Category Archives: In Our Opinion…

Arbitration Trend: Unduly Long Administrative Leave May Very Well Be Discipline.

Jennifer Smith August 2, 2013

Including a provision in your collective bargaining agreement that requires any and all discipline to be issued for “just cause” is not a novel idea. Simply stated, the “just cause standard” demands that all discipline be fairly and consistently administered.[1] Traditionally the only employer actions reviewed by the just cause standard were run of the mill disciplines: warnings, reprimands, suspensions, demotions, transfers, and terminations. However, recent arbitration decisions may indicate a willingness by arbitrators to expand the type of employer action reviewed by the “just cause standard” to include paid administrative leave, when the administrative leave is unreasonably lengthy or tainted in some manner.

Many public safety officers augment their base wages with income from working overtime and details. Often, while on an administrative leave, an employee will be ineligible to work overtime and details. This limitation to paid overtime and detail opportunities often has a significant impact on an officer’s ability to earn a livelihood. Nevertheless, the management of a department has a right to use paid administrative leave to investigate serious allegations of wrongdoing by employees. However, more and more arbitrators are beginning to recognize that departments sometimes abuse administrative leave as a def facto discipline, intentionally curtailing an officer’s wages. Understanding the impact of administrative leave on an officer’s life and income, arbitrators are beginning to examine the length and duration of administrative leaves under the just cause standard.

In a decision issued in June 2013, Arbitrator Betty E. Waxman found that the Town of Millbury had violated the collective bargaining agreement by failing to compensate Officer Dan Daly for lost overtime and details during the period of his almost 8-month administrative leave. Officer Daly, a member of the Millbury Police Association, MassCOP Local 128, was placed on administrative leave in July 2011 while Millbury conducted an internal affairs (IA) investigation of various allegations about Officer Daly’s professional and personal life, following a four month investigation of the same allegations by the Massachusetts State Police that had already concluded that no criminal charges were appropriate. The IA investigation of Officer Daly was conducted on a part time basis, by a fulltime officer of the Worcester Police Department. At the conclusion of his investigation, after interviewing every officer in the Millbury Police Department (“MPD”), interviewing approximately 45 civilians, reviewing all of the MPD personnel files, general orders, rules and regulations, as well as the MPD logs and videotapes, the Lieutenant issued a 140-page report that determined that there was insufficient evidence to prove any of the allegations, with the exception of a single charge that Officer Daly made a comment that was “disrespectful” about a superior officer. Based on the Lieutenant’s report, Millbury issued a written reprimand to Officer Daly for his comment.[2] At the conclusion of the investigation in March 2012, Officer Daly returned to work after missing over approximately $16,000 in overtime and detail opportunities. Following his return to work, the Union elected to challenge the length of Officer Daly’s administrative leave, based on the impact of the administrative leave on his opportunity to work overtime and details. The Arbitrator ruled that the length of the administrative leave and the scope of Lt. Bates’ investigation amounted to de facto discipline, issued without just cause.

In her decision, Arbitrator Waxman cautioned that other paid administrative leaves of reasonable duration that were tailored to investigate timely allegations might withstand a challenge, but the investigation Millbury conducted, “deprived [Officer Daly] of substantial income in order to explore more than a decade’s worth of allegations and gossip about on duty and off-duty conduct.”

The Arbitrator was moved by the part-time nature of the investigation, and was compelled to issue her decision, because the investigation’s “scope was bloated by the lack of any restrictions on time or subject matter. [the Lieutenant] was charged with exploring any and all matters that came to light during his investigation. In doing so, he sifted through all manner of gossip about [Officer Daly’s] police career and personal life — even matters that were undeniably stale.” Ultimately, Arbitrator Waxman noted that although the Lieutenant conducted a meticulous and comprehensive investigation, “the outcome […] stands for the proposition that justice delayed is justice denied.”

While the award in the Millbury case is the most dramatic statement by an arbitrator of the principle that an employer cannot let the administrative leave process drag out unreasonably, the police union’s across the Commonwealth have been pressing this issue for the last few years. In a November 2012 decision Arbitrator Michael Stutz converted Waltham Police Officer Paul Tracey’s 15 day suspension to a written reprimand, and ordered the Waltham Police Department to pay Officer Tracey for the approximate value of five months of lost detail and overtime opportunities (based on earnings from the prior year).[3] Officer Tracey, a member of MassCOP Local 160, was placed on administrative leave while the City investigated the allegation that he had assisted a Mayoral Candidate and City Council President in intimidating one of the politician’s tenants. However, the City’s investigation was unusually and unnecessarily long; Officer Tracey was not interviewed promptly; and finally, the internal investigation continued for more than five months after the District Attorney and the Attorney General had both concluded their investigations without taking any action. Arbitrator Stutz concluded that although some investigation by the City was warranted, the entire nine month administrative leave was unnecessary and unjustified. Based on the foregoing, Arbitrator Stutz determined that Officer Tracey should be compensated for five months (out of 9 months) of lost overtime and detail opportunities.

The lesson here is if your contract includes a just cause provision, overtime and detail opportunities are distributed equitably between members of your bargaining unit, and you believe your department is using administrative leave as a covert discipline tool, your department’s action regarding administrative leave might be ripe for a challenge under the just cause theory. Preserve your rights: when a bargaining unit member is placed on administrative leave, file a grievance immediately to preserve the timeline and circumvent your employer from raising untimeliness as a defense in the event the administrative leave drags on longer than one could file a Step 1 grievance. Remember, placing and maintaining bargaining unit members on long-term administrative leaves without a compelling justification is discipline – and in many cases it can be reviewed by an arbitrator.

Note: A version of this post appeared in the Summer 2013 issue of Mass C.O.P.’s newsletter “Roll-Call.”

[1] In 1964, Arbitrator Carrol Daugherty outlined a seven part test of “just cause,” that is commonly, although not universally, applied. According to Arbitrator Daugherty to be issued with “just cause” discipline must be: 1. Based on a reasonable work rule; 2. Employees must have adequate notice of the work rule; 3. The incident giving rise to the discipline must be investigated; 4. The investigation must be fair and objective; 5. The discipline must be based on sustainable proof; 6. The work rule must be evenly and uniformly applied to all bargaining unit members; and 7. The penalty provided must be proportionate to the offense/circumstances.

[2] The Union grieved Officer Daly’s written reprimand through to arbitration. In October 2012 Arbitrator Mary Ellen Shea, ruled that the written reprimand was issued without just cause, and ordered Millbury to remove it from Officer Daly’s personnel file.

[3] Officer Tracey was on a paid administrative leave for over nine months (April 20, 2011 – January 30, 2012).

In Our Opinion..., Labor In The News, Sandulli Grace In The News

Never Let The Truth Get In The Way Of A Good Story: David Williams And BPD Commissioner Ed Davis

Alan Shapiro August 2, 2013

On June 20, highly respected Arbitrator Michael Ryan issued a decision overturning the discharge of Boston Police Officer David Williams. All of the facts are meticulously set out in the decision’s 44 pages but are briefly summarized here.

On March 16, 2009, Michael O’Brien was a Middlesex Deputy Sheriff/Corrections Officer coming off his Providence bachelor party and St. Patrick’s Day celebrations. After spending up to five hours at the Black Rose, a noted Fanueil Hall bar, he and two buddies headed to the North End, where one of them lived. While trying to back his car down Hanover Street (the major two-way thoroughfare through the densely populated commercial area), his friend crossed the double-yellow line into a double-parked BMW. The BMW owner called 911 as he saw O’Brien drive off in the car that had just struck his. His recorded 911 comments included observations that O’Brien’s group were “drunk” and that although he was a “federal agent,” they were not in any trouble.

When Officers David Williams and Diep Nguyen responded to the call, their efforts to simply have the parties exchange papers were met by the seeming drunken hostility of O’Brien and his friends. O’Brien held out his cell phone while yelling at the officers to do their jobs. Inexplicably, he insisted the officers investigate the struck driver’s claims of federal agency. Told that he could record them all he wanted but not in the middle of Hanover Street, O’Brien continued standing in the busy street. When Officer Nguyen attempted to place him under arrest, O’Brien’s resistance caused Officer Williams, across the street writing a citation in his parked cruiser, to come to his fellow officer’s assistance. Surrounded by O’Brien’s two friends, one of whom had to be physically pushed away from the officers, Williams made an “officer in trouble” call just as Nguyen was about to do the same. Other officers arrived and O’Brien was placed under arrest.

The next business day, O’Brien, charged with disorderly conduct, resisting arrest, and assault and battery on a police officer (Nguyen), appeared in the Boston Municipal Court without notice to any of the arresting officers. He plead not guilty and all charges were dismissed a month later after he performed 50 hours of community service.

O’Brien eventually filed a lawsuit against the officers and the city, claiming, among other allegations, that he had been nearly choked to death that night by Officer Williams. That night, he had made no complaint of having been choked to the lieutenant who carefully inspected him at booking nor to the EMT’s who transferred him to the hospital. Early on, he retained prominent civil rights attorney Howard Friedman. As it turned out, for him, that was his best decision of all.

Three days after the incident, O’Brien filed an on-line complaint against the officers who arrested and subdued him. The BPD’s vaunted Internal Affairs Division (“IAD”) conducted no investigation. In September 2009, Atty. Friedman filed a complaint in Federal District Court against the City, Nguyen, Williams, and four other officers. Friedman also initiated a second Internal Affairs complaint with the same allegations. Still no investigation by the crack IAD unit. In January, 2010, Friedman wrote a letter to Internal Affairs castigating them for failing to investigate the complaint. In April 2010, IAD sprang into action, interviewing Williams and Nguyen for the first time about the incident that had occurred over a year earlier. Shortly after receiving another irate letter from Atty. Friedman, BPD placed Williams on paid administrative leave. IAD reassigned the case to another Lt. Det., who re-interviewed the officers, spent 20 minutes with BPD Dr. Kristian Arnold, and concluded that (a) Williams had choked O’Brien and (b) Williams had lied about it.

Following internal hearings before a Deputy Superintendent appointed by Commissioner Davis at which O’Brien, Williams, and Nguyen testified, Davis fired Williams in January 2012. Shortly thereafter, the City paid O’Brien $1.4 million. Williams had received unwanted notoriety after his discharge in the celebrated beating of Police Officer Michael Cox had been overturned by a different arbitrator in 2005.[1]

After hearing three days of testimony from all of the key witnesses, including O’Brien, Williams, and Nguyen, Arbitrator Ryan concluded:

After examining all of the evidence with great care, it is clear to me that O’Brien’s account of the incident was not truthful. If the officers became aggressive, and there is no doubt that they did, it was because the behavior of O’Brien and his friends warranted it. I do not believe that the grievant used excessive force, or that he choked or strangled O’Brien. He fully complied with Department Rule 304, Section 2, by using only the amount of force that was reasonably necessary to overcome O’Brien’s resistance to arrest.

He found further:

Since the grievant handled the incident of March 16, 2009, appropriately and did not use excessive force on O’Brien, it follows that he was not guilty of untruthfulness during the IAD investigation. There was no just cause for his termination.

The Arbitrator ordered Williams reinstated with back pay. In addition, finding no explanation from the BPD for placing Williams on administrative leave 17 months after the incident, and relying on arbitration precedents between the parties, he ordered that Williams be made whole for the extra work (paid details and overtime) he was not allowed to earn while he had been on administrative leave.

The decision itself was not surprising. Arbitrators, especially experienced and nationally prominent ones such as Michael Ryan, decide the cases based on the evidence before them, not on how they will be received by police commissioners or their friends in the media. For that matter, Arbitrator Ryan, who has been hearing cases between the Boston Police Patrolmen’s Association and the City/BPD for more than 15 years, has decided many cases against the BPPA, including terminations and major suspensions. He does his job: he calls them as he sees them.

What followed this decision is unfortunate, if predictable. To Commissioner Davis, who attended none of the hearings, either at the BPD or the arbitration, the decision was “outrageous.” Boston Globe editorial writer and columnist Lawrence Harmon chimed in with his column entitled, “Do arbitrators give violent cops a pass?” I spent more than a few hours on the phone with Mr. Harmon trying to educate him with facts and analysis about the vagaries, biases, and shortcomings of the BPD internal affairs process. When he called me just before submitting his story for a final quote and I asked him why the information I had given him was largely omitted from his analysis, he replied that what I gave him was “inside baseball” that nobody cared about. I was reminded of the adage, “Never let the truth get in the way of a good story.”

The real story, largely ignored by the press, is why did the City pay $1.4 million to someone a neutral factfinder, after hearing all the evidence, pronounced “untruthful.” The Police Commissioner likes to trumpet his campaign of intolerance for untruthfulness among police officers. No one disagrees; police officers charged with the power to deny people their liberty must be truthful. But what about civilians who lie in order to line their pockets with enormous sums of money from the City?

Continuing its insistence on ignoring reality, the City/BPD has now filed an appeal of the arbitration decision in the Superior Court. Its court complaint cloaks its disagreement with the arbitration decision in the dross of “contravening the City’s inherent and non-delegable authority, the Police Commissioner’s statutory right to manage and administer the Police Department…and a clearly established and defined public policy.” Although unstated, the “clearly established and defined public policy” being violated is apparently that whatever Commissioner Davis says, goes. The complaint flaunts black letter law. Arbitration awards are appealable on very narrow grounds; disagreement with the arbitrator’s factual findings is decidedly not one of them.

This case could not have proceeded this far without the unflinching support of the Boston Police Patrolmen’s Association, and in particular its President Tom Nee and Vice President Ron MacGillivray. In addition to my work in the case, Attorney Kenneth Anderson of Byrne & Drechsler, LLP, represented Officer Williams from the initial internal affairs interviews through the last day of arbitration and assisted in the Union’s arbitration brief with his usual combination of astute preparation, dogged litigation skills, and unfailingly gentlemanly demeanor.

I, at least, hold out hope that someone in authority will see the futility of ignoring the obvious, return Officer Williams to his rightful place on the police force, and allow him to finish his career with the dignity and respect he deserves.

[1] I also served as counsel for the BPPA in that arbitration case, written by a different, but equally prominent, arbitrator, Lawrence Holden.

In Our Opinion..., Labor In The News

Scott Walker Setting His Sights On Police And Fire?

Alan Shapiro July 31, 2013

When Wisconsin Governor Scott Walker and the Republican state legislature virtually eliminated collective bargaining for public sector workers two years ago, they largely spared police and fire unions. But now, it appears that the honeymoon is over. In a story in the Milwaukee-Wisconsin Journal Sentinel entitled “Scott Walker opens door – then downplays – limiting public safety unions,” reporter Patrick Marley wrote,

Two and a half years after mostly sparing police officers and firefighters from his union restrictions, Gov. Scott Walker said this week he is open to the idea of limiting their ability to collectively bargain.

The article goes on to point out that some, but not all, of the public safety unions, endorsed Walker, apparently because he spared them from the onerous limitations he placed on their fellow public workers.

The moral of this story is clear. When the rights of any group of workers are successfully eroded, it is only a matter of time before the same strategy is applied to other groups. The concept is embodied in a slogan adopted by many American trade unions: “An injury to one is an injury to all.”

In Our Opinion..., Labor In The News

Massachusetts Civil Service Residency Amended

Sandulli Grace Staff July 29, 2013

The Governor has just signed the budget which includes an amendment to MGL c. 31 sec 58.

C. 31 sec 58 is a section of the Civil Service Law and addresses “Municipal police officers and firefighters; qualifications.” It includes a residency requirement for civil service police officers and firefighters, stating that within 9 months of appointment a person must reside within the city or town where he/she is employed or at any other place in the Commonwealth that is within 10 miles of the perimeter of such city or town. The Amendment to sec 58, included in the budget, provides that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E. Therefore, police and firefighter unions in civil service cities and towns may now negotiate to expand the civil service 10 mile residency requirement of sec 58 beyond the 10 miles.

What remains unclear is the relationship of this amendment and the residency requirement of MGL c. 41 sec 99A which requires police officers and firefighters to reside “within fifteen miles of the limits of said city or town.” For any city or town where the police and fire departments are not covered by the civil service statute, this new amendment will have no impact and those police officers and firefighters continue to be covered by c. 41 sec 99A and must reside within 15 miles of the City or Town where he/she is employed. As for civil service communities, at a minimum, the amendment to c. 31 sec 58 certainly provides for collective bargaining in order to increase the 10 mile limit of sec 58 to the 15 mile limit of sec. 99A.

Based upon the case Mulrain v. Board of Selectmen of Leicester, 13 Mass App Ct. 48 (1982) it is reasonable to take the position that the 15 mile limit of c. 41 sec 99A already superseded the 10 miles requirement of c. 31 sec 58 since the Mulrain case addressed the conflict between the 2 statutes and stated that:

“We hold that the more specific provisions of the new sec 99A control the more general provisions of new c. 31 sec 58, concerning the effect of town by-laws.”

However, the Mulrain decision did not specifically address the conflict between the 10 mile and 15 mile limits.

When the Civil Service Commission recently decided the case of Erikson v. Rockland Fire Department, I-12-100, (January 24, 2013), it found that c. 31 sec 58 continued to require civil service firefighters to reside within 10 miles of the city or town where he/she was employed. That case did not address the conflict with c. 41 sec 99A and was a Civil Service Commission decision, not a judicial determination. Furthermore, when the Appeals Court in City of Lynn vs. Lynn Police Association, 12-P-1122 (March 27, 2013), addressed the applicability of c. 41 sec 99A to the City of Lynn police officers, it affirmed that the 15 mile limit of c. 41 sec 99A applied and that under the provisions of c. 41 sec 99A the only way that a city or town can impose a more stringent residency requirement is through collective bargaining. Therefore the Appeals Court made it clear that the 15 mile limit of c. 41 sec 99A governed even though Lynn is a civil service community. The Court made no reference to c. 31 sec 58.

Therefore, as a result of this amendment to c. 31 sec 58, public safety unions can now bargain over the appropriate distance for a residency obligation. At a minimum the bargaining can move the 10 mile requirement to 15 miles so as to reconcile c. 41 sec 99A with c.31 sec 58. However, since this amendment is the Legislature’s most recent action concerning residency for civil service police and firefighters, under the principles of the Mulrain case, it certainly can be argued that municipal employers and public safety unions can bargain for a distance in excess of the 15 mile limit since the new amendment does not put any cap on the appropriate distance for a residency requirement and merely says that the distance may be increased under a collective bargaining agreement negotiated under chapter 150E.

In addition, there continue to be bills being considered by the Legislature to further address residency requirements for police and firefighters. Some would increase the mile limitation and others would limit the residency requirement to a period of years and still others would preclude requiring residency within a city or town. We will continue to monitor the progress of these other bills and inform you if anything else changes. Stay tuned..

In Our Opinion..., Labor In The News

Peabody Police Department Found to Have Violated the Law by Assigning Junior Sergeants Rather than Senior Sergeants to be Officer-In-Charge

Sandulli Grace Staff March 6, 2013

By decision dated February 5, 2013, the Massachusetts Department of Labor Relations found that the City of Peabody violated Section 10(a)(5) and 10(a)(1) of the Law by failing to bargain in good faith when it assigned junior Sergeants rather than senior Sergeants to vacant Watch Commander (also called OIC: Officer-In-Charge) shifts without giving the Union prior notice and an opportunity to bargain to resolution or impasse.

The Peabody Police Department has three daily shifts: morning, day, and evening. The Police Department requires that each shift have a Watch Commander or Officer-in-Charge. When a Lieutenant is in charge on a shift, the Lieutenant is called the Watch Commander. When a Lieutenant is absent from a shift and there are two sergeants on that shift, the Sergeant in charge is called the OIC. For at least 20 years prior to July 5, 2009, when there was no Lieutenant on duty for a particular shift and there were two or more Sergeants on that shift, the senior Sergeant assumed the duties of Watch Commander (or OIC), making the senior Sergeant eligible for out of grade pay at the OIC level. The Union put on two Patrol Officers and a Sergeant to testify regarding this consistent practice. Although the Chief testified that he was “not aware of any instances of only senior sergeants always getting OIC assignments,” the hearing officer credited the Union’s witnesses, stating that they testified consistently and unequivocally in support of the long-standing practice. The hearing officer further stated that the City failed to present additional evidence rebutting that point other than the Chief’s testimony. As a result, the hearing officer found that the Chief authorized the assignment of junior Sergeants to the OIC position with OIC pay in violation of the Law.

The City made three arguments: (1) that there was no past practice, (2) that the Union waived its right to bargain under the managements rights clause, and (3) that the City had the right to assign who the OIC was pursuant to statute and ordinance. The hearing officer rejected all three arguments, finding that (1) there has been a past practice, crediting the Union’s witnesses over the Chief’s testimony, (2) that the Union did not waive its right to bargain with the general management rights clause that was in the collective bargaining agreement, and (3) that the City’s reliance on statute and ordinance was wrong because the Chief’s decision to assign junior Sergeants rather than senior Sergeants to the OIC position was outside the scope of the City’s core managerial prerogative.

The hearing officer ordered the City to cease and desist from changing the past practice of assigning senior Sergeants to the OIC position and to make whole all affected employees that suffered economic losses as a result of the City’s failure to adhere to the parties’ past practice of assigning senior Sergeants to the OIC position. This is an important decision and reminder to all Chiefs and Police Departments that past practice must be adhered to and cannot be unilaterally changed without first bargaining in good faith with the union.

In Our Opinion..., Labor In The News, Sandulli Grace In The News

Radio Broadcast On Medical Marijuana Features Sandulli Grace Attorney

Sandulli Grace Staff February 27, 2013

Sandulli Grace attorney Bryan Decker was featured in a WBUR-FM radio broadcast regarding Massachusetts’ new medical marijuana law on Tuesday morning, February 19, 2013. The report by WBUR radio journalist Martha Bebinger, explores various implications of the new law, including its effects on police officers, who are bound by federal laws making marijuana an illegal substance, and their families. “The federal law is the federal law,” Decker told Bebinger. “In Massachusetts, it is a job condition for police officers to carry a firearm. I think that is clear.” A transcription of the story can be found here: http://www.wbur.org/2013/02/19/marijuana-laws.

In Our Opinion...

You Must Remember This: Memory And Truthtelling

John Becker February 6, 2013

In Andrew Lloyd Webber’s musical Jesus Christ Superstar, Pontius Pilate asks his most famous prisoner, “And what is ‘truth’? Is truth unchanging law? We both have truths. Are mine the same as yours?” Pilate’s questions could just as well be asked in any discussion of witness testimony in legal proceedings, because the truth about the truth is that it is not a fixed and stable entity – modern science is showing us more and more that witnesses who testify honestly may not be telling the truth.

Lawyers seeking to combat the testimony of an opposing eyewitness do so through the tool of cross-examination. There are a couple of common approaches: (1) try to show the witness is lying; and (2) try to show the witness didn’t really witness the relevant event or action. Under the first approach, the lawyer will attempt to trip up the witness on specific facts, confront him with contradictory evidence, or show that he is biased in some way. The second approach focuses on perception and asks such questions as: Was the witness physically able to see, hear or otherwise perceive what was happening? and Was the witness impaired in any way from making accurate observations?

Lawyers have been using these techniques for centuries, but recent scientific discoveries about the nature of memory have raised a new and potentially explosive issue, one that applies even when the witness is not lying and when the witness fully perceived the relevant incident. According to the most recent studies, our memories may have little or no relationship to the events that we purport to remember. These scientists tell us that many individuals who ‘remember’ something they observed or experienced are not lying, but neither are they accurately reporting the events they observed.

For centuries, the common sense view of memory has been that when we experience or observe something, it is recorded in our brain accurately, like a videocamera records an event (although there are problems with this analogy because videos have their own limitations, which will be the subject of a future blog entry). There in our brains these billions of videotapes reside, waiting for something to trigger a “memory”, which, we think, means the tape is played. There are variations in quality and reception, and how easily accessible the tapes are. We do acknowledge that some people have better memories than others, and some people have something we call ‘photographic memories.’ But by and large the assumption is that the true, accurate memories are there, encoded in neuron pathways – it’s just that some are better than others in retrieving them. This view was supported by some experiments performed on patients during brain surgery, when doctors would poke a site in the patient’s brain and all of a sudden she would vividly remember an incident from her past, complete with sights, sounds and smells. For a time, some scientists believed that inside your head you might have the complete, accurate story of your past – just waiting for the technology to download it onto a boxed set of DVDs.

But more recent studies have erased this view and forced us to rewind our thoughts about memory. Apparently memories, far from being etched in neural stone, are very susceptible to changes – changes that we or others may bring about, either intentionally or not. The modern view is that each memory is a kind of computer file – when we retrieve the memory file from storage, it must be reconstructed according to a set of instructions – this reconstruction process makes the memory vulnerable to alterations. Any alterations, additions or deletions to the memory then become part of the file, which is then stored in its new form. The original file has been overwritten and is no more. A part of our past is forever changed. Scientists say that the more a person recalls a memory, the more likely that it will be changed over time. The only pure unadulterated memory, they say, is one that has never been remembered.

What causes alterations in your memories? Our psychologies are so complex that the answer is, almost anything. It could be as simple as a ‘bug’ in the instructions for reconstructing your memory that leaves something out, or takes a piece of one memory and inserts it in another. It could be new information – someone tells you your grandmother was there on your 10^th birthday and you “remember” her being there, or you see an old picture and your brain incorporates the information in the photo into the memory the next time you recall it. In cases involving child abuse, some investigators and therapists have been accused of planting false memories through the power of suggestion. Or it could be a feeling – guilt, resentment, shame – that leads one’s unconscious to erase some portion of a memory.

Several years ago, at a Boston Bar Association seminar on witness testimony, an arbitrator on the panel told the story of the day he left the house with a legal document in his hand, drove around town doing various errands before finally sitting down to work on the document, which he then couldn’t find. He retraced his steps to every location he had been to since he left his house, but no document. Frustrated, he returned home – to find the document sitting on his desk. He had never taken it out of the house to begin with, yet he had a vivid memory of having the document with him throughout the entire trip. Why did the arbitrator’s memory insert the document where it didn’t belong? Maybe it was a matter of wishful thinking – he believed he should have brought the document with him, so in order to avoid a bad feeling about forgetting it, his brain simply added the document to his memories.

The bottom line of this new research, as the arbitrator’s story highlights, is that a witness may not be telling the truth, but may not be lying either. The old saying that ‘true fact’ is redundant may have to be revised. The facts of a case are what the finder of fact says they are. If an uncontradicted witness testifies without lying to a set of facts that are credited by the factfinder, those are the facts, but there is no guarantee that they are true. Where does that leave the search for the truth? In the 1700s, British philosopher George Berkeley concluded that nothing existed unless it was being perceived by someone. In order to avoid a world in which objects come in and out of being every time you close your eyes, Berkeley concluded that God was perceiving everything all the time. Berkeley’s theory has long since been debunked, but the new science of memory may require its resurrection. For if we cannot rely on the memories of credible, truth-telling witnesses as an accurate reflection of what they have observed and experienced, how can a legal factfinder ever find out what truly happened? As advocates, perhaps the best we can do is educate factfinders – and witnesses, for that matter – about the elusive nature of memory.

In Our Opinion...

Medical Marijuana – Not for Cops?

Sandulli Grace Staff January 9, 2013

(Please note, a version of this article will appear in the upcoming edition of the Pax Centurion, the paper of the Boston Police Patrolmen’s Association, a client of Sandulli Grace, PC)

As I’m sure you are aware, Massachusetts voters approved a medical marijuana ballot question last November. Despite inaction from Beacon Hill or the executive in the form of regulations regarding the new law, it went into effect on January 1. So, Massachusetts residents may now become medical marijuana users. However, before making a run on the Doritos in the vending machine at the station, officers should be aware that many departments are already taking steps to prohibit sworn police officers from using medical marijuana. The purported basis for this action is that the drug remains a Schedule I controlled substance under federal law.

Several departments have put forth detailed, and very similar draft policies, leading to speculation that the Massachusetts Chiefs of Police Association or another management group is coordinating a response. Whatever the reason, this issue is one that all police unions in the state will likely need to address.

The ballot question which passed last year sets up a registration system whereby “qualifying patients” apply for a “registration card” to be issued by the state Department of Public Health allowing them to grow and/or possess a “sixty-day supply” of marijuana. Under the law “a ‘Qualifying patient’ shall mean a person who has been diagnosed by a licensed physician as having a debilitating medical condition.” A “debilitating medical condition” is one of a number of conditions or “other conditions as determined in writing by a qualifying patient’s physician.” A “‘ sixty day supply’ means that amount of marijuana that a qualifying patient would reasonably be expected to need over a period of sixty days for their personal medical use.’” In addition to defining qualifying patients, the statute also anticipates that others will care for the patients. A “‘personal caregiver’ shall mean a person who is at least twenty-one (21) years old who has agreed to assist with a qualifying patient’s medical use of marijuana. Personal caregivers are prohibited from consuming marijuana obtained for the personal, medical use of the qualifying patient.’”

As a union lawyer, I won’t attempt to get into the law enforcement implications of the medical marijuana law. However, the employment implications are obvious – what if an officer, or an officer’s loved one, seeks to become a medical marijuana user? Many departments are already announcing an intention to “Just Say No!”

The purported ability of departments to prohibit officers from becoming medical marijuana users is the federal classification of marijuana as a Schedule I controlled substance. While this may be enough to prohibit medical marijuana use, such use may also prevent officers from lawfully possessing a firearm, which would lead departments to contend that they are ineligible to be officers. Specifically, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has issued an “Open Letter to All Federal Firearms Licensees” indicating that the DOJ takes the position that medical marijuana users are prohibited from possessing firearms. The Letter, issued in September, 2011, over a year before the Massachusetts vote, states in relevant part:

A number of States have passed legislation allowing under State law the use or possession of marijuana for medicinal purposes, and some of these States issue a card authorizing the holder to use or possess marijuana under State law…

As you know, Federal law, 18 U.S.C. § 922(g)(3), prohibits any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law…

Therefore, any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.

Therefore, departments are likely to take the position that officers may not be medical marijuana users, as such a status would revoke their right to possess a firearm, which is a condition of employment.

Even apart from the question of whether an officer may be a “qualified patient,” it is likely that departments will further seek to prohibit officers from being “personal caregivers.” While personal caregivers are not marijuana users, under the definition in the statute it is likely that they will possess marijuana. Again, marijuana possession remains a federal crime. Given the amount of federal money relied upon by most departments, departments will likely want to prohibit officers from engaging in activities that in any way violate federal law.

Finally, at least one department has proposed a rule that an officer must notify the department if any member of his or her household is a medical marijuana user. This type of requirement, which would require an officer to provide private medical information regarding a family member, shows just how thorny the issues raised by this statute can get.

Whatever position that a department stakes out, police unions should demand to bargain before any medical marijuana policy is implemented. Regardless of federal law, such a policy impacts on health care decisions by officers and potentially their families. As such, the policies implicate terms and conditions of employment, and must be bargained before being implemented. As always, Sandulli Grace stands ready to assist our clients to ensure that no policy is implemented that unnecessarily infringes on the rights of union members.

In Our Opinion..., Labor In The News

SJC Rules Quinn Bill Statute Only Requires Municipality To Pay One Half Of Benefit

Sandulli Grace Staff March 7, 2012

In a disappointing decision, the Supreme Judicial Court today ruled that the Quinn Bill Statute, M.G.L. c. 41, §108L, only requires a municipality that adopts it pay one half of the benefits enumerated in the statute, and that the other half is contingent on state funding.

The Court ruled that the phrase “shall be granted” education benefits actually only means “shall be granted” half of the benefits when read in conjunction with the “shall be reimbursed” language later in the decision. You can read the decision in Adams v. Boston by linking from the SJC website, http://www.massreports.com/slipops/default.aspx .

The decision just issued, and we are still digesting it fully. We will post a thorough analysis of the Court’s decision soon.

In Our Opinion..., Labor In The News

No Decision Yet In Quinn Bill Case – Sign Up To Get Notified ASAP When Decision Issues

Sandulli Grace Staff March 5, 2012

Today, the Massachusetts Supreme Judicial Court did NOT issue a decision in Adams v. Boston, the case considering whether municipalities may cut Quinn Bill benefits to officers. Obviously, no news is not news, but I write because I am asked about a decision at least 5 times a day. If you are a union steward, or a member of the BPPA House of Representatives, I’ll bet you wish you only got asked 5 times a day.

But there are ways that you can know about the decision AS SOON AS IT IS ISSUED. Easiest would be to subscribe to Sandulli Grace’s e-mail notification process. Rest assured that I’m checking for a decision each day, and will post a notice of the decision as soon as I get it. Just go to http://sandulligraceonline.com and add your e-mail address in the box at the upper left of the page. By signing up, you will get notice of the decision, and will get periodic notices of other issues of import and interest to the union community.

The Supreme Judicial Court also issues a daily e-mail notification of all cases issued. You can also sign up for that at the Court’s website, http://www.massreports.com/ .

Finally, please note that there is no deadline for the Court’s consideration of the case. According to the Court’s website, “most opinions are released within 130 days of oral argument,” but some decisions can take longer. I had the opportunity to hear one of the justices speak last year on the inner workings of the SJC. I have to admit that I was humbled at the amount of work that each and every one of the seven justices puts into the many cases the court hears each year. The Court’s Justices (and their able staffs) are not sitting idly around. Rather, they are digesting thousands of pages of briefs, listening to hours and hours of arguments, and writing hundreds of pages of decisions each month. So, while we’d all like to have the decision, please know that the SJC isn’t sitting on the case, it is being carefully considered along with all of the other cases before our state’s highest court.