Appeals Court Decision.pdf

Town of Winthrop · from the Town's request portal · released Dec 13, 2023 · 8 pages · 78 KB
open the file ↗ · original at the source ↗

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as
amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and,
therefore, may not fully address the facts of the case or the panel's decisional
rationale. Moreover, such decisions are not circulated to the entire court and,
therefore, represent only the views of the panel that decided the case. A summary
decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its
persuasive value but, because of the limitations noted above, not as binding precedent.
See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). 
COMMONWEALTH OF MASSACHUSETTS 
APPEALS COURT 
17-P-785 
TOWN OF WINTHROP 
vs. 
WINTHROP POLICE BROTHERHOOD LOCAL 421. 
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 
This is an appeal from a Superior Court judgment vacating
an arbitrator's award reinstating a Winthrop police officer,
Ferruccio Romeo, who was terminated for submitting a request to
be paid for a special detail that he allegedly did not perform.
The detail consisted of an eight-hour shift monitoring traffic
at a pump station in the town of Winthrop (town). Romero worked
the pump station detail (detail), but he was not physically
present at the pump station during most of the shift. Instead,
he was at the town hall negotiating a contract on behalf of the
Winthrop Police Brotherhood Local 421 (union). The arbitrator
found that Romeo did not act dishonestly in requesting payment
for the detail because Romeo had understood that the detail was
mobile and, as a result, his physical presence was not required
as long as he was available to respond to any incident. The

2 
arbitrator further found that Romeo did not lie to the Winthrop
police chief (chief) during the chief's investigation or when
testifying at the town's due process hearing. Accordingly, the
arbitrator ruled that the town lacked just cause to terminate
Romeo and ordered Romeo's reinstatement with back pay. 
The town filed a complaint in Superior Court to vacate the
arbitrator's award. The union filed motions to confirm the
award and for attorney's fees. In response, the town filed a
cross motion to vacate the arbitrator's award. A judge allowed
the town's motion and denied the union's motions. Judgment
entered vacating the arbitrator's award. Because no underlying
misconduct by Romeo was found by the arbitrator, we conclude
that the judge erred in determining that the arbitrator's award
violates public policy, and we are constrained to reverse. See
Boston v. Boston Police Patrolmen's Assn., 477 Mass. 434, 435,
445 (2017) (Boston Police Patrolmen's Assn.). 
Background. On November 24, 2014, Romeo signed up to work
a special detail at the town's pump station. The purpose of the
detail was to provide traffic control in connection with a beach
nourishment project funded by the Massachusetts Department of
Conservation and Recreation (DCR). The project involved the
movement of sand and rocks to Winthrop beach. The detail ran
from 7 A.M. until 3 P.M., and the detail officer was to receive
a one-hour lunch break and bathroom breaks as needed. The

3 
detail officer was required to sign in at 7:00 A.M. and report
to the DCR office, but the officer was not required to be
present at the pump station until 9:00 A.M., after which the
officer was permitted to drive along the truck route between the
pumping station and the beach as long as the police radio was on
and the officer was available to respond to any incident. 
On the morning of November 24, 2014, Romeo, dressed in his
police uniform, reported to the police station around 7:30 A.M.,
after which he drove a police cruiser to the pump station. He
returned to the police station around 9:30 A.M., and then went
to the town hall where he engaged in a negotiation session on
behalf of the union from about 10:00 A.M. until 2:30 P.M. 1 That 
day, Romeo submitted a request to be paid for eight hours of 
work on the d e t ail . 
The next day, the chief, who was present at the negotiation
session the day before, noticed that Romeo had submitted a slip
for eight hours for working the detail the day before. On
December 1, 2014, the chief questioned Romeo as to how he could
have been working the detail on November 24, 2014, when he was
at town hall negotiating on behalf of the union. Romeo
responded that it was his understanding from speaking with two
DCR employees that the detail was a "floating" or mobile detail 
1 Romeo was the union president and had held that position for
eleven years.

4 
that did not require him to remain on-site. After speaking with
the two DCR employees and other Winthrop police officers, all of
whom expressed their belief that the detail was a stationary
detail that required the officer to be physically present, the
chief concluded that Romeo had submitted a false time slip and
had lied during the chief's investigation with respect to the
duties and responsibilities of the detail. The chief placed
Romeo on administrative leave pending the outcome of an internal
investigation regarding the detail. 
On December 18, 2014, the town held a due process hearing
to consider Romeo's actions. Following the hearing, on January
9, 2015, the town manager discharged Romeo for committing a
dishonest act and for untruthfulness. 2 Romeo filed a grievance 
2 As described by the arbitrator in his findings, the town
manager drew the following conclusions: "1. . . . . During
the time that you billed for [the] detail [on November 24,
2014], you were not present at the detail. Billing for services
rendered without being present constitutes unacceptable
judgment[,] fraud, and conduct unbecoming a police officer. 
2. The above referenced conduct constitutes a dishonest act
which is contrary to the trust that citizens put in public
safety officers. 3. You specifically stated that the engineers
from the [DCR] stated to you that it was unnecessary for you to
be physically present at the detail. Your statement was
specifically contradicted by the DCR resident engineer as was
well as the DCR inspector. Your assertion that you didn't have
to be present at the detail was also specifically contradicted
by other members of the Police Department. 4. Your statements
during the disciplinary investigation and the hearing were
untruthful . . . . 5. The above referenced conduct violates
the rules and regulations of the Department, specifically . . .
integrity, . . . personal behavior, and . . . conduct unbecoming
an officer."

5 
to challenge his dismissal, and ultimately the matter was
submitted to arbitration. The parties agreed to submit the
following questions to the arbitrator: (1) "Was there just
cause for the termination of Officer Ferruccio Romeo?" and (2)
"If not, what shall be the remedy?" 
The arbitration hearing spanned the course of four
nonconsecutive days during which Romeo, the chief, a police
sergeant, and a DCR employee testified. In addition, the
arbitrator considered the testimony that had been presented at
the town's due process hearing. The arbitrator found that Romeo
was working the pump station detail on November 24, 2014, even
though he was negotiating at town hall during part of that
detail, because Romeo was "available" the entire detail shift;
but that he should have asked for or received permission to work
the detail from the town hall. Despite this failure on Romeo's
part, the arbitrator found that Romeo had not been dishonest
because Romeo "acted on his belief that he could use the [t]own
[h]all as his base from which he could execute the detail." The
arbitrator also found that Romeo did not lie to the chief when
he conveyed his understanding based on conversations with DCR
employees that the detail was a floating detail or during his
testimony at the due process hearing. The arbitrator concluded
that there was no just cause to terminate Romeo, that Romeo be
given a letter of warning for failing to receive prior

6 
authorization to work the detail from an alternate location, and
that Romeo be made whole for all lost wages and benefits. 
A Superior Court judge concluded otherwise when she vacated
the arbitration award. 3 The judge determined that Romeo's 
acti ons violate "a well - defined, dominant public policy that 
dishonesty by police officers will not be tolerated," such that 
"the decision to reinstate him would offend public policy." 
While noting that Romeo "is not the first police officer to make 
a billing er ror," the judge stated that Romeo's termination "is 
warranted because of his dishonesty, compounded by his 
unwillingness to take responsibility for disobeying the 
[d]etail's rules." The judge observed that the award ordering 
Romeo's reinstatement "appears to invite, if not encourage, 
double billing from public funds for doing details at which 
[officers] are intentionally not even present." She also 
concluded that, despite the limited circumstances in which an 
arbitrator's award can be vacated, the award reinstating Romeo 
must be vacated because the arbitrator had failed to articulate 
3 The judge stated: "Clearly to save his job, Officer Romeo
apparently believed he had to come up with some excuse for his
behavior. Creating an erroneous and unfounded 'belief' [that he
could work the detail without being present] apparently was his
excuse." The judge discredited the statements made by Romeo,
who is a member of the Massachusetts Bar, to the point that she
sent a copy of her memorandum of decision and order to the Board
of Bar Overseers for investigation into whether he violated the
Massachusetts Rules of Professional Conduct.

7 
the reasons why he credited Romeo's "erroneous belief" that he
could perform the detail duties from an unapproved location. 
Discussion. a. The arbitration award. The union's
primary argument is that the judge erred in vacating the
arbitrator's award on public policy grounds because, in light of
the arbitrator's finding that Romeo did work the detail and did
not lie, Romeo's reinstatement did not violate public policy.
We agree. 4 
The outcome here is controlled in all material respects by
Boston Police Patrolmen's Assn., in which the Supreme Judicial
Court held that the public policy exception cannot bar a police
officer's reinstatement where "the arbitrator found that [the
officer] acted reasonably and truthfully." Id. at 443. Here,
as in that case, the arbitrator's award does not violate the
well-defined public policy requiring honesty in police officers
because the arbitrator found that Romeo was not dishonest. The
result we reach may have been different had the chief or DCR
outlined the parameters of the detail or expressly stated that
the detail required the officer's physical presence the entire
time, but they did not. Nonetheless, where, as here, the 
4 The union also contends that the judge misapplied the law and
improperly found additional facts. In light of our conclusion
that the judge improperly vacated the arbitrator's award on
public policy grounds, we need not reach these arguments.

8 
arbitrator found no underlying misconduct, the award ordering
reinstatement must be affirmed. 
b. Attorney's fees. The judge also denied the union's
motion for reimbursement of its attorney's fees. The union
contends that it was entitled to fees and costs under G. L.
c. 231, § 6F, because the town "knowingly drafted a complaint
that ignored the Arbitrator's conclusions." On appeal, the
union asks us to vacate the judge's order denying its request
for attorney's fees and remand the issue for further
consideration. We decline to do so. 
Conclusion. The judgment vacating the arbitrator's award
is vacated and a new judgment shall enter affirming the
arbitrator's award. 
So ordered. 
By the Court (Vuono, Hanlon &
Wendlandt, JJ. 5 ), 
Clerk 
Entered: May 21, 2018. 
5 The panelists are listed in order of seniority.