Arbitrator Finds Discipline By Melrose Police Chief Issued Without Due Process or Just Cause

Attorney Patrick Bryant recently helped Melrose Police Patrolmen's Association overturn discipline against officers who allegedly abused or used sick leave to excess. Association Collective bargaining agreements frequently provide a certain amount of sick leave to use, and also the circumstances under which sick leave can be used. Some contracts also specify the circumstances in which sick leave use can lead to an investigation or discipline. Many contracts do not require employees to produce a doctors note for every single absence. That's because it is unreasonable to expect that employees beset by a cold or fever be able to obtain a doctors appointment on that day, especially where such an appointment may provide no medical benefit.

In Melrose, the City and the Melrose Police Patrolman's Association agreed to language that specifically entitled members to a certain amount of sick leave a year. In the past, Chiefs issued policies that required officers to report sick leave to the supervisor on duty, and to provide a physicians note after three consecutive days of sick leave. Otherwise, the Chief never defined or attempted to define what constitutes improper use of sick leave.

On his own and without telling the members, the Chief determined that use of an annual allotment of sick leave demonstrates that the officer is abusing sick leave, at least where the leave is not supported by a physicians note or pursuant to statutory rights. The Chief also claimed that use of sick leave in conjunction with paid days off was abusive, but he only reviewed when the sick leave is used after he determined an officer used at least the annual amount of sick leave.

Here, the Chief disciplined officers who used at least their annual allotment and did so without providing them an opportunity to explain their sick leave. The Chief assumed that use of annual amount of sick leave automatically is abusive. This assumption is a fairly simple and stark violation of due process.

The Arbitrator ruled that the Chief's discipline, issued without interviewing the officers and based entirely on statistical evidence of the amount of sick leave and when it was used, is unsupported by just cause. He ordered that the discipline be expunged from the files.