Nolan | Perroni. PC and NEPBA win significant case v. Governor of New Hampshire

NP partner Peter Perroni and the NEPBA recently secured a very important labor victory against the Governor of New Hampshire, who had refused to present a favorable contract arbitration award (fact finding - similar to JLMC process in MA) to the Governor's Council for approval. After a full hearing before the NH Public Employee Relations Board, a hearing officer found that the State acted in bad faith when it failed to present the award, and when it dealt directly with employees in an attempt to circumvent the union.

This decision is a positive result for the NEPBA's state groups, and also will greatly benefit statewide bargaining units across NH. The ruling is important as it clarifies that the governor cannot simply refuse to present the Award to the Governor's Council in an attempt to stop the contract process.

Click here to read the decision. It has a good explanation of what constitutes direct dealing by an employer, an area of law that is similar in most states.

Nolan | Perroni and NEPBA win case vindicating Union President - and protecting important union rights

The NEPBA and Nolan | Perroni PC recently won an arbitration case involving an NEPBA Board Member and Local 500 president. The Middlesex Sheriff's Office had imposed discipline on the union president after he had a discussion with a supervisor involving the assignment of overtime. When the MSO supervisor questioned the union president, the president - standing strong for his members - replied that he did have a problem with the way that overtime was being distributed because that particular supervisor was "a liar, a thief, and took money from union member's pockets."

When the MSO disciplined the president for the comments, the Union took the case to arbitration and we secured a very favorable award. In essence, the Arbitrator ruled that the President's speech, while he was acting in his representational capacity, was protected. The arbitrator ruled that was no just cause for discipline because the president was raising a legitimate issue of concern to his members. The full explanation can be found in the attached decision.

Click here for the ruling.

What is actually in my personnel file? How long do public employers keep records? Request form included below.

HOW LONG DO PUBLIC EMPLOYERS KEEP CERTAIN RECORDS?

Municipal employers in Massachusetts generally retain records as per the Commonwealth's Municipal Retention Schedule - click this link for it:
https://www.sec.state.ma.us/ARC/arcpdf/Municipal_Retention_Schedule_20200406.pdf

Regarding specifically Police Agencies, two sections of this schedule are significant. First, the personnel records section, common to all municipal departments, is located on p. 23, and it addresses the retention of traditional personnel information (as opposed to investigation materials, complaints, etc.)

Of more relevance these days, however, is the Police agency retention schedule set out on p. 94-100. Here are some highlights and the retention periods:

-16.011 - Civilian Complaints w/ no officer named - 4 yrs after investigation is closed;

-16.012 - Civilian Complaints, substantiated - 7 yrs after close of investigation;

-16.013 - Civilian Complaints, unsubstantiated - 5 yrs after close

-16.018 - Disciplinary Files resulting from admin. reprimand - 7 yrs following closure, and then maintained with p-file;

-16.019 - Disciplinary Case file from civilian complaint - same as 16.018;

-16.034 - IA Files - 7 yrs after closure;

-16.063 - Administrative Reprimands - permanent (but see below);

-16.064 - Reprimands from Civilian Complaint - 7 yrs after closure (but see below).

IMPORTANT NOTES

Some CBA’s or policies have provisions allowing for certain things to be removed from personnel records. The personnel records law - GL c. 149, Sec 52C - does allow for items to be removed from a the personnel record by agreement. It also provides for penalties for failure to give employees notice that info was placed into thier records.

HOW DO I CHECK WHAT IS ACTUALLY IN MY FILE?

The law requires that employers allow employees to review their files and actually get a complete copy upon request. We have incorporated this legal obligation into the request form below. Each employee wishing to review his/her file must submit the request individually. Given the recent climate, everyone should know what is in his or her personnel record - and if something is missing or something is included in error, request that the record be corrected.

Click here for the Form

Worcester Police Patrolman Press Release regarding Detail Compensation and Police Reforms

Following the annual media publication of 2019 city salaries, the Worcester Police Patrolman's Union, NEPBA Local 911, issued its annual press release explaining that some $12,000,000.00 of police compensation was not salary, but was in fact generated by officers working 244,000 extra hours above and beyond their shifts. Additionally, 2/3 of that money was paid by private industry. The union also explained that the City's administrative fee - earned off the backs of police detail work - alone was enough money for the city to employ about sixteen new teachers.

The Union also responded to local officials' calls for police reform using the extremely positive use of force data from Worcester, instead of the national data that does not remotely reflect what is happening locally.

Read the Press Release here

Nolan Perroni wins court battle for police seniority benefits - NEPBA Carver Police

In 2018, NP attorney Gary Nolan won an arbitration case which overturned a 20-year practice that deprived NEPBA Carver's police officers of seniority benefits. The town appealed to Superior Court, where NP attorney Peter Perroni defendend the arbitrator's decision. The Superior Court issued its decision this week affirming the union's victory in full, which will result in years of back benefits for NEPBA members, and even more importantly, will impact pension benefits for affected officers going forward.

This case is another example of the long-term commitment - both resources and resolve - required by unions to ensure that it hold on to its hard won benefits. Congratulations to the NEPBA Carver union leadership who pushed the envelope for thier members.

Read the SUPERIOR COURT DECISION here.

Read the ARBITRATION DECISON here.

COVID Update: police asked to enforce mandatory mask rules - new job duties must be bargained first

While many communities fluidly react to the current health emergency, there are mixed messages to first responders about their roles in enforcing fluctuating public health policies. In addition to the anxiety of conducting usual law enforcement activities within the circumstances of a pandemic, police officers are now flooded with such things as calls from anonymous tipsters about a perceived lack of social distancing, creating new job duties, added friction with citizens, and an increased workload for public safety workers already shouldering a difficult burden. The latest addition to this workload, in some areas, is the new duty to enforce mandatory face covering rules. Unfortunately, the mixed messages continue.

While some states and communities are implementing these rules, details about enforcement are often unclear. Some governments say they are looking for voluntary compliance, while others say all options are on the table, including the right to arrest. Some say they will issue fines, while others say they will issue masks. Some communities have excellent public education campaigns ahead of enforcement, and others simply post new board of health orders on a website, ultimately leaving it to the police to figure out. Concerns are all over the map. Some Governors have said such locally issued laws are unenforceable. Advocacy groups are suggesting that police action will unfairly impact minority populations in violation of civil rights, while others claim that such enforcement is a depravation of other constitutional rights.

As usual, police officers asked to blindly enforce such rules, without proper guidance or liability protection from policy makers, are at risk. Police on the front line depend upon a cooperative relationship with the public, which relationship keeps both the officer and the public safe. A lack of clarity on this issue may put both the citizens and law enforcement at a higher risk for confrontation - something neither wants. For example, take a look at what happened in Philadelphia when police had to react to a non-compliant individual without a mask: CLICK HERE FOR VIDEO. It is imperative that policy makers make sure not to put their first responders in a no-win situation.

Bargaining Recommendation.

Law enforcement unions are reminded that, as a general rule, changes to job duties are mandatory subjects of bargaining. Prior to any such new duties, communities should sit down with unions, discuss and bargain over decisions to make such changes, as well as the impact those decisions will have on the job duties of its police officers, including:

  • what clear directives will be given to police regarding enforcement? Will people be arrested, fined, will masks be given out, by whom, is there officer discretion, in what scenarios, etc.?

  • will the local government first educate the public about expected law enforcement reaction? In what way? Are officer expected to perform such education?

  • what is the appropriate police action in the many potential scenarios? Are officers expected to use force where there is resistance? What about passive resistance situations? What about instances where suspects are many? What amount of police resources are expected to be dedicated in a given situation?

  • there have ben reports of attacks on officers - people spitting on police, etc. What actions are being taken and are necessary to protect the health and safety of the officers implementing such orders? If multiple officer interact with a non-complaint detainee who claims to be infected, will all officers be required to quarentine? What is the leave policy in that case?

  • will the community defend and indemnify officers from lawsuits - including claims of constitutional and civil rights violations?

  • as officers are asked to perform new duties which could logically result in them contracting infection (and passing it on to thier own families and others), will officers be compensated additional hazardous duty pay?

  • has the city or town explored other ways to enforce such orders, including by health officials rather than police? Boards of health often have the ability to delegate enforcement capabilities to others, such as local inspectors - has the local government explored delegating such enforcement to non-police? Should Board of Health hire individuals to enforce?

Unions faced with new rules such as described above should file a demand to bargain with their employer, asking that all such decisions be put on hold until the above bargaining can take place. Demand information and answers to the above questions, and any others that are germane. Where the employer refuses, a labor law violation complaint may be appropriate (remember: bargaining is intended where a change is taking place, so if a collective bargaining agreement or existing rule already addresses the situation, then a change is not necessarily occuring. CBAs and current policies should always be consulted).

Mass. Supreme Court issues sweeping decision on digital surveillance - Very important roadmap for criminal cases impacted by technology

On April 16, 2020, the Massachusetts Supreme Court issued a decision that may likely set the standard for the use of digital technology in criminal cases. The case is Commonwealth v. McCarthy (SJC-12750), and involved the tracking of an individuals movements over a period of time by use of ALPR cameras (license plate recognition). The opinion is a must read for law enforcement, particularly detectives, police supervisors and any others who may be using digital applications to track (or to look back at) the movements of individuals.

Some important highlights:

  • the court gives a good overview of the history of how use of developing technology will result in a constitutional search - incuding cell phone, GPS and Automatic License Plate Recognition;

  • affirms that while a particular instance of digital surveillance might not, alone, be a constitutional search, the piecing together of a larger digital picture likely will be (i.e. looking at movements and patterns on GPS or ALPR, etc.);

  • when analyzing whether a constitutional search took place (which would need a warrant and PC), the court made clear that it will consider not just data ultimately sought to be used by law enforcement, but also what data was requested or even looked at - in other words, the entire scope and duration of the data search;

  • the court will also consider location of the surveillance, for exampe license place cameras placed in senstive areas (residential, near religious institutions) will be scrutinized more than those on highways, etc;

  • importantly, the court suggested that police will need to preserve every search query it makes regarding an individual (not just those that resulted in useful data) and also must share that information in discovery.

The opinion goes into a good history of the evolution of surveillance technology and its effect on the expectation of privacy. Again, it is a must read for criminal investigators and detectives.

Click here for the full decision.

First Circuit issues very significant decision protecting police from personal liability - new rule of law

In a colorfully written 53-page opinion very important for police officers, the US First Circuit Court of Appeals has ruled that the “community caretaking function,” previously only applicable to automobile searches and seizures, is now applicable to private premises, including residences. The case is Canglia v. Strom, and was issued March 13, 2020.

In this case, officers were called to a very common scene – an individual with apparent mental health problems and firearms in the house. The individual was persuaded to undergo a mental health exam, and his firearms were taken to avoid harm to others in the event he was immediately returned home. The officers were sued for unlawful seizure of the person and the weapons. The court found that they were not liable and issued this very wide sweeping opinion in favor of police.

This case will provide significant protection from personal liability for police officers, and also protect against defendants’ claims of 4th amendment violations. In issuing the opinion, the Court readily acknowledged the seemingly never-ending list of responsibilities that fall to police in keeping the community safe. For example, the court stated:

“There are widely varied circumstances, ranging from helping little children to cross busy streets to navigating the sometimes stormy seas of neighborhood disturbances, in which police officers demonstrate, over and over again, the importance of the roles that they play in preserving and protecting communities. Given this reality, it is unsurprising … the Supreme Court determined, in the motor vehicle context, that police officers performing community caretaking functions are entitled to a special measure of constitutional protection (holding that warrantless search of disabled vehicle's trunk to preserve public safety did not violate Fourth Amendment). We hold today — as a matter of first impression in this circuit — that this measure of protection extends to police officers performing community caretaking functions on private premises (including homes).”

1. What is the Community Caretaking exception to the warrant requirement?

The court explained:

“The community caretaking exception derives from Cady, a case in which the Supreme Court upheld the warrantless search of a disabled vehicle when the police reasonably believed that the vehicle's trunk contained a gun and the vehicle was vulnerable to vandals. …The Cady Court explained that police officers frequently engage in such "community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." … Police activity in furtherance of such functions (at least in the motor vehicle context) does not, the Court held, offend the Fourth Amendment so long as it is executed in a reasonable manner pursuant to either "state law or sound police procedure." … In reaching this conclusion, the Cady Court noted the "constitutional difference between searches criminal investigatory process. ... On the other hand, the emergency aid exception is typically employed in scenarios in which an individual within a dwelling has already been seriously injured or may be about to sustain such injuries in a matter of moments.

Since Cady, the community caretaking doctrine has become "a catchall for the wide range of responsibilities that police officers must discharge aside from their criminal enforcement activities." …In accordance with "this evolving principle, we have recognized (in the motor vehicle context) a community caretaking exception to the warrant requirement." Elucidating this exception, we have held that the Fourth Amendment's imperatives are satisfied when the police perform "non-investigatory duties, including community caretaker tasks, so long as the procedure employed (and its implementation) is reasonable." ..Police officers enjoy wide latitude in deciding how best to execute their community caretaking responsibilities and, in the typical case, need only act "within the realm of reason" under the particular circumstances. Until now, we have applied the community caretaking exception only in the motor vehicle context.

2. In ruling for the first time that the community caretaking exception is applicable to private homes, the court gave a special nod to the role of the officer, and the discretion needed to perform such an important role, and held:

“Today, we join ranks with those courts that have extended the community caretaking exception beyond the motor vehicle context. In taking this step, we recognize what we have termed the "special role" that police officers play in our society. … After all, a police officer — over and above his weighty responsibilities for enforcing the criminal law — must act as a master of all emergencies, who is "expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing, and provide an infinite variety of services to preserve and protect community safety." … At its core, the community caretaking doctrine is designed to give police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention. …Understanding the core purpose of the doctrine leads inexorably to the conclusion that it should not be limited to the motor vehicle context. Threats to individual and community safety are not confined to the highways. Given the doctrine's core purpose, its gradual expansion since Cady, and the practical realities of policing, we think it plain that the community caretaking doctrine may, under the right circumstances, have purchase outside the motor vehicle context.

3. The court went on to describe the great difficulty, and often no-win positions in which police find themselves:

“[W]e also remain mindful that police officers have a difficult job — a job that frequently must be carried out amidst the push and pull of competing centrifugal and centripetal forces. Police officers must sometimes make on-the-spot judgments in harrowing and swiftly evolving circumstances. Such considerations argue persuasively in favor of affording the police some reasonable leeway in the performance of their community caretaking responsibilities.

Last — but surely not least — encounters with individuals whom police reasonably believe to be experiencing acute mental health crises frequently confront police with precisely the sort of damned-if-you-do, damned-if-you-don't conundrum that the community caretaking doctrine can help to alleviate. If police officers are left twisting in the wind when they take decisive action to assist such individuals and prevent the dreadful consequences that might otherwise ensue, they would be fair game for claims of overreach and unwarranted intrusion. Conversely, if the lack of constitutional protection leads police officers simply to turn a blind eye to such situations and tragedy strikes, the officers would be fair game for interminable second-guessing…”

4. Police do not have a free pass with this exception – so what are the limits? How will officers' conduct be reviewed?

The court explained the analysis:

“As a starting point, police officers must have "solid, non-investigatory reasons" for engaging in community caretaking activities. …They may not use the doctrine as "a mere subterfuge for investigation." Leave to undertake caretaking activities must be based on "specific articulable facts," sufficient to establish that an officer's decision to act in a caretaking capacity was "justified on objective grounds," ..Then, too, those actions must draw their essence either from state law or from sound police procedure.

What is considered “sound police procedure?”

The court held that "sound police procedure" need not involve the application of either established protocols or fixed criteria. “We have defined sound police procedure broadly and in practical terms; it encompasses police officers' "reasonable choices" among available options. …There is, moreover, "no requirement that officers must select the least intrusive means of fulfilling community caretaking responsibilities."... Even so, community caretaking tasks must be narrowly circumscribed, both in scope and in duration, to match what is reasonably required to perform community caretaking functions. …The acid test in most cases will be whether decisions made and methods employed in pursuance of the community caretaking function are "within the realm of reason."

Bargaining Recommendation

This new rule of law may impact how officers on the street, and their supervisors, make everyday decisions in cases where there might not be probable cause to arrest, but there remains a need to act to avoid imminent harm. Unions should request that Departments issue training and guidance to officers in light of the Court's ruling in Caniglia v. Strom (March 13, 2020), and this case may impact both criminal cases and civil liability of officers.

Nolan Perroni wins Significant Retirement Case for NEPBA Chelmsford

Despite consistent demands by the union, the Town of Chelmsford has refused to treat as pensionable the EMT compensation paid to its police officers. The union has a contractual provision that pays officers a 2.5% increase for EMT certifications, and a 6% increase when more than 50% of the bargaining unit is certified. The Town would not credit either of the payments as pensionable, which decision hurt its retired police officers for years.

Ultimately, PERAC issued an opinion splitting the difference, ruling that the only the lower amount was regular compensation, and calling the 6% payment "contingent" and, therefore, not pensionable. The local retirement board was bound by the PERAC ruling. NEPBA Local President Frank Goode and NP attorney Gary Nolan appealed.

The Massachusetts Division of Administrative Law Appeals agreed with the union, and clarified in great detail the reasons why the union was entitled to the entire 6% payments, regardless of the contractual contingency. Because compensation stipends are so common in the public sector, this case demonstrates why it is so important for unions and individual employees to be vigiliant in ensuring they are receiving pension credit for their hard earned benefits.

Click here to read the full decision

Union Contracts, Collective Bargaining, and COVID-19

With a public health state of emergency impacting the entire nation, first responders are among the select group of essential employees working outside of the home. With almost daily changes to working conditions, several labor questions have arisen. Unions have cooperated with local governments in making staffing and other changes during this crisis, while at the same time they work to preserve and protect their members' contractual benefits, which are, of course, needed now more than ever.

Nolan | Perroni is attaching 3 documents helpful to local unions:

ADVICE MEMO. A brief explanation regarding both the validity of your union contract and bargaining rights during a state of emergency, as well as some suggestions for emergency bargaining;

DRAFT AGREEMENT TO EXTEND GRIEVANCE DEADLINES. A draft word document you can edit for your local so that you may cooperate with your employer now, and preserve your union's rights to file contractual grievances later; and

DRAFT COVID-19 LEAVE POLICY. The NEPBA has led the charge on paid leave, filing legislation to protect law enforcement in New England. While many communities are cooperating in not penalizing law enforcement who do require leave, this is not the same everywhere. Places that do not reach agreement on this issue may need to address disputes through the grievance process. In the meantime, locals may be able to reach short term agreements with municipalities to cover their members. Attached is a model policy designed for that purpose.

Cities and towns are grappling with these same issues, and many unknowns exist. We will update as further information becomes available.

Arbitrator Rules Tyngsborough Police Officers entitled to "Premium Detail Rate"

Attorney Gary Nolan represented NEPBA Locals 8A and 8B in this important arbitration victory for the unions. Here, the union, negotiated a special detail rate of pay for certain jobs that occurred on holidays, weekends, overnights, etc. As is typical, the union agreed to a discounted rate for jobs performed by the Town and paid for with Town funds. At the bargaining table, the union made clear that the reduced rate would not apply when private vendors performed the work.

Initially, the town followed the intended rules for several projects, and paid the officers accordingly. Suddenly, for no apparent reason, it decided to stop paying officers the premium rate on qualifying jobs, even where the work done by private vendors as part of a bidded contract. The town claimed that because the projects were paid for by Mass. Highway (Ch. 90) money, the town considered that to be "town funds" once the state approved of the project. The arbitrator disagreed, and ordered all officers to be compensated, with interest.

A couple of important notes - first, no good deed goes unpunished. Here, the intent of the agreement was obvious - the town gets a discount if its employees (i.e. DPW, etc.) are doing the work requiring a detail. To avoid an employer taking advantage like this, be sure to spell out clearly what is intended when negotiating such a discount in your CBA. Be specific.

Also - this case was largely proved through the town's own documents, requested during the arbitraton process. The union made several specific demands for information, including the formal highway accounting reports that the Town must file for all Ch. 90 road projects. These reports were extremely helpful. In them, the Town certified each time that the projects were paid for by 100% State funds, and Zero local funds. These state certifications removed any credibility from the town's newly conceived claim that the funds were, in fact, local funds.

Click here for the full decision

How much money does your City earn from police overtime and detail pay?

This is a good time to ask how much money your employer made from your details

Local media often requests year-end compensation numbers from Cities and Towns - so they can highlight police salaries. What they often do not report is how much of those salaries are earned through working overtime, how much is paid or reimbursed by private industry, or how much revenue the City or Town earns from its administrative fees. Also left out of the coverage are thousands of hours of uniformed police presence on the street entirely subsidized by private industry.

Prepare yourself to respond to such reporting by getting the accurate information from your employer - a simple request will do the trick. Click here for the form.

Misconduct during JLMC Arbitration - Insurance Company tells town, "you're on your own."

When an exhaustive investigation by NP Attorney Gary Nolan and the NEPBA revealed that deciept, ex-parte communications, and a secret back-channel with a JLMC arbitration panel member led to the Chelmsford Town Meeting's vote to reject an arbitration award, the Union took action. So far, the Massachusetts Department of Labor has found probable cause to issue several complaints against the Town. More recently, as reported in the Lowell Sun, the primary municipal insurance company in Massachusetts has told the town and its agents that they are not covered for such conduct, leaving the bill, once again, to the taxpayers.

Read the full article here.

NP Overcomes Extensive Video Footage to Win Use-of-Force Case. Important ruling by arbitrator regarding intentional v. accidental force.

Overcoming the challenges of modern video technology, NP Attorney Gary Nolan recently won an important use-of-force case on behalf of NEPBA Local 500. Through the presentation of expert testimony, Gary convinced an arbitrator to completely exonerate the officer.

The employer’s investigation lasted more than a year, and produced an internal affairs report hundreds of pages long, supported by video footage shot from several modern video surveillance cameras. Breaking down the camera angles to split second frames, Gary, together with the defensive tactics expert retained by NEPBA, was able to demonstrate that the force used was entirely reasonable, and, in fact, did not even constitute a knee strike, as was alleged by the employer.

The arbitrator made an important distinction when it comes to evaluating force actions such as knee strikes, etc., finding: “A ‘knee strike’ is not just any kind of blow using the knee. It is a term of art that covers several techniques for hitting an opponent on the front or side of the body with the knee. Knee strikes are rather complex, learned skills, the objective being to generate power from the torque of the body, the strength of large muscles, and sometimes from momentum, and to direct that power into the knee. Thus, a knee strike is manifestly an intentional act. It cannot occur by accident.”

The case is attached and is worth reading to get a sense of how these matters are viewed from an arbitrator’s perspective. Click below for a link to the decision.

This case was an example of the downfalls of modern technology when it comes to fast moving, use of force actions. Here, the employer discarded the testimony of every one of the eyewitnesses, including many of its own supervisors, present during the incident, and drew its own conclusions based on how it perceived the video footage after the fact. There is a great deal of pressure on employers to do this, and it is another reason why it’s important for unions to have legal and labor support systems willing to look beyond video footage, and who will seek opinions from credible, respected experts, in order to analyze force actions.

Click here to read the full decision.

Massachusetts Legislature creates new rights for Public Sector Unions

Recently, the Massachusetts Legislature enacted House Bill 3854, over the Governor’s veto. This brand new law was passed specifically to respond to the U.S. Supreme Court’s decision in Janus v. AFSCME. The legislation allows unions to require non-dues paying members to pay in advance for expected costs and attorneys fees in certain matters brought on behalf those non-dues payers. Importantly, the bill went further to create new union rights, including the right to:

• Meet with employees on the employer’s premises during the workday to investigate and/or discuss work related issues, grievances, etc.

• Conduct worksite meetings during breaks and before and after the workday to discuss workplace issues, collective bargaining negotiations, the administration of collective bargaining agreements and other matters related to internal union matters;

• Meet with newly hired employees without charge to the pay or leave time of the employees for a minimum of 30 minutes (i.e. can be longer) within the first ten (10) calendar days after the date of hire, during new employee orientation or, if the employer does not have a new orientation, at individual or group meetings;

• Use public employer email systems for union-related matters, provided doing so does not create an unreasonable burden on network capability or system administration (remember there remains no expectation of privacy, however); and

• Use government buildings and other facilities that are owned or leased by government entities to conduct meetings with members regarding collective bargaining negotiations, the administration of collective bargaining agreements, the administration of any investigation of grievances, other workplace related complaints and issues and internal union matters involving governance or business of the union.

Public employer’s that refuse to allow unions the above rights and benefits will be in violation of the collective bargaining law, GL c. 150E, for failing to bargain in good faith.

Another day, another Union Official indicted for misuse of union funds. Are you prepared to respond to a subpoena?

Are your union financial books in order?

2019 has seen a flurry of labor union indictments and investigations into labor union financial records. Police and other labor unions around the Commonwealth, and accross the country, have been the subject of grand jury subpoenas resulting in indictments of leadership officials. In the past week alone we saw:

  • the indictment of the State Police Union president;
  • a leader of a major trade union indicted;
  • In June, an office, a Methuen Police Patrolman's Union official indicted;
  • Earlier this year, it was reported that the Somerville Police Union may be the victim of $50,000-$90,000 funds embezzled by a union official.

Of course, we are aware of other active investgations that are ongoing.

It is difficult and time consuming to monitor and reconcile financial records, credit card statements, expense receipts, income statements, etc. - but it must be done. It is harder to see red flags when treasuries are flush with cash - no bounced checks, missed payments, etc. However, the fact that plenty of money is in the treasury is when a treasury may be most vulnerable to misuse.

With all the recent attention on union funds, take this opportunity to get your union's books in good shape:

  • Put together a group of people to share the work and to provide more sets of eyes on the information
  • Look for red flags in credit card statements, checks written, expense reports (if you read the paper, you can see that is what investigators are looking at)
  • Address and resolve any concerns or questions
  • Document everything properly so you can avise your members (and anyone else that might be compelling information)
  • consider hiring a bookeeper or professional if the project is too cumbersome or complicated.

BODY CAMERA NEGOTIATION BULLETIN

NP Attorney Gary Nolan spent a couple of days last week immersed in training about forensic examination of video evidence. For us, two primary issues with video are (1) use in disciplinary / use of force cases and (2) negotiation of body worn camera policies. Many area police investigators were in the seminar, and it's safe to say most of us were blown away by the potential for video to tell a completely inaccurate story. That is not to say it cannot be very helpful, but storage and replay issues can make the video be extremely misleading. The instructor, a nationally recognized expert/FBI instructor, told us that calling video a "silent witness" is an extremely dangerous concept. We have been challenging such technical issues in cases, but only recently have fact finders begun to question the reliability of video.

For example, did you know that digital video is made up of a series of still snapshots pieced together (think about the old cartoon flip-books)? A surveillance video might take 15 snap shots per second, which is very low and unreliable when trying to determine speed or force, or small movements, etc. The scary thing is that with digital video, many of the snap shots are not actually real, but are computer generated predictions - so it is not uncommon for the image to not reflect reality. Think of the dangers in a use of force case where a prediction frame is missing data of someone moving.

We also learned about how data is compressed for storage purposes, or is significantly altered when playing video on something other than the original software that recorded it (like a VLC player downloaded from the web). Frames and data may be removed from the original, altering speed and appearance. This increases the appearance of force and speed. We were shown a video where a police officer was charged criminally for slamming a suspect's head off of the ground extremely hard and fast. After a public outcry to fire and charge the officer, a forensic video review was conducted. The video was fixed back to its original form - and amazingly showed the officer literally placing the suspect gently onto the ground - and it was clear that the head never even came into contact with the ground. Insane.

I am attaching a recent article from the Int. Assoc. of Police Chiefs addressing some of these issues. A couple of thoughts that occurred to us about bargaining: as a threshold issue, unions should propose that (1) all original data be preserved and produced the union upon request, and (2) that the Department have any such video reviewed and certified as accurate by a forensic video analyst prior to any charging decisions relative to the officer, and in order to be used as evidence against the officer. Anyone who educates themselves as to these issues, including prosecutors and police management, would have difficulty arguing with any of this, as it really protects everyone - police, municipalities and citizens.

Article is attached here.

USE OF FORCE BULLETIN: Court rules Boston Police liable for bystander's injuries during pat-frisk shootout - a must read (unfortunately).

The Supreme Court told us years ago that split-second decisions regarding uses of force must not be second guessed in the calmness of the judge's chambers - so much for that. Second guessing based on compressed and often flawed video has become the new normal. Add to that this recent Appeals Court case and it is more than apparent why stress levels of police officers are on the rise.

Here, a 911 call reported a threat to kill a victim. Officers arrived and during a pat-frisk, the suspect pulled out a gun and began shooting at the officers. During the ensuing gun fight, the suspect was killed, but a stray bullet from an officer hit another person (the party in danger to begin with) in the leg. She sued the officer's for negligence and won. The appeals court upheld - stating that there was no need to conduct a sudden unnanounced pat frisk - and that police should have known about the potential violent reaction. The jury awarded more than $250,000.00 to the plaintiff.

It is important to read the facts of this case - the court went into detail about the circumstances. It is more important than ever for officers to document the dangerous circumstances that were the basis for their actions. It is more and more clear that second guessing is happening and support of first responders is waning.

Click here to read the case

FORENSIC VIDEO SEMINAR

Because of all of the video evidence in labor cases, our lawyers will be undergoing evidence training on forensic video analysis. We have had success challenging aspect of videos in use of force cases - often they are compressed or abbreviated in ways not apparent without technical discovery.

We plan to make trainings available to local unions starting sometime in September. Please reach out if you might be interested. We will keep you posted on this.