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COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT

NO. 2017-P-0785

SUFFOLK, SS

TOWN OF WINTHROP,
Plaintiff-Appellee

Vv.

WINTHROP POLICE BROTHERHOOD LOCAL 421,
Defendant~Appellant

On Appeal from a Judgment and Order
of the Superior Court

Brief for the Plaintiff-Appellee

FOR THE APPELLEE,
TOWN OF WINTHROP:

HOWARD L. GREENSPAN, ESQ.
BBO # 210420

200 BROADWAY, SUITE 304
LYNNFIELD, MA 01940

(781) 598-4545
hgreenspan@greenspanlawyers.com

September, 2017

TABLE OF CONTENTS

Page
Table of Authorities ............... .3
Issues Presented . . 2... 1 eee ee ee ee DD
Statement of the Case ............4.4.. 5
Statement of Facts . . 1... 1. 1 ee ew ee ee ee
Argument . 6. 6 1 6 we we ee ee we ee ww ew 22
I. THE TRIAL COURT JUDGE PROPERLY VACATED
THE ARBITRATION AWARD . ...... . 2... .22
A, The Trial Court Judge Acknowledged
And Applied The Proper Standard
Of Review. . .. 2... 1 ww ew ee 24

B. The Arbitrator’s Finding That Romeo
Worked The Detail And That He Was
Not Dishonest Exceeded His Authority. 26

C. Public Policy Mandated Romeo’s
Discharge ............. . 33

II. THE APPEAL OF THE DENIAL OF THE UNION’S
REQUEST FOR ATTORNEY'S FEES AND COSTS
PURSUANT TO G.L. c. 231, § 6F SHOULD BE
DISMISSED . . . . ew ee we ee ee eee LT

Conclusion... 1... 1 ee eee ew eee ee ee 40

TABLE OF AUTHORITIES

CASES
Ben v. Schultz, 47 Mass. App. ct. 808 (19
Bureau of Special Investigations

vy. Coalition of Public Safety,
430 Mass. 601 (2000)... -

City of Boston
v. Boston Police Patrolmen’s Ass’n,
41 Mass. App. Ct. 269 (1996).

City of Boston
vy. Boston Police Patroimen’s Ass'n,
443 Mass. 813 (2005)... . 23, 24,

City of Boston
v. Boston Police Patrolmen’s Ass'n,
477 Mass. 434 (2017)... +++ 23,

City of Boston v. Boston Police Superior
Officers Federation,
466 Mass. 210 (2013). .- +++ >

City of Cambridge v. Civil Service Commis

Page

99) . . 39-40

.23, 33

27

33-34, 37, 38

25-26, 30, 34

43 Mass. App. Ct. 300 (1997)...

City of Taunton v. Taunton Branch of the
Massachusetts Police Ass’n.,
10 Mass. App. Ct. 237 (1980)

Commonwealth v. Paquette,
475 Mass. 793 (2016). .

Concerned Minority Educators of Worcester
vy. School Committee of Worcester,
392 Mass. 184 (1984). . ..-

Giuffrida v. High Country Investor, Inc.,
73 Mass. App. Ct. 225 (2008).

.22, 26, 27
sion,

» 35

29

231

22-23, 32

31

Kannavos v. Annino, 356 Mass. 42 (1969). ....-. 31

Miaskiewicz v. LeTourneau,
T2 Mass. App. Ct. 880 (1981). .... .... . 40

Pearson v. Town of Whitman,
16 MCSR 46 (2003)... . - ee ee ee ee ee 35

Plymouth-Carver Regional School District
v. Jd. Farmer & Co., Inc.,
407 Mass. 1006 (1990). ..... 2. ee ee ee 22

Robichau v. Town of Middleboro,
24 MCSR 352 (2011). ...°. 2. eee ee ee ee 88

School Committee of West Springfield
v. Korbut, 373 Mass. 788 (1977)... .... . 22

School District of Beverly v. Geller,
435 Mass. 223 (2001). ...... 5.5. + e+ « 230

School District of Beverly v. Geller,
50 Mass. App. Ct. 290 (2000). ..... . .23, 37

Town of Andover
v. Andover Police Patrolmen’s Union,
45 Mass. App. Ct. 167 (1998) ...... 4... 26

Town of Dartmouth
v. Dartmouth Police Brotherhood,
85 Mass. App. Ct. 1114 (2014). . ....... 27

Town of Falmouth
v. Civil Service Commission,
61 Mass. App. Ct. 796 (2004)... ... 2... 235

STATUTES, RULES, and OTHER

Mass. Gen. Laws, C. 41, § 97A . . 2. 1. 2 2 ee ee 26
Mass. Gen. Laws, C. 150C, § 11... .... 6, 19, 24
Mass. Gen. Laws, C. 231, § 6F ...... . 37, 39, 40
Mass. Gen. Laws, C. 231, § 6G. . 1... . se ew s 239

Il.

Tit.

ISSUES PRESENTED

Whether the trial court judge properly vacated the
Arbitration Award that reinstated a discharged
police officer where the arbitrator’ s findings and
décision exceeded his authority.

Whether the trial court properly vacated the
Arbitration Award that reinstated a discharged
police officer on the ground that the award
violated a well-defined and dominant public policy.
Whether the appeal of the trial court judge's
denial of the Union’s request for attorney’s fees
and costs pursuant to G.L. c. 231, § 6F should be

dismissed.

STATEMENT OF THE CASE

On January 6, 2015, the Defendant-Appellant,

Winthrop Police Brotherhood Local 421 (hereinafter

“Union”) filed a grievance against the Plaintiff-

Appellee, Town of Winthrop (hereinafter ‘Town”)

challenging the discharge of Patrolman Ferrucio Romeo

(hereinafter “Romeo”). (RA 2)+ The grievance proceeded

to arbitration. The arbitration hearing was held on

1 References to the Record Appendix are designated RA
followed by the page number (RA ).

5

August 24, September 24, October 21, and November 2,
2015. (RA 15) Following the hearing, the Arbitrator
issued a written Decision and award on February 28,
2016, in favor of the Union, finding that there was no
just cause for Romeo’s termination, and ordered that
he be reinstated with back pay. (RA 14)

On March 21, 2016, the Town timely appealed the
Arbitration Award pursuant to G.I. c. 150c, § 11(a) by
filing a Complaint in Suffolk Superior Court, Civil
Action No. 1684CV00938 against the Union. (RA 3-4, 6-
37) The Complaint sought to vacate the arbitration |
award alleging that the arbitrator exceeded his
authority by improperly intruding upon an area
reserved for the judgment of the Plaintiff and by
issuing an award contrary to overriding public policy.
(RA 12) On April 11, 2016, the Union filed and served
an Answer to the Complaint with a Counterclaim to
confirm the award. (RA 4, 38-41) The Town filed its
Answer to the Counterclaim on April 11, 2016. (RA 4,
42-44)

On October 4, 2016, the Union filed a Motion to

Confirm Arbitrator’s Award, and for interest and

attorney’s fees. (RA 4, 45-118). The Town filed a

Memorandum of Law in Support of Plaintiff's Motion for
‘Judgment on the Pleadings which the trial court judge
treated as a Cross-Motion to Vacate the Arbitration
award. (RA 5, 119-130)

A hearing on the motions was held on February 21,
2017 before the trial court judge, Elizabeth M. Fahey,
J. (RA 5, 169-189) Thereafter, on April 5, 2017, the
trial court judge, Fahey, J., issued and filed a
Memorandum of Decision and Order for Judgment on the
Cross-Motions, denying the Union’s motion and allowing
the Town’s motion, and vacated the Arbitrator’s
Award. (RA 5, 205-219) The trial court judge also
denied the Union’s motion for attorney’s fees. (RA 5)
Judgment entered in favor of the Town on April 11,
2017. (RA 5, 220)

On April 21, 2017, the Union filed a Notice of
Appeal (RA 5, 221-222) and the appeal was entered in

the Appeals Court on June 14, 2017.

STATEMENT OF FACTS

The arbitrator found the following facts: In
2014, the Town of Winthrop undertook the Winthrop
Beach Nourishment Project funded by the Massachusetts

Department of Conservation and Recreation (DCR). (RA

7

15) The project involved moving considerable sand and
rock to the Winthrop Beach area. (RA 15) In mid-Fall,
2014 it became necessary to add a detail to the daily
Winthrop Police Department details in order to assist
the traffic in connection with the work being carried
out. This detail, known as the Pump Station detail,

required an officer with a cruiser to work out of the
Department of Public Works pumping station at the end

of Crest Avenue. (RA 15)

The Duties of the Detail:

The arbitrator further found that the Pump
Station detail required the officer who had signed up
for it on any given day to report to the DCR office at
7 a.m. and sign in. (RA 15-16) ‘after signing in, the
Pump Station detail officer was free to spend the
first two hours of the detail as he wished, as long as
he arrived at the pump station by 9:00 a.m.” (RA 16)
The detail required the officer to be on duty from 9
a.m. until 3 p.m. for a total of six hours, although
he was authorized to indicate eight hours on his
detail slip. (RA 15-16) During those six hours, the
detail officer was required to remain at the pumping

station or cruise along the truck route to monitor

traffic, and was required to be available if there was
an incident along the truck route that required
attention. (RA 16) A one hour lunch break was

authorized as were bathroom breaks, as needed. (RA 16)?

Charge 1: Filing a false detail slip

At the time of the incident that led to Romeo’s
discharge, he had been a Patrolman for nineteen years
with the Winthrop Police and had been President of the
Union for eleven years. (RA 16) During that time he

had also acquired a law degree and was a member of the

2 > the extent that the Union’s description of the
detail requirements as found by the arbitrator, set
forth in its Brief, differs from these facts, the
Union's description is inaccurate. For example, the
arbitrator did not make a finding that “[t]he 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.” Union
brief, p. 9. Rather the arbitrator found, “[t]he
detail required that the officer was to be available
if there was an incident along the truck route that
required attention. The detail officer was not
required to remain at the Pump Station, but could
cruise along the route as long as the police radio was
on and [he] was able to respond quickly to an
incident.” (RA 16) Neither did the arbitrator find
that “[o]fficers had been permitted by the Chief to
attend negotiations while assigned to a detail.” Union
brief p. 10. Although the arbitrator noted that the
Union contended, among other arguments, that the Chief
“did not examine the past practice of officers
attending negotiations while on a detail”, he made no
finding on the issue and did not further mention the
allegation in his decision. (RA 30-31)

9

Massachusetts Bar. (RA 16) Romeo was not scheduled for
a day shift on November 24, 2014 and signed up for the
Pump Station detail that day. However, as President of
the Union, he was also scheduled to attend a
negotiation session at Town Hall on that date
beginning at 10 a.m. (RA 16, 22) He attended the
negotiation session at Town Hall from approximately 10.
a.m. to 2:30 p.m. on November 24, 2014 and did not go
to the Pump Station between 10:00 a.m. and 2:00 p.m.+
that day. (RA 16) Nevertheless, Romeo submitted a Pump
Station detail slip to be paid for eight hours of work
on November 24, 2014. (RA 16)

The following day, on November 25, 2014, Police
Chief Terence Delahanty checked over the detail slips
from the day before and noticed that Romeo had
submitted a slip for eight hours worked on the pump
station detail, while for five hours of that time he
was engaged in Union-Town negotiations along with the
Police Chief. (RA 16)

Charge 2: Misrepresentation/Lying to the Chief during
the internal investigation

The arbitrator further found that when questioned

by the Chief on December 1, 2014, Romeo explained that

10

it was his understanding from speaking with Steven
Colometo, the DCR Resident Manager who is in charge of
the Winthrop Beach Project and Mike Vikery of the DCR,
who works for Colometo, that the Pump Station detail
was a “floating” detail, “one where you didn’t have to
yemain in one place, but as long as you were available
to respond, you need not remain in a specific
location.” (RA 17-18) Romeo felt that because he
understood it was a floating detail, that he hadn’t
done anything wrong. (RA 17)

When questioned by the Chief, Colometo explained
that the purpose of the detail was to monitor truck
traffic specifically from the Pump Station location.
(RA 18) When asked if the detail was a “floating”
detail, Colometo replied that no, it was a stationary
detail. (RA 18) Colometo also said he did not recall
talking to other officers about it being a floating
detail. (RA 18) The Chief also spoke with Vickery who
confirmed that the Pump Station detail was a
stationary detail to monitor truck traffic on Crest
Ave. (RA 18) Officers Feely, Defreitas, Lt. Frank
Scarpa, and Sergeant Arthur Hickey of the Winthrop

Police Department each confirmed that the Pump Station

1i

detail was a stationary post and that the officer was
expected to remain at the post - at the Pump Station
or along the truck route - except for bathroom and
lunch breaks. (RA 18-19, 23)

The arbitrator further found that on November 24,
Romeo “was aware that the intention of Colometo was to
have an officer at the Pump Station or on the truck
route” and that Romeo had “disobey[ed] the verbal
instructions he had been given by Colometo.” (RA 33,
37)

On December 1, 2014, the Chief placed Romeo on
paid Administrative Leave pending the outcome of an
internal investigation of the November 24, 2014 Pump
Station detail. (RA 17)

Charge 3: Misrepresentation/Lying at the Due Process
Hearing

The Town Manager notified Romeo that he would
hold a Town Due Process hearing to consider Romeo’ s
actions on November 24, 2014 “which might result in
discipline including dismissal for just cause.” (RA
17) The Town Due Process Hearing was held on December
18, 2014. (RA 17) The arbitrator found that Romeo

testified at the hearing that he “explained to the

12

Chief his understanding of what the detail consisted
of, in particular, that he had been informed by
Colometo, Vickery, and Lessard that the only
responsibility for that detail was to be available for
emergencies.” (RA 20) “Romeo testified that his
understanding of the detail is that it was a mobile
detail, it did not have a fixed post.” (RA 20) Romeo
continued that it was his belief, based on the
information that he had, that he would be able to
fulfill the requirements of that detail because it was
a mobile detail and because of the distances involved,
in case of any emergency, he would be available within
a general radius of the actual work site. (RA 20)

On direct examination, Romeo testified at the due
process hearing that on November 24, he followed his
usual practice for the detail which he had worked
three times before that week. (RA 20-21) He arrived at
the police station at 7:00 a.m., picked up an
available cruiser then went to the DCR trailer where
he submitted his slip for the day, putting the start
time of 7 a.m. on the slip. (RA 21) He then left,
keeping his radio on, and returned to the police

station about 9:45 a.m. (RA 21)

13

At the due process hearing, the Chief testified
that the video and card access controls for November
24 showed that Romeo had arrived at the police station
parking lot at 7:24 a.m. in his personal vehicle,
entered the police building at 7:29 a.M., and left the
building at 8:21 a.m. Then, at 9:28 a.m. he entered
the police parking lot again, entered the police
building at 9:32, and at 9:54 he exited the building
to attend the negotiation. (RA 21) At the arbitration
hearing Romeo agreed with the chronology given by the
Chief and explained that his earlier recollection had
been faulty. (RA 21) Following the hearing, the Town
Manager dismissed Romeo as a Police Officer for the
following reasons:

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 the 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 it was unnecessary for you to be
physically present at the detail. Your

14

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 untruthful
which in and of itself constitutes just cause
for your dismissal.

5. The above referenced conduct violates the rules
and regulations of the Department, specifically
4.4.8 integrity, 1.11.2 personal behavior, and
1.11.113 conduct unbecoming an officer.
The above referenced conduct constitutes just
cause for your dismissal as a police officer.
Specifically, there is a strong public policy
against employing police officers who are
untruthful. (RA 24)
Section 1.4.8 Integrity of the Winthrop Police
Department Rules and Regulations states “no Department
member shall under any circumstances make any false

official statements or intentional misrepresentation

of facts. (RA 25, 157)

The Arbitration Hearing

At the arbitration hearing Romeo testified that
on November 24, he entered the police station wearing
his uniform and carrying a radio. He spoke with Lt.
Perrin, informing him he was going over to the

negotiation, but did not mention that he was on a

15

detail. He also did not notify either Colometo or
Vickery that he would be attending a negotiation for
part of the day. (RA 22)

Romeo further testified that negotiations lasted
until about 2:30 p.m. He left Town Hall, turned in the
keys to the cruiser and left the area, driving by the
pump station on his way out of town, about 2:30 p.m.
(RA 22) He stated he received no detail calls on that
day and submitted the DCR slip for 8 hours. (RA 22)

At the arbitration hearing Romeo reiterated
“that it was his understanding that it was a mobile
detail and not fixed” and that “he could perform the
detail being mobile pretty much anywhere in town
because it’s only 1.8 square miles.” (RA 22) When
asked what led him to believe it was a mobile detail
and not fixed, Romeo stated “that when he inquired of
Colometo the responsibility of the officer with the
cruiser, Colometo replied that he just wanted the
officer to be available if something should happen.”
(RA 22) When Romeo checked with Lt. Lessard, the
officer stressed that you have to be available. (RA
22) “When asked on cross examination if, according to

his understanding, it would be permissible to stay in

16

a house in Winthrop all day as long as he were
available, Romeo responded that it could satisfy his
detail obligation,” but that it would be inappropriate

to do so. (RA 23)

Arbitration Decision:

First Charge - Filing false detail slip

In the Discussion section of his decision, the
arbitrator determined that “Tilt was Romeo's belief
that his physical location, while waiting for a call,
was flexible, he believed Town Hall was an acceptable
location, and that it was reasonable to position
himself there, given the requirements of the detail.”
(RA 32) The arbitrator concluded that Romeo “was
performing all the tasks of working the detail for
some 5 hours that day, albeit from an unapproved
location.” (RA 33) Based on his finding that Romeo
“fulfilled the tasks of working the Pump Station
detail that day, albeit from a location that had not
been approved,” he concluded that Romeo “was acting
honestly when he submitted the DCR bill for November

24, 2014.” (RA 33)

17

Second Charge: Misrepresentations During The Internal
Investigation

The arbitrator found that “[o]n December 1, 2014,
Romeo simply gave his opinion to the Chief about the
detail based on conversation with Colometo.” (RA 35)
“Romeo believed, albeit erroneously, that the detail
gave wide latitude as to where the officer might work
from, and this is what he conveyed to the Chief.
Colometo, on the other hand, expected the officer to
sit at the Pump Station or drive on the truck route.”
(RA 35) Although the arbitrator also found that on
November 24, Romeo “was aware that the intention of
Colometo was to have an officer at the Pump Station or
on the truck route (RA 37) and further that Romeo had
“disobey[ed] the verbal instructions he had been given
by Colometo (RA 33), the arbitrator concluded, “IT find
that he did not lie to the Chief during the
investigation on December 1, 2014.” (RA 35)

Third Charge: Misrepresentations During Due Process
Hearing

The arbitrator found that ‘f{ajlthough Romeo’ s
testimony at the Town hearing was inaccurate, I do not
find it was intended to deceive. Rather I find that it

was a failure to recollect accurately what had

18

occurred on the morning in question.” (RA 36) The
arbitrator concluded that there was no deliberate

misrepresentation on Romeo’s part. (RA 36)

Discipline and Award:

The Arbitrator concluded that the Town had not
proven any of the three charges and that there was no
just cause for the termination of Romeo. (RA 37) The
arbitrator further concluded that 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 or his
shift commander, but worked the detail from
that unauthorized location. For this action,
he shall be given a Written Letter of
Warning for not following the Pump Station
guidelines. (RA 37)

The arbitrator ordered that Romeo be made whole
for all lost wages and penefits, less offsetting

income. (RA 14, 37)

The Town’s Complaint:

The Town filed an action to vacate the
Arbitration Award in Superior Court pursuant to G.L.
c. 150C, §11(a). (RA 7-13) The Town alleged, inter
alia, that the arbitrator exceeded his authority in

intruding upon an area reserved for the judgment of

19

the Town and Police Chief, and by making an award
contrary to well-defined and dominant public policy
which mandated discharge in the circumstances. (RA 10-
12) In its Memorandum of Law in Support of Plaintiff's
Motion for Judgment on the Pleadings, the Town argued
that the arbitrator exceeded his authority and was in
violation of public policy such as to require that the

award be vacated. (RA 119-130)

Superior Court Decision:

In vacating the Arbitration Award, the trial
court judge concluded that the Arbitrator had exceeded
his authority and that the decision to reinstate Romeo
violated a well-defined, dominant public policy. (RA
217-218) Specifically, the trial court judge found, as
did the Arbitrator, that Romeo was aware of the
Detail’s rules, including the intention of Colometo to
have an officer present at the Pump Station or on the
truck route, and that he nevertheless represented to
the Chief a belief that he couid perform the detail
from anywhere in Winthrop. (RA 217) The trial court
judge determined that based on the Arbitrator’s

conciusion that Romeo “was aware that the intention of

Colometo was to have an officer at the Pump Station or

20

the truck route” on which he based his sanction of a
written warning, there was no evidence to support the
arbitrator’s conclusion that Romeo reasonably believed
he could perform his duties from an unapproved
location. (RA 217-218) “The arbitrator’s decision to
credit Officer Romeo’s unfounded and erroneous belief
in the absence of any supporting evidence, while at
the same time crediting that he was expected to be at
the detail [location], would allow future police
officers to disregard the rules of their assignments
and seek shelter from all consequences if they simply
assert a “belief” that they were justified in their
failure to follow department rules.” (RA 218).

The trial court judge further found that Romeo’ s
failure to perform the detail at the time and place
assigned, and his dishonesty throughout the course of
the internal investigation and subsequent hearings,
compounded by his unwillingness to take responsibility
for disobeying the Detail’s rules, required dismissal
and that any lesser sanction would violate the well-
defined, dominant public policy that dishonesty by

police officers will not be tolerated. (RA 216-217)

21

ARGUMENT

I. THE TRIAL COURT JUDGE PROPERLY VACATED THE

THE TRIAL COURT JUDGE PROP.

ARBITRATION AWARD
“When an arbitrator makes a binding award
pursuant to a collective bargaining agreement, a
Superior Court judge may vacate or alter the award if,
inter alia, it was procured by “corruption, fraud oF
other undue means,” the arbitrator was evidently
corrupt or partial, or “the arbitrator exceeded his or

her powers.” City of Boston v. Boston Police Superior

officers Federation, 466 Mass. 210, 213 (2013) quoting

G.L. c. 150C, § 11; see School Comm. of West

Springfield v. Korbut, 373 Mass. 7188, 792

(1977) (question of whether arbitrator acted in excess
of authority is always open for judicial review). “An
arbitrator exceeds his authority by granting relief
beyond the scope of the arbitration agreement, by
awarding relief beyond that to which the parties bound
themselves, or by awarding relief prohibited by law.”
Plymouth-Carver Reg'1l Sch. Dist. v- J. Farmer & Co.,
Inc., 407 Mass. 1006, 1007 (1990) (internal citations
omitted). A judge may also vacate an arbitration award

if the record before the arbitrator shows no support

whatever for the arbitrator's determination. Concerned

22

Minority Educators of Worcester V.- School Committee of
Worcester, 392 Mass. 184, 190 (1984) and cases cited.
Arbitration, it is clear, may not ‘award relief
of a nature which offends public policy.” Bureau of
Special Investigations V- Coalition of Public Safety,

430 Mass. 601, 603 (2000); City of Boston v. Boston
Police Patrolmen’s Ass'n, 477 Mass. 434, 442 (2017) (if
an arbitration award violates public policy, courts
are obliged to refrain from enforcing it). The
question of whether an arbitration award offends
strong public policy is ultimately one for resolution
by the courts and not by arbitrators. City of Boston

v. Boston Police Patrolmen’s Ass'n, 443 Mass. 813, 818

(2005). “Where an employee performs his employment
duties and, in doing so, violates standards,
restraints, and restrictions on conduct which have
been clearly and explicitly established by the people
in their laws, a labor arbitration award which
requires that the employer suffer that malperformance
and not discharge the employee violates the same well-
established public policy, and is subject to vacatur.”
School District of Beverly v. Geller, 50 Mass. App.

School District of Pever y=

ct. 290, 294 (2000), aff'd 435 Mass. 223 (2001).

23

Accordingly, in this case, the trial court
judge’s determination that the Arbitration Award
exceeded the authority of the Arbitrator and that it
violated public policy was a proper basis on which to

vacate the award.

A. The Trial Court Judge Acknowledged And Applied
The Proper Standard Of Review

In this case, the trial court judge acknowledged
the limited role involved in the judicial review of an
arbitrator’s decision and award. In her Memorandum of
Decision the trial court judge wrote, quoting City of
Boston, 443 Mass. at 818, “{t]he 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 whether it is wise or foolish,
clear or ambiguous.” (RA 215) The trial court judge
also recognized that an “arbitrator’s award will only
be vacated in the limited circumstances set forth in
G.L. c. 150C, §11 (a) (1)-(5).” (RA 216) The trial court
further noted that “{njotwithstanding my serious
concern about the propriety of the extreme deference

that courts are required to give an arbitrator’s

24

decision, this Court is still required to apply it.”
(RA 215) .

The Union argues in its brief at p- 43 that based
on this stated distaste, the trial court judge
disregarded the appropriate standard of review, made
independent findings and credibility determinations to
vacate the arbitrator’ s award.

The trial court judge here is not the first
judge, and will likely not be the last, to criticize
the limited extent of judicial review of arbitration

awards. in City of Boston v. Boston Patrolmen’s

Association, 477 Mass. 434 (2017) decided in July and
involving the review of. an arbitration award that
reinstated a police officer who had been terminated
for use of excessive force, the Supreme Judicial Court
stated that “[w]ithout doubt, a de novo analysis of
whether [the officer's] actions constituted excessive
force in the totality of the circumstances could
support a conclusion very different from the one
reached by the arbitrator,” and commented that it was
“troubled by the prospect that any use of force not
explicitly prohibited by a rule of conduct is

essentially unreviewable.” Id. at 444, 446. The Court

25

continued its admonition stating, “{il]t is difficult
to fathom why we elevate the values of “expediency”
and “judicial economy” so high as to eclipse the
substantive rights of citizens who have no seat at the
bargaining table.” Id. at 446-447. Despite the Court’s
comments and evident dismay, the SJC, nevertheless,
applied the governing limited standard of review, as
did the trial court judge in this case.

B. The Arbitrator’ s Finding That Romeo Worked The
Detail And That He Was Not Dishonest Exceeded

His Authority

General Laws Cc. 41, S97A states in relevant part

,

as follows:
The chief of police in any such town shall
be in immediate control of all town property
used by the department, and of the police
officers, whom he shall assign to their
respective duties and who shall obey his
orders.

This statutory provision, “by its plain language,
confers non-delegable authority over the assignment
and organization of the officers within the

department.” City of Boston V Boston Police Superior

officers Federation, 466 Mass. 210, 215 (2013)? Relying

3In Town of Andover V. Andover Police Patrolman’s
a case

Union, 45 Mass. App- Ct. 167, 169-170 (1998),
under G.L. c. 41, §97A, the Appeals Court rejected the

26

on City of Boston V- Boston Police Patrolmen’s Ass'n,

41 Mass. App- Ct. 269, 272 (1996), the court

continued:
considerations of public safety and a
disciplined police force require managerial
control over matters such as staffing
levels, assignments, uniforms, weapons,
definition of duties, and deployment of
personnel. . - .” City of Boston, 466 Mass.
at 215 (emphasis added).

A nondelegable authority may not be delegated to
an arbitrator, even with the parties’ consent.” Id. at
216. “{T]he assignment of police officers pased on the
needs of public safety and the definition of duties is
within the exclusive managerial prerogative of the

chief, and accordingly cannot be bargained away.” Town

of Dartmouth v- Dartmouth Police Brotherhood, 85 Mass.

App. Ct. 4114 (2014) (Rule 1:28)

In this case, the arbitrator found that the Pump
Station detail required the officer who had signed up
for it to be on duty from 9 a.m. until 3 p.m. for a
total of six hours, although he was authorized to

indicate eight hours on his detail slip. (RA 15-16)

argument that City of Boston V- Boston Police
Patrolmen’s Ass'n, 41. Mass. App. Ct. 269 (1996) was
distinguishable because that case rested on a Special
Act defining a commissioner’s authority rather than

that of a police chief.

27

During those six hours, the detail officer was
required to remain at the pumping station or cruise
along the truck route to monitor traffic, and was
required to be available if there was an incident
along the truck route that required attention. (RA 16)
A one hour lunch break was authorized as were bathroom
preaks, as needed. (RA 16)

The Arbitrator further found that Colometo, the
DCR Resident Manager in charge of the Winthrop Beach
Project, “expected the officer to sit at the Pump
Station or drive the truck route” (RA 35), that Romeo
was aware that the intention of Colometo was to have
an officer at the Pump Station or on the truck route
(RA 37), that Romeo had disobeyed the verbal
instructions he had been given by Colometo, and that
he had not followed the Pump Station guidelines. (RA
33, 37)

Tt was within the managerial authority of the
Chief and DCR, not the arbitrator to designate the
duties of the pump station detail which had been
created for the public safety to assist the traffic in
connection with the work being carried out on the

Winthrop Beach Nourishment Project. (RA 15) As such,

28

it was beyond the arbitrator’s authority to rewrite
the duties of the pump station detail and conclude
that Romeo “fulfilled the tasks of working the Pump
Station detail that day, albeit from a location that
had not been approved” (RA 33) or that he “performed
all the tasks of working the detail for some 5 hours
that day, albeit from an unapproved location” where
remaining at the Pump Station or along the truck route
was a duty and task of the detail, a condition of
working the detail of which Romeo was well aware. “A
police chief's authority to assign his officers
particular duties has long been held to be a matter

which concerns public safety.” Taunton v. Taunton

Branch of the Massachusetts Police Ass'n, 10 Mass.

App. Ct. 237, 243 (1980) and cases cited. The issue of
public safety and police duties is not subject to an
arbitrator’s decision and is, in fact and law, beyond
an arbitrator’s authority. Here, the arbitrator
substituted his own judgment regarding the duties and
tasks of the Pump Station detail to find that Romeo
had worked the detail on November 24 or that he
reasonably believed he could perform the detail from

anywhere in town which was beyond his authority to do.

29

Likewise, the arbitrator's finding that despite
Romeo’s awareness of the detail’s rules, including the
intention of Colometo to have an officer present at
the Pump Station or on the truck route, “{ijt was
Romeo’s belief that his physical location, while
waiting fora call, was flexible, he believed Town
Hall was an acceptable location, and that it was
reasonable to position himself there, given the
requirements of the detail” (RA 32) and the
arbitrator’s finding that Romeo’s representation to
the Chief of a belief that he could perform the duties
of the detail from Town Hall was reasonable, and not
dishonest, was beyond the arbitrator’s authority. See
City of Boston, 477 Mass. at 445(“Had the city
prohibited choke holds as excessive force, an
arbitrator who found a choke hold reasonable would
have exceeded his authority.”).

an arbitrator’s characterization of conduct is
not determinative where he found facts and described
facts in manner that clearly established prohibited

conduct. See School District of Beverly Vv. Geller, 435

Mass. 223, 231 (2001) (Cordy, J.,

concurring) (arbitrator’s characterization of conduct

30

not determinative where he found facts and described
facts in manner that clearly established conduct to be
Yeonduct unbecoming a teacher.”) In this case, Section
1.4.8 of the Winthrop Police Department Rules and
Regulations states “no Department member shall under
any circumstances make any false official statements
or intentional misrepresentation of facts.” (RA 25)
The Law is replete with examples of what constitutes
intentional misrepresentation which clearly
encompassed Romeo’s conduct as found and described by

the arbitrator. See Commonwealth v. Paquette, 475

Mass. 793, 799 (2016) (under G.L. c. 268, § 13B making
it illegal to willfully mislead a police. officer,
“mislead means to knowingly make a false statement, to
intentionally omit information from a statement
causing a portion of that statement to be misleading,
or to intentionally conceal a material fact and
thereby create a false impression.”); Giuffrida v.

High Country Investor, Inc., 73 Mass. App. Ct. 225,

239 (2008) (in some circumstances, even half-truths may

constitute serious deception); Kannavos Vv. Annino, 356

Mass. 42, 48 (1969) (fragmentary information may be as

31

misleading as active misrepresentation, and half-
truths may be as actionable as whole lies).

In this case, the arbitrator substituted his own
judgment regarding the duties and tasks of the Pump
Station detail to find that Romeo had worked the
detail on November 24, and that Romeo reasonably
believed he could perform the detail from anywhere in
town, which was beyond his authority to do.

Additionally, a judge may vacate an arbitration
award if the record before the arbitrator shows no
support whatever for the arbitrator’s determination.

Concerned Minority Educators. of Worcester, 392 Mass.

at 190 and cases cited.

In this case, there was no evidence -to support
the arbitrator’s finding that “Romeo believed, albeit
erroneously, that the detail gave wide latitude as to
where the officer might work from and this is what he
conveyed to the Chief” (RA 35) or that “on December 1,
2014, Romeo simply gave his opinion to the Chief about
the detail based on conversation with Colometo” (RA
35) where the arbitrator found that the detail
required the officer’s presence at the pump station or

on the truck route (RA 16) and further that Romeo “was

32

_ aware that the intention of Colometo was to have an
‘officer at the Pump Station or on the truck route,”
and that Romeo had disobeyed the verbal instructions
he had been given by Colometo. (RA 33, 37)

Here, the trial court judge properly determined,
relying on the findings of the arbitrator, statutory
provisions and applicable case law, that the
arbitrator’s decision and award exceeded his authority
such that the award must be vacated. The arbitrator’s
findings clearly established both that Romeo had not
performed the duties of the detail on November 24
although he submitted the slip to be paid for working
the detail that day, and further that Romeo made
intentional misrepresentations to the Chief regarding
the duties of the detail, and his belief regarding the
requirements of the detail, when questioned on

December i, 2014 and at later hearings.

C. Public Policy Mandated Romeo’s Discharge

YArbitration, it is clear, may not award relief
of a nature which offends public policy.” Bureau_of

Special Investigations, 430 Mass. at 603. Whether an

award violates public policy is “ultimately one for

resolution by the courts and not by arbitrators.” City

33

of Boston, 443 Mass. at 818. In determining whether
the public policy exception requires the vacation of
an arbitrator’s award, courts apply a three-part
analysis. City of Boston, 477 Mass. at 442.

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.’ Second, the exception does not
address “disfavored conduct in the abstract,
but disfavored conduct which is integral to
the performance of employment duties.”
Finally, [the courts] 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.” 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. Id. at 442-443 (internal citations
omitted)

As the trial court judge found in this case, it
is a well-defined, dominant public policy that
dishonesty by police officers will not be tolerated.
See City of Boston, 443 Mass. at 823. Furthermore, the
courts have recognized that honesty is integral toa
police officer’s performance of his or her employment
duties. Id. at 823 (“strong public policy, “explicit,
well-defined, and dominant,” that police officers be

truthful and obey the law in the performance of their

34

official duties.”); Robichau_v. Town of Middleboro, 24

MCSR 352 (2011) (“The duty imposed on a police officer
to be truthful is one of the most serious obligations
he or she assumes, because, among other things, it may
compromise the officer's ability to serve as a
credible witness in the prosecution of a criminal
case.”)

An appointing authority has the right to take
disciplinary action against an officer, even as far as
to terminate him or her, when the officer has shown a
“demonstrated willingness to fudge the truth in
exigent circumstances” because “police work frequently
calls upon officers to speak the truth when doing so
might put into question a search or might embarrass a

fellow officer. Town of Falmouth v. Civil Service

Commission, 61 Mass. App. Ct. 796, 801 (2004) citing

City of Cambridge v. Civil Service Commission, 43

Mass. App. Ct. 300, 303 (1997) see also Pearson Vv.
Town of Whitman, 16 MCSR 46, 47 (2003) (termination of
police sergeant affirmed because “an officer that has
lost his credibility can no longer effectively perform

the duties of the position.”)

35

The Winthrop Police Department Rules and
Regulations further support that honesty and integrity
are essential duties of a police officer. Section
1.4.8 of the Winthrop Police Department Rules and.
Regulations, entitled “Integrity”, states “no
Department member shall under any circumstances make
any false official statements or intentional
misrepresentation of facts.” (RA 25)

In this case, the trial court judge properly
accepted the arbitrator’s findings, and properly
disregarded those findings that exceeded the
arbitrator’s authority, to determine that Romeo’ s
failure to perform the detail at the time and place
assigned, and his dishonesty throughout the course of
the internal investigation and subsequent hearings,
compounded by his unwillingness to take responsibility
for disobeying the Detail’s rules, required dismissal
and that any lesser sanction would violate the well-
defined, dominant public policy that dishonesty by
police officers will not be tolerated. (RA 216-217) An
officer who is found to be untruthful and who shrouds
his own misconduct in an extended web of lies and

perjured testimony corrodes the public’s confidence in

36

its police force and can no longer perform an
essential function of the job such that termination is
required. City of Boston, 443 Mass. at 823. See
Geller, 50 Mass. App. Ct. at 294 (awards in
arbitration proceedings held pursuant to collective
bargaining agreements which reinstate discharged
employees will not be upheld if the public policy
violated by reinstatement relates to the employment
and the offense in question goes to the heart of the
employee’s responsibilities). Accordingly, in this
case, the trial court judge properly determined that
the arbitration award, reinstating Romeo to his
position as a police officer, violated a clearly
defined and dominant public policy and exceeded the
arbitrator’s authority, and properly vacated the
award.

II. THE APPEAL OF THE DENIAL OF THE UNION’S

REQUEST FOR ATTORNEY'S FEES AND COSTS

PURSUANT TO G.L. c. 231, § 6F SHOULD BE
DISMISSED.

The Union argued in the Superior Court that it is
entitled to attorney’s fees and costs under G.L. c.
231, S6F because the Town knowingly drafted a

complaint that ignored the Arbitrator’s conclusions,

37

as well as case law establishing that any reviewing
court would be bound by those conclusions, and
requests that the case be remanded to the Superior
Court for reconsideration of the Union’s request.
(Appellant Brief p. 49)

First, the Union’s argument ignores the
substantial volume of case law where arbitration
decisions and awards have been vacated because the
findings or award was in excess of the arbitrator’s
authority, was not based on any evidence before the
arbitrator, or violated public policy. “Although
arbitration decisions are given great deference, they
are not sacrosanct.” City of Boston, 443 Mass. at 823.

Second, the Town contended in its Complaint and
in the Superior Court, as it does here, in good faith
and with a basis in fact and law, that the
arbitrator’s decision and award exceeded his authority
and violated public policy such that it must be
vacated. The trial court judge, Fahey, J., in an
independent analysis and review of the law and
arguments, determined that the arbitrator had indeed
exceeded his authority, that the award violated public

policy and, properly vacated the award.

38

Third, the award of any relief under G.L. c. 231,
§ 6F, requires that the judge determine that “all or
substantially all of the claims, defenses, setoffs or
counterclaims . . . made by any party represented by
counsel during most or all of the proceeding, were
wholly insubstantial, frivolous and not advanced in
good faith... .” In this case, the trial court
judge vacated the arbitration award on the grounds
alleged in the Town’s Complaint and which it argued in
its Memorandum and at the trial court hearing. (RA
119-130; 169-190) The trial court judge issued a
judgment in the Town’s favor, precluding a
determination that the action was wholly insubstantial
and frivolous.

Finally, an appeal from a decision concerning a
motion for attorney’s fees and costs pursuant to G.L.
c. 231, § 6F must be brought pursuant to G.L. c. 231,
§ 6G, which prescribes an expedited process requiring
notice of appeal to be filed within ten days after
receiving notice of that decision and, if as here, the
matter arises in the superior court, “the appeal shall
be to the single justice of the appeals court.” G.L.

c. 231, § 6G; Ben v. Schultz, 47 Mass. App. Ct. 808,

39

810 n. 2 (1999) “The function of the single justice
hearing the appeal is to conduct a ‘review on the
basis of the subsidiary facts as found by the trial
court judge.’” Id. at 814 quoting Miaskiewicz v.
LeTourneau, 12 Mass. App. Ct. 880, 882 (1981). In
addition, a finding under §6F may be made and affirmed
under §6G, but any award granted has no freestanding
effect until all appeals of the underlying judgment
are completed. Ben v. Schultz, 47 Mass. App. Ct. at
814.

Therefore, the appeal of the trial court judge’s
denial of the Union’s request for attorney’s fees and
costs under G.L. c. 231, § 6F is not properly included
in this Appeal and the Appeals Court has no authority
to remand the issue to the Superior Court as the Union
requests or to order other relief. As such, the

Union’s appeal on this issue should be dismissed.

CONCLUSION
For the foregoing reasons, the order of the trial
court vacating the Arbitration Award should be
affirmed, and the appeal of the denial of the Union’s
request for attorney’s fees and costs pursuant to G.L.

c. 231, § 6F should be dismissed.

40

For the Plaintiff-Appellee,
Town of Winthrop,

/s/Howard L. Greenspan
HOWARD L. GREENSPAN, ESQ.
BBO # 210420
200 BROADWAY, SUITE 304
LYNNFIELD, MA 01940
(781) 598-4545
September 2017 hgreenspan@greenspanlawyers.com

RULE 16(k) CERTIFICATION

I, Howard L. Greenspan, Esq., counsel for the
Plaintiff-Appellee, Town of Winthrop, hereby certify
that this brief complies with the rules of Court that
pertain to the filing of briefs.

/s/Howard L. Greenspan
Howard L. Greenspan

CERTIFICATE OF SERVICE

I, Howard L. Greenspan, Esq. hereby certify that
on this date I served the Brief of the Plaintiff-
Appellee, Town of Dartmouth, by electronic
filing/eFileMA to: Patrick N. Bryant, Esq. and Ian 0.
Russell, Esq., Pyle Rome Ehrenberg PC, 2 Liberty
Square, 10 Floor, Boston, MA 02109.

Signed under the pains and penalties of perjury this
26th day of September, 2017.

/s/Howard L. Greenspan
Howard L. Greenspan

4