APB - Police Union News Roundup: GPS, Public Records, Gun Licenses
Here we discuss a few developments of particular interest toward our public safety union clients.
1. Employers Cannot Implement Tracking Devices (aka GPS) Without Bargaining, State Hearing Officer Rules. In one of the first known decisions of its kind, a Department of Labor Relations hearing officer agreed that a public employer must provide notice and an opportunity to bargain before installing GPS in municipal vehicles. The decision pertained to Springfield DPW workers and is likely to be of interest to police office and fire fighter unions. The devices allowed the employer to identify location, idle times, distance driven, number of stops and speed of DPW vehicles. The Employer never previously monitored this activity.
The Hearing Officer found that authority relied upon by the City of Springfield, which included an unpublished dismissal and an advisory opinion by an unrelated agency, were not relevant. She also determined that GPS devices were unlike the surveillance camera upheld in a case with Duxbury School Committee, and the timeclock upheld in a case with the City of Taunton. Those cases involved a change in technology, rather than a change in performance or productivity standards. The DPW employees here were being subject to new, real-time standards evaluating their performance.
The Hearing Officer's decision, issued last November, is subject to appeal to the Commonwealth Employment Relations Board.
2. Criminal Records of Public Employees, including Police Officers, May Be Exempt From Disclosure. The Boston Globe recently reported a series of decisions by the Secretary of the Commonwealth allowing public employers to withhold criminal records of public employees. The Secretary administers the public records law. In that capacity, the Secretary reviews appeals by persons upset by a governmental body's handling of a request for public records.
Governmental records are presumed to be public. While exceptions are rare, they are critical to the functioning of government. The Globe summarized recent decisions by the Secretary: "Boston police can withhold the names of five police officers caught drunken driving. State Police can withhold the report on an officer who was arrested. North Andover can refuse to release booking photos of a state trooper. And, the Department of Correction can withhold its entire log of people incarcerated in the state prison system." The Secretary has indicated that names of police officers charged with criminal offenses can be released around the initiation of criminal process, but not later.
These decisions provide discretion to employers to withhold potentially damaging information about employees. Public safety unions are encouraged to confer with employers to determine how they plan exercise this discretion.
The Secretary's decisions, while favorable to public employees, are not final and can be overturned or modified by Massachusetts courts. The Supreme Judicial Court has the final say on the proper interpretation of exemptions to the public records law.
3. Police Chief Authority on Firearms Licenses. In the case of Worcester Police Chief v. Holden, the Supreme Judicial Court unanimously upheld against Constitutional challenge the right of police chiefs to deny or revoke firearms licenses to individuals who are not a "suitable person." The applicant here, Holden, had his license revoked and his application for a new license denied after he engaged in domestic violence against his wife. The decision states: "Holden punched his wife in the face, walked around to the passenger's side door, and pulled her out of the vehicle. He threw her to the pavement and then drove away. She suffered a swollen lip, a scratch over her right eye,
and scrapes and bruises on her left arm."
On appeal, Holden argued that (1) the "suitable person" standard violates the Second Amendment; (2) the statutory scheme as to the suspension and revocation of licenses and the denial of license applications violates procedural due process because it is devoid of any provision for a hearing before the chief, and because it makes no provision for an aggrieved person to confront and cross-examine witnesses in the District Court; (3)
the "suitable person" standard is unconstitutional as applied to him because it allows the chief to disqualify him permanently from licensure as an unsuitable person without current cause; and (4) the decisions of the chief were not supported by substantial evidence.
The SJC ruled against Holden on all counts. While the decision is not specific to public safety unions, one can anticipate that public employers may rely on this decision to argue for greater Chief authority to revoke police officer licenses without a proper hearing or basis. The decision did not discuss the intersection of firearms licenses and collective bargaining, and should not be read to entitle Chiefs to circumvent civil service or contractual protections.
