a polygraph examination is too thin a reed to support a denial of a police officer’s right to be subjected only to lawful and reasonable orders.”), cert. denied, 464 U.S. 816, 104 S.Ct. 74, 78 L.Ed.2d 86 (1983); Kaske v. City of Rockford, 96 Ill.2d 298, 70 Ill.Dec. 841, 450 N.E.2d 314, 320 (1983) (recognizing that “a polygraph examination is ··· of some investigatory utility and value,” but concluding that refusing to submit to polygraph test cannot be basis for disciplinary action against officer; to hold otherwise would be “inconsistent” with court’s ruling that such test results are inadmissible in administrative hearings), cert. denied, 464 U.S. 960, 104 S.Ct. 391, 78 L.Ed.2d 335 (1983).

*4 The Federal Employee Polygraph Protection Act of 1988, 29 U.S.C. §§ 2001-2009 (2000 & Supp. III), which prohibits many private sector employers from using polygraph tests for pre-employment screening or during the course of employment, also appears to recognize that the polygraph test may be useful for some purposes. This act contains a limited exemption for ongoing investigations provided certain conditions are met, as well as an exemption for private employers whose primary business consists of providing security. 29 U.S.C. § 2006(d), (e) (2000).

“Although the superior officer has broad powers to order a polygraph examination, his request or order must still be reasonable in the view of most courts.” Nagle, supra at 68-69; see Jennings, 569 N.E.2d at 494 (request to take polygraph test must be for a lawful reason). In Eshelman, 560 P.2d at 1286, the court found that there were reasonable grounds to require the officer to submit to a polygraph where the officer’s credibility was in question. As the court explained: “[A] polygraph is always proper to verify statements made by law enforcement officers during the course of a departmental investigation.” Id.; see Seattle Police Officers’ Guild v. City of Seattle, 80 Wash.2d 307, 494 P.2d 485, 493 (1972) (holding that where serious charges of crime and corruption have been levied against department and public has serious doubts about department’s integrity and morality, it was permissible to request officers to submit to polygraph tests upon pain of dismissal).

Courts that have ruled that police officers may not be terminated for failing to submit to a polygraph test have done so for reasons that do not apply here. In the case upon which the petitioner relies, Stape v. Civil Service Commission of City of Philadelphia, 404 Pa. 354, 172 A.2d 161, 164 (1961), “nowhere in the City Charter, the City Ordinances, the Civil Service Regulations, or the Police Department regulations [was] there a provision which authorize[d] the Police Commissioner or the Civil Service Commission, expressly or by implication, to force a city employee to submit to a polygraph test.” There was also no regulatory authority to require the police officers at issue in Molino v. Board of Public Safety of City of Torrington, 154 Conn. 368, 225 A.2d 805, 809 (1966), to take polygraph tests.

By contrast, section 26-E.5.1(B)(6) of the Division’s professional conduct standards expressly states that “Division members may be compelled to provide specialized information or submit to testing or examinations,” which may include polygraph tests. Pursuant to this provision, any such testing or examination “shall be specifically directed and narrowly related to the matter under investigation.”

Further, under section 26-E.5.1(B)(4), (5), before any interview of a Division member may take place, a so-called “Garrity Warning” must be given. See Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Such a warning informs the accused that the purpose of questioning is to assist in determining whether to impose administrative discipline. Even if the accused were to disclose during questioning information indicating that he may be guilty of criminal conduct, the warning explains that neither his “self-incriminating statements, nor the fruits thereof” will be used against him in any criminal proceeding. The warning further states that if the accused refuses to answer questions or fails to give truthful answers, he will “be subject to disciplinary action, up to and including dismissal.”

*5 In light of the above discussion of the persuasive authority from other jurisdictions, we hold that an order made pursuant to the Division’s professional conduct standards to require a Division member to take a polygraph test is a lawful order.

II

[2] Link to KeyCite Notes We next address whether the order at issue was unlawful because it was impermissibly motivated by retaliation. The petitioner asserts that Colonel Sloper ordered her to take the polygraph test to retaliate against her for filing a sex discrimination complaint against the Division. She observes that before she was ordered to do so, it had been eight years since the Division had ordered a trooper to take a polygraph test. She further contends that the Division did not order her to take a polygraph test until it knew that she would refuse to take one.

The PAB found that Colonel Sloper was not motivated by retaliation when he ordered the petitioner to take the polygraph test. The PAB credited Colonel Sloper’s testimony that his primary concern was whether the petitioner had made threats of physical violence against her superiors. As Colonel Sloper testified: “[I]t was clear to me that the only one that could ··· really answer this truthfully was ··· [the petitioner], and it was clear to me that I had no other choice but to order her to submit to a polygraph and get these issues resolved.” He explained that because Lamere did not work for the Division, he could not compel her to take a polygraph, but that he could compel the petitioner to do so. He also explained that, in his experience, it is generally not necessary to order an employee to take a polygraph because “usually there’s an admission and one way or the other, it can be proved that they are being truthful or not. That wasn’t the case here.” Because there is evidence to support the PAB’s finding, we uphold it. See RSA 541:13.

Having concluded that the order that the petitioner take the polygraph test was lawful, we affirm the PAB’s determination that she engaged in willful insubordination.

Carney v. Springfield

Ever since Governor Romney proposed legislation in 2003 setting municipal employers’ health insurance premium contributions at 75% and employee contributions at 25%, cities and towns have been attempting to bargain for the reduction to 75% of any higher employer contributions. While the reduction of employer contributions is generally undesirable, the employer’s anxiety about the cost of insurance can be turned to the employees’ advantage. Employers have been induced to pay substantially more in wage increases than they have gained in premium contribution reductions. This strategy is available to unions only when employers propose a reduction in their health insurance contributions; the union cannot expect such exceptional wage increase unless the employer first seeks a reduction of health insurance contributions.

Some recent contract settlements negotiated by this office demonstrate the possibilities. In the case of the Essex Police (MassCOP Local 270) Attorney Ken Grace negotiated a 6.5% wage premium to offset a proposed reduction of the employer’s health insurance contribution from 90% to 75%. The parties assumed that their general wage increases would have been 3%, 3%, and 3% without the change in insurance contributions. In that case the contract wage increases and the insurance reductions were as follows:

General Wage Increase Town’s Insurance %
July 1, 2004 3.0% 90%
July 1, 2005 9.5% 75%
July 1, 2006 3.0% 75%

Assuming that an employee has an HMO family plan costing a typical $12,000 per year, the 15% increase in employee contributions costs 15% x $12,000 = $1,800 per year. However, the 6.5% wage increase on a typical police salary of $50,000 per year generates 6.5% x $50,000 = $3,250 per year. Not only does this wage increase far supersede the increased employee cost of the insurance contribution increase, but unlike insurance contributions, it increases the overtime rate and it increases the employee’s pension benefit. For employees on the individual insurance plan, the gain would be even greater.

One concern about agreeing to any reduction in the employer contribution in health insurance is that any compensation for the change will be swallowed up by the substantial annual increases in the premium. Assuming that premium rates will increase at an average of 10% per year, the additional cost arising from the change in rates from 90% to 75% will not overtake the $3,250 wage premium for seven years. That is, the $1,800 increased at 10% per year will not rise over $3,250 until the seventh year. During the first six years following the change, the employee is getting far ahead of the game. By the time the seventh year comes around, there may be some entirely new approaches to health care.

Another approach to bargaining a reduction in the employer’s contribution to health insurance has been to make the reduction gradual, but again with substantial wage premiums. Attorney Amy Davidson of this office bargained the following package for the Dedham Firefighters (Local 1735, I.A.F.F.):

General Wage Increase Town Insurance %
July 1, 2004 2.0% 90%
July 1, 2005 6.92% 87%
July 1, 2006 3.0% 84%
July 1, 2007 4.0% 80%

Here the union obtained a 3.92% premium in 2005 and an additional 1% in 2007 (assuming a 3% increase would have been appropriate with no change in insurance) in exchange for the gradual reduction of the town’s insurance contribution from 90% to 80%. At the end of the contract the 10% increase in employee insurance contributions will cost about $1,200 per year while the compounded 4.96% wage increase generates $2,480 per year.

One final reason to consider this approach to bargaining is that some recent interest arbitration cases from the Joint Labor Management Committee have ordered the reduction of employer contributions. Rather than letting an arbitrator determine what compensation, if any, is appropriate as a trade for such a reduction, it may be desirable to bargain the appropriate trade.

Joseph G. Sandulli

The Supreme Judicial Court has agreed to review a victory for public safety officers injured in the line of duty. Earlier this year, the state Appeals Court ruled that a public employer must pay pre- and post-judgment interest if a state court overturns the municipality’s refusal to pay injured-on-duty benefits to a police officer or firefighter. The case is Todino vs. Town of Wellfleet 05-P-613 (April 19, 2006).
A public safety officer may go to court to challenge a municipality’s decision to deny §111F benefits. IOD benefits are commonly known as §111F benefits in reference to General Laws Chapter 41, §111F. Under the Appeals Court decision, a municipality is on the hook for prejudgment and postjudgement interest if a court finds that the denial of 111F benefits is determined was wrong.
In the Todino case, a special police officer was removed from §111F and fired in December 1998. In November 2002, a court found that these actions were unlawful and entered a judgment entitling her to reinstatement and retroactive §111F benefits. The Town of Wellfleet appealed this decision – and lost in March 2005. Wellfleet finally paid the officer for lost wages ($172,000) in April 2005 without interest.
The officer then sought interest payments on the above payout. Her prejudgment interest – based on the time between the initial denial of benefits and the date of the trial court’s decision – totaled about $69,000. Meanwhile, postjudgment interest – based on the time between the trial court’s decision and the municipality’s actual payment of §111F benefits – reached nearly $61,000. Without the addition of pre-and post-judgment interest, the Court stated, “the ultimate payments to the employee would be incomplete as well as untimely and the over-all statutory scheme would be defeated.”
This decision, if upheld, presents a resounding victory for public safety officers injured in the line of duty. The possibility of interest payments should make a town think twice before denying §111F benefits. In addition, the threat of interest payments also should strengthen the bargaining power of the Union and the injured officer to resolve the case favorably short of litigation.
We can’t celebrate just yet. The SJC’s decision to review the case means that the decision could be reversed or affirmed. The case is expected to be argued in November with a decision to issue like to issue sometime in 2007.
A word of caution: the applicability of this decision to §111F arbitration cases is not automatic. Persons wrongfully denied IOD benefits may be able to seek relief from an arbitrator, instead of a judge. Many collective bargaining agreements permit §111F claims to be raised in the grievance/arbitration process. (Even if a CBA contains no express provision on IOD or §111F, unions still could challenge a denial of benefits by citing other provisions, including wages, paychecks, sick leave, etc.) Arbitration generally is less costly and time-consuming.
However, interest is not a traditional remedy in arbitration cases. As such, an arbitrator may be reluctant to deviate from the norm and order interest in a §111F case. At the same time, some arbitrators interpret a CBA more generously than §111F. For interest, the statute does not require paid leave benefits to accrue while an officer on IOD. Many arbitrators, depending on contract language or past practice, order employers to pay these benefits.
If you feel you have been wrongfully denied §111F benefits, you should consult with your union counsel in advance about your options.

On August 16, 2006, the Massachusetts Appeals Court issued a decision that makes it harder for public employees who had to retire because of a job-related disability to earn income during retirement. In essence, the Court decided that all monies listed on a W-2 form may be considered “income” for purposes of the earnings limitation placed on disability retirees from public employment.
Massachusetts law allows public employees who are disabled because of an on-the-job injury to retire with 72% of their pay at the time of injury or average from most recent 12 months (whichever amount is greater). The 72% amount is non-taxable. (Compare this amount with the 80% taxable benefit they public employees may received if they work until regular retirement age.) Massachusetts law also limits how much money disability retirees can earn from any other employer, whether in the public or private sector. Disability retirees may receive no more than $5,000 beyond the current salary of their position. Disability payments count toward this cap, too.

The question in Gorman vs. Contributory Retirement Appeal Board was how to calculate the income that counts toward the cap. Gorman, a disability retiree, had been working at a job that required him to incur certain job-related expenses. He did not file a submit receipts for expenses so as to receive a check from his employer for these claims. Instead, Gorman received, in addition to his earnings, payments for ‘nonreimbursed expenses’ in his paychecks. The employer included these payments in his W-2 Form. When Gorman did his taxes, he listed the W-2 amount, which included the reimbursements. Hethen properly claimed these job-related expenses as deductible, which reduced his adjusted gross income to reflect his actual earnings. Here’s why the method of reimbursement payments matters to Gorman’s case: the amount of income with the reimbursements was lower than the maximum set by statute; the amount with the reimbursements was over the limit.

The Appeals Court’s decision relied upon a memo by the Public Employee Retirement Administration Commission, which oversees all public employer retirement systems in the Commonwealth. The memo (called PERAC Memo #64/1998) said that income for purposes of the statutory earnings limit included: (1) earned income, which implied some labor, manufacturing or supervision; or (2) profits from the operation of a business, regardless of how the retiree categorizes such income for income tax or other purposes.

Gorman argued that the memo didn’t apply to him Because the reimbursements for his business expenses are not earnings from labor, manufacturing or supervisionand they also are not profits from operating a business. Still, the Appeals Court agreed with the Contributory Retirement Appeal Board it may count all monies listed on a W-2 form, no matter how Gorman categorized some of the money for income tax purposes.

NOTE: The Contributory Retirement Appeal Board did agree that, if Gorman had documentation that he had incurred expenses, provided receipts to the employer and received reimbursements, those payments would not be counted as income. The bottom line of Gorman v. CRAB is that disability retirees who incur work-related expenses should submit receipts to their employers and receive a separate reimbursement check that reflects actual expenses.

— John M. Becker

A public employee who engages in private misconduct can lose his or her pension, even if the misconduct is unrelated to any official action, so long as the conduct involves criminal dishonesty. In the much-anticipated decision of State Board of Retirement v. Bulger released Monday, March 6, 2006, the Supreme Judicial Court held that Jack Bulger, brother to Former Senator and U-Mass President Billy and fugitive Whitey, must lose his pension as a result of pleading guilty to charges of perjury and obstruction of justice based on statements made to Federal agents investigating his fugitive brother.
Bulger was a public employee for 37 years, the last 20 as a Clerk-Magistrate of Boston Juvenile Court. Based on statements Jack made during the FBI investigation into the whereabouts of Whitey, the FBI charged him with perjury and obstruction of justice. He ultimately pleaded guilty to four counts.

The SJC case deals solely with the issue of whether, in spite of the guilty pleas, Bulger still may receive benefits under the state retirement system. In a unanimous decision authored by Justice Martha Sosman, the Court answered "NO."

Massachusetts General Laws Chapter 32, §15(4) deprives a public pension to any public employee who receives a "final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance…."

Court cases have frequently held that a convict loses his or her pension if the underlying criminal offense relates to official duties of the public job. In other words, a municipal official who is convicted of skimming funds from the employer obviously loses a pension. See, e.g., Gaffney v. Contributory Retirement Appeal Bd, 423 Mass. 1 (1996). The Bulger case is somewhat unique for the forfeiture arises from indisputably off-duty conduct.

The decision re-affirms the SJC’s view that a) honesty or integrity is fundamental to most public employee jobs, at least those jobs involving courts or law enforcement; and b) dishonesty and interference with law enforcement likely requires loss of the job as well as the pension.

The Bulger case may be troubling in light of another recent SJC case involving public employee misconduct. In City Of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005), a unanimous SJC held that a police officer who was found to have repeatedly lied and abused his authority cannot be reinstated to the police department. This irreversible termination must be the result, even where the Union shows that the City has a clear record of suspending, not terminating, officers who engaged in worse conduct, and said officer has a clean disciplinary record.

While this particular Boston officer was never convicted by a jury of perjury or any other crime beyond a reasonable doubt, the SJC’s decision nevertheless relied on the arbitrator’s findings to conclude that he committed perjury. It found perjury to be a capital crime. "One of the most important police functions is to create and maintain a feeling of security in communities. To that end, it is extremely important for the police to gain and preserve public trust, maintain public confidence, and avoid an abuse of power by law enforcement officials." City Of Boston v. BPPA, 443 Mass. 813, 819 (2005)

The specific provision of pension forfeiture law discussed in Bulger, Chapter 32, §15(4), clearly requires that an actual conviction of perjury or obstruction of justice occur before an employee’s pension is forfeited. Other forfeiture provisions establish a much lower threshold. An employee may lose his or her pension if found to have "misappropriated funds." The Courts have permitted expansive interpretations of this definition. For instance, in Doherty v. Retirement Board of Medford, 425 Mass. 130 (1997), a police officer was acquitted of federal criminal charges of stealing a police entrance examination for his son. Nonetheless, the retirement board relied on criminal trial testimony to find that he stole the exam. The Board found that by this action, which involved no financial graft, the employee "misappropriated funds." The appropriated funds consisted of "the salary and other payments received by [officer] from the [employer] by virtue of his fraudulently obtained employment as a police officer."

Going forward, we here at Sandulli Grace will argue that off-duty lying or interference, to disqualify an employee from pension, should be limited to a) employees who take an oath for their job; and b) the lie interferes with compliance with laws or government investigations. By contrast, a lie underlying sick leave use, we believe, should not result in either irreversible termination or pension forfeiture. As the law continues to develop, we will continue to keep you informed.

The Bulger case stands as a stark reminder of the severe civil, criminal and financial consequences that face public employees who are found, rightly or wrongly, to have engaged in criminal misconduct, especially perjury or obstruction of justice, whether on or off-duty.

Municipalities commonly require, as a term and condition of employment, that municipal employees be residents of the City/Town for whom they are employed. This is a very emotional issue for both citizens and employees. The citizens and elected officials often press for residency requirements on claims that it is a benefit to the community for employees to be residents. The theory is that employees who are residents are more committed to the community. They pay taxes in the community, own homes, use the schools and participate in the civic life. Some argue that it is a fair obligation to be required to be a resident in exchange for public employment. However, such requirements put a large burden on the public employees who lose choice in where they can live. This impacts not only the employee him/herself but also the family of the employee. If a family wants to live together a spouse/partner may be limited in where he/she can work, children are limited as to where to attend school and the employee may be unable to be a close part of his/her extended family, including caring for parents or other family members in need.

Given these important competing interests, there has been a great deal of litigation concerning residency obligations. Nationwide litigation over residency requirements is fairly common. See e.g. Providence Teachers, Union Local 958, AFL-CIO, AFT v. City Council of City of Providence, 888 A.2d 9848 (R. I. 2005) (Rhode Island); Hill v. City of Scranton, 411 F.3d 118 (3rd Cir. 2005) (Pennsylvania); Gusewelle v. City of Wood River, 374 F. 3d 569 (7th Cir. 2004) (Illinois); Eastman v. City of Madison, 117 Wis.2d 106 (1983) (Wisconsin); City of Newark v. PBA Local 3, 272 N. J. Super. 31 (1994)( A.D., New Jersey); New Orleans Firefighters Ass’n Local 632, AFL-CIO v. City of New Orleans, 590 So.2D 1172 (La.1991) (Louisiana); Cleveland Branch, N.A.A.C.P. v City of Parma, 263 F.3d 513 (6th Cir.2001) (Ohio); Morgan v. City of Wheeling, 205 W. Va. 34 (1999) (West Virginia); Lewis v. City of Kinston, 127 N.C.App. 150 (1997) (North Carolina).

The U S Supreme Court has addressed the constitutional issues of a residency requirement and decided that residency requirements do not violate the Due Process Clause or the Equal Protection Clause since they are not “irrational.” In McCarthy v. Philadelphia Civil Service Commission, 424 US 645 (1976), the Court specifically decided that a residency requirement for a public employee does not violate the constitutionally protected right of interstate travel. The Court stated that there is no constitutional right to be employed by the City of Philadelphia while living elsewhere.
Although residency requirements can be proper and enforceable, residency requirements are mandatory subjects of bargaining. City of Worcester and Local 495 SEIU, AFL-CIO MLC (1978). Even in cases where there are city ordinances or charters the duty to bargain should exist. Town of Lee and Lee Police Association, 10 MLC 1262 (1983). Unions are therefore faced with various legal issues. Some examples include:

1. Sudden enforcement of a “dormant” requirement
2. Procedures for measuring compliance with the requirements
3. Definition of residency
4. Exceptions to the requirements

5. Bargaining strategies

Often, the labor relations issues arise when the municipal employer takes action to enforce actively an existing residency requirement. Generally dormant residency requirements can be enforced despite a history of non enforcement or lax enforcement; such lax enforcement does not establish a clear and unequivocal intention on the part of the Employer to forever relinquish its contractual rights with respect to residency. However, individuals who moved believing that they were not required to be residents might be permitted to remain non residents on a reliance theory. Lynn Police Association and City of Lynn (L. Katz, Arbitrator).

Issues also arise over the procedures used for enforcement. Although it is generally accepted that an employer can take action to measure compliance with residency requirements there is much dispute over those mechanisms. Bargaining is also implicated when the Employer changes the procedures or imposes additional obligations. Employers may try to claim that inherent in having a residency requirement is the ability to measure compliance. However enforcement criteria has been found to be bargainable. In re Dracut School Committee 22 MLC 1013 (1995).

Even in cases where compliance procedures are allowed, such procedures cannot require an employee to sign a form consenting to “voluntary termination” for falsification of the residency certification. The employee continues to have contractual just cause protection as well as civil service protection where appropriate. As Arbitrator Roberta Golick found in a case between the City of Boston and the Boston Police Patrolmen’s Association, requiring employees to “voluntarily” terminate their employment is “abhorrent to notions of fairness” and does “violence to the contractual just cause protection.” Therefore enforcement mechanisms should be carefully considered and challenged where they overreach.

The definition of residency for purposes of municipal employee residency requirements is generally stated as “the actual principal residence of the individual, where he or she normally eats and sleeps and maintains normal personal and household effects.” City of Lynn Charter 1999. Even though such a definition may appear straight forward, the application of the residency standards is complicated. For example, there are issues in cases of dual households, where an employer’s family lives outside the city but the employee sleeps at the city residence on workdays. These situations are litigated through city compliance commissions, grievance arbitration or civil service proceedings if the employee is terminated for allegedly being in non compliance with the residency obligation. Determinations are, of course, varied and very fact specific.

Another legal issue that arises is the concept of a “hardship exception” to a residency requirement. Unions can and should take the position that there can be hardship exceptions to any residency requirement. Most often there are employees who have been grandfathered as an exception since they were employed prior to the implementation of a residency requirement. There should therefore be no legal prohibition against creating an exception for hardship as long as that exception has a reasonable basis and is based on principles of fairness.

There are also statutory reasons for a hardship exception. In McDonald v. Menino, 1997 WL 106955 (D. Mass), two disabled employees were fired for violating the Boston residency ordinance. The employees sued for discrimination under the ADA on grounds that the ordinance precluded reasonable accommodations. The City moved to dismiss for failure to state a claim. The court denied the motion finding that the City had provided no reason why the requested accommodation – an exception to the residency ordinance — harmed the City. Therefore even where a residency requirement exists there can be and are exceptions.

Some additional issues can be addressed in bargaining over residency requirements. Unions can negotiate for replacing absolute residency requirements with a requirement that an employee be a resident for a certain number of years and then be permitted to move out of the city. This creates a balance between the claimed benefits to the municipality and the ability of the employee to make choices over where to live. Another method used in bargaining to address the economic burden of residing in an expensive city is for agreements to provide loans or other financing for the purchase of homes in the community. The unions can also establish municipal mortgage programs, such as the one established in Boston by the Boston Unions Residency Coalition.

Considering the clearly emotional and personal aspects to residency requirements it is clear that the challenges will continue.