As noted in an earlier post, Arbitrator Phillip Dunn upheld the termination of a police officer after the Chief revoked his license to carry a weapon. Police officer who lost license to carry weapon properly terminated. In contrast, according to a report in the Worcester Telegram, the Massachusetts Superior Court confirmed an award of Arbitrator Roberta Golick reinstating an officer who had similarly been denied renewal of a license to carry. Ruling backs former Worcester officer accused of pointing gun at teens.
The officer had initially been terminated for allegedly pointing a handgun at three teenagers in his neighborhood while off duty. During the investigation of that incident his license to carry expired and the Police Chief declined to renew it. Arbitrator Richard Higgins overturned that termination (here), and the Massachusetts Appeals Court rejected the City's claim that that award violated public policy. O'Brien v. New England Police Benevolent Association, Local 911.
After Arbitrator Higgins' award, the City again terminated grievant's employment, claiming in part that his lack of a license to carry disqualified him. It was this decision that Arbitrator Golick overturned. In her decision Arbitrator Golick observed:
... the Chief is not swayed by and disagrees with the facts found by
Arbitrator Higgins relative to [grievant's] conduct in the Tory Fort Lane incident; the Chief stated publicly
after the Higgins award that the Department would do everything it could do to prevent [grievant] from
returning. How did it do that? First, it challenged the Higgins award in Court. Second, it launched a
collateral attack on the officer’s qualifications to serve as a police officer by cutting off any legal route
for him to be able to carry a gun. Ensuring that [grievant] could not secure a License to Carry was not
merely an attempted end-run around Higgins’s directive to reinstate [rievant] to his position; it was and
is an attempted end-run around the contract’s just cause provision. If all it takes for a department to
permanently rid itself of an unwanted officer is to revoke the officer’s Chapter 140 §131 License to Carry
a firearm and withdraw permission to carry a weapon under Chapter 41 § 98, then an officer’s
contractual right not to be discharged except for just cause is meaningless. Just cause for dismissal is
not established by the unadorned fact that a chief exercises his discretion to refuse to issue an
employee a firearm.9 What is essentially the Department’s dissatisfaction with Arbitrator Higgins’s
findings and ruling does not provide just cause under the collective bargaining agreement to discharge
[grievant].
The City sought unsuccessfully to vacate Arbitrator Golick's award. According to the report, the Superior Court concluded:
[T]he arbitrator found that the city did not have just cause to terminate [the officer] because he did not have a license to carry a firearm ...The arbitrator noted that the city had not shown that possession of a license to carry a firearm was a necessary job requirement for a Worcester police officer. The arbitrator further found that even if possession of a license to carry a firearm was a requirement of the job, the officer could waive such a requirement, and he had done so in the past.
The Appeals Court affirmed that decision (here), rejecting the City's claim that the award was contrary to public policy
The Daily Worcesteria links to Arbitrator Golick's award here.
[This post has been updated and revised]
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