PAX Centurion - September / October 2015

www.bppa.org PAX CENTURION • September/October 2015 • Page 43 The truth about lying Legal Notes: John M. Becker, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association F rom the point of view of your BPPA reps and attorneys, the hardest thing to defend is a lie. When a police officer engages in misconduct and lies when confronted or questioned about it, either orally or in writing, or leaves damaging facts out of a report in a situation when they normally should be recorded, the officer has made the job of the BPPA and its lawyers many times more difficult and has jeopardized his (or her) job security that much more. It is always easier todefend themisconduct than todefend the officer’s decision to lie about it. Many arbitrators agree with the oft-repeated refrain of management that a police officer’s credibility is essential to his ability to do his job, which involves testifying in court. So, while arbitratorsmay apply normal principles of progressive discipline and disparate treat- ment to most misconduct cases, they are more likely to use a higher standard for a case of police untruthfulness. Accusations of lying, or ‘untruth- fulness’ as bureaucracies have renamed it, have always been a concern for public safety employ- ees, but such allegations became evenmore dangerous in 2005, when theMassachusetts Supreme Judicial Court (SJC) decided to rewrite the rules for courts reviewing arbitration decisions. The case is question is City of Boston v. BostonPolice Patrolmen’sAssociation , 443Mass. 813 (2005) and it involved allegations against a Boston police officer and BPPA member. The officer was accused of alleged misconduct during an encounter with two citizens who were in a double-parked car. The two individuals left the car and therewas an altercationwith the officers. Arrestsweremade. In the aftermath, the officer stated that the individuals had assaulted him and he brought charges against them. On the other hand, the occupants of the car alleged that the officer used excessive force against them. After an internal investigation, the BPD concluded that the officer had used excessive force and had been untruthful about the encounter. The officer was discharged. TheBPPAfiledagrievanceover thediscipline,whicheventuallywent to an arbitrator. BPPAattorneyAlanH. Shapirowas able to demonstrate that the officer did not use excessive force and that the alleged victims were not credible. Shapiro and the Union also put on evidence of seri- ous misconduct by other officers that did not result in termination. The arbitrator’s ruling was a mixed bag. On the one hand, she agreed that the officer did not use excessive force. She also agreed with the Union that the evidence (especially the comparative discipline of other officers) did not justify a termination. The arbitrator ordered the officer reinstated with a one-year suspension. But the arbitrator also found that the two citizens did not assault the officer, and so, according to her, the officer was lying about that aspect of the case. In the course of her award, the arbitrator repeatedly stated that the officer had lied – first about the assault by the citizens, then when he wrote his report, then when he filed assault charges, then in front of the Department investigator and finally while under oath at the arbitration hearing. The problem was this: the facts as found by the arbitrator cannot be overturned by any Court. While we were thankful for the findings that the officer did not use excessive force and should not have been fired, we were stuck with a very unpleasant finding – that the officer had lied. Although the arbitration awardwas a ‘win’for the officer, theBPPA, and attorney Shapiro, the repeated language about lying was a red flag that attracted the attention of all who read the decision. Not surpris- ingly, the BPD appealed the decision to court – both the Superior Court and Appeals Court reluctantly upheld the arbitrator based on the very broad deference that courts traditionally give to arbitration awards. The theory goes that unions and employers have bargained to have an arbitrator, not a judge, resolve their disputes. This is good because: (1) it puts labor disputes in the hands of experts who know how to interpret collective bargaining agreements; (2) it reduces the number of cases that the courts have to handle; (3) arbitration is usu- ally faster than Court; and (4) it promotes labor peace between the parties. Because of this policy of broad deference, it was almost unheard of for a Court to overturn an arbitration decision. Unfortunately, there was a weak link in the chain holding back the courts, and that link was called the “public policy exception.”Years earlier, the SJC(andother courts around the country, including the federal system) had created a loophole for thosewhowanted to challenge arbitrators’ awards (those challengers are almost always employers, by the way). Even though the arbitrators’ facts and interpretation of the contract were essentially untouchable, if an employer could show that an arbitration award violated a strong public policy, the Court would overturn the award. The Court put caveats on the exception: (1) the strong public policy had to be articulated in laws and regulations, not just generalities; (2) the Court cautioned that it wasn’t good enough for the award to violate the public policy, it had to really violate it (or legalese to that effect). Employers latched onto this loophole as a life preserver to save them from drowning in the seas of judicial deference. They used it most frequently in cases where an arbitrator had ordered the reinstatement of an employee who had been discharged. In such cases, the courts stated, the question was not whether the misconduct violated the public policy, but whether reinstating the employee would violate that policy. Despite the existence of this loophole, time and again, the courtswho examined the public policy exception found that it did not apply. City of Lynn v. Thompson, 435 Mass. 54 (2001), was probably the high-water mark for judicial deference. In the case, a police officer had attempted to remove a woman from her home pursuant to a commitment order and in doing so, broke the woman’s arm. The officer was fired for using excessive force, but the arbitrator found that the forcewas commensurate with the circumstances and the unexpected breaking of the armwas not the result of anywrongdoing. The employer cited a public policy against using excessive force, but the Court dismissed the claim, saying that it could not change the facts and the arbitrator found no excessive force. But the tide began to turn in the next case, School District of Beverly v. Geller , 435 Mass. 223 (2001), in which an arbitrator found that a See Lying on page 44