MAJOR WIN FRAMINGHAM MA CHIEF OF POLICE…..

https://www.mass.gov/files/documents/2018/07/10/17P1178.pdf
TOWN OF FRAMINGHAM vs. FRAMINGHAM POLICE OFFICERS UNION.
No. 17-P-1178.
Middlesex. March 9, 2018. – July 10, 2018.
Present: Lemire, Ditkoff, & McDonough, JJ.
Municipal Corporations, Police, Collective bargaining. Police,
Assignment of duties, Collective bargaining. Public
Employment, Police, Collective bargaining. Labor, Police,
Collective bargaining. Arbitration, Collective bargaining,
Police. Injunction. Practice, Civil, Preliminary
injunction.
Civil action commenced in the Superior Court Department on
March 2, 2017.
A motion for a preliminary injunction was heard by Maynard
M. Kirpalani, J.
Christopher J. Petrini for the plaintiff.
Dennis M. Coyne for the defendant.
2
DITKOFF, J. The town of Framingham1 appeals from a Superior
Court order denying its motion for a preliminary injunction
against the arbitration of a police officer’s transfer to the
patrol division. We conclude that the transfer and assignment
of police officers is within the exclusive managerial authority
of the police chief as a matter of public safety pursuant to
G. L. c. 41, § 97A, and may not be delegated or contravened
through arbitration or collective bargaining. This is so even
where it is claimed that the transfer or assignment was
motivated by the police chief’s perception of the officer’s
misconduct. Furthermore, we conclude that a municipality
seeking to enforce its statutory rights to exclusive managerial
authority need not show irreparable harm to be entitled to a
preliminary injunction. Accordingly, we reverse the order
denying the preliminary injunction.
1. Background. Officer Matthew Gutwill is a police
officer in the Framingham police department (department) and a
member of the Framingham Police Officers Union (union). The
terms of Officer Gutwill’s employment are governed by the
collective bargaining agreement (CBA) entered into by the union
and Framingham on May 12, 2016.
1 The town of Framingham became the city of Framingham on
January 1, 2018. The legal issues in this case are not affected
by the change in status.
3
In 2004, Officer Gutwill began working for the department
in the patrol division and was then transferred to the detective
bureau, where he served from 2006 to 2008. In Framingham, an
assignment to the detective bureau does not confer the rank of
detective in the department. It is a specialty assignment
distinguished from the patrol division based on the position’s
role and job requirements, rather than senior employment status
within the department. As a detective, Officer Gutwill received
a weekly stipend and a more flexible schedule.
In 2008, Officer Gutwill was as
4
On September 22, 2015, Officer Gutwill lodged a complaint
with the department, alleging misconduct against another
detective in the department. The complaint triggered a fourmonth
internal investigation, and Officer Gutwill was displeased
with its result. Officer Gutwill also claimed that he was
subjected to workplace harassment by members of the department
in retaliation for making allegations against a fellow
detective.
In January, 2016, he was informed that the department
intended to rotate him out of the DEA task force at an
undetermined date to an undetermined position. The department
maintains that the transfer was dictated by sound risk
management policy to provide opportunities for other officers,
to allow rotated officers to share specialized knowledge and
experience within the department, and to reduce entrenchment and
other concerns associated with so-called “high risk positions.”
Officer Gutwill, by contrast, suspected the reassignment was
made in retaliation for his initial and ongoing complaints.
Officer Gutwill sought to air his concerns to the police
chief in a February 5, 2016, telephone call. During the
conversation, Officer Gutwill allegedly made several
inflammatory statements to the police chief. Officer Gutwill
claimed that a deputy chief lied while testifying in a criminal
case, and that another deputy chief was implicated in other
5
misconduct through a Federal wiretap recording. Officer Gutwill
also expressed that he was unable to work with fellow detectives
as a result of what he believed was retaliatory harassment, and
that his complaints were being ignored by the department. Based
on these claims, Officer Gutwill told the police chief that he
planned to file a complaint with the Massachusetts Commission
Against Discrimination, and stated something to the effect that
he would “turn the place upside down.”
In response, the department retained an attorney on
February 16, 2016, to conduct an independent investigation of
Officer Gutwill’s accusations. The investigation commenced on
March 1, 2016, and continued through July, 2016, during which
time Officer Gutwill’s reassignment was delayed pending the
outcome of the investigation. After substantial inquiry, the
investigator issued a report dated July 14, 2016, determining
that the allegations of retaliation were without merit. Despite
the absence of any suggestion in the investigator’s report that
Officer Gutwill was dishonest,3 the police chief accused Officer
Gutwill of denying to the investigator that he made various
statements in the February 5, 2016, telephone call.
3 Indeed, the investigator repeatedly stressed that Officer
Gutwill “raised his concerns in good faith.” Framingham asserts
in its brief that the investigator issued two reports finding
that Officer Gutwill was untruthful to her. No evidence of that
has been presented to us or, so far as we can discern, to the
Superior Court judge.
6
Based on the police chief’s accusations, Officer Gutwill
was placed on paid administrative leave on August 19, 2016,
through December 12, 2016, when he was suspended for five days
without pay.4 According to the department, the suspension
resulted from violations of rules prohibiting “untruthfulness”
concerning Officer Gutwill’s denial of the statements made to
the police chief on February 5, 2016.
When Officer Gutwill returned to duty on December 19, 2016,
after his suspension, he was reassigned from the detective
bureau to the patrol division. The department cited “a variety
of reasons” for the transfer, “including an independent
investigator’s finding that he was untruthful during an official
investigation,” in determining “that it was in the
[d]epartment’s best interest to assign him to the [p]atrol
[d]ivision.” Officer Gutwill immediately challenged the
4 While on administrative leave, Officer Gutwill filed a
civil complaint in the United States District Court for the
District of Massachusetts, predicated on the same factual
accusations, pursuant to 42 U.S.C. § 1983. In the Federal
lawsuit, Officer Gutwill seeks, inter alia, reinstatement to the
DEA task force as a detective with full fringe benefits and
seniority rights, treble damages for his lost wages, benefits,
and other remuneration, with interest, as well as additional
compensatory and punitive damages. As of this date, the Federal
lawsuit remains pending. Nothing here should be construed as
expressing any opinion about the merits of the Federal lawsuit.
7
decision in a verbal grievance, which was denied by the police
chief.5
The union responded by submitting a written grievance on
behalf of Officer Gutwill on December 21, 2016, alleging that
his reassignment from the detective bureau to the patrol
division constituted “discipline” without “just cause,” in
violation of the CBA. The union requested the immediate
reinstatement of Officer Gutwill to the detective bureau. The
department denied this grievance on the ground that the
Legislature had declared that the assignments of police officers
is “an exclusive managerial prerogative” not subject to
collective bargaining. The Framingham town manager upheld the
denial. Pursuant to the CBA, the union filed a demand for
arbitration on January 17, 2017, on behalf of Officer Gutwill.
On March 2, 2017, Framingham filed a civil complaint and
moved for a preliminary injunction enjoining arbitration, which
was duly opposed by the union. After a hearing, a Superior
Court judge (motion judge) denied the preliminary injunction in
a decision entered June 28, 2017.6 We have jurisdiction over
5 According to the union, Officer Gutwill also appealed his
suspension to the Civil Service Commission. At oral argument,
Framingham represented that this appeal ultimately was
withdrawn.
6 Apparently by agreement of the parties, no arbitration
proceedings on the matter have been held pending this court’s
decision.
8
Framingham’s interlocutory appeal pursuant to G. L. c. 231,
§ 118.7 See Massachusetts Correction Officers Federated Union
v. Bristol, 64 Mass. App. Ct. 461, 464 (2005); DeCroteau
v. DeCroteau, 90 Mass. App. Ct. 903, 903 (2016).
2. Standard of review. “We review the grant or denial of
a preliminary injunction for abuse of discretion.” Eaton
v. Federal Natl. Mort. Assn., 462 Mass. 569, 574 (2012). In
doing so, we determine “whether the judge applied proper legal
standards and whether there was reasonable support for his
evaluation of factual questions.” Doe v. Superintendent of
Schs. of Weston, 461 Mass. 159, 164 (2011), quoting
from Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741
(2008). “The trial court’s legal conclusions, however, are
‘subject to broad review and will be reversed if
incorrect.'” LeClair v. Norwell, 430 Mass. 328, 331 (1999),
quoting from Packaging Indus. Group, Inc. v. Cheney, 380 Mass.
609, 616 (1980).
7 Because the union raises no objection to our review (and,
indeed, affirmatively desires a decision), we need not reach the
question whether the union could seek to prohibit appellate
review at this stage by invoking G. L. c. 150C, § 16, which does
not authorize an appeal from an order allowing arbitration to
proceed. See Old Rochester Regional Teacher’s Club v. Old
Rochester Regional Sch. Dist., 18 Mass. App. Ct. 117, 118 (1984)
(because appeal requirements adopted pursuant to § 16 “are
comprehensive, an appeal [at least as of right] from any type of
order not so enumerated is precluded”). See also School Comm.
of Agawam v. Agawam Educ. Assn., 371 Mass. 845, 846 (1977)
(order denying application to stay arbitration not appealable
under § 16).
9
3. Standard for preliminary injunction. “When a private
party seeks a preliminary injunction, the moving party is
required to show that an irreparable injury would occur without
immediate injunctive relief.” LeClair, 430 Mass. at 331,
citing Cheney, 380 Mass. at 617. “When, however, a suit is
brought either by the government or a citizen acting as a
private attorney general to enforce a statute or a declared
policy of the Legislature irreparable harm is not
required.” LeClair, supra, citing Edwards v. Boston, 408 Mass.
643, 646-647 (1990). Rather, the equitable considerations
justifying the need for injunctive relief are supplied by
showing that an injunction is in the public interest.
See Caplan v. Acton, 479 Mass. 69, 75 (2018). Thus, because
Framingham brought this suit as a government plaintiff, seeking
a preliminary injunction to enforce its rights under G. L.
c. 41, § 97A, and G. L. c. 150C, § 2(b), it must only “show a
likelihood of success on the merits and that the requested
relief would be in the public interest.” Caplan, supra,
citing LeClair, supra at 331-332. Accord Commonwealth v. Mass.
CRINC, 392 Mass. 79, 89 (1984).
The motion judge, while assuming that Framingham had
demonstrated a likelihood of success on the merits, denied
Framingham’s request to enjoin arbitration on the basis that it
had failed to demonstrate irreparable harm. Framingham,
10
however, repeatedly asserted that arbitration would violate
G. L. c. 41, § 97A, which (Framingham argued) makes the
assignment of police officers a nondelegable, inherent
managerial right. At least regarding Framingham’s arguments
under § 97A, Framingham was seeking to enforce a statute and a
declared policy of the Commonwealth and did not need to show
irreparable harm.
Accordingly, to determine whether a preliminary injunction
should have issued, we must assess (1) Framingham’s likelihood
of success on the merits in showing that the grieved transfer
and reassignment of Officer Gutwill by the police chief is not
an arbitrable issue and (2) whether prohibiting arbitration of
that issue is in the public interest. See Caplan, 479 Mass. at
75.
4. Success on the merits: arbitrability of police officer
transfer and reassignment. “There are certain nondelegable
rights of management, matters that are not mandatory subjects of
collective bargaining . . . , that a municipality and its agents
may not abandon by agreement, and that an arbitrator may not
contravene.” Billerica v. International Assn. of Firefighters,
Local 1495, 415 Mass. 692, 694 (1993). General Laws c. 41,
§ 97A, as appearing in St. 1948, c. 595, vests the “chief of
police” (in municipalities, like Framingham, that have accepted
§ 97A) with authority to “be in immediate control . . . of the
11
police officers, whom [the police chief] shall assign to their
respective duties” (emphasis supplied). See Andover v. Andover
Police Patrolmen’s Union, 45 Mass. App. Ct. 167, 169–170 (1998).
Even in the absence of express legislative language, police
chiefs are inherently vested with general managerial authority
over employees “where matters of public safety are
concerned.” Saugus v. Saugus Pub. Safety Dispatchers Union, 65
Mass. App. Ct. 901, 902 (2005).
“A police chief’s authority to assign his officers to
particular duties is a matter that concerns the public
safety.” Taunton v. Taunton Branch of the Mass. Police Assn.,
10 Mass. App. Ct. 237, 243 (1980). Moreover, “[t]he protection
of a public employer’s management prerogative is particularly
strong where, as here, the prerogative concerns policy judgments
in the allocation and deployment of law enforcement resources”
(emphasis supplied). Saugus Pub. Safety Dispatchers Union, 65
Mass. App. Ct. at 901–902. That power, as a result, may not be
delegated to arbitrators pursuant to CBAs or, for that matter,
subject to collective bargaining at all. Saugus v. Saugus
Police Superior Officers Union, 64 Mass. App. Ct. 916, 916-917
(2005) (police chief’s involuntary assignment of officers to
overtime shifts, required for public safety, “was within the
exclusive managerial prerogative of the chief and, hence, not
subject to being bargained away by the town, and not
12
arbitrable”). See Worcester v. Labor Relations Commn., 438
Mass. 177, 182 (2002), quoting from Lynn v. Labor Relations
Commn., 43 Mass. App. Ct. 172, 178 (1997) (“The allocation of
resources among competing law enforcement priorities ‘must be
reserved to the sole discretion of the public employer . . . .’
Those priorities are not a proper subject of bargaining”).
Cf. Chief Justice for Admin. & Mgmt. of the Trial Ct.
v. Commonwealth Employment Relations Bd., 79 Mass. App. Ct. 374,
388 (2011) (“The determination of proper security for the
Commonwealth’s trial courtrooms is not a collectively
bargainable subject”).
It follows that the police chief’s decision in this case to
transfer and reassign Officer Gutwill from the detective bureau
to the patrol division was neither subject to the parties’ CBA
nor delegable to arbitration. The case of Boston v. Boston
Police Superior Officers Fedn., 466 Mass. 210 (2013), mandates
this result. There, a police officer serving as a union
representative was involved in an altercation with another
officer, with whom the officer-representative was regularly
required to interact. Id. at 212-213. The police commissioner
issued a transfer order upon determining that the officerrepresentative’s
“effectiveness as a supervisor had been
compromised,” prompting the union to file a grievance. Id. at
213. Relying on the police commissioner’s statutory authority,
13
and citing the necessity of managerial control to maintain
“public safety and a disciplined police force,” id. at 215,
quoting from Boston v. Boston Police Patrolmen’s Assn., 41 Mass.
App. Ct. 269, 272 (1996), the Supreme Judicial Court concluded
that the transfer of an officer was within the police
commissioner’s exclusive and nondelegable authority “over the
assignment and organization of the officers within the
department.” Boston Police Superior Officers Fedn., supra at
215. That power was essential; otherwise, police “managers
would have no ability to react to changing conditions in
arranging the police force into the necessary bureaus, units,
and divisions.” Id. at 216.
General Laws c. 41, § 97A, confers the same statutory
authority provided to the police commissioner in that case to
the police chief in this matter. See Andover Police Patrolmen’s
Union, 45 Mass. App. Ct. at 169-170. Indeed, the CBA does as
well. Moreover, even if the CBA provided otherwise, it could
not abrogate the police chief’s authority to transfer, assign,
and deploy officers according to the police chief’s
discretion. Massachusetts Coalition of Police, Local 165
v. Northborough, 416 Mass. 252, 255 (1993) (“A town may not by
agreement abandon a nondelegable right of management”).8 In
8 General Laws c. 150E, § 7(d), amended by St. 1998, c. 9,
which provides that “[i]f a collective bargaining agreement
14
short, because the assignment and the deployment of police
officers is a nondelegable right of management, it is not a
proper subject of collective bargaining.
In this respect, the union’s reliance on Boston v. Boston
Police Patrolmen’s Assn., 477 Mass. 434 (2017), is misplaced.
There, the police commissioner terminated an officer for using
excessive force against a civilian after the Saint Patrick’s Day
Parade, and for being untruthful. Id. at 435, 437-438. An
arbitrator discredited the civilian’s account and ordered the
officer reinstated. Id. at 439. On review, the Supreme
Judicial Court found that “core matters of discipline and
discharge” are delegable and, specifically, a termination may be
the subject of an arbitration pursuant to a CBA. Id. at 441.
Absent from that case was any suggestion that the arbitrator

. . . contains a conflict between matters which are within the
scope of negotiations pursuant to [G. L. c. 150E, § 6,] and
. . . the regulations of a police chief pursuant to [G. L.
c. 41, § 97A,] or of a police commissioner . . . the terms of
the collective bargaining agreement shall prevail,” is not to
the contrary. The assignments of police officers pursuant to
G. L. c. 41, § 97A, are not regulations of a police chief or a
police commissioner, and we have previously held that G. L.
c. 150E, § 7(d), does not displace a police chief’s authority to
assign officers. Saugus Police Superior Officers Union, 64
Mass. App. Ct. at 917, quoting from Andover Police Patrolmen’s
Union, supra at 170 (“nothing in [G. L. c. 150E, § 7(d),]
purports to displace the general authority vested in a police
chief by § 97A to order his officers to a mandatory overtime
deployment when, in his judgment, the public safety so
requires”). Because the assignment of police officers is not a
proper subject of collective bargaining, there is no need to
reconcile conflicts between a police chief’s authority and
collective bargaining on assignments of police officers.
15
could order that the officer be given any duty, deployment, or
assignment. The arbitrator merely “reinstated [the officer]
with back pay.” Id. at 439. The Supreme Judicial Court
provided no hint that an arbitrator could require the police
commissioner to assign the officer to another Saint Patrick’s
Day Parade or even require that he be assigned to patrol duty.
To the contrary, the court repeatedly relied on Boston Police
Superior Officers Fedn., 466 Mass. at 216, and provided a long
list of cases holding that assignments are nondelegable. Boston
Police Patrolmen’s Assn., supra at 440, 441 & n.7.
There is no question that Officer Gutwill’s suspension may
be challenged or that, had he been terminated, the union could
seek his reinstatement. Indeed, the union could presumably
challenge any action of the police chief with respect to Officer
Gutwill (if in violation of the CBA) other than his assignment.
Similarly, if detective had been a rank in Framingham, such that
the police chief had demoted him, Officer Gutwill could have
challenged the reduction in rank.9 Although there is little
reason to doubt that Officer Gutwill’s disciplinary history was
considered in the department’s assignment decision, the
grievance materially challenged only the reassignment itself.
9 Nonetheless, his assignment remains nondelegable. For
example, if the police chief assigned a ranking detective to
patrol duties, while retaining the detective’s rank and
compensation, the assignment would not be subject to
arbitration.
16
“[The] mere characterization of a feature of a collective
bargain or an arbitration award as . . . ‘terms or conditions of
employment’ or some other subject conventionally or by law
within the scope of either process, will not save the [feature]
if in substance it defeats a declared legislative
purpose.” Lynn, 43 Mass. App. Ct. at 176, quoting
from Watertown Firefighters, Local 1347 v. Watertown, 376 Mass.
706, 714 (1978). The substantive actions disputed in this case
are within the exclusive purview of the police chief pursuant to
G. L. c. 41, § 97A, and the doctrine of nondelegability.10
Framingham is not required to justify the transfer and
reassignment of Officer Gutwill or prove that the decision,
predicated on the best interests of the department, was not
otherwise pretext behind disciplinary motives.11 Worcester, 438
10 The laws regarding the joint labor-management committee
(committee), G. L. c. 23, § 9S, inserted by St. 2007, c. 145,
§ 5, “as established by [St. 1973, c. 1078], and as most
recently amended by [St. 1987, c. 589],” do not control here.
By express provision, the committee applies only where an
impasse in collective bargaining negotiations exists between a
public employer and its employees. G. L. c. 150E, § 9. The CBA
in this case was not the result of such circumstances.
11 A different analysis would be necessary if Officer
Gutwill raised claims based on constitutional discrimination.
The doctrine of nondelegation generally must give way to the
constitutional and statutory prohibitions on invidious
discrimination. See Blue Hills Regional Dist. Sch. Comm. v.
Flight, 383 Mass. 642, 644 (1981) (creating exception to
nondelegable, managerial prerogative over educational policy for
the “[d]enial of promotion to a public employee because of her
17
Mass. at 183 (city not required to “present evidence explaining
or justifying its decision” concerning nondelegable law
enforcement action within managerial prerogative).
A simple example demonstrates why this must be so. Under
the union’s interpretation of the statutory scheme, the police
chief may freely transfer any police officer with a spotless
disciplinary record from the detective bureau to the patrol
division, and no challenge to that action would be possible.
If, however, an officer has been disciplined, any transfer of
(or, even, failure to provide a requested assignment to) that
officer could be subject to grievance and arbitration to
determine whether it was disciplinary and whether it was
supported by just cause. Such a regime not only defies logic,
but would impose an intolerable burden on a police chief’s
managerial authority “where matters of public safety are
concerned.” Saugus Pub. Safety Dispatchers Union, 65 Mass. App.
Ct. at 902.
The transfer and reassignment of Officer Gutwill is a
nondelegable decision. Parties cannot agree to arbitrate a
dispute that “lawfully cannot be the subject of
arbitration,” Department of State Police v. Massachusetts Org.
of State Engrs. & Scientists, 456 Mass. 450, 455 (2010), quoting

sex [because such denial] is constitutionally impermissible and
violates statutory proscriptions”).
18
from Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers
Assn., 372 Mass. 116, 119 (1977), and a court may not order the
arbitration of a dispute that the parties did not agree to
arbitrate. Merrimack College v. KPMG LLP, 88 Mass. App. Ct.
803, 808 (2016). Neither this court nor any arbitrator, as a
result, may contravene the decision made by the police chief in
this case. See, e.g., Massachusetts Coalition of Police, Local
165, 416 Mass. at 255–256; Sheriff of Middlesex County
v. International Bhd. of Correctional Officers, Local R1-193, 62
Mass. App. Ct. 830, 831 (2005). The matter may not be submitted
to arbitration; accordingly, Framingham is likely to succeed on
the merits as a matter of law.12
5. Public interest. On the second prong of the
preliminary injunction assessment, the requested relief promotes
the public interest. See Caplan, 479 Mass. at 95. The doctrine
of nondelegability, in respect to the exclusive managerial
prerogative of law enforcement authorities and G. L. c. 41,
§ 97A, is predicated on the prevailing interests of public
safety. See Taunton Branch of the Mass. Police Assn., 10 Mass.
App. Ct. at 243-245; Andover Police Patrolmen’s Union, 45 Mass.
App. Ct. at 169-170; Saugus Police Superior Officers Union, 64
12 We emphasize, however, that this conclusion is limited to
the arbitrability of Officer Gutwill’s assignment. Nothing here
should be taken as suggesting any opinion about the merits of
any other proceeding.
19
Mass. App. Ct. at 917. In accordance with the preceding
analysis, enjoining arbitration here promotes public safety by
allowing the effective and flexible deployment of law
enforcement resources and personnel, see Boston Police Superior
Officers Fedn., 466 Mass. at 215–216, as well as “preserv[ing]
the intended role of the governmental agency and its
accountability in the political process.” Id. at 214, quoting
from Lynn, 43 Mass. App. Ct. at 178.
6. Conclusion. Framingham is likely to succeed on the
merits of its claim, and a preliminary injunction promotes the
public interest as reflected in G. L. c. 41, § 97A, and the
doctrine of nondelegation in law enforcement decision-making.
Framingham is therefore entitled to a preliminary injunction
enjoining arbitration of the transfer and reassignment of
Officer Gutwill as grieved by the union. Because the motion
judge erred in finding otherwise, we reverse the order denying
the preliminary injunction and a new order shall enter allowing
Framingham’s motion for a preliminary injunction.
So ordered.

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