MassCops Brief to the Appeals Court.pdf
Town of Winthrop · from the Town's request portal · released Dec 13, 2023 · 103 pages · 5.1 MB
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| ?} HOWARD L. GREENSPAN
| ATTORNEY AT LAW
September 27, 2017
Terence M. Delehanty, Interim Town Manager
Winthrop Town Hall
Metcalf Square
Winthrop, MA 02152
Re: Town of Winthrop v. Winthrop Police Brotherhood Local 421
Appeals Court No.: 2017-P-0785
Dear Mr. Delehanty:
Enclosed please find the following:
1. Copy of the Town of Winthrop’s Brief; and
2. Copy of Defendant Appeliee’s Brief in connection with the above referenced matter.
Please contact me if you have any questions.
Sincerely,
Howard \.. Greenspan
HLG/de
Encl.
200 Broadway, Suite 304 « Lynnfield, Massachusetts 01940
"Tel: (781) 598-4545 * Fax: (781) 598-4579
HGreenspan@GreenspanLawyers.com
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT.
Appeals Court No. 2017-P-0785
Lower Court No. 1684CV00398
TOWN OF WINTHROP,
Plaintiff - Appellee,
Veo
WINTHROP POLICE BROTHERHOOD LOCAL 421,
Defendant - Appellant,
On Appeal from the Judgment of the
Suffolk Superior Court
DEFENDANT - APPELLANT’ S BRIEF
Patrick N. Bryant,
BBO #652200
Tan O. Russell,
BBO #673387 - ‘
Pyle Rome Ehrenberg PC
2 Liberty Square, 10th Floor
Boston, MA 02109
(617) 367-7200
pbryant@pylerome.com
irussell@pylerome.com
Dated: July 24, 2017
TABLE OF CONTENTS
TABLE OF BUTHORITIES. sc eee eeer er errr reste 4
I. STATEMENT OF THE ISSUES...++eerrerr rrr 6
Ti. STATEMENT OF THE CASK. ..e cree errr reser 6-
TI. STATEMENT OF FACTS. eee erect eee e eee rnets 7
A. The Arbitrator Finds that Romeo Was Not
IV.
vi.
Dishonest..-seeeeeeeeer reeset ets 7
. The Superior Court Voices “Serious Concern”
With Longstanding Precedent Regarding The.
Narrow Scope of Judicial Review of Arbitration
Awards nance eeeeeneeeeeeenee eee ee neee 20
_ The Superior Court Made Findings of Fact In
addition to, and Contrary to, Those Found by
the Arbitrator. .-.-erererseserssses 21
SUMMARY OF ARGUMENT... cece cence eee eeeneereret 23
ARGUMENT. cece cece rerererrrssress st vee eee 26
. The Court Is Bound By The Arbitrator’s Findings
of Fact And ConclusionS..-.+eseerrrsrerrettt 26
. The Court Need Not Address The Application of
Public Policy Related To A Police officer Lying
Because The Arbitrator Unambiguously Found That
Romeo Did Not Lie -eeerrrrrtrree vee eee eee 28
. The Public Policy Exception Does Not Apply To
The Only Improper Act The Arbitrator Found That
Romeo Committed..-+-+-- baer eee nee e ener ennneet 38
The Superior Court Did Not Apply The Proper
Standard Of Review And Improperly Made Findings
of Fact In Addition To, And Contrary TO, Those
Found By The Arbitratoressseeererer reset 42
. The Superior Court Should Be Ordered To Revisit
The Union’s Request For Attorney’S FeeS.-+++s 49
CONCLUSION. sce eeeeeecereserrresss ets ees 50
TABLE OF AUTHORITIES
CASES
Boston Police Patrolmen’s Assn V- City of
Boston, 60 Mass. App- ct. 672 (2004),
rev. den. 442 Mass. 1103 (2004)..--++ee>
Bureau of Special Investigations v-
Coalition of Public Safety, 430 Mass.
GOL (2000). seeeeeeereereer sterner
City of Boston v- Boston Police Patrolmen's
Ass'n, 443 Mass. 813 (2005). eeeeeerere
City Of Boston Vv. Boston Police Patrolmen's
Association, No. sgC-12077, 2017 WL
2960815 (July 12, QZOLT) wee ce ercrerreeee :
City of Boston Vv. Boston Police Superior
officers’ Federation, No. 2012-9985
(Mass. Super. Sept. 13, 2013). cece eee eee
city of Lynn v. Thompson, 435 Mass. 54
(2001), cert. den. 534 U.S. 1131
(2002) ces eee eee Lew eee eeeee beeen eee
City of Peabody v-. Peabody Firefighters,
Local 925, 2008 WL 731979 (Mass. App
Ct, 2008). .eeeeeer cer cser errr sete
Concerned Minority Educators of Worcester
passim
passim
passim
40
v. School Comm. of Worcester, 392 Mass.
184 (1984). cceeeeeeer recs rer eerste
International Brotherhood of Teamsters,
Local 122 v. Boston Housing Authority,
No. 2016-1130A (Mass. Super. July 18,
2016) weve cee eee r renee eee eee
Massachusetts Bay Transp. Authority v.
MBTA Superior officers Ass'n, 2005 WL
3605390 (Mass. Super. 2005) cee eeeerrres
o'Brien v. New England Police Benev. Ass'n,
Local 911, 83 Mass. App. Ct. 376
(2013) .-+eeee> ceeeeeee eee eee een eenes
40
32
Plymouth-Carver Reg’l Sch. Dist. V- J.
Farmer & Co., Inc., 407 Mass. 1006
(1990) ceesee cease ence sees eee e ees 26, 27
Sch. Comm. of Lowell v. Robishaw, 456 Mass.
G53 (2010). .-eee eee r eerste 32
School Comm. of Waltham v.- Waltham Educators
Ass’n, 398 Mass. JO3 (1986) ..eeeeerrrree 27
School Dist. of Beverly v. Geller, 435 Mass.
223 (2001) ..eeeeeerrer rere rere 26
Sheriff of Suffolk County v. Jail officers
and Employees of Suffolk County, 451
Mass. 698 (2008).-+-rererrrrrrsrtss 39
University of Massachusetts Boston V-
Massachusetts Com'n Against
Discrimination, 2008 WL 5382249 (Mass.
App. Ct. 2008)... eeeerecrrrerrrrttt see 40
wormstead v. Town Manager of Saugus, 366
Mass. 665 (1975) secre erreersrers 35
STATUTES
Gib. Ce USOC, § LO. eeeereeerererr resets 6
Gel. c. 150C, § Lleeeeeeeererrersste lecuees 6
Gob. Ce 231, S GFeseeeeeerssresrssst 49
rT. STATEMENT OF THE ISSUES
1, Whether the Superior court erred in denying
Defendant's motion to confirm the Arbitrator’s Award,
pursuant to G.L. c. 150C, Section 10, and granting
Plaintiff's request to vacate the award, pursuant to
G.L. c. 150C, Section 11?
2. Whether the Superior court improperly made
independent findings of fact yvegarding the dispute
that were beyond, and in conflict with, those facts
found by the Arbitrator?
3, Whether the Superior Court applied the appropriate
standard of review to the Arbitrator’s Award?
4, Whether the Superior court erred in failing to
grant the Union’s request for attorney’s fees and
costs?
II. STATEMENT OF THE CASE
In January 2015, the Town of Winthrop (“the
. Town’), terminated the employment of Ferruccio Romeo,
who had been a patrol officer in the Winthrop Police
pepartment for 19 years. [ApP- 9}. The Winthrop Police
Union, Local 421, MCOP (“the Union”) filed a grievance
contesting the termination pursuant to its collective
bargaining agreement with the Town. Id. The parties
were unable to resolve the grievance and the Union
filed for arbitration. Id. at p. 14. The matter was
heard by Arbitrator Bruce Fraser. Id. The parties
agreed to the following issue: “Was there just cause
for the termination of officer Ferruccio Romeo? If
not, what shall be the remedy?” Td. at id. The
Arbitrator determined that the Town did not have just
cause to terminate Romeo and ordered that he be
reinstated, with pack pay. Id. at 37.
The Town filed a complaint in Superior Court,
requesting that the Award be vacated. [App- 7]. The
Union filed a motion to confirm the Award, which
sought interest and attorneys’ fees. Id. at 45. The
Town filed a Memorandum of Law in Support of
; Plaintiff's Motion for Judgment on the Pleadings,
though it never filed a Motion for Judgment on the
- Pleadings. The Superior Court treated the Town’s
Memorandum as a Cross Motion to Vacate the Arbitration
award. Id. at 205. The Superior Court denied the .
Union's motion and granted the town’ s motion. Id, at
218. The Union filed a timely notice of appeal. Id. at
221.
TIL. STATEMENT OF FACTS
A. The Arbitrator Finds that Romeo Was Not
Dishonest
As of January 2015, the Grievant, Romeo, had been
a patrol officer in the Winthrop Police Department for
19 years. [App- 16]. Prior to the termination at issue
in this matter, Romeo had an unblemished and
discipline-free record. Id. He had also served as
president of the Union for some 11 years and, while a
Winthrop police officer, earned a law degree and
passed the Massachusetts Bar. Id. On November 24,
2014, Romeo was not scheduled to work his regular day
shift. Id. at 14-16. In other words, there is no
evidence offered or found by the arbitrator that
November 24 was a paid work day for Romeo. Romeo
signed up to work a police detail that day, referred
to as the “Pump Station Detail.” Id.
The Town is approximately 1.8 square miles in
length. {App. 32]. In 2014, the Town undertook the
Winthrop Beach Nourishment Project, which was funded
by the Massachusetts Department of Conservation and
Recreation (DCR). Id. This project involved moving
sand and rock to the Winthrop beach. Id. In mid-Fall
2014, it became necessary to add a detail (i.e., the
Pump Station Detail) to the daily Winthrop Police
Department details that assisted, when necessary, with
traffic associated with the project. Id. It was this
Pump Station Detail. that Romeo signed up for on
November 24, 2014. Id.
Generally, the Pump Station Detail was scheduled
“from 7 a.m. to 3 p-M., with the officer required to be
on duty at 9-a.m. (officers, after signing in at 7
a.m., were free to spend time until 9 a.m. as they
wished). Id. The Winthrop Department of Public Works
(DPW) Pump Station was located near the beach and
along the traffic route, where the project took place.
td. officers working the Pump Station Detail were
assigned a police cruiser: they could base themselves
at the Pump Station or @rive about the area as needed,
including along the truck route associated with the
project. officers assigned to the Pump Station Detail
were expected to be available to respond to
emergencies that happened along the truck route. [App-
16, 18-19]. The detail officer was not required to
remain at the Pump Station; the officer could use the
assigned cruiser to move about. as long as the police
radio was on and the officer could respond quickly to
an incident. Id. No evidence was produced at the
arbitration hearing that Romeo, or other officers,
were ever informed that the detail was a “stationary”
detail, meaning that an officer was required to be
parked at the Pump Station at all times. id. Officers
assigned to the Pump Station Detail are seldom called
upon to do anything. Id. at ‘19.
On November 24, 2014, in addition to working the
detail, Romeo, as president of the Union, was also
scheduled to attend labor negotiations with the Town.
[App. 16]. Officers had been permitted by the Chief to
attend negotiations while assigned to 4 detail. Id. at
30-31. Romeo did, in fact, attend negotiations on that
date from approximately 10 a.m. to 2:30 p.m. Id. The
supervisors of the shift that day knew Romeo was
assigned to a detail and attending negotiations. Id.
at 31. Negotiations lasted much longer ‘than everyone
expected. Id. at 22. He attended negotiations wearing
his uniform, carrying 4 vadio, and with access to an
assigned cruiser. Id. at 22. The Town never called him
to service. Id. at 32. He subsequently submitted a
detail slip indicating that he had worked the Pump
Station Detail that day. Id. at 146.1 On November 25,
2014, Police Chief Terence pélehanty (hereinafter
“chief Delehanty”) reviewed Romeo’ detail slip and
knew that Romeo had been at negotiations on the 24th.
Id. Yet, Chief Delehanty decided to investigate
Romeo’s detail slip. Td. at 17. On December 1, 2014,
Chief Delehanty called Romeo to his office and asked
why he submitted a detail slip for a period when he
attended negotiations. Id.
1 An officer working the detail would be on duty
petween 9 a.m. and 3 p-M., and was authorized to
indicate that he/she had worked 8 hours on the detail.
Id. at 15-16.
10
Romeo informed Chief Delehanty that it was his-
belief, pased on the information that he had been
given by DCR Manager Steve Colometo (hereinafter
“Colometo”) and another DCR employee, Mike Vickery
(hereinafter “vickery”), that he could fulfill the
requirements of the detail while at negotiations
because the Pump Station assignment was a mobile, or
floating, detail (i.e-, @ detail where an officer was
not required to remain in one place, as long as
available to respond to a call). [App. 34]- He stated
that he believed he could perform a mobile detail from
negotiations because he was within the general radius
of the work site and was available to respond to any
calls within a minute or two. Id. Romeo did not claim
to have been given permission by Colometo, oF anyone
else, to work the detail from a location other than
the Pump Station. Id, Romeo told Chief Delehanty that
he would never put ina slip for a detail he had not
worked. Id. at 20.
Chief Delehanty, who did not have any documents
describing the detail and its requirements,
subsequently spoke with Colometo and asked him about
the detail. Td. at 18-19. Colometo explained that the
purpose of the detail was to monitor truck traffic
il
from the Pump station location. Id. When asked whether
it was a mobile, or floating, detail, Colometo replied
that it was a stationary detail. Id. He further stated
that he did not recall telling officers that it was a
floating detail. Id. Chief Delehanty Later asked
vickery if he had told officers that they could
perform their duties on a floating basis, Vickery did
not directly answer the question, put indicated that
it was a stationary detail. [App- 18).
In a letter provided to Romeo on December 1,
2014, Chief Delehanty informed Romeo that he was being
placed on administrative leave pending an ‘
investigation of the detail. td. at 17. The letter
further stated: “y am ordering you not to discuss this
matter with anyone except for your legal
representatives while the investigation is ongoing.”
Id. In addition to ordering Romeo not to discuss the
matter with his co-workers, the Town also froze
Romeo’s access to documents related to the work he
performed on November 24, 2014, including video and
door access monitor records. Id. at 36. There is no
evidence Romeo was ever paid for the detail. On
December 9, 2014, Romeo received a letter from Town
Manager James McKenna stating that the Town would hold
12
a Due Process Hearing to consider Romeo’s actions on
November 24, 2014 and that the hearing “might result
in discipline including dismissal for just cause.” Id.
at 17. This pre-termination Due Process Hearing was
held December 18, 2014. Id.
During the Due Process Hearing, Romeo was asked
to describe the work he performed on November 24,
2014. Id. at 21. Romeo testified the he followed his
usual practice and arrived at the police station at 7
a.™., picked up a cruiser, got his detail slip signed
at the DCR offices, picked up a coffee and a bagel,
went to the Pump Station, and remained there until
about 10 a.m., when he went to the Town Hall for
negotiations. [App. 35]. He indicated that his
recoliection might be somewhat. faulty. Id. at 21.
Subsequently, Chief pelehanty, during re-direct
testimony, testified that video and card access
control records showed that Romeo arrived at the
police station parking lot at about 7:24 a.m, entered
the station at 7:29 a.m., and left the building at
8:21 a.m. Id. He further testified that the same
records showed Romeo return to the station parking lot
at 9:28 a.m., enter the station at 9:32 a.m., and exit
the station (to attend negotiations at Town Hall) at
13
9:54 a.m. Id. Following the Due Process Hearing, Romeo
was, for the first time, allowed to check the
,
documentation cited by Chief Delehanty. Id. Romeo
recognized the flaws in his initial description of the
events of November 24th. Id. |
Following the Due Process Hearing, McKenna
terminated Romeo. Id. at 23. The termination letter
dated January 9, 2015, stated, inter alia:
1. On November 24, 2014, you submitted a
voucher for a detail slip for pay for 8
‘hours pay in the total amount of $344 for
a detail at the Short Beach Pump Station.
During the time that you billed for this
detail, you were not present at the
detail. Billing for services rendered
without being present constitutes
unacceptable judgment fraud, and conduct
unbecoming an 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 Commonwealth of Massachusetts
stated to you that jt was unnecessary for”
you to be physically present at the
detail. Your statement was specifically
contradicted by the DCR resident engineer
as 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 —
14°
untruthful which in and of itself
constitutes just cause for your dismissal.
[App. 24].
Romeo and the Union grieved the termination. Id.
As the parties did not resolve the grievance, the
Union filed for arbitration. Id. at 25. The parties
agreed that the arbitrator would decide this issue:
“Was there just cause for the termination of officer
Ferruccio Romeo? If not, what shall be the remedy?”
Id. at 15. The Town cited three specific acts by Romeo
that it argued justified his termination: (1) filing a
false detail slip; (2) lying to the Chief during the
course of the investigation; and (3) lying during the
Due Process Hearing. [App- 26). .
At the arbitration hearing, Romeo testified that
the chronology of events described by Chief Delehanty
regarding his actions between 7 and 10 a.m. on
November 24, 2014 was correct. Id, at 21, 36. He
further explained that his statements on this subject
at the Due Process Hearing were pased upon his
recollection of having performed three other Pump
Station Details during the same week. Id. He had not
been able to refresh his recollection prior to his Due
Process Hearing testimony because he had not been
15
allowed to view the video or card access control
records until after the Hearing. Id.
Following 4 multi-day hearing at which both
parties put on multiple witnesses and submitted
documentary evidence, and after receiving written
briefs filed by both parties, the Arbitrator
determined that the Town did not have just cause to
terminate Romeo. Id. at 15, 37. Regarding Charge 1,
the Arbitrator found that Romeo did not file a false
detail slip. Id. at 33. The Arbitrator held that the
substance of the Town’s charge was that Romeo
knowingly and deliberately. submitted documents stating
that he had worked the Pump Station Detail from 9 a.m.
to 2 p.m. on November 24, 2014, when in fact he had
not worked it. [App 32]. The arbitrator held that
Grievant “correctly” believed that the primary duties
of the detail were to be ready to respond to any
incident on the truck route. Id. Furthermore, the
Arbitrator found that the Grievant did have radio
contact with the dispatcher, was in close proximity to
the truck route, had a cruiser at his disposal, and
was free to respond to any police calls. Id.
Accordingly, the Arbitrator found that Romeo’ Ss
culpability for Charge 1 had not been proven because
16
“he was performing all the tasks of working the detail
for some five hours that day ft even if he was located
at the Town Hall. Id. at 33. The Arbitrator held that:
“the critical question here is the following: Was
Romeo working the Pump Station detail when he was
working the detail from the Town Hall? I find in the
affirmative.” Id.
Regarding Charge 2, the Arbitrator found that
Romeo did not lie to Chief Delehanty during the
investigation about the detail. Id. at 35. The basis
of this charge was the Town's allegation that Romeo
lied by claiming that “the engineers from the
Commonwealth of Massachusetts stated to you that it
was unnecessary for you to be physically present at
che detail.” td. at 24. Contrary to this allegation,
however, the Arbitrator found that while Colometo did
expect the officer assigned to the detail to be based
at the Pump Station, Romeo never Yasserted that
Colometo gave him permission to work the detail from
the Town Hall.” Id. at 34. Rather, Romeo merely told
Chief Delehanty that he pelieved that the detail was 4
mobile detail and that he had wide latitude to move
around while on the detail, so long as he was nearby
the truck route and available to respond to any calls
17
regarding the detail. Id. at 35. Thus, the Arbitrator
wrote that:
On December 1, 2014, Romeo simply gave his
opinion to the Chief about the detail based
on [his] conversation with Colometo. He did
not state affirmatively that the detail was
a “floating detail,” and never asserted that
Colometo agreed with him, but only offered
that as a way of describing it. I find that
he did not lie to the Chief during the
investigation on December 1, 2014.
Id. at 24.
Regarding Charge 3, the Arbitrator found that
Romeo did not lie during the Town Due Process Hearing.
t
[App. 35-36]. The Town contended that Romeo's
recitation of his whereabouts between 7 a.m. and 10
a.m. on November 24 was a lie. Id, However, the
Arbitrator found that: “Although Romeo’s testimony at
the Town hearing was inaccurate, I do not find that it
was intended to deceive.” Id. (emphasis added) To the
contrary, the Arbitrator held that Romeo merely failed
to accurately recollect what had occurred that morning
and that the inaccuracy of his description of events
was “contributed” to in “large part” py the Town
“preventing him access to the video and keycard
records before the Due Process nearing.” Id. The
Arbitrator determined that Romeo had nothing to gain
by offering an incorrect description of his
18
whereabouts since “[h]is time was his own between 7 am
and 9 am and returning at about 9:30 am to prepare for
the negotiations with his lawyer. could be expected.”
Id. “Once he saw the video and keycard records
information .. days after the Due Process Hearing, he
realized he had misspoken at the Town Hearing.” fd. -
Consequently, the Arbitrator wrote: “I find no
deliberate misrepresentation on his part.” Id.
while the Arbitrator did not find that the Town
had proven any of its charges, he did find that Romeo
should have asked for permission to base himself at
the Town Hall during the detail. Id. at 37. Because he
did not seek permission to base himself at Town Hall,
the Arbitrator ordered that he should be issued a
Written Letter of Warning. Id. He concluded that the
Town's termination violated the just cause language of
the collective pargaining agreement. Id. To remedy
this breach, the Arbitrator ordered the Town to
reinstate Romeo and make him whole for all lost wages
and benefits (minus offsetting income). Id.
19
B. The Superior Court Voiced “Serious Concern”
With Longstanding precedent Regarding The
Narrow Scope of Judicial Review of Arbitration
Awards
During oral argument pefore the Superior. Court in
this matter, Justice Fahey voiced her distaste for
longstanding precedent regarding the limited role of
the courts when reviewing an arbitration award on a
motion to vacate. [App. 179]. When counsel for the
Union noted the “narrow” scope of judicial review,
Justice Fahey responded:
IT have, frankly, never understood why we
give such deference. I have to put a bag on
my head. Unless there is fraud, which is
never proven, I have to put a bag on my head
and affirm what some arbitrator decides. He
could be wrong on the facts, wrong on. the
law, and unless there’s fraud or a violation
of public policy, I’m supposed to affirm it.
Id. This distaste was restated in her Order. After
citing a case describing the appropriate standard for
judicial review, Justice Fahey wrote in a footnote
that: “Notwithstanding my serious concerns about the
propriety of the extreme deference that courts are
required to give an arbitrator’s decision, this. Court
is still required to apply it.” Id. at 215.
20
C. The Superior Court Made Findings of Fact In
Addition to, and Contrary to, Those Found by
the Arbitrator
Despite the Arbitrator’s clear and unambiguous
findings that Romeo was not dishonest and did not lie,
and despite her tacit acknowledgment that judges are
bound by an arbitrator's findings, Justice Fahey made
her own findings of fact regarding Romeo’s conduct and
credibility. Justice Fahey first articulated
independent findings of fact during oral argument:
What I understand occurred in this case is
that it was denied and then some fiction
about you don't have to show up at this
detail. I get to collect all this money and
I don't have to show up. I need to be
available even when I'm at a hearing for
four and a half hours. I mean, what's the
taxpayer going to think ‘of this?
Id. at 177.2 The Order affirmed and expanded upon her
findings, contrary to the Arbitrator, that Romeo lied.
Justice Fahey ordered that the Award be vacated
because Romeo’s “dishonesty throughout the course of
2 .See also App. 186, where Justice Fahey stated:
So [Romeo] wasn't just oh, I made a mistake.
He wasn't just -— so that's why it seemed
more -- there was a flagrancy to it that the
arbitrator, in my skimming his decision,
seemed to be saying well, he said what he
believed. I've seen too much of that
recently. You know, it's just not
necessarily correct.
21
Chief Delehanty’ s investigation and the subsequent
hearings, as found by the arbitrator, réquired
dismissal and that any lesser sanction would frustrate
public policy.” [App- 217). Additionally,
contradicting her statements that the vacating of the
Award was based on the Arbitrator’s findings, she held
that there was “no pasis” for the Arbitrator’s
“findings or explanation of why he credits Officer’s
Romeo's belief” that he could perform the detail from
a location other than the Pump Station. Id. at 218.
She referred to the Arbitrator’s findings as
“inaccurate” and “contradictory.” Id. at 213. She made
her own finding regarding Romeo’ s credibility, writing
that his statements regarding his “belief” were
“unfounded and erroneous.” Td. Finally, even though
Romeo was not paid separately for attending bargaining
and that the Town never accused him of “double
billing,” Justice Fahey determined that she could
“reasonably infer[{] that officer. Romeo was also paid
for his negotiations work at the Town Hall,” that the
Arbitrator committed: an “error of law” by failing to
find that Romeo had been “double billing,” and stated
that “the award appears to invite, if not encourage,
doubling billing wi” Id. at 218. Justice Fahey also
22
referred Romeo, & Massachusetts lawyer in good
standing, to the Board of Bar Overseers for
investigation.
Justice Fahey acknowledged that judicial
disregard for the appropriate standard could ‘result in
considerable financial cost to taxpayers:
{~ mean, I think defense counsel is correct
that very often —~ all too often in my mind
-——- but that if fT find a public policy
violation and I'm wrong, you're going to
be paying him for two more years while
he's practicing law, apparently. His own
lawyer said that; that's what he's been
doing. I didn't know that. and that's what
you —7 that's what the Town of Winthrop
wants me to do.
. But notwithstanding that the town could
then be on the hook for whatever thousands
of dollars, tens of thousands of dollars,
that's what the town wants.
[App. 186].
Iv. SUMMARY OF ARGUMENT
The Superior Court erred by vacating an
arbitration award that specifically concluded that a
_
3 Justice Fahey wrote:
Given my concern that testifying to an
unfounded and erroneous "pelie£" violates
Rule 3.3(a) (1) of the Massachusetts. Rules of
professional Conduct, and therefore
implicates g.g.c. Rule 3:09, this court will
accordingly forward this opinion to the
Massachusetts Board of Bar Overseers to
satisfy my obligation.
Id. at 214, n.15.
23
terminated police officer did not file a false detail
‘ glip or lie. [Brief at 28-37]. Given these findings,
the superiox Court erroneously concluded that it
yiolated public policy to reinstate an officer who
filed a false detail slip and/or lied. Id. It is black
letter law that a court is pound by the facts found by
an arbitrator, even if the court believes the
arbitrator's findings are incorrect, poorly reasoned,
contradictory, OF ambiguous. Td. at 26-28. As recently
as July 2017, the Supreme Judicial Court confirmed
that a court cannot apply the public policy exception
to vacate an award when the arbitrator already
rejected the factual basis for the public policy
argument. Id. at 33-34. In other words, the public
policy exception cannot be applied where the
arbitrator has found that the employee did not engage
in the conduct alleged to violate public policy. Id.
Thus, where the Arbitrator chosen by the Town and the
Union in this matter expressly rejected the factual
allegations that form the pasis of the Town’ s
‘Complaint, the Superior Court was required to confirm
the Award without even addressing the Town’s public
policy argument. Id. at 35-38.
24
The Superior Court further erred by making its
own independent findings of fact and reaching its own
conclusions, contrary to those found by the
Arbitrator. {Brief at 42-48]. tt compounded these
errors by basing its Order to vacate the Award upon
those independent findings. Id. Despite citing to the
strict standard of review applied to the judicial
review of arbitration awards, the Superior Court
dismissed the Arbitrator’s findings, describing them
as erroneous, incorrect, and contradictory. Id. The
superior Court based its decision to vacate the Award
on its own finding that Romeo was dishonest, despite
the Arbitrator’s clear and unambiguous finding that
Romeo was not dishonest. Id. indeed, the Superior
Court went so far as to assert that Romeo was double
pilling (i.e-, that he was paid both for the detail
and attending negotiations, which would constitute
fraud) even though Romeo was indisputably not paid for
attending negotiations and the Town never alleged that
he was paid in this manner. Id. at 45-48, The Superior
Court further abused her authority by recommending
Romeo, a lawyer in good standing, for bar
investigation pased upon. conduct that the Arbitrator
found to be truthful and not fraudulent. Id.
25
For these reasons, the Court should vacate the
order of the Superior court and remand the case to the
Superior court with instructions to confirm the Award
and determine the attorneys’ fees. Td. at 49-50.
Vv. ARGUMENT
A. The Court Is Bound By The arbitrator's Findings
Of Fact And Conclusions
Massachusetts appellate courts have repeatedly
emphasized the limited role of the courts in reviewing
arbitration awards. The scope of judicial review of an
arbitration decision is very narrow and deferential.
city Of Boston v, Boston Police patrolmen's Ass‘n, No.
ggc-12077, 2017 WL 2960815, at *7 (July 12, 2017)
(hereinafter Boston Police Patrolmen's Ass‘n 2017)
(Add. )i School Dist. of Beverly v- Geller, 435 Mass.
223, 225 (2001); Bureau of Special Investigations v.
Coalition of Public Safety, 430 Mass. 601, 603 (2000) 7
Plymouth-Carver Reg’1 Sch. pist. v. J. Farmer & Cou,
Inc., 407 Mass. 1006, 1007 (1990). A court may not
review alleged errors of law or fact or overrule an
arbitrator based on a different interpretation of a
contract. See Concerned Minority Educators of
Worcester V. School Comm. of Worcester, 392 Mass. 184,
187-88 (1984). Indeed, a court is “strictly bound by
26
an arbitrator’s findings and legal conclusions, even
if they appear erroneous, inconsistent, or. unsupported
by the record at the arbitration hearing.” City of
Lynn v- Thompson, 435 Mass. 54, 61 (2001), cert. den.
534 U.S. 1131 (2002); see also Boston Police
Patrolmen’s Assn v. City of Boston, 60 Mass. App. Ct.
672, 674 (2004), rev. den. 442 Mass. 1103 (2004)
(“Unlike our review of factual findings and legal
rulings made by 4 trial judge, we are strictly bound
by an arbitrator's findings and legal conclusions,
even if they appear erroneous, inconsistent, or
unsupported by the record at the arbitration
hearing.”).
A party disappointed by an arbitrator's ruling
cannot obtain judicial relief because it disagrees .
with a decision rendered by the.very individual it. has
directed to resolve the controversy. Id. Absent fraud,
corruption, OF misconduct, an arbitration award may be
vacated only if it was in excess of authority or
requires the public employer to commit an act
prohibited by law. G.L. c. 150G, § 11 (a); School Comm.
of Waltham v. Waltham Educators Ass'n, 398 Mass. 703,
705-06 (1986); Plymouth-Carver Reg’1 Sch. Dist., 407
Mass. at 1007. “an arbitrator's result may be wrong;
27
it may appear unsupported; it may appear poorly
reasoned; it may appear foolish. Yet, it may not be
subject to court interference.” city of Lynn, 435
Mass. at 62. Therefore, regardless of the findings by
the Superior Court, this Court is bound by the
Arbitrator's findings of fact and conclusions,
including his findings that Romeo did not file a false
detail slip and did not lie during the investigation
or the Due Process Hearing.
B. The Court Need Not Address The Application of
Public Policy Related To A Police Officer Lying
Because The Arbitrator Unambiguously Found That
Romeo Did Not Lie
While a court may, on rare occasions, vacate an
arbitration award that violates a well-defined and
dominant public policy, there are no grounds to apply
the public policy exception in this matter.‘ Though the
4 “To meet the criteria for application of the
public policy exception, the public policy
in question must be well defined and
dominant, and is to be ascertained by
reference to the laws and legal precedents
and not from general considerations of
supposed public interests. The public policy
exception does not address disfavored
conduct, in the abstract, but only
disfavored conduct which is integral to the
performance. of employment duties. Finally,
we require a showing that the arbitrator's
award reinstating the employee violates
public policy to such an extent that the
28
Town and the Superior Court ‘rely on a public policy
“against police officers lying, which is not nearly as
proad as either appears to believe, the Court cannot
even reach the public policy arguments because the
basic facts necessary to support its application are
lacking. See City of Lynn, 435 Mass. at 63-65. The
Court need not analyze any public policy regarding
police officers lying because the Arbitrator clearly
and unambiguously found that Romeo did not lie.
In its Complaint, the Town alleged: von Novenber
24, 2015 .. Romeo submitted a false detail slip ..”
[App. 9]. However, the Arbitrator specifically found:
that Romeo did not file a false detail slip. Id. at
33. The Town further alleged in its Complaint that:
‘“puring the course of the investigation conducted by
the Chief of Police, Romeo lied to the Chief as to the
obligations of the detail.” Id. at 9, However, the
arbitrator found that Romeo did not lie during the
investigation. Id. at 35. Finally, the Town alleged
that: “During the pre-termination hearing before the
employee's conduct would have required
_ dismissal.” .
city of Lynn, 435 Mass. at 62-63 (internal
quotations and citations omitted) .
29
Town Manager of the Town-of Winthrop, Romeo lied as to
the times that he was at the detail ..” Id. at 9.
However, the Arbitrator found that Romeo did not lie
during the hearing before the Town Manager. Id. at 36.
Given these findings, there are no grounds to address
the public policy relied upon by the Town and the
Superior Court.
The Town is not the first public employer to seek
to vacate an arbitrator’s award on public policy
-grounds despite the arbitrator’s refutation of the
basic findings necessary to. support such an action. In
the City of Lynn case, 4 public employer argued that
an arbitrator's award reinstating a police officer
whom the employer alleged had used unnecessary and
excessive force violated public policy. 435 Mass. at
63-65. However, the Supreme Judicial Court found that
it did not need to consider whether it violated public
policy to reinstate an officer .whoq used unnecessary
and excessive force because the arbitrator had found
that the officer did not actually engage in such
conduct. Id. The Court specifically rejected the
employer's argument that the award violates public
policy by requiring the reinstatement of an officer
who used unnecessary and excessive force: “we need not
30
parse the application of the public policy exception
to such a scenario, because it is a factual scenario
that the arbitrator expressly determined had not been
proved.” Id. at 65.
Notably, even while confirming the award, the
Court gave every indication that it did not agree with
conclusions reached by the arbitrator, writing:
one may weil take issue with the
arbitrator's analysis. The conclusion that
an officer, whose record includes a civil
rights judgment against himself and the city
for excessive force (including an award of
$30,000 in punitive damages) , nevertheless
has an unblemished record because another
arbitrator determined that [the officer]
should not be disciplined for that incident,
appears notably unsound. Similarly, the
conclusion that force sufficient to break a
person's arm, even the arm of a person with
fragile bones, is not “excessive” when the
person does not even pose a current danger
to the officers is a conclusion that seems
indefensibie. Finally, common sense would
dictate that the city would not, voluntarily
pay [the alleged victim] to settle her civil
rights claim unless there were significant
evidence supporting that claim.
Id. at 64. The Court acknowledged that, despite its
strong reservations about the merits of the decision,
it nonetheless was pound by the arbitrator's findings.
Id. (“Yet, we are not free to ignore the arbitrator's
conclusions merely pecause they appear unsound, poorly
reasoned, Or otherwise flawed.”).
31
Similarly, the Supreme Judicial Court did not
need to “parse the application of the public policy
exception” in a case where ‘an employer alleged that a
teacher was not fluent in English because the
arbitrator had concluded that the employer failed to
establish this pasic fact. Sch. Comm. of Lowell v.
Robishaw, 456 Mass. 653, 664-65 (2010). This Court
refused to determine whether it violated public policy
to reinstate a police officer who was alleged to have
violated three teenagers' constitutional rights and
engaged in felonious conduct by assaulting the
teenagers because the arbitrator had found that the
officer had not engaged in the alleged conduct.
o'Brien V. New England Police Benev. Ass'n, Local 911,
93 Mass. App. Ct. 376, 381-82 (2013) (court could not
. find that it would violate public policy to reinstate
officer “by the expedient of ignoring the arbitrator's
finding that [the officer] had acted reasonably under
the circumstances and had not violated the rights of
the teenagers, nor used excessive or improper force,
nor had improperly used his firearm’) .°
5 See also International Brotherhood of Teamsters,
pocal 122 v. Boston Housing Authority, No. 2016-1130A
(Mass. Super. July 18, 2016) (no need to address
public policy argument related to employees making
32
Recently, in July 2017, the Supreme Judicial
Court again reiterated the core nolding of these
cases, writing, “we are aware of no prior application
of the public policy exception to vacate an award
ordering reinstatement where the arbitrator found no
underlying misconduct.” Boston Police Patrolmen's
Ass'n 2017, 2017 WL 2960815, at *7. In that case, an
officer was terminated based on an allegation that he
had used unreasonable force during an arrest and had
been dishonest during a subsequent investigation when
he denied having used excessive force. Id. at *3. An
arbitrator found that, though he had used a choke hold
during the arrest, he had not used unreasonable force
and had not been dishonest during the investigation of
the incident. Id. at *3-4.
The Supreme judicial Court noted that “a de novo
analysis of whether {the officer's] actions
constituted excessive force in the totality of the
threats of violence where arbitrator specifically
found that employee did not make threats of violence)
{App. 89]; City of Boston Vv. Boston Police Superior
officers’ Federation, No- 2012-9985 (Mass. Super.
Sept. 13, 2013) (no need to address public policy
argument , regarding police officers telling the truth
where arbitrator found that officer did not lie) [App-
103].
33
circumstances could support a conclusion very
different from the one reached by the arbitrator.” Id.
at *7. However, the Court concluded that the question
to be answered when a public employer relies on the
public policy exception is not whether an employee’ s
actions “justified termination,” but “whether it
required termination, such that any lesser sanction
would violate public policy.” Id. Because the
arbitrator found that the officer used reasonable
force and was not untruthful in subsequent
investigations, the award was upheld, even though the
Court was clearly troubled by the officer's use of a
choke hold. Id.
These cases establish that a court cannot apply
the public policy exception when an arbitrator has
already rejected the factual basis for the employer’s
public policy argument. That is true even where a
court finds an arbitrator's conclusions to be
inconsistent, unsound, poorly reasoned, or foolish.
pursuant to these cases, this Court cannot uphold the
superior Court’s vacating of the Arbitrator’s Award on
the grounds that it violates public policy to
reinstate an employee who has filled out a false
detail slip or lied because the Arbitrator expressly
34
found that Romeo did not fill out a false detail slip
or lie. |
Regarding Charge 1, the Arbitrator found that
Romeo correctly pelieved that the primary duties of
the detail were to pe ready to respond to any incident
on the truck route and that Romeo's culpability for
Charge 1 was “not proven” by the town pecause “he was
performing all the tasks of working the detail for
some five hours that day ..” App. 33, 37. The
Arbitrator wrote, “The critical question here is the
following: Was Romeo working the Pump Station Detail
t
when he was working the detail from the Town Hall? I
find in the affirmative.” Id. at 33.6 ‘
Regarding Charge 2, the arbitrator found that
Romeo did not Jie to Chief Delehanty during the
investigation regarding the detail on November 24,
2014, Id. at 35. The basis of this charge was the
Town’ s allegation that Romeo lied by claiming that
6 Courts have found that officers are on duty when
they are, for example, in uniform and on-call. See,
e.g Wormstead v. Town Manager of Saugus, 366 Mass.
659, 665 (1975) (“A venerable line of workmen's
compensation cases established the principle that one
who is injured while on call, even though not actually
working, is entitled to compensation, at least where
he is injured on the employer's premises.”).
35
“the engineers from the Commonwealth of Massachusetts
stated to you that it was unnecessary for you to be
physically present at. the detail.” Id. at p- 24, The
Arbitrator wrote that:
on December 1, 2014, Romeo simply gave his
opinion to the Chief about the detail based
on [his] conversation with Colometo. He did
not state affirmatively that the detail was
a “floating detail,” and never asserted that
Colometo agreed with him, but only offered
that as a way of describing it. T find that
he did not lie to the Chief during the
investigation on December 1, 2014.
Id. at 35 (emphasis added).
Regarding Charge 3, the Arbitrator found that
Romeo did not lie during the Town's Due Process
hearing..Id. The Town contended that Romeo’s
recitation of his whereabouts between 7 a.m. and 10
pm. was a lie. Id. However, the Arbitrator, who
‘personally witnessed all testimonial and documentary
evidence, found that: “Although Romeo's testimony at
the Town hearing was inaccurate, I do not find that it
was intended to deceive.” Id. at 36. He held that
Romeo merely failed to accurately recollect what had
occurred. that morning and that the inaccuracy of his
description of events was “contributed” to in “large
part” by the Town “preventing him access to the video
and keycard records before the Due Process hearing.”
36
Id. consequently, the arbitrator. wrote: “I find no
deliberate misrepresentation on his part.” Id.
(emphasis added) .
Thus, this is not a case where the Arbitrator
found that the employee actually engaged in felonious
perjury but determined that termination was excessive.
Cf. City of Boston V+ Boston Police Patrolmen's Ass'n,
443 Mass. 813, 819 (2005) (hereinafter “Boston Police
Ppatrolmen's Ass'n 2005) (applying public policy
-exemption where arbitrator ordered. that police officer
pe reinstated even though arbitrator had found officer
' falsely arrested two individuals on misdemeanor and .
felony charges and lied in sworn testimony over a
period of two years about official conduct) - Rather,
this is a case where the Arbitrator clearly and
unambiguously found that the employee did not engage
in the terminable acts alleged by the employer. Given
that the Court igs bound by those findings, even if it
feels the award is “wrong on the facts or the law ..
wise or foolish, clear or ambiguous,” there is no need
to parse the application of the public policy
exception in this matter, because the factual scenario
alleged by the Town in its Complaint is the exact
scenario that the Arbitrator determined had not been
37
proved. Boston Police Patrolmen's Ass'n 2005, 443
Mass. at 818; see city of Lynn, 435 Mass. at 65.7
Cc. The Public Policy Exception Does Not Apply To
The Only Improper Act The Arbitrator Found That
Romeo Committed.
While, as explained pelow, the Superior Court's
findings differ from the Arbitrator’s findings, the
only improper conduct found by the Arbitrator (i.@.,
that Romeo should have sought authorization to work
the detail while based at Town Hall), does not
implicate the public policy relied upon by the Town or
the Superior Court. This public policy exception has
peen applied only in situations where the arbitrator
actually found that the officer engaged in egregious
felonious conduct. In the supreme Judicial Court case
in which this public policy was discussed, Boston
Police Patrolmen's Ass'n 2005, the public policy
exception was applied only pecause the arbitrator
actually found that the officer falsely arrested two
individuals on misdemeanor and felony charges, jied in
7 See also City of Boston, 60 Mass. App. Ct. at 674
(“Unlike our review of factual findings and legal
rulings made by 4 trial judge, we are strictly bound
by an arbitrator's findings and legal conclusions,
even if they appear erroneous, inconsistent, oF
- unsupported py the record at the arbitration
hearing.”).-
38
sworn testimony, and continued to lie about his
official conduct for over two years. 443 Mass. at B19.
The Court held: “A police officer who uses his.
position of authority to make false arrests and to
file false charges, and then shrouds his own
misconduct in an extended web of lies and perjured
testimony, corrodes the public's confidence in its
police force.” Id. at 820. Therefore, the Court
concluded the officer's “continued employment as a
police officer would frustrate strong public policy
against the kind of egregious dishonesty and abuse of
official position in which he was proved to have
engaged, we vacate the arbitrator's award.” Id. at
814.
This public policy exception has not been applied
where the arbitrator did not find facts establishing
that an officer engaged in egregious felonious conduct
and abuse of power. See Sheriff of Suffolk County V-
Jail Officers & Employees of Suffolk County, 451 Mass.
698, 702-703 (2008) (confirming award reducing
discipline for officer from a termination to six-month
suspension where arbitrator's findings of fact did not
firmly establish that the officer supplied false
information, rather than merely incomplete
39
information, in order to cover up assault of inmate);
University of Massachusetts Boston v- Massachusetts
Com'n Against Discrimination, 2008 WL 5382249, *4
(Mass. App. Ct. 2008) (public policy discussed in
Boston Police Patrolmen's Ass'n 2005 jnapplicable
where officer ‘drafted an accident report that
“contained some misstatements” because such conduct
was “far. less egregious than making false accusations
of misconduct against members of the public”) (App.
107); Massachusetts Bay Transp. Authority v. MBTA
Superior Officers Ass'n, 2005 WL 3605390, *6 (Mass.
Super. 2005) (confirming award where arbitrator
concluded that officer’s actions in making insensitive
and arguably racist comments did not establish conduct -
unbecoming of an officer, and further noting that even
if conduct unbecoming an officer had been established,
public policy would still not require dismissal) [App+
1141.8
8 gee also City of Peabody Vv. Peabody Firefighters,
Local 925, 2008 WL 731979, *2 (Mass. App. Ct. 2008)
{confirming award reducing termination to 30-day
suspension where “conduct of the employee in the
present case represented mere dereliction of duty,
rather than false arrests of citizens followed by
obstruction and prevarication in the ensuing
investigation.”).
40
Here, the Arbitrator found only that Romeo should
have sought authorization to work the detail while
based at gown Hall. He did not find that Romeo filed a
false detail slip or lied. He found that Romeo, even
from Town Hall, performed the work expected of the
detail - available to respond to emergencies. The
public policy related to untruthfulness or egregious
felonious conduct certainly does not apply to a
failure to properly request authorization related to
the manner in which a detail is performed. Romeo was
not found by the Arbitrator to have abused his power
as an officer or to have engaged in egregious conduct
of any type-® Again, the Court is bound, as the
Superior court should have been bound, by these
conclusions even if it finds the Award to be “wrong on
“the facts or the law .. wise or foolish, clear or
ambiguous.” Boston Police Patrolmen's Ass'n 2005, 443
Mass. at 818. it does not offend public policy for an
arbitrator to direct the reinstatement of an officer
who failed to seek permission to work from a different
oe
2 The Arbitrator noted that the Town itself. argued
that “if the only misconduct of Romeo was filing a
false detail slip (Charge 1), there would be some
grounds for reversing the dismissal based on the
principles of progressive discipline.” [App. 28].
41
location, especially where this different location was
Known to his supervisors and the Chief. Accordingly,
the public policy exception discussed in the Boston
Police Patrolmen's Ass'n 2005 case cannot be applied
to this matter. *° Thus, the Court. should vacate the
decision of the Superior Court and remand the case to
the Superior court with instructions to confirm the
Arbitrator’s award.
D. The Superior Court Did Not Apply The Proper
Standard Of Review And Improperly Made Findings
Of Fact In Addition To, And Contrary To, Those
Found By The Arbitrator
While the Court can order that the Award be
confirmed without addressing the Superior court's
findings and analysis, it is clear that the Superior
Court did not apply the correct standard of review.
The extent of the Superior Court’s disregard for the
well-established standard warrants independent
correction. As explained above, a court is “strictly
10 Even if the Arbitrator had found that Romeo had
lied in this matter, the public policy exception
discussed in the Boston Police Patrolmen's Ass'n 2005
does not apply here, because Romeo’s conduct did not
involve an abuse of power or an egregious act, such as
a series of lies intended to cover up 4 false arrest.
Given the Arbitrator’s findings that Romeo did not
lie, it is not necessary for the Court to address this
issue.
42
pound by an arbitrators findings ard legal
conclusions, even if they appear erroneous,
inconsistent, or unsupported by the record at the
arbitration hearing.” City of Lynn, 435 Mass. at 61;
Boston Police Patrolmen's Ass’n 2017, 2017 WL 2960815,
at *4. This standard is cited in the superior Court's
Order as applicable in theory, but ignored in fact.
The Order not only contains independent findings of
fact and credibility determinations that directly
contradict those made by the Arbitrator and are
without independent factual basis, the decision to
vacate the award is based upon those independent
findings and determinations."
The Order states that the Award must be vacated
because Romeo's “dishonesty throughout the course of
Chief Delehanty’ $s investigation and the subsequent
hearings, as found by the arbitrator, required
dismissal and that any lesser sanction would frustrate
public policy.” [App - 217]. However, the Arbitrator
clearly and unambiguously found that Romeo did not lie
_
11 It appears that the disregard shown for the
appropriate standard of review was based upon Justice
Fahey’ s personal distaste. She voiced “serious
concern” with the level of deference given to an
arbitrator’s findings both during the oral argument
and in the text of her Order. See supra at 21-23.
43
and was not dishonest. Indeed, the Order quotes the
Arbitrator’s findings that he did “not find [Romeo]
dishonest when he acted on his belief that he could
use the Town hall as his base from which he could
execute the detail,” that he “gid not lie to the Chief
during the investigation on pecember 1, 2014,” that he
“did not intend to deceive” during the Due Process
Hearing, and that he did not commit “deliberate
misrepresentation.” [App- 211, 213-151. Given that the
Superior Court based its Order on a conclusion that
was the opposite of that reached by the Arbitrator, it
is unclear what is meant by its statement that its
order is based upon facts “as found by the
arbitrator.”
The Order’s grounding in independent findings of
fact made by the Superior Court is made abundantly
clear in a series of footnotes describing the
Arbitrator’ s findings as “contradictory” and
“inaccurate.” Id. The Order states that “there is no
pasis” for the Arbitrator’s “findings.” Id. at 217.
Romeo’s “belief” that “he could perform the Detail
from anywhere in Winthrop,” which was relied upon by
the Arbitrator, is described as “erroneous.” Id. at
217.
44
A significant portion of the Order is devoted to
the Superior Court's independent analysis of Romeo’ s
credibility. The Superior Court acknowledges that its
determination regarding Romeo’s credibility differs
from the arbitrator's own determination, as the Order
states that the Arbitrator erred by “allowing Officer
Romeo to offer inaccurate testimony” and by failing to
articulate why he “credited Romeo’s belief” regarding
where and how the detail could be performed. Id, at
214, fn. 13, 218. Of the Arbitrator’s finding that
Romeo had no reason to offer an inaccurate account of
his activities on the day in question, the Superior
Court writes, “This is another inaccurate finding.”
Id.
Additionally, the Order contains an independent
finding of fact about alleged double billing, stating,
“This Court reasonably infers that Officer Romeo was
also paid for his negotiation work at the Town Hall.”
Id. at 207, 218. The Arbitrator’ s alleged failure to
make a finding that Romeo engaged in double billing,
despite not being asked to do so by any party, is
described as “an error of law.” Id. at 212. None of
this is based upon any facts contained in the Award,
the record before the Arbitrator, the pleadings of the
45
parties, oF representations during oral argument.
Simply stated, Romeo was not paid on November 24, 2014
— either for his time as a negotiator, for police
shift, or for the detail. He did not submit a bill to
pe paid for anything other than. details. And the Town
. never alleged that Romeo was paid for any reason that
day, or engaged in “double billing” oF “double
dipping.” In this context, the Superior Court's
baseless publication of a criminal, career-ending
allegation, where the standard of review expressly
‘forbade the Superior Court from engaging in such
action, is deeply troubling.
The Superior Court's decisions to second guess
the Arbitrator, make its own findings of fact, and
address an alleged “error of law” arising from an
issue never placed before the Arbitrator are all
clearly outside of the appropriate standard of review.
A court is bound by an arbitrator’s findings even if
they “appear erroneous, inconsistent, oF unsupported
by the record at the arbitration hearing” and “errors
of law or fact” do not provide grounds to set aside an
award.” City of Lynn vy. ‘Thompson, 435 at 61. The
Superior Court never should have determined that the
Arbitrator’s findings were “contradictory” or
46
“inaccurate.” {App. 211, 213-15]. Similarly, it never
should have determined that Romeo’s testimony was not
credible.}3 Nor should it have inferred that Romeo was
double pilling.%4 It also should not have faulted the
arbitrator for. failing to sua sponte consider Romeo's
“double billing”, where the Town never claimed Romeo
had done so, and, moreover, even if the arbitrator had
investigated .the issue at the Town’ s instigation, he
‘would have found no evidence in support of the claim.
The Superior Court certainly should not have based its
order to vacate the Award on its independent findings
12 The Superior Court was particularly concerned
with what it saw as contradictory findings by the
Arbitrator. However, the appropriate standard of
review, articulated as recently as July 12, 2017,
establishes that “inconsistent” findings are not
grounds for vacating an award. Boston Police
Patrolmen’s Ass’n 2017, 2017 WL 2960815 at *4.
Otherwise, as appellate courts know, this will render
the deferential review a nullity, by miring judges in
microscopic analysis of factual findings in
arbitration decisions to determine if they are 100
percent consistent.
aa In addition to peing outside of the well-
recognized standard of review, it is notable that the
Superior Court's credibility determination xegarding
Romeo’s testimony was not even based upon a review of
a transcript of the hearing, as there was no
transcript to review.
14 The Superior Court should not have made an
inference regarding double billing even if the record
supported such an inference, which it did not.
al
of fact, credibility determinations, and conclusions
regarding errors of law. These errors did not merely
infect reversible error of an order that can be
corrected on appellate review. Justice Fahey used the
independent and unfounded findings to refer Romeo, 2
Massachusetts lawyer in good standing, to the Board of
Bar Overseers for discipline. Id. at 214.
“The public policy exception can be applied only
where the arbitrator finds that an employee engaged in
the conduct that violates public policy: That did not
happen here. Thus, the Superior Court acted improperly
when it based its application of the public policy
exception upon its own independent findings and
conclusions, rather than those of the Arbitrator.'
Jb The Superior Court also improperly engaged in its
own analysis regarding whether Romeo’s termination was
justified, stating, “While the discipline seems
extreme, his termination is warranted because of his
dishonesty, compounded py his unwillingness to take
responsibility for disobeying the Detail’s rules.”
[App. 218]. The question to be answered when a public
employer relies on the public policy exception is not
whether an employee’ s actions “justified termination,”
put whether the employee’ s actions, as found by the
arbitrator, “required termination, such that any
lesser sanction would violate public policy.” Boston
Police Patrolmen’s Ass’n 2017, 2017 WL 2960815 at *7
(emphasis added).
48
E. The Superior Court Should Be ordered To Revisit
The Union’s Request For Attorney's Fees
Given the Superior Ccourt’s disregard for the
appropriate standard of review and the: additional
costs incurred by the Union as a result of the Town’s
filing of a complaint that alleged facts directly
contrary to those found by the Arbitrator, this matter
should be remanded to the Superior Court with
instructions to revisit. the Union's request for
Attorney’s fees. The Union argued below that it is
entitled to fees and costs under G.L. c. 231, § OF
because the Town knowingly drafted a complaint that
ignored the Arbitrator’s conclusions, as well as black
Letter law establishing that any reviewing court would
be bound by those conclusions. [App- 61-64] .6
16 G.L. c. 231, § 6F provides, in relevant part:
Upon motion of any party in a civil
action in which a finding, verdict,
decision, award, order or judgment has
been made by a judge -- > the court
may determine, after a hearing .. that
all or substantially all of the claims
defenses, setoffs or counterclaims
made by any party who was represented
by counsel during most or all of the-
proceeding, were wholly insubstantial,
_ frivolous and not advanced in good
faith ... Tf such a finding is made
with respect to a party's claims, the
court shall award to each party
against .whom such claims were asserted
49
VI. CONCLUSION
For the reasons stated herein, the Court ‘should
vacate the Order of the Superior Court and remand the
case to the Superior Court with instructions to
confirm the Arbitrator’s Award, and revisit the
Union’s motion for Attorney’s Fees.
Respectfully submitted,
WINTHROP POLICE UNION,
By its attorneys,
/s/Patrick Bryant
Patrick N. Bryant,
BBO# 652200
Tan O. Russell,
BBO# 673387
Pyle Rome Ehrenberg, PC
2 Liberty Sq., 10th Floor
Boston, MA 02109
pbryant@pylerome.com
irussell@pylerome. com
(617) 367-7200
Dated: July 24, 2017
an amount representing the reasonable
counsel fees and other costs and
expenses incurred in defending against
such claims.
50
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 16(k) of the Rules of Appellate
Procedure, the undersigned hereby certifies that the
foregoing brief complies with the rules of the Court
that pertain to the filing of briefs.
/s/Patrick Bryant
Patrick N. Bryant
CERTIFICATE OF SERVICE
T, Patrick N. Bryant, hereby certify that I have
this day served a Copy of the foregoing Brief of
Defendant-Appellant upon the Plaintiff-Appellee, by
forwarding a copy. to counsel for Plaintiff-Appellee,
Howard L. Greenspan, via first class mail.
Signed under the pains and penalties of perjury
this 24th day of July, 2017.
/s/Ppatrick Bryant
patrick N. Bryant
51
ADDENDUM
Superior Court Memorandum of Decision and Order on
Cross-Motions {April 3, QOLT) weve ec ccerrrses? 53
Arbitrator’s Award (February 26, 2016) --eeeerrrree 68
G.L. oc. 150C, § LOccececeeeeereees vee ween eneereee 91
G.L. c. 150C, § Ll eccccccctersee ernest eee ees 92
Gob Ce 231, S OFeeeeeeeenees ses seess sees 94
City of Boston Vv. Boston Police Patrolmen’s
Association, 477 Mass. 434 ggc-12077
(July 12, Q1LT) vcecee cree 96
52
APR “RO YK
Novy
COMMONWEALTH or MASSACHUSETTS,
SUBVOLK, 93, oo SUPERIOR COURT
. : SUCV 2016-00938
‘TOWN OF WINTHROP
WINTHROP POLICE BROTHERHOOD LOCAL 42h
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS
INTRODUCTION
‘The Plaintiff, Town of Winthrop, seeks to vacate an arbitration award in favor of . i
the Defendant, Winthrop Police Brotherhood Local 421, ordering the Plaintiff to reinstate
patrolman Fernecio Romeo (“Officer Romeo”). The Defendant filed a Mation to
Confirm the Arbitration Award aud a Motion for Attorney’s Fees. In response, the
Plaintiff filed a Cross-Motion to Vacate the Arbitration Award! For the following
. (hu
yeagons, the Defendant’s tnotions are denied, the Plaintiff's motion is allowed, and the M« dud
arbitrator's award is vacated, Judgment is to enter forthe Plaintift 0 66.06.17
(He
een —
BACKGROUND . PNG
The following background ig.a gucomary of the atbitrator’s factual findings. FRECS
‘Yn response to the Defendant’ Motion to Confirm the Axbitratlon Award, the Pleinti ff submitted a
document titled “Memorandum of Law In Support of Plaintiff's Motlon for Judgment on the Plendings.”
The Plaintiff never submitted @ motion for judgment on the pleadings to this Court, but given the substance
of the dacutnent, this Court will treat the Plaintiff's submission as a Crosa-Motion to’ Vacate the Arbitration
Award,
53 |
At the time of the incident leading to. this action, Officer Romeo had been a
patrolman in ‘Winthrop for nineteen years. He had also served as the Defendant’s union
president for the past eleven years. - .
In 2014, the Plaintiff undertook the Winthrop Beach Nourishment Project, fanded
by the Massachusetts Department of Conservation. and Recreation ( “DCR"), to move
sand and rocks to the Winthrop beach, -A police detail was assigned to direct traffic
around the project (“Pump Station Detail”). The Pump Station Detail required an officer
with a police omniser to work out of the Department of Public Works” puoping station.
The detail officer was pextuitted to drive along the truck route as Jong.as the-police radio
was On and he was available to quickly respond to an incident along the route, The detail
_ officer was required to sign inito the Pump Station Detall at 7:00 am. After signing in, he
was permitted to use the next two houts as he wi ished. At 9:00 atte the detail officer was
required to arrive at the Pump Station Detail where he, would spend the day on site until
approximately 3:00 p.m. During the shift, the detail officer was allowed bathroom breaks
and a one hour lunch break.
- Officer Romeo had signed up to perform the Pump Station Detail on November
24,2014 from approximately 7 00 am. until 3:00-p.m. On the same day that he was
‘scheduled to perform this Pump Station Detail, Officer Romeo wag also scheduled to, and
, did, attend a union negotiation session at the Winthrop Town Ball from approximately
10:00 a.m, until 2:30 pm, At the end of the day, Offtoet Romeo submitted a request to
be paid for performing eight hours of work at the Pump Station Detail on November 24,
2014.
54
On November 25, 2014, Police Chief Terence Delohanty noticed that Officer
Romeo submitted a pay request for the Pump Station Detail during the same time that he
was negotiating on behalf of the union at the Town Hall? On December 1, 2014, Chief ,
, Delehanty initiated an internal investigation into Officer Romeo's detail work on
November 24, 2014, That same day, he placed Officer Romeo on paid administrative
leave for the duration of the internal investigation, .
Due Process Hearing
On December 18, 2014, the Plaintiff held a Due Process Hearing. In Chief °
Delehanty’s testimony, he recalled that on November 25, 2014, he confronted Officer
Romeo about his work. the previous day for the Pump Station Detail, He testified that
Officer Romeo explained to the Chief that after speaking with Managet Steve Colometo
and Mike Vickery, both from DRC, he understood that the Pump Station Detail vias a
“floating detail” where the detall officer was not required to rémain in any specific
location as long as he was available to respond to an incident. -Chief Delehanty also
testified that Mr, Colometo informed him that the Pump Station Detail was “stationary” .
and that Mr. Colometo did not recall telling officers that {t was a “floating detail.” Mr.
Viokery also fold Chief Delehanty that the Detail was stationary, Chief Delehanty
testified that he next asked three police officers about their vinderstanding of the Pump
- Station Detail, all of whom confirmed that the detail officer had to be on the detall route,
Le, stationary. .
Officer Romeo testified at the Due Process Bearing that he never submitted
payment for a detail that he did not perform. It was his understanding that the detail was
“mobile” and that it did not have a fixed post, Officer Romeo explained that he believed
2 This Court reasonably infers that Officer Romeo was also paid for his negotiation work at the Tows Hall,
3
550
that he'was able to fulfill the Pump Station Detail’s duties because he was located within
_ a general radius of the actual work site, ie, anywhere { in Winthrop, 8 that allowed him to
respond to any emergencies along the Detail’s route,
Officer Romeo testified that on November 24, 2014, he arrived at the Winthrop
Police Station at t 00 a.m, to pick up an available cruiser, He then went to the DCR:
trailer to submit his time slip, on which he indicated that he began working at ip 00 a.m.
Officer Romeo testified that he left the DCR wreiler and returned to the Winthrop Police
Statlon around 9:45 a.m, ,
. On redirect examination, Chief Delehanty explained that video surveillance and
car access gontrols from November 24, 2014 showed that Officer Romeo entered the
police building at 1:29 att, and left the building at 8:21 aan. At 9:28 a.m., Officer
Romeo returned to the police parking lot again, entered the police building at 9:32 adi,
and ex exited the building at 9:54 a.m. He then attended the union negotiations. .
After the Due Process Hearing, Winthrop Town Manager James Mokenna
_ dismissed Officer Romeo as a police officer, As grounds for the decision, Mi, McKenna
made five findings. First, Officer Romeo submitted a detail slip for payment for eight
hours at the Pamp Station Detail on November 24, 2014, During most, ifnotall, of the
“time that Officer Romeo billed for that Detail, he was not present at the Detail location,
Mr, McKenna determined that billing for services rendered without being present
constituted unacceptable judgment fraud and conduct unbecoming a police officer,
Second, billing tine for work not performed constitutes a dishonest act that is conteaty to
the trust that citizens put in public safety officers. Third, Officer Romeo stated that DCR.
engineers told him that it was unnecessaty to be physically present at the Detail, but the
56
DCR resident engineer and the DCR inspector contradicted this aocount. All the
members of the Winthrop Police Department who were contacted about the Pump Station
Detail’s duties also contradicted Officer Romeo's assertion that he did not have to be
present at the Detail. Fourth, Officer Romeo's statements during the disolplinary
investigation and hearing were untruthful, which itself, constituted just cause for
dismissal, Fifth, Officer Romeo's above referenced conduct violated the rules and ,
regulations of the Winthrop Police Department, specifically 1.4.8 integrity, 1.11.2
personel behavior and 1.11113 conduct unbecoming an officer.
Arbitration .
, On January 16, 2015, Officer Romeo filed a grievance to challenge his dismissal.
Beoause the parties were unable to resolve the grievance, the Defendant filed for
atbitration on behalf of Officer Romeo. The parties agreed to submit the following issues’
fo an atbitrator: (1) Was there just cause to terminate Officer Romeo? (2) If not, what
shall be the remedy? The Plaintiff and Defendant submitted to arbitration hearings on
“August 94, 2015, September 24, 2015, October 21, 2015. and November 2, 2015.
Atthe Arbitration Hearing, Officer Romeo testified for a second time that he
_ believed the Pump Staton Detail was roobile and not stationary. When Officer Romeo _
was asked why he believed that it was a mobile detail instead of a fixed worksite, Officer
Romeo stated that Mr. Colometo told him that he wanted the detail officer to be available
if something happened. Mr. Colometo told him, #T don't want to get one of your shift
officers tied up, So just be available.” Officer Romeo testified that Lieutenant Lessard,
emphasized that he had to be available as a detail officer.
57
Officer Romeo aclnowlodged at the Axbitration Hearing | that his memory
regarding his whereabouts during the morning of the detail was incorrect and that he had
difficulty reoalling cy morning that ocaurred approximately one month before the .
Atbitration Hearing. He explained further that he had performed the Purp Station Detail |
three times before that week,
At the Axbitration Hearing, the Plaintiff charged Officer Romeo with three acts
that justified his termination: filing a false detail slip (“Charge 1”); lying to Chief
Delehanty during his investigation (“Charge 2”); and lying at the Dus Process hearing to
“determine his discipline (“Charge 3”). On Bebruary 26, 2016, the arbitrator rendered the
‘following decision in favor of the Defendant:
arge 1— Filing a Fall oD tail Shi
+ “Totticer Romeo] correctly believed that he should be on the ready to respond to
any incident ‘along the truck route. He also believed that being present in the
‘Town Hall on November 24 would fulfill the requirements of working the detail:
he had radio contact with the dispatcher, although he was not called that day;? be
was in very close proximity at all times to the truck route he was assigned to assist.
in case of difficulty; he had a cruiser at his disposal; and-he was free to respond if
called. ”
o “Tt was , [Officer Romeo *s] belief that his physical location, while waiting fora
oall; was flexible: he believed that the Town Hall was an acceptable location, and
that it was reasonable to position himself there, given the requirements of the
detail. Ho offered the following: ‘I could perform the detail being mobile pretty
_
3 This seems at least jnconsistent with the arbityator’s other findings, Officer Romeo was perhaps within
radio contact distenioe at the Town Hall, but never oalled. ,
6
‘58
: much anywhere in towd because the town is only 1.8.square miles.’ When asking
DCR manager Colometo to characterize the responsibility of the Pump Station
Detail, [Officer Romeo] recalled him saying words to the effect, I just want you to
be-available if something happens. I don’t want to get one of your shift officers -
tied up, So just be available, Cofometo made it very clear that a primary requisite
of this detail is that the officer assigned should always be available to respond.”
e “Was [Officer Romeo] working the Pump Station detail when he was working the
detail from the Town Hall? I find in the affirmative. He was performing all the
tasks of working the detail for some 5 hours that day,* albeit from an approved
location, There was no protestation from either the Town or DCR that the detail
had not been performed satisfactorily.”
ee “Romeo did not ask for nor receive approval from the DOR personnel or the shift
: commander for this change of venue before he opted to make the change. Ibwas a
mistake not to do 80, disobeying the verbal instructions he had been given by
Colometo® But Ido not find him dishonest when he acted on his belief that he
could use the Town Hall as his base from which be could execute the detail.” He:
was, in the words of Colometo, ‘available’ the entire shift? I find that he fulfilled
the tasks of working the Pump Station Detail that day, albeit from a location that
ee .
4 Mir, Colomete did not testify at the Arbitration Hearitig. Therefore, the arbitrator must have, relied on
Officer Romeo's representation of Mr, Colometo’s statements (o him, some of which were contradicted by
Chief Dolehunty’s representations of what Mr, Colometo told him, :
5 ‘That still moans he submitted an Inaccurate request to be paid.
6 This suggests that the axbitrator acoepted that Mr, Colometo told Officer Romeo that he nooded to be
present af the detall. ;
1The arbitrator does not articulate why he oredits Officer Romeo's erroneous and factually unfounded
belief given that the arbitrator also finds that Officer Romeo knew Mr. Colometo intended him to be
resent at the Detail, . . : . ;
Again, Mr. Colomets did not testify at the Axbitration Hearing. ‘Therefore, the arbitrator must have relied
ont Officer Romeo's representation of Mx, Colometo’s statements to him, some of which were contradioted
by Chiof Delehanty’s ropresentations of what Mx, Colometo told him. . :
59
had not been approved, and was acting honestly when he submitted the DCR bill.
for November 2A, 2014."
+ “Ttis worth noting that because he was engaged in working the Pump Station
detail while attending the negotiation, the issue of detail time spent by him at the
negotiations that was raised is not relevant? Te was canying out the detail for the
hours required, while at the same time, participating in the negotiations.”
Charge 2~Lying to Chief Defohanty during the Internal Investigation
« “TOfficer Romeo] explained that it was his understanding of the detail, gained
from speaking with Manager Steve Colometo of DCR, that he characterized the
detail as a,floating detail: a detail where you didn’t have to remain in one place
as long as you were available. Because he understood it te boa Floating detail in
this sense, he didn’t believe that he had done anything wrong on November 24
_ when he.worked the detail fom the Town Hall.” .
« “(Officer Romeo] asked Mr, Colometo what was required of the officer with the
oruiser.,.He stated to [Officer Romeo] ... just be available.” ,
. ‘TOfficet Romeo] testified at the Due Process héaring ... ‘My belief, based on
the information that I had, was that I would be able to fulfill the requirement of
the detail because it was a mobile detail and because of the distance involved;
and in case of any emergency response, I would be available within a general
radius of the actual work site.” (internal quotations omitted).
5 This is clearly an error offaw. If Officer Romeo was “double billing,” Le, billing for this detail whon he
was also being paid by the Town for the negotiation detail, then thls is certainly relevant to determining
whether there was Just onuse for bis termination, especially where both sources of pay involye publio
Money: : . :
60
¢ “Loan find no testimotty from [Officer Romeo! where he assorted that Colometo
gave him pemminston to work the detail from other than the Pump Station.”
« “Ttis cleat that roftioer Romeo} believed, albeit erroneously, that the detail gave
wide latitude aa to where the officer sight work from, and this is what he
conveyed to thé Chief, Colometo, on the other hand, expeoted the officer to sit at
the Pump Station or drive on the truck route.”!!
« "On December 1, 2014, [Officer Romeo] simply gave his opinion to the Chief
about the detail based on conversation. with Colometo. He did not state
affirmatively. that the detail was @ ‘floating detail,’ and never asserted that ,
Colometo agreed with him, but only offered that ag a way of describing it, I find
that he did not Lie to the Chief during the investigation on December 1, 2014.”
e “Officer Romeo] worked the Pump Station detail from start to-finish, albeit from
an unauthorized focation, the ‘Town Hall, with no apparent defect.” :
« “Officer Romeo] was aware that the intention of Colometo was to have an
officer at the Pump Station or on the truck route,’ yet he chose not to seek prior
authorization for a change of location to the- Town Hall, from either the DCR ot.
his shift commander, but worked the detail from that unauthorized Jocation,”
_ ee ;
10 This finding is conteadiotory to the arbitrator's other findings.
HW 'Phts finding is contradictory to the agbitrator’s other findings, as itis clear that the arbitrator accepts that
“Wit, Colometo told Officer Romo that he noeded to be present at the Pump Station detail,
12 Apain, this finding, that Mr. Colometo told Officer Romeo that be nosded to be present at the detail, is
contrary to the arbitrator's other findings. :
61
Charge 3—- Lying During the Due Process Hearing
‘not find it was intended to deceive,
recollect accurately what
13 Rather I find that it was a failure 0
« “Although [Officer Romeo's] testimony at the Town hearing was inacourate, Ido
had occuried on the morning in question. He‘had
nothing to gain by offering this inaccurate account of his activities between,
97-10 am that morning.
be expected.”
s “Moreover, [Officer Rome
fying in his capacity as the Union President,
js, and what damage perjury can bring fo a police
lying in these ciroumstances could po
and he i
4 Pie time was his own between 7 am and 9 am and
returning at about 9:30 am fo prepare for the negotiations with his lawyer would
o] is a lawyer, he has dealt with interrogations and
ig well aware of what perjury
officer, He was aware that
tentially jeopardize his cateer as a police
officer.!® Once he saw the video and keycard records information from that
8 The arbitrator's finding allowing Officer Romeo to
standing tradition of holding police officers to the highest
police officers, Like every witness, must testify honestly.
ooourred months, ifnot years, bel
offering inaccurate testimony, A police officer, like every wiiness,
‘o witness's testimony should be based on guesses or speculation.
answer, if that is trafhful. Ne
‘Unfortunately, the arbitratox’s decision effectively comm
provide factually acourate te
4 Phis js another inacourate
his excuse.
atlmony.
finding. Clearly to save his job,
come-up with some excuse for his behavior. Creating an-erro!
offer Inaccurete testimony offends our society’s long=
t moral caliber, This an undisputed princlple that
‘They are often called upon to testify to fhots that
before they appear in court, .Ih those oases, the Japse in time does not justly
cat testify that he does not recall the
unicates fo police officers that they do not have to
Officer Romeo apparently believed he had (o
neous and unfounded “belief” apparently was
8 Aga lawyer, Officer Romeo Is forbidden from knowingly maldng a false statoment of material faot or
R. Prof, C. 3:07, 3.3(e)(1) (2017) (“A lawyer shall not knowingly: make &
Jawto a tribunal, Seo Mase.
file statement of fact of law to a tribunal or fail to corres
ot @ falge stafament of material fact or law
previously made to the trlbunal by the lawyer"). This Court, too, hag ethical obligations to report lawyers
who violate the Rules of Professional Conduct,
See 8.1.0.
Rule 3:09, 2.15 (2017) (“A judge having
knowledge of or receiving oredible Information indicating a aubstantial VikelShood that a lawyer has
otherwise violated the Rules of Professional Conduct shall take appropriate notion,”). Given my concern
that testifying to an unfounded and exo
Professional Conduct, and therefore implicates 8
opinion to the ‘Massachusetts Board of Bar Overseers to
10
62
neous “belief” violates Ru!
ie 3.3(a)(1) of the ‘Massachusetts Rules of.
J.C, Rule 3:09, this Court will accordingly forward this
satisfy my obligation. .
!
morning, days after the Due Process heating, he realized that he had misspoken
during the Town hearing.”
«. “Tfind the inaccuracy of the testimony reflecting what actually ooourred the
norning of November 94 waa contributed in large part due to the Town
preventing him access to the video and keyoard records before the Due Process
' hearing, 1 find no deliberate misrepresentation on his part.”
vara .
4 ; “There was not just cause for the termination of Officer Romeo Romeo. He shall
be given a Letter of Waring for failing to receive authorization for an alternative
location for performing the Pump Station detail on November 24, 2014, prior fo
working the detail. He shall be made whole for all lost wages and benefits, less
offsetting income.”
On March 21,2016, the Plaintiff filed the iristant action to vacate the arbitrator's
award. On April 11, 2016, the Defendant filed a counterclaim to affirm the arbitrator's
award.
DISCUSSION
DipsCUsswrs
This Court has only a Yimited role in reviewing an arbitrator's award. See Bureau
of cial Investlgations v Coalition of Public Safety, 430 Mass. 601, 603 (2000). “Tho
strong public policy favoring arbitration requires us to uphold an arbitrator’s decision
even where it is wrong on the facts or the law, and wheter it is wise or foolish, clear or
ambiguous." City of Boston v. Boston Police Patrolmen’s Ass’, 443 Mass 813, 818
i
16 Notwithstanding my serlous concern about thé propriety of the extrame deference that courts are required
- to give to an arbitrator’s desision, this Court is still required fo apply It, . .
‘
Ll
63
(2005), An arbitratot’s award will only be vaoated i in the limited cironmstanoes set forth
inG.L.c, 150C, § 11(@)(1) -(5). This Court’s reseateh has not revealed that the Court is
required to defer to an arbitrator who makes errors on both facts and law.
. The Plaintiff initiated the instant action under G.L. ¢, 1500, § 11), arguing
that the arbitrator exceeded his authority by reridering an. award that was in direct conflict
with well- defined, dominant public policy. “Arbitration, itis clear, may not award relief
ofa nature which offends public policy.” Bureau of Special Investigations, 430 Mass. at
603 (internal quotations omitted). Ih determining whether an arbitrator's award violates
public policy, judicial review of the award i jg de novo, with no deference rocoredt to the
arbitrators’ decision. Hasex Cuity. Sheriff's Dep't y. Essex Cnty, Cort. Officers Ass’, 27
Mass. L. Rpt 487 (Mass. Super. 2010) (Lowy, J), citing Adam Ass'n, Ino. y. Willian,
22. Mass. L Rptt. 380, 391 (Mass, Super. 2007) (Gants, J.)
This Coutt ‘applies a a three-part analysis to determine whether the natrow public
policy exception to vacate an atbltrator’s decision is appropriate in this case, Boston
, “Police Patrolmen’s Ags’, 443 Mass, at 818; Town of Middleton v V. Middleton Police
Benevolent Ass'n, SUCV2014-1863, slip op. at 5-6 (Mass. Super. February 27, 2017)
(Lauriat, J,). First, the public policy at issue must b¢ well-defined and dominant, Id.
Second, the exception does not apply to disfavored conduct in the abstract; rather, it only
applies to disfavored conduct that is integral to performing one’s emoployment duties. Id,
at $19, Third, the atbitrator’s award reinstating the employee must violate public policy
to such an extent that the employee’s conduct would have required dismissal, Id.
itis a well-defined, dominant public policy that dishonesty by police officers will
not be tolerated. See nasa’ Ata 443 Mass at 820. ‘Furthermore,
?
12
64
the courts have recognized that honesty is integral to a police officer's performance of his
or her employment duties. See id, (“A polloe officer who ... shrouds his own misconduct
in ab extended web of lies and perjured testimony corrodes the public’ s confidence in its
police foroe.”), | ; ;
Given the arbitrator's findings that “[Officer Romeo] was aware that the intention
of Colometo was to have an officer at the Pump Station oron the truck route,” and that
Officer Romeo nonetheless testified that his “belief” was that he could perform the Detail
from anywhere in Winthrop, the decision to reinstate him would offend public policy.
public policy requires that Officer Romeo's dishonesty throughout the course of Chief
Delehanty’ 8 invest! gation and the subsequent hearings, ag found by the arbitrator,
requited dismissal and that any lesser sanction would frustrate public policy, It would be
untenable to allow police officers to disobey their assignment’s rules, and then assert
erroneous, unfounded “beliefs” to avoid responsibility for their misbehavior. Moreover,
the Winthrop Police Depariment’s internal policies further support the ooitelusion that
Officer Romeo’s conduct warranted disraissal. Under Rule 1.4.3, “Members shall report
for duty at the time and place required by assignment or orders...” .
Th addition to the aforementioned reasons, the arbitrator's award must also be
vacated because there is no basis for his findings or explanation of why he oredits Officer
Romeo’s belief There was n0 evidence in the record that supported Officer Romeo's
“eyroneous belief” that he could perform his duties from an unapproved location.
Contrary to Officer Romeo's belief that the Pump Station Detail could be performed in a
variety of off-site locations, everyone else from the Winthrop Police Station who was
asked about the Pump Station Detail, as well as DCR, knew that it required an on-site
43
65
detall officer. Civen that Officer Romeo's s recollection of Mr. Colometo's description of
the Detail duties were contrary to Mr, Colometo’s testimony, the atbitrator was yequired
to sma a credibility determination. "Phe arbitrator should have articulated why he
credited Officer Romeo’s belief in light of the contradictory facts in the reo0rd,
The arbitrator’s decision to oredit Officer Romeo's unfounded and erroneous
bolief in the absence of any supporting evidence, while at the same time oréditing that he
was expeoted to be at the detail, would allow future police officers to disregard the rules
of their asst jgnments and seek shelter from all consequences if they simply assert a
vpeliel? that they were justified in thelr failure to follow department rules. “Although
arbitration decisions are | given preat deference, they are not sacrosanct.” Boston. Police
Patrolmen’s Ass'n, 443 Mass, at 803.
Officer Romeo is not the first police officer to make @ billing error. However, i
this Court's experience, the police officer usually recognizes and admits that he made @
mistake. Officer Romeo did not assume any such responsibility for his behavior, Instead
of admitting his billing error, he simply stated his “belief” that the Pump Station Detail
" was “mobile,” even though his belief lacked any factual support and that the atbitrator
found it to be erroneous. While the discipline seems extreme, his termination is
warranted because of his dishonesty, compounded by his unwillingness to take
responsibility for disobeying the Detail’s rnles, Furthermore, although the avbitvator
finds it “not relevant,” the award appears to invite, if not encourage, double billing from
public fonds for doirig details at which they ate intentionally not even present!”
_ For these reasons, the arbitrator's award is vacated, ,
" ‘Neither party has requested that this Court remand the case to the arbitrator to address whether Officer
Romeo double billed on Novem er 24, 2014, and Ifso; what his consequence should be,
14
66
QRDER
This therefore ORDERED that the Defendant's motions to affirm the arbitrator's 8
award and for attotney’s foes be DEN TED. The arbitrator’s Pebruary 26, 2016 award
ordering the reinstaternent of Rotheo Fetnacoto
is VACATED. Judgment is to enter for
tho Plaintiff on its decision to terminate Romeo Ferruccio.
DATED: April 3, 2017
ty
Elizabeth Fahey
Justloe of the Supertot C Court
15
67
1
A
\.
. [Tow of Winthrop, Massachusetts
Winthrop Police Local 421
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‘Arbitration Deoiston & Award
AAA.No, 01-15-0002-6830
Grievance: F, Romeo
February 26,2016
‘and November 2, 9015; The Uaion was vepre!
Hearings were held in the Town of Winthy
op, MA on Aut
sented by Patri
represestted by Howard Greebspan, Esq, Post
i
January 28, 2016,
THE ISSUE
The parties agreed upon the following issue:
Was there just cause fit the termination
; TEnot, what shall be tbe remedy?
cme FACTS
qn, 2014, the Town of Winthrop, Massachu
bf Officer Ferra
getis undertook
st 24, September 24, Ovtober 21,
Bryant, Bsq,, and the Town was
ojo Romeo?
Project sjnded by the Massaghusetis Department of Conserve or: and Recreation (DCR). This
leant
picjeet ‘involved moving considerable sand ahd tock to the Nisin beach. area. In uid-Fall,
2014, it became nevessaly to add a detail to the daily Winthn ce Police Departiient details in 1
der to assist the traffic in. eotinection with. the
Pump Station detail, required an officer with al
atthe end of Crest Avenue, with License to mo;
worl being cated out, This detail, knows as the
cruiser to vost ut of the D.P.W. pumping station
i .
e about the aréalas needed.
‘The Pump Station detail required the officer who had sighe d up for it on any given day to be
on duty from 9 am. until 3 pm-a total of 6 hours-although he " authorized to indicate 8 houra at
naevnnke. cee eee ett a ah RE A
he Winthrop Beach Nourishment
his signing in at 7 am when he ‘was to report the DCR offiop. After signing in, the Pump Stax
tion detail officers were free to ‘spend the First two hours of the detail as they wished, as iong a8.
they arrived at the pump sation by 9 am. The} deteil roguired:that fhe officer was 10 be available
if there was an incident uo the truck route|that required A nition. The detail oft oer was not
required to remain at the Paap. Station, butcd ld. cruise slong the route ag long as the police 1a-
dio was.on and was able to spspond quickly ) an incident. A $ne hour lunch bread. was author
ized. as ‘were bathroom brea ag neooded. Gohovally, work for) this detail coased. about 2:30 pin.
and the detail. officer present ‘yas ‘not requited thereafter, and was free to leave. ,
At the ime of the noiddut Jeading to this grievance, Fartuccio Romeo, the Grievant, had
been a Patrolman for 19- yt with the Winthrop Police with ait unblemished reoord, had boot
the Union President for some, 44 years, and hall acquired a iy degree and passed the Massachu-
setts Bar during this tims. He was not acheduled for a day shift on November 2A, 2014, and
signed up for the Pump Statfon detail for that day. However as the Uriion President, he was
scheduled fo attend a negotiation session. on tht date, beginning at 10 am. [Note: ‘The term nego-
tation will be nsed throughoot to refér to botll negotiation aud mediation. sessions. He attended
the negotiation sassion from. proxi 1 am to 2:30 pin| on November 24, 2014, and did
not go to the Purap Station between 10 and 24 hat day. Ee splitted a Pump Station detail slip
for 8 hours of work on Novernber 24, 2014, |
On Novennber 25, in checking over the detail slips from. te day before, Police Chief Terence
Delehanty noticed that Rome had submitted p slip for 8 hours worked on the Pump Station de-
tail, while for 5 hours of that time, he was ‘enpaged in Union-fown negotiations along with the
i
Chief.
62. : eben rte ee —_
On December 1, 2014, the Chief bad questioned a numberof individuals, including Romeo, -
;
. 4
to whoin he later wrote the following:
|
Lam: writing to inform you that I am. placing you on, A deinicnve Leave with.
Pay pending the outcome of an internbl investigation
B/2A/14 (sic)
fa detail you worked on
’ Please turn in. your firearm, badge, radio, and LD. to Rekgeant Rogers the Admin.
istrative Sergeant while you are on leave.
Tam also ordering you not to discuss this matter with gnyons exoept for your legal
representatives while the investigation {s ongoing,
You will be notified shen and where your employee interview will tke place by
my office,
On December 9, 2014, Towa Manager Jarnes MeKeana¥ note to Romeo-inforining him that
he would hold a Town Duo Plocess hearing to|consider Romeofs actions on November 24, 2014,
i
December 18, 2014.
whieh might result in disolpline including dismissal for just bause.” The hearing ‘was ‘held ont
[Note: The following testimony wes taken eithier at the Due Frgoess heating or at the Arbitration
heating and is interpolsted unless indicated off erwise:] -
! . .
At the Town hearing, the Chief testified that on Novemberl25, 2014, he sealized that he saw
‘Romeo ut the negotiation session while the dptall slip indicated he was on detail duty, On Die-
cember 1, 2014, he called Romeo to his offick, offered him U) hion representation, which he re- -
i
{
H
i
fused, but stated that he waited to explaiti the matter. The fF ief stated that Rameo explained
i oy { |. , vgs
that it wag bis understanding from. speaking with Manager Steve Colometo god Mike Vickery of
. ! . .
DRC that the Pump Station detail was a floating detail, one iy ere you didn’t have to veraain in
one place, but as long as you were available th respond, you need not remain ina. specific loca-
|
2.0.
i
i
i
i
i
the foot, [Peuin presumably heard ‘only one
ton, ‘The Chia? stated that Romeo felt that bec
hadu't done aaything wrong,
' -Pyrsvantto his investiatn, the Chief teldphoned <u
|
hearing,] The Chief testified that he called the!
nr ents
5
he unders
of individuals with Lt, Perrin. in
DCR Resident ager Steven Colomete who is
in charge of the ‘Winthrop Beach. Project. Acc!
and when asked if it was a floating detail, reg
sald he did not recall talking to other officers
Cctober 6, 2014, states, in pa, that wintho
‘building’ with a oruiser.” :
The Chief also spoke with. oR Tnspector N
inwas a stationary detail to anitor tuck traffic
or not he informed the detail fice if they co’
not directly answer the question, but said that i
peding to the Get Colomets explained that the
purpose of the detail was to monitor truck tra} fie specifically om the Pump Station location, .
lied that no, it}was.2 stationary detail, Colometo
shout it being & Hosting detail, His memo, dated
) shall have 1
tt
fike Vickery w works for Colotieto who stated.
b ott Crest Ave} When asked specifically whether
id perform theirduties ont a. floating basis, he did
was a stationaty post.
When questioning Officer Feeley about his
understanding, 0,
\
the detail, Feeley stated that it
was a stationary post and that te officer was cpt to reme| on the post except for bathroom
|
and Innch breaks, When Officer Defreitas, he teplied that the iotail was called the “Pump Bta-
tion” and that’s where he thought he should be.
that punt station detail entailed, he replied that you wore a
cles, “that you. were like-a one-i1an strike force,
Inquiring of H Frank. Scarpa what he believed
ed there to respond to enter gente
that if wt tapos along the truck route
thet, you would. respond and take cate | of it. Wh
dit was a floating detail, that he .
side ancl. was I i asked to bo a witness at cither -
that it was 2 stationary post, peers said “You
stated that he drew the conclusion that Romeo
6
had.to be there? From these responses, the Chief
§ version Was 2
act viable,
‘When questioned at the arbitration fearing whether or nbd the Pump Station detail. was dif
ferent from. the other details, Sere Arthur Hickey stated, “(1
take a raiser, 0 to the pump house and just sit there, And Fe
you for anything along the: ‘rpole route involving the DRG”
tail, Hickey’s response what #Oh absolutely.
been au issue along the truck,
\werxe talking
route or anywhere else in town
a “poqming detail,” he did net answer directly,
but pointed
i
one spot for eight hours.” Ont cross cami, he acknowl
ficer assigned to the Pump Station detail that they didn’t have}
When questioned under gross-examination, the Chief ad
‘Tae job is to go to the pump house,
non asked ff Romeo, while-at the
‘nort distance here had there even
for that matter.” When asked if it’s
I that it’s kind of crazy sitting in
OD.
ged that he never advised an of:
4 Bo there.
anitted. he did not have any doou-
ments desotibing what the Pionp Station detail consisted of}
nd stated that he was not aware
that the officer on this detail is seldom called tpon te do anythibg He did acknowledge that after
the Romeo incident, he ordered a supervisor to
When cross-examined about the discipling
etiged he ft olldwed a policy of progressive dis
be hired for thy
ese details
imposed on vitious officers, the Chief acknowl.
ipling, although he stressed that where you began
would depend on the severity of the event, and the persis ve to accept responsibility,
and their willinghess to be retrained,
i
t
{
|
- The Chief stated that discipline is commpnsurats with th infraction, and “wlhten a person
‘recognizes they have done something wrong and is willing éo'aboept responsibility for that is dif
: netoh
ould an emergency arise, they send.
negotiation at the Town Hall, would be able tp respond if there were a call to Pump Station dew *
ferent, much different in iny wiew than a pets
ned, that “when you've ringed you did
shouldn't have done that, you : won't repeat it,
(the behavior), andl think i goal is to niake
"that the fact thet he had wtp ed. a. supervise
that the failure of supervision. ‘bore some tespo
7
on who as not apcepted responsibility. He contin-
something wrong and you recognize thet you
WA person who doesn’t recognize that will repeat it
for these d after the Romeo incident meant
hsibility for Rofnpo’s event.
Atthe Town hearing on Hecenbe 18, 201
had never put 8 slip in for 4 ft he didn’t ¥
34, 2014, and stated. that he bd worked the Ppp Station deta
Ramen testified that his indent of
have a fixed post. ” He oomtinjed ht
My belief, based on the information thy
the requizemments of that detail because
distances involve...in'case any emerge
within a general radiug of the actual wo
Romeo testified that wheit he met with th
informed that he was ‘being placed. on Admin:
the detail slip he had: submitted. After receiv
4, the Grlevay exrucnio Romeo, testified that he
ork, that he he worked that detail on Novernber
three times bofore that work,
the detail is that|it was a mobile dotaih, it did not
at 1 had, wes tel Tyould be able to fulfill’
it was @ mobile|detail and because of the
Indy Tesponded| ( o), L would be available
{c site,
Chief in his office along with Lt, Perrin, he was
bg the Chief's mmission to explain his position,
he explained what he had been informed of
C) detail and i to the Chief that he “should
know that I would never put in for & slip without actually wi ring a detail.” Romeo continued.
Hi
\
that be then explained to the Chief his undersanng of wal [ detail. consisted of, in partiou-
fat, that be had beet, informed by Colometo, y
that detail was to be available for emergencies.
ickery, and Lessard that the only responsibility for
nee nen
ure the “Tl g not repeated.” He did not agres
sirative Leave by ath investigation involving .
i
_ At this point Romeo stated that the Chief leat the room saying “Let me soo if T can at least 6
scind the. Adnainistrative Leas ‘portion.” He tetumned & shor]
counseled. against doing it, snd thetenpon. implemented the A'
ime later, explained that ho was
* Romeo testified om direct! examination that on November|24, bo followed his usual practice:
went to the DCR tisiler at Mermaid and Show
i
where he sul
fhe start time of 7 am on the sliys but leaving the end time for
Q | wow Leaves
v > ‘ is
he arrived at the station. at 7 an, picked up anjavaileble eras i (in this case Winthrop 9-4), then
iitted bis slip for the day, putting
the DCR official to enter, He then
left, keeping his radio on, and returned to the Police Station gpput 9:45, When asked on indirect
examination. to repeat the events of the mortk
I oa
mitting thiat his recollection vias pethaps at tines faulty,
On redireot examination at the Due Proogss hearing, the het testified that the video and.
he repeated
the eauie chronology, although ad-
. i :
catd access controls for ‘November 44, show that Romeo had derived at the Police Station, path
ing lot at about 7: 24 ern in his personal vehicle,
building at 8:21, Then, at sis 28 he entared the police parking
At the arbitration, hearing Romeo agreed with the chrono}
entered the botice building at 7:29, and left the
Gt again, entered the police build.
"ing af 9:32, and at. 2: 34 be exiied the building tb attend the negotiation.
ogy given by the Chief, explaining
that he had beer asked to recall a morning of neatly & month| earlier after he had already pet
formed the Punip Station detail three times before that weels,
and was upset and goncerned with
the actual. details.of the day that followed. Hel explained. fathe that because the Chief had for”
bade him access to the relevant documents, he just repeated his usual routine, Once he cheoked -
i 1
his error, which he acknowledged at the arbitration.
_ the documentation which was made available to bim only id mid-January 2015, he recogilzed °
. : 4, ee nnn et et
expected, Be loft the Town. Hall, turned in his
9
Romeo testified atthe action hearing About the momihg prior to the negotiation, He stat
ed that he entered the Wintixop Police Stat on wearing his
‘spoke with Lt. Perrin, infos him that he vas going over {0
tion specifically that ho was on ‘a detail, He also did not notify sither Coloreto or Vickery that
|
he should have informed she
Romeo testifi ed that the ‘eotion | lasted
the pump station ott his way ont of | town, abou
ceived ino detail calls on that day and submitted
; Romeo onpe again tated at the arbitratig
a mobile detail atid not fixed. ‘When asked wha
was a mobile and not a fixed. wort, he stat
sibility of the officer, with the orttiser; Colon:
available if sonthing should ‘happen, stating,
stressed that you have to be available. He add
the Chief ot Lieutenants as to what responsibil
Romeo again stated that it was his belief th
ty much anywhere in town because it’s only 1.8
tniform and, cantying a radio, he
the negotiation, but did not men-
. be would be attending a. negotiation for part 7 the day. Hera! rr that, looking back on the day,
vat about 2:30, much longer than everyone had
keys to the oruysen and left the area, He drove by
2:30, but he saw no activity. He stated that he re-
the DER slip for the detail, for 8 hours,
a hearhng that ; hvas his understanding that it was
it various peoplh told him to lead him to believe it
Ld that when he poet of Colometo the respon
T don’t wart ® bet one of your shift officers tied
_ up, So just be available.” Romeo reported. that when he. cl cked with Lt Lessard, the officer
d that he had fot received any information from
ies wore attached to this detail.
it he “could. petfprm the detail being mobile pret-
square tniles,”(He added that when he previously
had worked this detail, he spent roughly several hours at the Pump Station, and the rest of the
time was mobile throughout Winthrop. —
eto replied that he just wanted the officer to be ,
When asked on or0ss examination id A000: ding to his und
stay ina house in Winthrop i day as long as Ihe were availal
satisfy his detatl obligation bit he would not do it - it would
Lt Scarpa was asked what he would do if he had been in.
tothe negotiation in uniform, with a oruiser and a radio: pow
10
bik, Romeo responded that it could
| inapproptiate,
pharge of Romeo when he came in
ould he deal with it? He stated
that he would determine whete Romeo was supposed to be working, and if he had permission to
leave the post. When asked how he would bendle Romeo’d base specifically, he would have
oouriseled Romeo that he should Jeave or get) back to where jou were oF whatever. He stated,
“but T assumed everybody at the meeting lene that he was or that detail,” Ho stated further that
ifhe wete sot notified but becanre aware that Romeo was ot
tell him that he had been at the negotiations,
counsel him. “I would. say that you would startoff with. a verbal) written, and thet go from there.
On cross-exansination, Scatpa stated that Ho had done sev
etail, he would talk to hin, would
an awful long time and that he should notify the
- appropriate people so they could make avrangements. 1 guess {('d give him a warning, T would
lal Pump Station details and that
the Chief had asked him what his understanding was conoernihd the responsibilities of the detail.
He replied that it would be a fixed post, but you could frownlt meto-time leave it to check the
toute. He stated that he would leave it occasidnally during ths |course of an eight hour shift but
Lt | .
he felt that his obligation was to be in the genefal area of the iu inp station. “It said pump station; -
otherwise it would have just daid patrol,” And| when asked iff ¢ would sanction an officer bill.
ing for a private detail that he wasn’t present for, Scarpa said no
Aga result of the Due Provess hearing, on January 9, 2015, McKenna dismissed Romeo as @
Police Officer for the following reasons:
ime
eistanding, it would permissible to.
1. OnNovembar 24, 2014, you submti
hours pay in the total amount of $344 \for 6 defail at
tion, During the time that you billed fo
tail, Billing for services rendered with
judgment feud, and couduct unbecomi.
a vouohsr \ - a detail slip for pay. for 8
6 Short Beach Purp Sta-
vere not present at the de
E constitutes unacceptable
Ir.
fis detail, you
ga police offi
. | ;
9. The abave referenoed conduct constitutes a.dishorlest aot which is conttary to
the trust that citizens put in public sate’
3, You specifically stated that the
ohusotta stated to you that it was unre
the detail. Your statement was specifi
ginear as well as the DCR. inspector.
present at the detail was also specific
Polfes Department, \
L
4. Your statements during the discipli
truthfial which in anid of tiself oonstitut
5, The above referenbed conduct vio
partment, specifically L4:8 infeguity, 1.
duct unbecoming an alifloer.
The above referenced gonduct coristifiutas just cause f
officer, Specifically, there is a strong §
_ figers who are vonteuthify.
. . of
The Town had never previoutly notified Row eo that he wa
trothfulness,
On January 16, 2015, Offiddr Romeo grieve
/ officers.
neers from the ormmonwealth of Massa
essary for yourty be physivally presont at
tly contradicts by the DCR yosident en-
our assertion that you didn’t have to be
Ily oontradiote by other member's of the
investigation, and the hearing were ui
just cause for v ur dismissal.
ates the rules i d regulations of the De-
11.2 personal. be avlor, and. 111.113 con
our dismnlaval as a police
ost employing police of
\
blic policy aga
Gin January 12; 2015, I received, via U.
er James McKenna, dated January 9, 20H
he allegedly reviewed all the evidence resented at a disciplinary hearing be pre-
sided over a8 the Appointing Authority) on. December , 2014... The Notice did
not include an effective date of dismisyal. 1 was never| i torviowed. during the in-
ted by Chief [prenot M. Delehanty and
Chief Terence M. Delehanty was the only witness to teg
Twas ordered not to talk about the alleged investigation.
vestigation that was initiated and condi
December 1, 2014. except for my legal
which is 4 violation. of my due proces:
. Mail, weltteny
5, that he had We
ath fy on behalf of the Town,
counsel, by oh Terenos M, Delehanty,
rights to pepe a defense and confront
: iy.
otice frona Town Matiag- ,
cided to dismiss me after
tthe alleged incident on.
li
onteraplating discipline for wt
i
i
i
es i
witnesses, I was never allowed. or able
7 12
to cross examniae any alleged parties inter-
viewed for the alleged investigation. The disciplinary ating conducted on Dex -
comber 18, 2014 was} biased and nat
Terenoe M, Delehanty testified untru
actual, The fabts ate in dispute ‘aod Chief
fully and has|besn biased against me -for
several years that farther create suspicion of his evil shdtives and intent, This dock»
gion is also after I was threatened by Town Manager) mes MeKenna on January
7, 2015 during a phone call discussion that he placed to me at my hottie at 915
pan: that IFT did not peceet a 30 day guspension he ld be foiced to terminate
meas long as I telea
(gio) He also attempied to coeroe me
pension... The decision to dismiss me
and contrary to Law |
i
When the parties were unable to resolve the gy
i
The following provision of the parties Agr
Article XXXV ~ Disciplinary Action
No permanent employee shall be rem
“charged in any manuer except for just
tendant thereto thé police officer will f
~ sentonhis behalf °
_ The following provisions of the Winthrop F
evarit: :
}
Section. 1.4.8 Integrity ~ 00 Departm
sed the Town ofall my pending Jegal matters against then,
by mentioning jay loss of healthcare and
is without justi jause, procedurally flawed,
: { :
jan. appealed to arbittation,
evanice, the U:
ae ee
bentent is relevant!
bved, dismissetl,|discharged, suspended or
cause and at aly hearings or interviews al-
ave att opportunity to have an attorney pre-
alice department ~ Rules and Regulatlous are rel
} .
bt member shal} under any circumstances
make any false official statements or ee misrepresentation of facts,
Section 1.14.2 Personal Behavior ~ ach member shall while on duty conduct
hin/ herself in a matter that will reflect credit on viene and the Winthrop
Police Department. No employee shall
Department into disrepute or reflects
ment or which tends to impair the op
the employees;
Section LLL13 Conduct Unbecoming
engage in cond Lt which tends to bring the
iscredit upon the members of the Depart-
Lration or efficiency of the Department or
ee
an, Officer — Members shall not conantit
any specific act or acts of intmoral, inyproper, unlawful, disorderly, or inteimper-
ate conduct, whether on or off duty, ¥4
vyorably upon the member, upon othormen|
hich. reflect(s), ‘discredit or reflect(s) unfa-
bers, orupdn thepilive department, Members shall
\
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{
{
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: 13
conduct themselves af oll times, both on und off dut
Hect most favorably on the department its membots|
in. such a manner as to. re-
Conduct unbeooming & member shell ihotude that whit} tends to indicate that the
member ig unable or unfit to continue gs a member of tie departinent, or tends to
impair the opetation, ‘moral integtlty, \reputation or efieotiveness of the depart.
ment or ig members, ‘
The following article of the ‘Winthrop Polide Depariment.—! etail Policy, is relevant,
ARTICLEIS, VIOLATION GUIDELINES .
Progressive discipline ‘hall apply for all violations of f
eae rules and regulations,
policy and procedures or orders of the Chief of Police.
CONTENTIONS OF THE TOWN
The Town contends that the removal of thd Grievant was for just cause. Specially, it charges
him. with (1) filing a false detail slip; 2) lying P the Chief aul g the course of his investigation;
nea fapen.oen io Poo cou ~— .
and (8) lying at the Due Process hearing held by the Town of Winthrop to determine his disol-
pling. I will consider them in turn,
Charge 1. -
The charge of filing a false detail slip was fst on Romed’s submission of M detail payment
ship for the amount of $344 for a day’s work on November 2: , 2014, in which ‘he indicated that
he had worked 8 hours of detail duty, whereas|for at least 4 of hese 8 hours he was attending a
negotiation session in Town Hall. |
Romeo claimed that the detail was a “floating detail,” which permitted him license to roam,
in the vicinity of the truck ronie in his oruiser while waiting for a call from the dispatcher that he
}
was needed, and argued that the Town ‘Hall wag positioned in an acceptable location to wait fora
ficer on detail’ for’ the third pay to partloipatelin negotiations
radio gurnmons. His contention that the detaillwas to be soa a “floating detail” wag not sup.
ported by other police officers or DCR employees and. must bb onsidered a-false claim.
Tho Chief testified that off ‘cers on & shift sor the Town “\ etail duty could participate in ne
gotiat tions, usually over thelr funeh break, but pe was aware of no policy that would allow an of-
ased on this testimony and facts,
Romeo was charged with fli a false detail slip.
The Tows contends that ihe submission of the detail bill " Romeo for service not rendered
constituted unacceptable judgment and conduit snbeooniel police offer, and thet his conduct
also violated Department pales of Conduct, The Town maintaihs that the Grievant violated these
iT
rales and regulations wher nd submitted a falge detatl slip fo fox % houts of work on November 24,
2014. Tt maintains that Potieg officers | are requited to roftain.
plicitly agree that they will aot engage in conduct which ally nto question their ability and Lit.
ness to perform their official fesponsibilities,
Charge 2. ; -
The Town. contends that Romeo lied. to mt Chief during = course of the investigation, spo
cifically with respect to the duties and responsibilities of the i ail, Acoording to the Chief at the
investigation on December 1, 20 14, Romeo tol him, that the ctail was.a “floating detail” and he
was not required to be at a spesitio location. He also informed pe Chief that he had spoken with
‘Manager Colometo as to his responsibilities de the detail The Chief stated he also interviewed
Colometo' (by phone) who told him thet the purpose was i monitor iruck traffic specifically
from. that location. The Chief also reported that when he ask if it was a “floating detail,” Co-
; i
Jometo said no and that he had not advised officers that it wastalfloating detail,
{ 7
| 4
1 indictable conduot,..they tie _.
- The Town farther claims, that Romeo's testimony to the
. hin was completely coir by Colomet at the arbitral
” fled that he never told Rowe that he wasn’t Sopesedi be gi
truce route,
Charge 3.
The Town sontends that Romeo tied during the Town he
oC.
go
7 pat
15
in of what Colometo had told
1 who, among other things, testl-
her at the Pump Station or on the
Hag when he testified as to his ac
, i
tivities on the day befors. the negotiation begat. According 4) Romeo's testimony at the Dua
{
Prooass hearing, be got lis slip signed at the DCR offices, pick
the pump station, and remained there until abt 10'ata when
gotiation.
The Tovwn revealed at theiend. of the Due Frocess nll
at the video.and door socess cone —-.
trols on the Police Station shaw that Romeo © htered the ny arking lot at 7224 amin his per
nilding at 8:21. Then, at 9:28 be
sonal yehiols, entered the pli building at 7/29, and heft 4
entered the police pericing tot again, enterdd the polios tah
building to attend the negotiation next door} The Town o
whereabouts for the 3 hours (7-10 am) before the negotiation 8
and lie.
detaif slip (Charge 1), there would be some grounds for revel
principles of progressive discipline. However, it argues that }
violate public policy to reduos the discipline and to reinstate Ro
|
More generally, the Town continues that i the only mls004
{
{
ed, op a coffes and bagel, went to
ie went to Town Hall. for the ne~
at 9 32 and at 9:54 he exited the
ends that this recitatton of this ©
began, is a complete fabrication:
duct of Romeo was filing a false
rsing the dismissal based on. the
le to this yatruthfulness, it would.
meéo.
tion for canying « out his dutics as Union Pres
: the Grievant, and the Chief tind locked horns 4
The Town offers several cass where therd
ied, The. Town states that vel ice officers whg
fyinig onder oath are all felonies and. Coutts hel
cy permitting someone who omitted such.
Town asserts that Romeo's proven record of
law enforcement officer.
|
16
has been & ruling against. a police officer who has
lie on a police report filing criminal charges and
ve ruled. that it uld be & violation of public poll-
as act to work
dishonesty prevents fim from usefidl service as 4
. | .
5
Tn su, the Town conoides that some submitted a fi dulent “sequest for detail xvolm-
bursemont, lied about the lack of need for ati
lied about his whereabouts on. the day in quest
bfficer to be a nit during this detail, and further
lon,
Finally, the Town rejects the assertion by
ton. against Romeo for his diligence doing his
CONTENTIONS OF THE UNION
‘The Union contends that Offer F Ferruccio
dent with a spotless poo reoord, was not
Ihe Union that
Town's actions were in rotalla-
dest. Although there was evidence presented that
pumber of times} there was no evidenoe of retalia-
Union President’ ob,
Romeo, a vetbtaa police officer and Union. Presi-
terminated for jist canse when he attended a te-
gotiation while assigned to a seta. Kt maintaihs that he violated no actual or known policy, his
conduct was consistent with ondnot allowed
ignored contrary evidence, and the punishment
far oxoeeded pr rogressive digcipline, in partioular
the punishment meted out to officers for gimilar or more severp bonduot, such as for insubordina-
tion, lying, of mexoused absences, The Unio;
1 also maintaihs that the animosity between the
a police officer. Put simply, the
by other offen ‘the investigation of the matter |
17
: Chief and Roreo which has existed for years, surely conitip tes to the severity of the punish-
i
si
3
i
i
i)
j
‘
ment,
The Union contends tat the Town failed to establish tht Rortieo violated a polivy of the
Departnent, or that it was cdmmpletely wnreasonable for him believe that officers could attend
a negotiation while usigned to a detail (especially a nonedéationary detail), The only dispute
|
- about the mobile natare of be detail is, with radio contact) in case Romeo was needed and a
i
| ;
cruiser at his disposal, vibetler he oduld go tp a negotiation, _s in Town Hall and realt
; \
for an extended period of tim. There is no.question that offi ‘
's on detail have spent their lunch -
-hout at negotiation sessions, § joe for longer siretches,
~The Union forthe const that the Town|s contention that Romeo was untruthful during the
_-investigation the’ ‘Town! ‘3 tertaination hearing! or the Artit fh. hearing, do not rise to the fevel_.....
of deliberate lies, intended 16 deceive the Town. about the facts at issug here, In particular, Ro-
ingo’s statements about the Pump Station we ¢ consonant with the DCR representative anid fel-
low police | officers, Tn adatom his original. savemonts ani ing his whereabouts during the
patlod of 7-10 amon Noveber 24, while ingocurate, were not intended to mislead, and were &
byproduct of the Town proveing him from adequately prepary ng for the hearing. Moreover, the
Town Manager did not point to this discropangy as contribu g to his decision to terminite,
fn addition to failing to provide requisit notice of the! nuthfulness charges, the Union
agues the Town’s case suffers from the folldwing defects: i The Chief never formally inter-
viewed Romeo, despite a written promise to do so; 2) The a ef never interviewed the supervl-
| 1
gors ort the shift in question, which would have confirmed that they Imew Romeo was at the ne-
gotiations; 3) The Chief did not interview all the people wholworked the Pump Station detail, ox
them in tur.
18
examine the past practice of officers attending\ndgotiations W nile ona detail; 4) The Chief never
disciplined supervisors for allpveing Romeo to tiend negotiate ag while assigned to 4 detail.
Finally, the Union contends that the termination of Romy
mitment to progressive discipline, The offense of attendix
: stationary detail oamsot be segarded as an inherently serio
i
permission for other officers fo do go in past negotiations.
~ discipline imposed on other offions found td be AWOL, ©
supported by Romeo's blesnishe free perfosmntoe history. £ Ih
about his conduct argue against termination,
“Here, the Town claimed it terminated Rol med for attend!
(oI
was inconsistent with the oot
4 negotiation while on 4 tom
t, as iustrated. by the Chief's
—
Nigreover it is inoonsistent with the
patra, and the penalty ia not
a
¢, Romeo's forthright admissions
contract negotiations while as ,
_ aigned to a detail, and for making false statements about the nature of the detail and his. wherea:—.
iv .
bouts that morning. While the Town phrased its charges jn -vartous ways, the case boils down. to
{wo char gos; 1) attending negotiations while yssigned to a dethil is conduct unbecoming and/or
dishonest, and 2) Romeo" 5 December 1 statentent about his co versation with Colameto, and his
December 18 statement about his November b4 whoreabout rom Tt: 30: 8-90 am, were untruth:
fol. Both charges fail on procedural and. subst ntive
DISCUSSION
The Towsi contends that tho removal of
grounds. |
1
|
ptievant was fox just cause, Specially, it charges
|
the Grievant with (1) filing afalse detail stip; 2) lying during i e course of the investigation; and
" (3) lying at the hearing held by the Town of Winthrop to de ermine his discipline. T consider
1
detail sllp, Referring to Black’s
The first charge is that ificer Romeo pinsind 4 false;
Law Distionaty, we find the fbllowing:
FALSE « In law, this word usually mdaus something jm
something designedly mntrao and deceitful and implies
ore than unirae: it means
an. intention io perpetrate
tneanings: (1) intentionally or knowingly ot neptigently pnitrue; (2) untrus by mise
_ gone treachery or fraitd... The word “false” has two Hens well recognized.
take or accident or, honestly after the exercise of reaso,
False Token ~ a false document or signiof the existenc
ble cats... .
bf a faot ”
‘The statements above capture the essence f what I take 1 meant by the Town's accusation. :
8
i
that the Grievant submitted a “false slip.” ‘Thel claim is that
ately submitted a document stating that he had worked the ?
. | .
November 24, 2014, when in fact he had not,
7 | What is meant by working the Pump Station, detail”? ne
he should be on the ready to tespond to any incident along th
being present in the Town Hall on November|24 would fulfift
Grievant knowlngly and deliber-
mp Station dotail trom 92+ on
ruck route, He also believed that
the requirements of working the
detail: he had tadio contact with the dispatcher, although, he Was not called that day; he was in,
very close proximity at all times to the truck nyute he was assig
he had a cruiser at his disposal; and he was free to respond if tal
ned to assist in case of difficulty,
Hed.
Tt was Romeo's belief that his physical location, while waiting for a-call, was flexible: he be-
lieved that the Town Hall wag an acceptable location, and that it was reasonable to position him-
self there, given the requirements of the detad He offered the
detail being mobile pretty much anywhere in town because the
When asking DCR manager Colometo to charkoterize the resp
tail; Romeo recalled him saying words to the effect, I just ‘want
i
\
i
‘
following: “I could perform the
town is only 1.8 square miles,”
astbility of the Putap Station de-
you to be available if something
Grievant correctly believed that...
tske)
. dishonest whon he acted on his belief that he ¢
- had not been approved, and was acting honest
|
|
happens, T don’t want to got! ane of your sk officers tled jy}, So just be available, Colometo
Co .
made tt very clear that a primary requisite of this detail is tha
be available to respond.
i
i
t
The oritieal question here is the followin
when he was working the detail ftom the Town Hall? J find
ing all the tasks of working ie detail for som
tion, There was tio protestation from either th
- formed satisfactorily.
However, Romeo did not ask for nor rece
. i
commander for this change of venue before he
_ do 80, disobeying the verbal instruotions he hi
could execute the detail, He was, in the word
an
that he fulfilled the tasks of working the Pump
24, 2014,
It is worth noting that becuse he was eng;
tending the negotiation, the igus of detail tin
is not relevant Be was oanryibg out the detail. 4
ticipating in the negotiations,
The second charge brought by the Town i
the investigation conducted by the Chief on I
ig: Was Romed
6 officer assigned should always:
working the Punp Station detail
le Town or DC,
opted to make
s of Colometo,
Station detail
ly when he sub
@ spent by him)
‘or the hours re
that Romeo li
ecember 1, 20;
_b6
i ihe affinmative, He was perform
5 hours that day, albeit from an miapproved loca
ve approval fbi the DCR, personnel or the shift
te change, It was a mistake not to
d been given Hy|Colometa, But I do not find him.
ould use the Town Hall as his base from which he
“available” the exitire shift, 1 find
bat day, albeit from a location that
‘ited the DCR. bill for Novembet
ged in working the Pump Station detail while at-
ak the negotiations that was raised
sired, while at the same time, pat
4 to the Chief during the course of
(4, According to the Chief's testi-
0
: f
that the detail had not been per -
i
So |
mony, Romeo explained that it was his stl of sh ctail, gained from speaking with
Manager Steve Colometo of DCR,, that he characterized tid Hetail as a floating detail: a detall
. . { . .
where you didn’t have to retain in.one plac | as Long. as yo!
” stood it to be a floating detail in this sense, he
November 24 when he worked the detail from
4
Romeo also informed the Chief that he ha
sibilities onthe detail. Whenjasked what he sq
Lasked Mr, Colometé
say anything about 4 {ocation, T asked.
what was requi,
al
, ore available: Because he under
|
didn’t believe i at he had done anything wrong on
the Town “|
i spoken with Manager Coloineto as to his respon
ido came
ed of tho officpy with the cruiser, I did not
him what's the responsibility of the officer
e responded,
with the ctuiser, And:ho stated to me as I just want ito be available if something
happens, Idon’t’ waitt to, you know, ]
tied up. So just be available,
In addition, Romeo testified et the Due Prov
could work the detail on. November 24 and yer
don’t want to bet one of your shift officers
attend the negotiation, replied,
‘My belief, based on the information t
the requirement of the detail because) it was a mobi
4 I had, was that I would be able to fuifill
detail and because of the
iS)
distance involved; [and] in cxise [of] any emergency tesponse, T would be availa-
ble vithfin] a general yadiug of the actual work sits.
L can. find no testimony from Romeo where He asserted that Chlomieto gave hit permis-
gion to work the detail from other than the Pur
According to the Chief, Colometo, who ¥
. Desember 1, explained that the purpose of th
cies along the wack route primarily from the
floating detail, the Chief stated that Colometo
p Station, =|
aS interviewed! du the telephone on the same day,
. ipo. a
b-detail was toimonitor truck traffic and emergent
huni Station ih tion. When he inquired if it was a
replied no, it ve a stationary detail,
|
|
os heating in response to a question about how he.
22
No ‘one, neither Romeo, Colom, nor tb Chief, provid bd.a definition (or definitions) ofa
floating detail as it applies to alice work, @l ack Law Dietid
hary and Google also fail to do so.)
But in my view, a definition i incelevattt, this Leet that Romed believed, albeit erroneously, that
the detail gave wide latitude is to where the pfticer aright wotlk front, and this is what he con
veyed to the Chief, Cole of the other hand, expected thejofficet to sit at the Pump Station.
_ or drive on. the truck route. nh was Colometo’s testimony at
On December 1, 2014, Reimeo simply gavg his opinion to
the arbitration hearing a year later,
tha Chief about the detail based on
conversation with. Colometo, He did not state affiimatively take the detail was a “floating detail,”
i
and never asserted that Colometo agreed withl him, but only
bifered that ag a way of desorlbing
it, 1 find that he did not le to ihe Chief during the investigation bn December 1, 20 t4,
‘The third charge brought by the Town is the contention! that Romeo, ied daring the Town.
Hearing on Devember 18, when he testified fo his pre-negotation activities on November 24,
According to Romeo’s testimony at the Due Process hearing, he picked up his cruiser, got his
slip signed at the DCR te picked up a coffee and bagel
mained there until about 10 am. when he went to Town Hall for the negotiation, The Town re~
vealed at the end of the Due Process hearing that the video ane door access controls on the Po-
lice Station show that Romeo entered the poli 66 paticing lot at 7:44 am, in his personal vehicle,
entered. the police building at*7:29, and left the building at edt Then, at 9:28 he entered the po-
lice parking lot again, entered the police building at 9:32 and at|9:54 he exited the building to at
tend the negotiation next door, The Town contends that his recitation of his whereabouts for the
|
3 hours (7-10), the time before the negotiations began, is a cory ete fabrication and-lie,
88
|
|
i
|
Went-ta the pump station, and re- -
.
Romeo testified at the athitration hearing
that the Town's
23
statement of his whereabouts on.
_ November 2A” were indeed gortect, and he had erred on hig recollection on December 18. He
pointed out that the testimony he gave af the tine recalled. from
events of almost a month before,
that this was the fourth Pump Station detail
- froze his aocess to all doouins util January
using the video and door novess monitor rec
2014, Instead, he simply repee what he had
; Although Ronseo’s testimony at the Town
tended to deceive, Rather I fitid that it was a fH
the morning in question. He had nothing to gala by offering
ties between 7-10 aim. that mojing His time 4
at about 9:30 am to prepare fot the negotiations
Moreover, the Grievant is h lawyer, he has
capacity as the Union President, and he is wel
jury cat bring to a police officer He was award
fy jeopardize his career as a police officer, 18)
mation from that morning, days after the Due
during the Town hearing.
I find the inaccuracy of the testimony refle
veriber 24 was contributed in lange part due to
keyoatd records before the Due Process hearing. I find to dbl
part,
he had worked
2, 2015, he was not able to refresh his memory
tds before thé Lown hearing on December 18,
Hone the provious titoes he had worked the detail.
hearing was ihe courate, I do not tind it was ine
Hture to recollentlacourately what had occured on
th
as his own bet
s incorrect account of his avtivi«
ween, 7am and 9 am and retoming
with is lawyer prould be expected.
Healt with interfogations and lying for years in his
aware of wha pecury is, and what damage per-
that lying in these eizcumstances could potential~
Ge he saw the, video and keycard records infor
: |
rooess hearing,
cting what acty aly occurred. the morning of No-
the Town preventing him, access to the video and
‘berate misrepresentation on his
that week, and because the Chief
he realized that he had misspoken -
: 24
Tn summary, I fiid that Charge 1, that the Grievant filed 4 Talse detail slip on November 24,
; i yo, .
2014, was not proven. Romeo worked the Punip Station detail from start to finish, albeit from att
i
unauthorized location, the Town Hall, with no kpparent defect
He was awate that the intention of Colombto was to havg .n officer at the Pump Station ot
;
on, the truck route, yet he chose not to seek prior authorization for a change of location to the
Town Hall, from. either the DOR ot his shift commander; but worked the. detail from that unau-
i
thorized location, For this action, he shall, be given a Written Letter of Warning for not following
I
the Pump Station guidelines.
Lfind that Charges 2 and. 3 were not proven bythe Town.
AWARD roa
erruccio Romeo. He shall .
ization. for an alternative
ember 24, 2014, priot to
"There. was not just caube for the termination of Officer
be given a Letter of Warming for failing to receive aut
lovation for performing the Pump Station detail on N
worldng the detail,
fomicea
C
a
, Be shall be made whole for all lost wages and benefits! less offsetting income. I
shall retain. jurisdiction for 30 days to rasolve any disptii¢s arising from. the award,
{
a Lhe, Loews
Soitnate, MA - YBruce Fraser |
February 25, 2016 4 Arbitrator
PO. i
§ 10, Confirmation of award, MA ST 150C § 10
Massachusetts General Laws Annotated
Part I, Administration of the Government (Ch, 1-182)
‘Title XXI. Labor and Industries (Ch. 149-154)
Chapter 150C. Collective Bargaining Agreements to Arbitrate (Refs & Annos)
M.G.L.A. 10€ § 10
§ 10, Confirmation of award
” Currentness
Upon application of a party, the superior court shall confirm an award, unless within the.time limits, hereinafter imposed
grounds are urged for vacating, modifying or correcting the award, in which case the court shall proceed as provided
in sections eleven and twelve. :
Credits .
Added by St.1959, c. 546, § 1.
Notes of Decisions (16)
M.GL.A, 150C§ 10, MA ST 150C § 10
Current through Chapter 31 of the 2017 ist Annual Session
End of Document @ 2017 Thomson Reuters. No claim to original U.S, Government Works,
Works. 1
WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Gavernt
, a1
§ 11. Vacation of award; grounds; application; rehearing, MA ST 1506 § 11
Massachusetts General Laws Annotated
Part 1, Administration of the Government (Ch. 4-182)
Title XXL Labor and Industries (Ch. 149-154)
Chapter 150C. Collective Bargaining Agreements to Arbitrate (Refs & Annos)
M.G.LA. 150C § 11
§ 11. Vacation of award; grounds; application; rehearing
Currentness
(a) Upon application of a party, the superior court shall vacate an award if:-~
(1) the award was procured by corruption, fraud or other undue means;
(2) there was evident partiality by an arbitrator appointed as a neutral, or corruption in any of the arbitrators, or
misconduct prejudicing the rights of any party; .
(3) the arbitrators exceeded their powers’or rendered an award requiring a person to commit an act or engage in conduct
prohibited by state or federal law;
(4) the arbitrators refused to postpone the hearing upon a sufficient cause being shown therefor or refused to hear
evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section five as
to prejudice substantially the rights of a party; :
(5) there was no arbitration agreement and the issue was not adversely determined in proceedings under section two and
_ the party did not participate in the arbitration hearing without raising the objection; but the fact that the award orders
reinstatement of an employee with or without back pay or grants relief such that it could not grant or would not be
granted by a court of law or equity shall not be ground for vacating or refusing to confirm the award,
(b) An application under this section shall be made within thirty days after delivery ofacopy of the award to.the applicant;
provided that, if such application. is based upon a claim of corruption, fraud or other usidne means it shall be made
within thirty days after such grounds are mown or should have been known.
(c) In vacating the award on grounds other than stated in clause (5) of paragraph (a) the court may order a rehearing
before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with
section three, or if the award is vacated on grounds set forth in clause (3) or (4) of paragraph (a), the court may order a
rehearing before the arbitrators who made the award or their successors appointed in accordance with section three. The
time within which the agreement requires the award to be made shall be applicable to the rehearing and shall commence
from the date of the order.
WESTLAW © 2017 Thomson Reuters. No claim to origipal U.S. Government Works. 1
§ 11. Vacation of award; grounds; application; rehearing, MA ST 1506 § 11
(d) If the application to vacate an award is denied and no motion to modify or correct the award is pending, the court
shall confirm the award.
Credits
Added by St.1959, ¢, 546, § 1.
Notes of Decisions (283)
M.G.L.A. 150C § 11, MA ST 150C § 11
Current through Chapter 31 of the 2017 1st Annual Session
End of Document © 2017 Thomson Reuters. No elaim to original U.S, Government W orks,
WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2
93
§ GF, Costs, expenses and interest for Insubstantial, frivolous or..., MA ST 231 § 6F
y
t KeyCite Yeilow Flag - Negative Treatment
Proposed Legislation
Massachusetts General Laws Annotated :
Part III, Courts, Judicial Officers and Proceedings in Civil Cases (Ch. 211-262)
Title II. Actions and Proceedings Therein (Ch, 223-236)
Chapter 231, Pleading and Practice (Refs & Annos)
M.G.L.A. 231 § 6F
§ GF, Costs, expenses and interest for insubstantial, frivolous or bad faith claims or defenses
Currentness
Upon motion of.any party in any civil action in which a finding, verdict, decision, award, order or judgment has been
made by a judge or justice or by a jury, auditor, master or other finder of fact, the court may determine, after a hearing,
as aseparate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of
a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding,
were wholly insubstantial, frivolous and not advanced in good faith, The court shall include in such finding the specific
facts and reasons on which the finding is based. .
. Tf such a finding is'made with respect to a party's claims, the court shall award to each party against whom such claims ©
were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending
against such claims, If the party against whom such claims were asserted was not represented by counsel, the court shall
award to such party an amount representing his reasonable costs, expefises and effort in defending against such. claims.
If such a finding is made with respect to a party's defenses, setoffs or counterclaims, the court shall award to each party’
against whom such defenses, setoffs or counterclaims were asserted (1) interest. on the unpaid portion of the monetary
claina at issue in such defense, setoff or counterclaim at one hundred and fifty per cent of the rate set in section six C
_ from the date when the claim was due to the claimant pursuant to the substantive rules of law pertaining thereto, which
date shall be stated in the award, until the claim is paid in full; and (2) an amount representing the reasonable counsel
fees, costs and expenses of the claimant in prosecuting his claims or in defending against those setoffs or counterclaims:
found to have been wholly insubstantial, frivolous and not advanced in good faith.
Apart from any award made pursuant to the preceding paragraph, if the court finds that all or substantially all of the
defenses, setoffs or counterclaims to any portion ofa monetary claim made by any party who was represented by counsel
during most or all of the proceeding were wholly insubstantial, frivolous and not advanced in good faith, the court shall
award interest to tlie claimant on that portion of the claim according to the provisions of the preceding paragraph,
In any award made pursuant to either of the preceding paragraphs, the court shall specify in reasonable detail the method
by which the amount of the award was computed and the calculation thereof. :
No finding shall be made that any claim, defense, setoff or counterclaim was wholly insubstantial, frivolous and not
advanced in good faith solely because a novel or unusual argument or principle of law was advanced in support thereof.
No such finding shall be made in any action in which judgment was entered by default without an appearance having been
entered by the defendant. The authority granted to a court by this section shall be in addition to, and not in limitation
of, that already established by law. : : .
if any parties to a civil action shall settle the dispute which was the subject thereof and shall file in the appropriate court
documents setting forth such settlement, the court shall not make any finding or award pursuant to this section with
WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. . 4
94
§ 6F, Costs, expenses and interest for insubstantial, frivolous or..., MA ST 234 § 6F
respect to such pacties. If an award had previously been made pursuant to this section, such award shall be vacated
unless the parties shall agree otherwise.
Tn proceedings under this section in any action which has been heard by the medical malpractice tribunal established
pursuant to section sixty B, the decision of the tribunal may be introduced as evidence relevant to whether a claim was
wholly insubstantial, frivolous and not advanced in good faith.
Upon receiving an inmate's complaint and affidavit of indigency, the court may, at any time, upon motion or sua sponte:
(1) dismiss a claim or any action without a hearing if satisfied that the claim or action is frivolous or in bad faith; or (2)
conduct a hearing presided over by the court or an appointed master, which shall be held telephonically unless the court
finds that a hearing in court is necessary, to determine whether the inmate's action is frivolous and in bad faith.
If the court finds that the claim or action is frivolous or in bad faith, the court shall dismiss the claim or action but if, -
after hearing, the court finds that the claim is both frivolous and in bad faith in order to abuse the judicial process, the
court shall, in addition to dismissing such claim or action, order that the inmate lose up to 60 days of good conduct
credit earned or to be earned pursuant to section 129C or 129D of chapter 127. : .
If the court finds at any time that the inmate has repeatedly abused the integrity of the judicial system through frivolous
filings, the court may order that the inmate be barred from filing future actions without leave of court. In determining
whether a claim or action is frivolous or in bad faith, the court may consider several factors including, but not limited
to, the following:- (a) whether the claim or action has no arguable basis in Jaw or in fact; (b) the claim or action is
substantially similar to a previous claim in that it is brought by and against the same parties and in that the claim arises
from the same operative facts of the previous claim.
No finding shall be made that a claim or action is-frivolous or in bad faith solely because a novel or unusual argument
or principle of law was advanced in support thereof.
Credits .
Added by St.1976, c. 233, § 1. Amended by St.1986, c. 351, § 20; St.1999, c. 127, § 179.
Notes of Decisions (90)
M.G.L.A. 231 8 6F, MA ST 231 § 6F
Current through Chapter 31 of the 2017 Ist Annual Session
End of Document #2017 Thanwon Reuters. No claim to original U.S. Government Works,
WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Warks. 2
95
CITY OF BOSTON v. BOSTON POLICE PATROLMEN'S..., --- NLE.3d --- (2017)
477 Mass. 434
477 Mass. 434
Supreme Judicial Court of Massachusetts.
CITY OF BOSTON
ve
BOSTON POLICE PATROLMEN'S ASSOCIATION,
SJC-12077
|
December 5, 2016
July 12, 2017.
Arbitration, Confirmation of award, Authority of
atbitrator. Municipal Corporations, Police. Police,
Discharge. Public Employment, Police, Termination,
Public Policy,
Civil action commenced in the Superior Court
Department on July 22, 2013.
The case was heard by Dennis J. Curran, J,
The Supreme Judicial Court granted an application for
direct appellate review.
Attorneys and Law Firms
Kay H, Hodge (Geoffrey R. Bok also present) for the
plaintiff,
Alan H. Shapiro (John M. Becker also present)
for the
defendant. .
Present; Gants, C.J., Lenk, Hines, Gaziano, Lowy, &
Budd, JT, .
Opinion
HINES, J.
“1 This is an appeal from a judgment of the Superior
Court confirming an arbitrator's award reinstating a
Boston police officer terminated for using a choke hold
in arresting an unarmed suspect for disorderly conduct
and malcing false statements in the ensuing departmental
investigation, The arbitrator found that the officer, David
Williams, had applied a choke hold, but that the choke
hold had not actually choked the citizen, that the force
was reasonable in the circumstances, and that the officer's
subsequent characterization of events was thus truthful.
Accordingly, the arbitrator ruled that the city of Boston
(city) lacked just cause to terminate Williams, and ordered
his reinstatement with back pay.
- In July, 2013, the city filed a complaint in the Superior
Court to vacate the arbitrator's award, The court
dismissed the complaint in June, 2015, and the city
appealed. We granted the city's application for direct:
appellate review. Because the award neither exceeds the
arbitrator's authority nor violates public policy, and
because we are not free to vacate it where no underlying -
misconduct was found, we affirm.
1. Background, a. Facts, On January 18, 2012, the city
discharged. Williams based on specifications arising from
a disorderly conduct arrest on March 16, 2009. The
specifications were use of excessive force, in violation of ~
Boston police department .rule 304 on use of nonlethal
force, and untruthfulness in the subsequent investigation,
in violation of rule 102, § 23, on truthfulness. Chosen
by mutual agreement of the city and the Boston Police
Patrofmen's Association (union) pursuant to a collective
bargaining agreement (CBA), an arbitrator held three
days of hearings, concluded that the city had proved
neither charge, and ordered Williams's reinstatement with
back pay. He based his conclusion on the following factual
findings.
In 2009, Boston's Saint Patrick's Day Parade fell on
Sunday, March 15, Among the revelers that day were
Michael O'Brien and his friends Thomas Cincotti and
Eric Leverone, Having consumed some alcohol during the
daytime celebrations, the three proceeded to a Faneuil
Hall bar where O'Brien received free drinks by virtue
of knowing the staff and owners. Because Leverone
had recently returned from active military duty, patrons
purchased him many drinks, and he became extremely
intoxicated,
From that bar, the three walked to Cincotti's apartment
in the North End neighborhood of Boston, While his
friends waited on the sidewalk, Cincotti moved his motor
vehicle to avoid getting a parking citation the next day.
In doing so, he backed across a double yellow line and
into a double-parked vehicle occupied by Guy Fils-Aime.
Cincotti.got out of his vehicle, asked O'Brien to move
it out of the street, and approached Fils-Aime, O'Brien
testified that, before moving the vehicle to a legal parking
space, he heard Fils-Aime say, “I am a federal agent and
you are fucked.” 1
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*2, Fils-Aime called 911 just after midnight to report the
accident, On that recorded call, he can be heard to say,
“No, no, no. Don't worry. I work for Homeland Security.
I'm a Federal agent. You're not going to get in trouble.
Relax.” After describing the accident to the dispatcher,
Fils-Aime added, “They're drunk.”
Officers Williams and Diep Nguyen arrived on scene
at 12:08 A.M. O'Brien described their interaction as
immediately hostile and aggressive, while the officers
characterized O'Brien and his friends as drunk and
uncooperative, O'Brien, who with Cincotti and Leverone
js Caucasian, appeared further provoked by the officers’
_feiendliness with Fils-Aime, who like Williams is African-
American. As the officers spoke with Fils-Aime, O'Brien
approached and demarided that they issue a citation to
Fils-Aime for double-parking, and find out whether he
was in fact a Federal agent, Receiving no answer, O'Brien
began to film the officers with his cellular telephone as he |
repeated his demands from the middle of Hanover Street,
where he was blocking traffic. ”
After O'Brien failed to heed multiple warnings to get
out of the street, Nguyen decided to arrest him for
disorderly conduct. O'Brien pushed Nguyen away, and
the two struggled as Nguyen attempted to handeuff him;
. he managed to cuff one wrist. Seeing this struggle from
the cruiser where he had been writing a citation for
Cincotti, Williams came to Nguyen's aid and tackled
O'Brien to the ground; Nguyen was “fighting off” Cincotti
and Leverone. In an effort to extricate O'Brien's uncuffed
hand from underneath O'Brien's body, Williams pressed
his upper left arm and shoulder against the right side of
O'Brien's neck, He characterized this maneuver as a “semi-
bear-hug hold.” Nguyen testified that Williams had his
arm “around [O'Brien's] neck” in a “chokehold.” O'Brien
testified that he could not breathe and began to lose
consciousness,
Williams called for assistance using a police radio attached
to his uniform, and the eight officers who soon arrived
arrested O'Brien. As he was being taken to a police wagon,
O'Brien announced his employment with the sheriffs
office and shouted the names of officers he knew. Once in
the wagon, he realized that he had urinated in his pants.
O'Brien was charged with resisting arrest, assault and
battery on a police officer (Nguyen), and disturbing the
peace. He was booked at. 12:40 AM., with a bruise
visible on his left temple and an abrasion on the right
side of his forehead. Lieutenant James Leary, who was
duty supervisor at that time, examined O'Brien and
noted nothing unusual. Twenty minutes later, O'Brien
complained of chest pain and head pressure, and
emergency medical technicians thereafter transported him .
to Massachusetts General Hospital. The triage nurse, in
notes recorded at 2:30 A.M., observed O'Brien to be under
the influence of alcohol. At 3:43 A.M., O'Brien reported
to the attending physician, Dr. Andrew Liteplo, that he
had been beaten and choked by police. Liteplo noted
petechiae, which are sometimes associated with choking,
on O'Brien's face. O'Brien was otherwise asymptomatic.
On March 19, 2009, O'Brien filed a complaint with
the internal affairs division (IAD) of the Boston police
department (department). Although IAD assigned the
complaint to an officer, little investigation was done, and
O'Brien's counsel withdrew it in May, 2009. Williams did
not learn of the allegations against him until September
24, 2009, when O'Brien filed a Federal lawsuit alleging
unreasonable use of force, unconstitutional arrest, and -
assault and battery. The next day, counsel filed another
IAD complaint; when IAD still had taken no action in
January, 2010, counsel sent a letter-demanding that the
matter be investigated. Sergeant Philip Owens conducted
initial interviews of the officers in April, 2010, but not until
February, 2011, was Williams placed on administrative
leave, oe
*3 A second round of IAD interviews occurred in March,
2011. In June, 2011, the department exonerated Nguyen,
but issued two specifications against Williams: the use
of unreasonable force, in violation of rule 304, § 2,3
and untruthfulness during the IAD interview, in violation
of rule 102, § 23.4 The departmental trial board held
hearings in November and December, 2011, and sustained
the charges. The city terminated Williams on January 18,
2012, and settled O'Brien's civil lawsuit for $1.4 million
shortly thereafter,
The union filed a grievance, contending that the city
lacked just cause to terminate Williams, 5 The case went
before an arbitrator to determine whether the city had
just cause to terminate Williams, and whether the city
violated the CBA by placing Williams on administrative
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leave in February, 2011, A hearing was held in September,
October, and December, 2012.
!
b, The arbitrator's award, In June, 2013, the arbitrator
issued his decision based on the premise that Williams
had been’ terminated for use of excessive force, not for
application of a choke hold (“The Department evidently
credited O'Brien's charge that-[Williams] attacked him
for no reason, knocked him to the ground, grabbed bim
around the neck, and strangled him almost tothe point of
unconsciousness”),
Characterizing the case as contingent on a credibility
determination, the arbitrator rejected O'Brien's account
of the incident as “not truthful,” and conchided that
Williams used only the amount of force reasonably
necessary to overcome O'Brien's resistance to arrest. In
support of his finding that “O'Brien was not a credible
witness about any of the events of March 16,” the
arbitrator cited several factors, First, the arbitrator found
that O'Brien had been drunk; as a result, the ‘accuracy
_ of O'Brien's memory was diminished, and the likelihood
that he had displayed the conduct Williams and Nguyen
described increased. Second, the arbitrator found that
the professional repercussions potentially facing O'Brien
for his drunk and disorderly conduct provided.a motive
to fabricate these allegations against the officers. Third,
he found the objective physical evidence of choking
scant, Finally, he noted as further reasons to discredit
O'Brien that the cellular telephone video recording was
unavailable, and that neither Cincotti nor Leverone came
forward to corroborate O'Brien's account.
*4 As to Williams, the arbitrator found that he had
“Knock{ed} O'Brien to the ground and tightly grippled]
him in a manner that placed [Williams's] upper sight
atm ‘and shoulder against the right side of O'Brien's
neck, It would be accurate to call this a chokehold.”
Nguyen, who the arbitrator credited as a “conscientious
and credible witness,” agreed that Williams had used a
choke hold and explained that police were not trained in
this maneuver, Nonetheless, Nguyen opined that Williams
had not choked O'Brien and had used reasonable force in
the circumstances, and the arbitrator agreed. Accordingly,
the arbitrator concluded that Williams's JAD interviews
had been truthful, and that there was no just cause for
termination. He ordered Williams reinstated with back
pay.
2. Discussion, a. Standard of review. “A matter submitted
to arbitration is subject to a very natrow scope of review.”
Plymouth-Carver Regional Sch. Dist, v. J. Farmer & Co.,
407 Mass. 1006, 1007 (1990). Especially where parties have
elected to arbitrate disputes as part of a CBA, School
Dist. of Beverly v. Geller, 435 Mass. 223, 229 (2001)
(Gordy, J., concurring), we defer to that election and
are “strictly bound by an arbitrator's findings and legal
conclusions, even if they appear erroneous, inconsistent,
or unsupported by the record.” Lynn v. Thompson, 435
Mass. 54, 61 (2001), cert. denied, 534 U.S, 1131 (2002)
(Thompson).
In arbitrations pursuant to collective bargaining
agreements, awards may be vacated only on statutorily
enumerated grounds, G. L. c. 150C, § 11 (a) (3) (“superior
court shall vacate an award if ... the arbitrators exceeded
their powers or rendered an award requiring a person to
commit an act or engage in conduct prohibited by state or
“federal law”), The city argues both grounds exist here, and
we address each in turn.
b, Nondelegability of police commissioner's powers and
scope of arbitrator's authority. The city argues that the
award must be vacated because the arbitrator exceeded
his authority by intruding on the nondelegable powers
of the Boston police commissioner (commissioner) to
discipline officers. The union counters that discharge and
discipline are at the heart of collective bargaining, and
the arbitrator merely interpreted the relevant terms of the
parties' agreement. ;
Some powers may not be delegated, even with the consent
of the parties, Boston v. Boston Police Superior Officers
Fed'n, 466 Mass, 210, 216 (2013), “An arbitrator exceeds
‘his authority when he intrudes upon decisions ... left by
statute to the exclusive managerial control of designated
public officials.” Massachusetts Bd. of Higher Educ./
Holyoke Community College v. Massachusetts Teachers
Ass'n/Mass. Community College Coungil/Nat'l Educ,
Ass'n, 79 Mass. App. Ct. 27, 32 (2011). The city asserts ©
that the so-called “police commissioner's statute” leaves
discipline and. discharge of officers for excessive force ox
untruthfulness to the commissioner's exclusive managerial
control. St. 1906, c. 291, as appearing in St. 1962, c. 322,
. § 11 (“police commissioner shall have cognizance and
control of the government, administration, disposition
and discipline of the department, and of the police
force of the department and shall make all needful rules
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and regulations for the efficiency. of said police”). This
argument fails for three related reasons.
First, the terms of a CBA trump any authority enumerated
. under the State's collective bargaining law. G. L. c. 150E,
§7 (d) (“If a collective bargaining agreement ... contains
a conflict between matters which are within the scope of
negotiations pursuant to [§ 6] of this chapter! §] and...
the regulations of ... a police commissioner .., the terms
of the collective bargaining agreement shall prevail”).
Accordingly, the CBA's just cause provision permits the
arbitrator to interpret regulations promulgated pursuant
to the commissioner's statute, and usurps no authority in
so doing.
*§ Second, this conclusion is consistent with courts’
reluctance to allow broad discretionary powers to
subsume bargained-for provisions. See Lynn v. Labor
Relations Comm'n, 43 Mass. App, Ct. 172, 182 (1997),
citing School Commi. of Newton v. Labor Relations
Comm'n, 388 Mass. 557, 564-566 (1983) ( “where the
governmental employer acts pursuant to broad, general
management powers, the danger is presented ... that
to recognize the statutory authority as exclusive would
substantially undermine the purpose of G. L. c. 150B, § 6,
to provide for meaningful collective bargaining”).
Finally; although we have recognized the breadth of
the commissioner's authority in a long line of cases,
those cases have largely confined nondelegable matters
to the administrative realm and have never reached
the core matters of discipline. and discharge. See, e.g.,
Boston Police Superior Officers Fed'n, 466 Mass. at 215
(commissioner has exclusive, nondelegable authority to
assign and transfer police officers), 7 Indeed, where the
parties bargained to arbitrate “any dispute concerning the
interpretation or application” of the CBA, G. L. i50E,
§ 8, such a broad arbitration clause, see AT&T Techs.,
Ine. v, Communications Workers of Am., 475 U.S. 643,
650 (1986), leaves discipline well within the arbitrator's
ambit. Boston Police Patrolmen's Ass'n y. Boston, 60
Mass, App, Ct. 672, 676-677 (2004) (severity with which
municipal employer treats its police officers in disciplinary
proceedings can be subject of grievance).
c, Public policy exception, The city argues that the award
must be vacated because Williams's reinstatement violates
public policy. The union contends that this exception is
unavailable because the coutt is bound by the arbitrator's
finding that Williams committed no misconduct.
Our deference to arbitration notwithstanding, we
recognize the primacy of certain ‘policy matters over
expediency, and will not allow an arbitrator to order a
party to engage in an action that violates well-defined
public policy. G. L. c. 150C, § 11 @) @). Boston v.
Boston Police Patrolmen's Ass'n, 443 Mass, 813, 818, 823
(2005) (Patrolmen's Association). If an arbitration award
violates public policy, “we are obliged to refrain from
enforcing it.” Massachusetts Highway Dep't v. American
Fed'n of State, County & Mun. Employees, Council 93,
420 Mass. 13, 16 & n.5 (1995), quoting W.R. Grace & Co.
y. Local Union 759, Int'l Union of United Rubber, Cork,
Linoleum & Plastic Workers of Am., 461 U.S, 757, 766
(1983).
*6 In determining whether this narrow public policy
exception requires the vacation of an arbitrator's award,
we apply a “stringent, three-part analysis,” Patrolmen's
Association, 443 Mass. at 818. First, the policy at issue
“must be well defined and dominant, and is to be
ascertained 'by reference to the laws and legal precedents
and not from general considerations of supposed public
interests." Massachusetts Highway Dep't, 420-Mass. at
16, quoting W.R. Grace & Co., 461 U.S. at 766. Second,
the exception does not address “disfavored conduct, in the
abstract, but [only] disfavored conduct which is integral
to the performance of employment duties (emphasis
in original), Massachusetts Hi t, supra at 17,
quoting Delta Air Lines, Inc. v. Air Line Pilots Ass'n,
Int'l, 861 F.2d 665, 671 (11th Cir. 1988), cert. denied, 493
USS. 871 (1989). “Finally, we require| ] a showing that the
arbitrator's award reinstating the employee violates public
policy to such an extent that the employee's conduct would
have required dismissal,” Patrolmen's Association, supra
at 819, quoting Thompson, 435 Mass. at 63, The question
in the third prong is not whether the employee's behavior
violates public policy, but whether an award reinstating
him or her does so. Eastern Associated Coal Corp. v.
United Mine Workers of Am., Dist, 17, 531 U.S, 57, 62-63 -
(2000). :
The first two prongs of this test are easily satisfied in
cases of alleged police misconduct toward civilians, as
the Superior Court recognized below, See, ¢.g., O'Brien
vy. New England Police Benevolent Ass'n, Local 911, 83
“Mass. App. Ct, 376, 381 (2013) (in police excessive force
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case, it is “clear” that first two prongs of public policy
test were met). It is inarguable that well-defined public
policy condemns excessive force by police officers. See
Commonwealth v. Adams, 416 Mass. 558, 563 (1993);
Human Rights Comm'n of Worcester v. Assad, 370 Mass.
482, 487 (1976).
Similarly, there is no question that refraining from
excessive force is integral to a police officer's duties
to protect the public and keep the peace. Patrolmen's
Association, 443 Mass, at 819. See Attorney Gen. v.
McHatton, 428 Mass, 790, 793-794 (1999), quoting Police
Comm'r_ of Boston v. Civil Serv. Comm'n, 22 Mass.
App. Ct. 364, 371 (1986) (“Police officers must comport
themselves in accordance with the laws that they are sworn
to enforce and behave in a manner that brings honor and
respect for rather than public distrust of law enforcement
personnel. They are required to do more than refrain from
indictable conduct. ... In accepting employment by the
public, they implicitly agree that they will not engage in
conduct which calls into question their ability and fitness
to perform their official responsibilities”).
Thus, only the exception's third prong remains contested
here. “To prevail, the city must therefore demonstrate that
public-policy requires that [Williams's] conduct, as found
by the arbitrator, is grounds for dismissal, and that a lesser
sanction would frustrate public policy” (emphasis added).
Patrolmen's Association, 443 Mass. at 819. Because the
arbitrator found that Williams acted reasonably and
truthfully, the public policy exception cannot bar his
reinstatement.
The arbitrator found that Williams “placed [his] right arm
and shoulder against the right side of O'Brien's neck.”
Nguyen, who the arbitrator found to be “a conscientious
and credible witness,” testified that Williams had his arm
“around [O'Brien's] neck” in a “chokehold.” But he also
found that Williams was terminated not for use of a
choke hold, which is nowhere prohibited by department
rules, but for excessive force in choking O'Brien. Because
the arbitrator concluded that Williams's use of force
was reasonable and had not actually restricted O'Brien's
breathing, he also found that Williams's characterization
of events had been truthful and that there was no just cause
for termination.
*7 Without doubt, a de novo analysis of whether
Williams's actions constituted excessive force in the
totality of the circumstances could support a conclusion |
very different from the one reached by the arbitrator. This .
was an attest for disorderly conduct. Williams gave 10
verbal commands, and used neither of the methods of
nonlethal force in which he was trained before applying a
choke hold, ® despite his training to avoid a suspect's neck
atea.? Williams is significantly larger than O'Brien, who
was unarmed, It is unreasonable to justify a choke hold --
as the arbitrator did -- on the grounds that a suspect could.
always “grab” an officer's service weapon, because this
is true of any civilian interaction with police and would
obviate any continuum of force. 10
This is especially true given the unpredictably lethal
nature of choke holds. See, e.g., Los Angeles v. Lyons,
461 U.S. 95, 116-117 (1983) (Marshall, J., dissenting) .
(“It is undisputed that chokeholds pose a high and
unpredictable risk of serious injury or death”); Thompson
y. Chicago, 472 F.3d 444, 446 (7th Cir. 2006) (officer's
- application of choke hold contributed to suspect's death .
by asphyxia); Maddox v. Los Angeles, 792 F.2d 1408,
1411 (9th Cir, 1986) (officer's application of choke hold
for twenty to thirty seconds caused suspect's death), Cf.
Commonwealth v. Stockwell, 426 Mass, 17, 19 1,2 (1997)
(posited among methods of strangulation supporting
conviction of murder in first degree, choke hold occurs
when “the aggressor's forearm is placed on the neck of the
victim”),
Where the city failed to recognize those dangers in any
rule, however, we are not free to redefine terms the parties
bargained over. Had the city prohibited choke holds as
excessive force, an arbitrator who found a choke hold
reasonable would have exceeded his authority. See G,
Lic. 150C, § 11 (a) (3) (“the superior court shall vacate
an award if ... the arbitrators exceeded their powers”);
School Dist. of Beverly, 435 Mass. at 229 (Cordy, J.,
concurring), quoting United Steelworkers v, Enterprise
Wheel & Car Corp., 363 U.S. 593, 597 (1960) (“[AJn
arbitrator's ‘award is legitimate only so long as it draws
its essence from the collective bargaining agreement' that
he is confined to interpret and apply”). In other words,
that a de novo factual analysis would permit a finding of
felonious conduct does not permit us to proceed as if the
arbitrator actually made that finding.
We are aware of no ‘prior application of the public policy
exception to vacate an award ordering reinstatement
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where the arbitrator found no underlying misconduct.
See Patrolmen's Association, 443 Mass. at 820-821,
823 (vacating reinstatement of police officer found by
arbitrator to have committed felonious misconduct of
perjury and filing of false police reports); Boston v.
Boston Police Patrolmen's Ass'n, 74 Mass App. Ct.
379, 382 (2009) (vacating reinstatement of police officer
found by arbitrator to have committed off-duty felonious
misconduct of assault by means of dangerous weapon).
The question, in other. words, is not whether Williams's
conduct justified termination, but whether it required
termination, such that any lesser sanction would violate
public policy. See Thompson, 435 Mass. at 63. Because
the arbitrator found that Williams used reasonable force
and was not untruthful in subsequent investigations, the
award reinstating him must be upheld,
*8 d. Prospective guidance, Today's decision should not
be read to view the city -- and more importantly, the.
citizens of Boston -- as without remedy moving forward.
First, it is incumbent on the city to clarify its own policies
with respect to excessive force and specifically choke holds
if it does not wish in the future to relinquish interpretive
control of that term.
Asa threshold matter, it cannot be that when a choke hold
is applied, the excessive force determination nonetheless
depends on the extent of resulting harm, See Stamps v.
Framingham, 813 F.3d 27, 35 (Ist Cir. 2016) (rejecting
argument that inadvertent excessive force is shielded
from scrutiny under Fourth Amendment to United States
Constitution, reasoning that “[t]he defendants' proposed
rule has the perverse effect of immunizing risky behavior
only when the foreseeable harm of that behavior comes to
pass”), If anything, it is the unpredictable dangerousness
of choke holds that warns against their use at all. Indeed,
it is-untenable to assert both that choke holds are so”
potentially dangerous that reinstating officers who use
them. violates public policy and that the commissioner
retains the discretion to determine whether a choke hold
is excessive force in any given case, As discussed supra, it
is because choke holds are unpredictably lethal that both
officers and the public deserve a bright-line rule.
Second, the city must investigate allegations of excessive
force with substantially more alacrity than was evidenced -
Footnotes
here. Pursuant to its own existing rules, 1 the department
owes a duty, both to the public and to its own officers,
to investigate allegations of excessive force thoroughly .
and promptly. As with the tension between a choke
hold's dangerousness and the commissioner's desire to
retain discretionary review of their use, it is difficult to
reconcile the department's position that an officer's use
of'a choke hold requires termination with its protracted .
inaction in this case. See Massachusetts Highway Dep't,
420 Mass, at 21 1.8 (“In determining that the safety of
the work environment was not sufficiently threatened by
[the employee's] behavior to require permanent discharge,
the arbitrator could consider the fact that the department
waited nearly one year after the [misconduct] was
discovered” before bringing disciplinary action). There
was a two-year delay on meaningful internal investigation;
the department concedes, as it must, that it mishandled
an inquiry that took entirely too long. Officers deserve
notice of allegations against them, and citizens deserve
investigations not contingent on the filing of Federal
lawsuits.
Last, we are troubled by the prospect that any use of force
not explicitly prohibited by a rule of conduct is essentially
unreviewable. It is difficult to fathom why we elevate the
values of “expédieticy” and “judicial economy” so high
as to eclipse the substantive rights of citizens who have
no seat at the bargaining table. We recognize, of course,
that public employers may or may not choose to adopt
rules for the protection of the public from the excessive
use of force. Without the benefit of such rules, however,
arbitrators remain free to find reasonable any level of
force that does not explicitly require termination, Absent
legislative authority for a broader review of arbitration
decisions, we are constrained in our ability to review the
use of excessive force by public safety officials,
*9 3. Conclusion, For the reasons stated above, we affirm .
the Superior Court's decision confirming the arbitrator's
award,
So ordered.
All Citations
--- N.E.3d ----, 477 Mass. 434, 2017 WL 2960815
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4
2
3
10
11
Michael O'Brien was at the tlme employed as a deputy sheriff and correction officer, and sald that Guy Fils-Aime's
comments made him concerned both for his employment and for his pending military candidacy,
. The video recording was notin evidence, as O'Brien festifled that he no longer was in possession of that cellular telephone.
Boston police department rule 304, “Use of Non-Lethal Force,” provides In relevant part: :
"Because there are an unlimited number of pessibliities, allowing for a wide Variety of circumstances, no rule can
offer definitive answers to every situation In which the use of non-lethal force might be appropriate, Rather, this rule
will set certain specific guidelines and provide officers with a concrete basis on which to utilize sound Judgment in
making reasonable and prudent decisions, attending to the spirit over the fetter of the rule.
“Section 1. Definitions. ... 1. Reasonable Amount of Force Is the least amount of force that will permit officers to
subdue or arrest a subject while still malntalning a high level of safety for themselves and the public.
"Section 2, General Considerations. The policy of the Boston Police Department fs to use only that amount of force
that Is reasonably necessary to overcome resistance in making an arrest or subdulng an attacker.
"The right to use non-lethal force is extended to police officers as an alternative In those situations where the potential
for serious Injury to an officer or civilian exists, but where the application of lethal force would be extreme."
Boston police department rule 102, “Conduct and General Rights and Responsibilities of Department Personnel,”
provides in relevant part:
"Section 23. Truthfulness. ... Reports submlited by employees shall be truthful and complete, No employee shall
knowingly enter, or cause to be entered, any inaccurate, false or improper information.”
Article V(A), § 1, of the collective bargaining agreement provides as follows: “No bargaining unit member who has
completed his one-year probationary period shall be disciplined or discharged without just cause.”
General Laws c. 150E, § 6, provides that partles “shall negotiate In good faith with respect to wages, hours, standards
or productivity and performance, and any other terms and conditions of employment."
See also, e.g., Boston v. Boston Police Patrolmen's Ass'n, 403 Mass, 680, 684 (1989) (nondelegable management
prerogative to assign one officer, as opposed to two, to marked patrol vehicle); Nolan v. Police Gomm'r of Boston, 383
Mass. 626, 629-630 & n.4 (1981) (authority fo determine by way of psychlatric examination officer's fitness to perform.
dutles); Broderick v. Pollce Comm'r of Boston, 368 Mass. 33, 41 (1975), cert. denled, 423 U.S. 1048 (1976) (authority
to question officers regarding private conduct); Boston Police Patrolmen's Ass'n v. Boston, 367 Mass. 368, 371-372
(1975) (authority to require officers seeking elective office to take leave of absence without pay during campalgn);
“Boston v. Boston Police Superior Officers Fed'n, 52 Mass. App. Ct. 296, 801 (2001) (sole discretion to make and end
temporary assignments); Bostoh v. Boston Police Patrolmen'sAss'n, 41 Mass. App. Ct. 269, 271-273 (1996) (authority
to determine and assign overtime); Boston v. Boston Pollce SuperiorOfficers Fed'n, 29 Mass, App. Ct. 907, 908 (1990)
(nondelegable matters Include staffing levels, assignments, uniforms, weapons, and definition of duties); Boston v. Boston
Police Patrolmen'sAss'n, 8 Mass. App. Ct. 220, 226-227 (1979) (sole authority to determine whether officer should be
reissued service weapon).
The department authorizes the use of the following nonlethal force methods: verbal commands, pepper spray, wrist locks,
and batons. It is uncontested that Willlams attempted none of these methods before tackling O'Brien.
Beyond requiring that officers use “the least amount of force” and “only that amount of force that is reasonably necessary to
overcome resistance in making an arrest,” rule 304 on the use of nonlethal force confines officers to the use of procedures
on which they have been trained and found “proficient.” Nguyen and Williams each admitted that this tralning did not
include choke holds as an appropriate means of force, and the IAD investigator explained that Boston police officers are
trained to avold contact with a person's head or neck due to the high risk of injury:
Indeed, the notion that an unarmed suspect must nonetheless be treated as dangerous because he or she interacts with
an armed police officer (“[elven if O'Brien was unarmed, there was always the possibility that he would grab Nguyen's
gun”) controverts clear United States Supreme Court precedent, see Graham v. Connor, 490 U.S. 386, 396 (1989);
Tennessee y. Garner, 471 U.S. 1, 11 (1985), and we reject the troubling presumption of a citizen's dangerousness that
this proposition would create. .
See Boston police department rule 304, “Use of Non-Lethal Force,” § 7, “Investigation of Use of Force.”
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