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

Mandatory Vaccination Policy? Legal Primer for Unions

Click below for a short primer on collective bargaining rights relating to mandatory vaccination policies. The attached overview is less than 2-pages, and it attempts to answer the primary questions related to this issue.

NP MANDATORY VACCINATION PRIMER

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.