Tag Archives: BPPA

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

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.


Since we filed our brief in the Boston Quinn Bill case, the City filed its opposition, and we filed our reply on behalf of the plaintiff officers.  Again, the suit claims that the City of Boston violated the Quinn Bill when it reduced educational stipends to officers.  The City responds that it reduced the payments due to the Commonwealth’s shortfall in Quinn reimbursement, and that it was entitled to do so due to the collective bargaining agreements with the three Boston Police Unions.  The only problem with the City’s response is that the law is clear that parties can’t bargain about everything, and can’t bargain to cut Quinn.  The only state court judge to reach this issue found just that, and we believe the SJC will too.

The most recent development is that the Massachusetts Municipal Association has filed an Amicus brief in the case defending the city.  This brief is amazing in that the MMA’s counsel waxes poetic about the virtues of bargaining over EVERYTHING.  This is the same MMA that for over 30 years has claimed that it CANNOT bargain about most things – that everything is “an inherent managerial right.”  The MMA saying we should bargain everything is like Michele Bachmann saying something sane.  It’s like the Boston Globe saying that Police Details are great.  It’s like Snookie saying she thinks sobriety is way cool.  You get the idea – it’s a complete 180.

We’re getting ready for, and looking forward to, the argument.  As always, we’ll keep you posted.

Don’t take my word for it.  Here are all of the briefs in the case:

Bppa Members Paid $2.23 Million In Damages For City’s Unilateral Implementation Of Flsa Pay Period Sandulli Grace Successfully Argues Case At Mass Supreme Judicial Court

After a seven year battle, the City of Boston has finally paid Boston Police Patrolmen’s Association (BPPA) members damages relating to the unlawful unilateral implementation of a 28 day/ 171 hour Fair Labor Standards Act pay period in 2002. In total, 1765 officers received $1,781,091.11 in damages plus $449,628.44 in statutory interest, for a total damages payment of $2,230,719.55. Because the BPPA refused to bow to the City’s change in 2002, BPPA members are the only BPD sworn personnel benefitting from the shorter pay period.

This case had its origins in the 2000 lawsuit brought by over 800 patrolmen (represented by Sandulli Grace attorneys Bryan Decker and John Becker and with the support of the BPPA) alleging violations of the FLSA due to the City’s failure to include Quinn Bill and night shift differential in the calculation of FLSA overtime. In fact, it turned out that the City wasn’t even calculating FLSA overtime, and in 2004, the officers were awarded over $750,000 in damages and attorney fees. Attempting to cut its losses, in spring 2002 the City announced that it wanted to implement a longer FLSA pay period. A longer pay period allows the employer to stretch its overtime liability, resulting in lower payments to officers. Because the issue implicated officers’ pay, the BPPA demanded to bargain. The City refused, and unilaterally implemented the change at the start of July, 2002.

The BPPA challenged that unilateral change by filing an unfair labor practice charge with the Massachusetts Labor Relations Commission. The City contended that it did not need to bargain the change with the union, and the BPPA was the only union to challenge the change. Sandulli Grace attorneys Bryan Decker and Patrick Bryant represented the union before the LRC, which ruled in the union’s favor in 2006, finding that the decision to change the FLSA pay period was a mandatory subject of bargaining, and ordered the City to restore the traditional 7 day/40 hour pay period. Rather than comply, the City appealed the case, and the state’s Supreme Judicial Court took the appeal. Bryan Decker argued the case before the high court, and in 2009 the Court upheld the finding in the Union’s favor.

Following the SJC decision, the City finally agreed to implement the 7day / 40 hour work period. BPPA members have been receiving FLSA overtime on a weekly basis since late last summer. The City then undertook to calculate damages for the period from 2002 until 2009, which resulted in the $2.23 million dollar payout this summer.

(A longer, more detailed report on this case appears in this month’s Pax Centurion, the BPPA’s Official Newspaper).

White House Honors Police Officers, Bppa President Tom Nee; Mcop Officers Recognized

On May 12, 2009, President Barack Obama and Vice President Joe Biden honored the Top Cops of the National Association of Police Organizations (NAPO).  In addition to praising the daily heroism of police officers, President Obama singled out Boston Police Patrolmen’s Association, Inc. President Tom Nee for his leadership as NAPO President.  Sandulli Grace, PC, is proud to have the BPPA and Tom Nee as a client.  Massachusetts Coalition of Police President Hugh Cameron, another Sandulli Grace client, also attended the ceremony as a NAPO Area Vice President.  MCOP member Richard Cochrane of the Peabody Police Department received an honorable mention from Top Cops whereas Dalton Police Department’s Geoff Powell, also a MCOP member, was a nominee.

            Sandulli Grace congratulates Nee, Cameron, Powell and Cochrane, in addition to all other police officers, for their quiet service and dedication to the public good. 

            Below is the official transcript of the ceremony for NAPO’s Top Cops released by the White House.            


Office of the Press Secretary
For Immediate Release                               May 12, 2009


Rose Garden

2:38 P.M. EDT

THE VICE PRESIDENT:  Welcome to the Rose Garden.  Ladies and gentlemen, let me begin by saying —

THE PRESIDENT:  They can sit down.

THE VICE PRESIDENT:  They can sit — yes, you can sit down.  (Laughter.)  I just assumed you were going to sit down.  I apologize.  Thank you, Mr. President. Tommy — you stay standing up, though, for me.  I don’t want you — (laughter.)

Let me begin by saying congratulations.  It’s an honor to be in the presence of the best of the best here standing behind us.  You’re all been an inspiration to the men and women of not only this country, but your fellow officers.  You’ve been an inspiration to the thousands and thousands of people who strap on a sidearm and go out every day to do their job.

When you strap on that sidearm and you walk outside your home every morning — every morning, or evening, depending on their shift — your wives and your husbands that you leave behind know that you are literally putting yourselves in harm’s way, every time you walk out that door.

And the President and I recognize the bravery you display simply by putting on that badge every day — just putting the badge on.  The officers honored here today have been singled out for going above and beyond the call of duty and we commend you all. But we also know that there are thousands more like you in communities throughout this country, large and small, doing their part every single day — as we speak right now — in their communities, making them safer but also making the community stronger.

Today is a day for every man and woman in uniform to feel proud of you, and to feel proud of themselves. Today is a day for the entire community of police officers to see how much America appreciates their courage, and to let you know that the President and this administration appreciate your courage, as well.  Your sacrifices and acts of heroism don’t go unnoticed.  I think sometimes you must feel like they do.  You do your job every day, you don’t expect any particular thanks or gratitude, you change people’s lives for the better and — but it’s warranted on a day like today to pay special recognition.

You’ve already seen some evidence of the President’s commitment, beyond his entire career of being committed to law enforcement.  The President’s commitment to the level of support for law enforcement can be seen in the Recovery Act.  Over $4 billion was placed in that emergency legislation to hire new officers, for new equipment such as bulletproof vests, and for new technologies, to give you the tools to do your jobs more safely and more efficiently.

You keep us safe.  We owe you.  (Applause.)  We owe you to put you in a position where you can keep yourselves safe, as well.

And you’ve seen the President’s commitment to you by bringing this ceremony back to the Rose Garden.  Mr. President, in the Roosevelt Room you said you wanted to let the public know.  And I was about to say — which I’ll say here — and that’s why the President wanted it back here in the Rose Garden.

So there’s no mistake, there’s no mistake that this President and this administration appreciates what you’ve done.  We know this commitment — (applause.)  I’ll conclude by saying, you should know this commitment will not stop today or tomorrow or next month or next year.  We’re going to work and continue to work, as the President has his entire career, for what serves you best so that you can serve us as best and as bravely as you have.

Ladies and gentlemen, while we don’t say it nearly enough, thank you, thank you, thank you for all what you do.

So Mr. President, the Top Cops for 2009, a superior group of real heroes, are waiting to hear from you, boss.  It’s all yours.  (Applause.)

THE PRESIDENT:  Well, thank you, Joe, for the wonderful introduction.  Welcome, all of you, to the White House, and for joining us on this beautiful spring day.  It is an extraordinary privilege to celebrate these Top Cops who have traveled here to be recognized for incredible acts of courage and quick thinking, which prevented harm and saved lives.

Before I speak more about these outstanding officers, there are just a few wonderful members of Congress that I want to introduce.  Representative John Conyers, one of the deans of the House of Representatives — (applause) — Republican Emanuel Cleaver from Kansas City — (applause) — and Representative Lucille Roybal-Allard, great to see you.  Thank you so much.  Please give them a big round of applause.  (Applause.)

Now, I don’t know if you guys are aware that we have a nickname for Joe Biden around here in the White House.  Joe has been overseeing the way funds are being used under the American Recovery and Reinvestment Act to ensure tax dollars are going toward the intended purpose of creating jobs and aren’t being wasted.  So we’ve taken to calling him “the sheriff” — because nobody messes with Joe.

And I want you to know that he is making sure that money is getting on the ground helping local communities, including making sure that money is going to allow local communities to hire more police officers and make sure that they’ve got the equipment and the training they need to succeed.

I also want to thank Attorney General Eric Holder for being here and for his leadership at the Department of Justice, which oversees much of the funding in the recovery plan and the budget that will be providing local law enforcement the resources they need.

And finally, I want to give a particular welcome to the leaders of the National Association of Police Organizations, including their outstanding president, Tom Nee.  Thank you so much for being here.

This is an event that we are glad, as Joe mentioned, to bring back to the White House — after a period of absence — in honor of these fine officers and the folks across the country they represent:  the men and women who walk the beat, who answer the call, and do the difficult work of keeping our neighborhoods safe.  And it’s no surprise that many police officers — including many of you -– have served in our military, or are serving still as members of the Reserve.

Of course, it’s not a difficult thing for a President, or a Vice President, or anyone one of us to praise you.  You deserve it.  You’ve rescued hostages held at gunpoint.  You’ve ended violent standoffs.  You’ve taken on gunmen in the face of grave danger, refusing to give up or back down even after suffering serious injuries.  You’ve reacted quickly in crisis to protect the innocent.  You’ve reacted with compassion for those that were in need.  And you’ve literally walked through the fire to help your neighbors escape disaster.

That’s what police officers do.  You step into harm’s way to form — officer by officer, block by block, neighborhood by neighborhood — the line between safety and violence, calm and chaos, hope and despair.  And for that it’s not difficult to offer our praise.  But you deserve more than just praise.  For it’s far more important that we actually support you; that we match these words which come so easily with the work that can and must follow.

Right now, for example, at this moment of economic challenge, one of the greatest concerns is that we’ll see state and local governments forced to lay off police officers — even though we know that crime has a tendency to go up when the economy is in dire straits.  We’ve seen that in my own hometown of Chicago and many other cities.

So we can’t back down, because the job of every American depends on the job you do — and the resources that enable you to do that job well.  Police officers know better than anyone:  A neighborhood that isn’t safe is a neighborhood that isn’t growing, that won’t see old businesses hiring new workers, or new businesses opening their doors.  You know how devastating crime can be; how it can shatter lives and undermine whole communities.

And that’s why the American Recovery and Reinvestment Act includes $1 billion to save or create about 5,500 jobs through the COPS program.  And there’s another $2 billion in grants which will help keep police officers on the beat and in the job.

In fact, in March I went to Columbus, Ohio, to speak at their police academy’s graduation ceremony. And these new officers are now protecting the streets of Columbus because of those grants — and there are similar stories being told in precincts all over America.

The budget we passed builds on the recovery plan, providing additional funding for the COPS program as well as for Justice Assistance Grants, also known as the Byrne-JAG program.  Taken together, we’re making a significant down payment towards my administration’s goal of adding 50,000 police officers across this country. (Applause.)  And that’s only part of what we’re doing to provide law enforcement with the tools and resources necessary to keep people safe.

As you know, this is a difficult moment for our nation.  But at a time when we face economic crisis born partially from irresponsibility on Wall Street and in Washington, I’m heartened by the folks who are standing behind me today who’ve demonstrated, with acts of selflessness and bravery, what it means to be responsible; what it means to be a problem-solver, a mediator, an investigator, and protector all wrapped into one; what it means to wave goodbye to your families and start another shift unsure of how it will end; and what it means to put your life on the line for a partner or a stranger in order — in other words, what it means to serve.

So I want to thank all of you for this extraordinary service.  I am honored to welcome you to the White House.  I’m proud to offer my congratulations, my appreciation, and most importantly my administration’s unwavering support.

God bless you and God bless the United States of America.  Thank you, all, for joining us here today.  Thank you.  (Applause.)

Judge Orders HRD To Not Issue Banded Eligibility Lists Pending Consideration Of Motion For Preliminary Injunction

Massachusetts Superior Court Judge Bruce Henry today ordered the Human Resources Division to NOT issue any eligibility lists for police promotion until after he rules on the request for a preliminary injunction submitted by Sandulli Grace attorneys on behalf of the Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and individual test takers.  As we noted last week, we have challenged the Civil Service Commission’s rubberstamping of HRD’s decision to band.  Judge Henry today heard argument on our request for an injunction, and indicated that he will issue a decision on the injunction request soon. 

 At the hearing, HRD, represented by counsel from the Attorney General’s office, continued to insist that banding is lawful in the face of HRD’s rule that says scores have to be put out in “whole numbers.”  “Bands 1 to 7 are whole numbers, just like 1 to 100,” was essentially what HRD contended.  Attorney Shapiro responded that, under that logic, the bands could be 1 to 2 (pass/fail), 1 to 1,000 (scores broken to tenths of a point), or 1 to 10,000 (scores broken to hundredths of a point).  In other words, the Commonwealth contends that its rule has no substantive meaning.

After the Judge ordered that no lists be established utilizing banding, counsel for HRD complained that some unnamed municipalities could lose funding for promotions if they are not made quickly.  Sandulli Grace’s Alan Shapiro quickly pointed out that HRD is free to issue lists based on the 10/08 tests – as long as it follows its own rule and lists the scores by whole numbers from 1 – 100. 

As always, we’ll keep you posted.


Mass SJC Grants Another Victory To Boston Police Patrolmen’s Union In Long-Running Overtime Battle: City’s Unilateral Shortchanging Of Overtime Pay Violates State Law

The Massachusetts Supreme Judicial Court, the state’s highest court, today upheld a 2006 ruling of the state Commonwealth Employment Relations Board (CERB) that the City of Boston unlawfully reduced the overtime compensation of Boston Patrol Officers without first bargaining with their union, the Boston Police Patrolmen’s Association, Inc. (BPPA).  The SJC and CERB ordered the City, which made the unlawful change in July 2002, to “make whole” the patrol officers represented by the BPPA – which likely will cost the City several hundred thousand dollars. 

Today’s SJC decision caps lengthy litigation regarding the City’s repeated violation of state and federal laws concerning overtime pay to Boston police officers.  In 2000, more than 800 Boston patrol officers, represented by Sandulli Grace Attorneys Bryan Decker and John Becker, sued the City in federal court for the City’s outright refusal to pay overtime as required by the federal Fair Labor Standards Act (FLSA).  The federal court agreed, and the City ultimately paid officers almost $700,000 plus attorney’s fees.  In July 2002, while the federal litigation was ongoing, the City unilaterally adopted the FLSA’s “partial public safety exemption,” which lowers federal overtime payments to police officers and firefighters.  While the City’s unilateral adoption of this partial overtime exemption was permitted by the FLSA, it was not by state law.  Under state law, Chapter 150E of Massachusetts General Laws, a municipal employer must bargain with a union before changing the wages of employees represented by a union.  The BPPA immediately demanded to bargain about this change.  The City refused, even though the parties were negotiating a new contract, and instead implemented the change.  On behalf of the BPPA, Sandulli Grace Attorneys Bryan Decker and Patrick Bryant filed an unfair labor practice charge with the state labor relations agency.  CERB ruled in the BPPA’s favor, and the City appealed. 

The SJC upheld the CERB decision on all points, finding that:


  • “the city was obligated under G.L. c. 150E to bargain in good faith with the union regarding” the July 2002 decision to adopt the partial public safety exemption;
  • that the City further violated the law by refusing to provide the BPPA with information it requested;
  • and that the proper remedy was for the city to “[m]ake whole affected employees for the economic losses they may have suffered as a result of the [c]ity’s decision to adopt” the partial public safety exemption. 

With regards to the remedy, a conservative estimate is that the City reduced overtime pay to officers by at least $100,000 per year by making the unlawful change.  Damages will run back to July 2002, and the BPPA’s members are entitled to interest.

BPPA President Thomas Nee welcomed the Court’s decision.  “We’re extremely gratified that the Supreme Judicial Court agreed with our position in this case.  The FLSA is designed to protect the rights of people who work more than 40 hours per week and ensure that they are properly compensated.  The Court affirmed that this applies to police officers as well.”

Sandulli Grace Attorney Bryan Decker, who argued the case to the SJC, said, “The City continuously, and improperly, claimed that it couldn’t comply simultaneously with the FLSA and its obligations under state law.  The SJC rejected this argument as bogus, and upheld that workers are entitled to the protections of the FLSA and their Union.  Given the state of our economy, this decision reminds employers that a desire to save money is not a defense to violating legal obligations.  Hopefully, municipalities will learn that the only way through these challenging times is to treat unions and employees as partners rather than problems.”

READ the SJC decision at:


Bppa And Mcop Request That Civil Service Commision Hold Speedy Hearing On Legality Of Decision To “Band” Promotional Test Scores

The Civil Service Commission today held a pre-hearing conference in the “banding” cased filed by Sandulli Grace on behalf of the Mass. Coalition of Police (MCOP) and Boston Police Patrolmen’s Association (BPPA).  At the hearing, Sandulli Grace attorneys Bryan Decker and Alan Shapiro, along with other appellants, contested the issues with counsel for the Human Resources Division (HRD) for almost two hours.  At the end of the hearing, Civil Service Commissioners Bowman and Taylor took the action under advisement, promising to quickly rule on what action the Commission will take, if any.

From the beginning of the hearing, HRD counsel made clear the agency’s position that it is entitled to make whatever rules it would like regarding test administration and grading, and that it does not need to justify its decision to any other party.  The scope of HRD’s hubris was revealed when Commissioner Bowman asked counsel to respond to our argument that “banding” scores violates HRD’s own rule requiring that scores “be presented on eligible lists in whole numbers.”  The HRD attorney replied that the bands, expressed as “Band 7,” “Band 6,” etc., are “whole numbers.”  The retort drew audible laughter from the crowd in the hearing room.  Atty. Shapiro replied that, presumably, the rule was put into place when HRD went from establishing lists with scores expressed in one or two decimal points to rounded off whole numbers.  Therefore, under HRD’s logic, HRD could comply with its rule by expressing scores in a system of 1 to 1,000 or 1 to 10,000, and the rule would mean nothing.  Atty. Decker added that, with this logic, HRD could make the test results “Pass-Fail,” just by assigning only scores of 1 or 2.  HRD had no real counter to these arguments but continued to insist that it could do whatever it wanted in establishing lists, provided it was not arbitrary or capricious.

Under questioning from Commissioner Taylor, HRD counsel admitted that HRD had consulted with the chiefs of police regarding banding.  When Commissioner Taylor asked if the unions representing police officers were consulted, she replied they had not, suggesting there were too many of them.  Sandulli Grace clients MCOP and BPPA, who together represent almost 5,000 police officers, were never consulted by HRD.  It became rather obvious whom HRD viewed as more important in this process.

On the larger issue, the Sandulli Grace attorneys contended that banding flew in the face of both the statutory “2N + 1” system, and the overall intention of a civil service system.  Quoting from a 2005 Connecticut Supreme Court case  which rejected any deviation from the “2N + 1 system,” we contended that banding would conflict with the overall design of a governmental civil service system:

“to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination”

Specifically, MCOP and BPPA asked the Commission to take the following actions:

  • Conduct a speedy hearing to ascertain whether HRD is acting within its authority in establishing eligible lists by banding;
  • Order HRD not to send out any eligibility lists using banding until the issue has been decided by Civil Service;
  • After the hearing, order that HRD follow its own rules and establish police promotional lists using whole numbers, unless and until it lawfully changes the rules.

In response to questioning from Commissioner Bowman, HRD did indicate that it will not be prepared to establish eligibility lists until the end of March at the earliest even absent the appeal.

In perhaps the most telling comment, when asked about the practicality of appointing authorities in large cities having to wade through dozens of names to make a single appointment, the HRD attorney replied that when HRD posted a job, hundreds of people applied.  Here we see again the ultimate goal of HRD and its friends among the appointing authorities: the conversion of a merit-based civil service system to a private sector unregulated model.

We now await the Commission’s decision on what the next step will be.  Stay tuned.