Massachusetts Select Board Handbook

Town Manager or Administrator

The professional town manager or administrator is the person primarily charged with addressing personnel and labor relations issues. While a substantial portion of the manager or administrator’s time will be devoted to the budget and other priorities identified by the board, municipal government is a service industry, and much of his or her time will be devoted to issues related to managing the personnel that deliver those services. A town manager or administrator should be highly competent in the area of labor and personnel issues and should keep the Select Board informed of any significant issues that arise. Due to the sensitive nature of personnel issues, an individual Select Board member’s comments or intervention could further complicate an already challenging situation. Unless and until the time is appropriate for the Select Board to act, members should work through the manager or administrator and avoid direct involvement.

Human Resources Professional

The number and complexity of human resource issues warrant the employment of human resources professionals to support the town manager or administrator, a practice followed by many communities. A human resources department will generally oversee payroll, benefits, compliance with labor and employment laws, employee assistance programs, and other employment-related issues. In some smaller communities, payroll and other benefits may be administered by individual departments, but this can create inconsistencies. Consolidation of these functions into a human resources department is considered a best practice.

Legal Counsel

Liability arising from making an improper decision on a labor or employment matter can be substantial for a town. There is also potential liability for individuals, including Select Board members, who can be sued personally under certain circumstances. Select Board members must consult with qualified counsel on labor and employment matters, and then follow the advice of counsel.

Labor and employment law is a wide practice area, as is municipal law. There are many practitioners who focus on municipal labor and employment issues, and many towns who consult with these specialists. Labor counsel will advise the Select Board and town manager or administrator during contract negotiations, provide guidance on human resource and personnel issues that arise, and represent the town in labor- and employment-related litigation.

It’s worth noting that most municipalities have insurance coverage for civil rights claims, public officials’ liability, and employment practices liability coverage, and the town’s insurer generally retains the right to select outside counsel for claims that may be covered by insurance, including employment-related claims. Even if counsel is retained by the insurer, however, the attorney represents the town and is responsible to the town as the client.

In many areas of law, the parties go their separate ways at the end of a dispute, with one side having won and the other side having lost. The nature of labor and employment law is different. At the end of a dispute, the parties must maintain a positive working relationship. The goal is not to win at all costs, but to build and maintain a productive and collaborative relationship.

Some professional employees enter into personal services contracts with their appointing authority. Town managers and administrators, police chiefs, fire chiefs and other high-level managers are commonly contract employees. These contracts should always be reviewed by counsel, as they can be the subject of contentious and expensive litigation. There is statutory authority for entering into a contract with some officials, and a local charter or bylaw may grant the authority to enter into contracts with others. In the absence of statutory or charter authority to do so, towns should tread carefully in entering into contracts with other officials.

The overwhelming majority of municipal employees in Massachusetts are members of unions organized under Chapter 150E. Generally speaking, teachers, police officers, firefighters, and public works employees are members of unions. It is also common for clerical and library employees to be union members. An increasing number of supervisory employees are joining or forming unions, which creates special challenges because they may have subordinates in the same union.

Many communities establish the wages and benefits of nonunion employees through a personnel bylaw, which may be created under Chapter 41, sections 108A and 108C. It is common for department managers to be covered under such a bylaw, as well as other specialized employees that do not fall within employee categories that are unionized. Administrative employees assigned to the office of the Select Board and town manager or administrator are considered “confidential” employees under Chapter 150E and should not be union members. The confidential status pertains primarily to their access to information relating to collective bargaining.

In order to provide a wide array of services, towns also rely on a range of seasonal and temporary employees, as well as those that are only called upon on an intermittent basis, such as call firefighters. It is common for the wages and benefits (if any) of these employees to be covered by a personnel bylaw.

Personal services contracts are a common source of litigation for municipalities, with potentially costly and contentious disputes. Controversies arising out of these contracts can take months or years to resolve. They become tremendously expensive, even if the town prevails. A dispute arising out of the contract and relationship with a town manager or administrator can also inhibit the town’s ability to hire a permanent replacement for the duration of the controversy. For all of these reasons, great care should be given to negotiating the terms of the contract. Counsel should be responsible for drafting the document.

Some of the most critical contract areas are:

• Length or term of the agreement
• Wages (including a schedule for salary increases)
• Hours
• Performance appraisals
• Basis for separation or termination of the employee

The agreement should have a specific end date, and any clauses that result in automatic renewal or rollover of an agreement should be closely scrutinized. These clauses can extend a contract if the Select Board fails to act or notify the employee that the board does not wish to extend the contract.

Wages and other benefits should be clearly stated in the contract and should not be tied to what other employees receive for wage or benefit increases. The contract should also provide the Select Board or appointing authority with the ability to evaluate the performance of the employee. These employees are often highly paid, and the contract should provide a means of measuring their effectiveness.

It is also recommended that the contract state specifically whether the professional managers are exempt employees under the federal Fair Labor Standards Act, indicating that the employee is required to work as many hours as is required to complete the necessary work. Employees who are exempt do not accumulate compensatory time (“comp time”) on an hour-by-hour basis, nor are they eligible for overtime.

The terms for separation or termination of the employee are the most critical element of the agreement. If there are no provisions for automatic extensions, the contract and the employee’s service generally end on the last day of the agreement. In some cases, a hearing by the appointing authority may be required to remove an official, due to a statute or charter provision.1 An appointing or hiring authority may also include terms that allow for termination for malfeasance, including off-duty conduct, and poor performance. These terms should be spelled out in clear and concise terms so that all parties understand what types of conduct and performance are expected.

The negotiation of successor contracts or extensions create special challenges for Select Board members, particularly when dealing with the town manager or administrator. If the board and the manager or administrator have a successful and productive working relationship, negotiating a contract extension or renewal can be awkward for both parties. Before any negotiation, the board should meet without the manager or administrator present and have a candid discussion of what the members hope to achieve. Salary is often the most difficult issue, since salaries paid to these professionals are considerably higher than what most people earn. Failure to provide a competitive salary for a manager or administrator can result in the town losing a successful and valuable professional to a neighboring town. In calculating a salary for a professional manager, Select Board members should consider the cost of losing a qualified person.

Collective bargaining is the process that governs the relationship with organized employee groups; it is not limited to contract negotiations.

Organized employees have a right to bargain over wages, hours and conditions of work pursuant to Chapter 150E, which covers municipal employees and is similar in most respects to the National Labor Relations Act. Under Chapter 150E, it is illegal for municipal and state employees to strike. The statute identifies two principal parties: the employer and the employee organization or union. For non-school unions, the employer is represented by the Select Board. For school unions (e.g., teachers, aides, custodians), the employer is the school committee. Pursuant to Section 1 of Chapter 150E, the town manager or administrator or other representative of the Select Board is a voting member of the school committee for the specific and limited purpose of collective bargaining.

The union is the sole and exclusive representative for its members, and issues relating to wages, hours and conditions of work must be negotiated with the union, not with individual employees. Employee unions are commonly part of a statewide or national union.

The parties are required to engage in “good faith” bargaining, which imposes an obligation to be reasonable in their respective positions. This obligation was defined in School Comm. of Newton v. Labor Relations Commission [388 Mass. 557, 572 (1972)]: “The duty to bargain under G.L. Ch. 150E is a duty to meet and negotiate and to do so in good faith. Neither party is compelled, however, to agree to a proposal or to make a concession. ‘Good faith’ implies an open and fair mind as well as a sincere effort to reach a common ground. The quality of the negotiations is evaluated by the totality of the conduct.”

If one party has allegedly engaged in “bad faith” bargaining, the other party may file a charge of prohibited practice with the Department of Labor Relations. Some common allegations include refusing to negotiate or schedule meetings, circumventing the union leadership, and “regressive bargaining,” such as lowering a wage offer without substantial justification for doing so.

As the employer under Chapter 150E, the role of Select Board members is analogous to that of management in the private sector. Elected board members also serve as representatives of their constituents, which can include employees who are members of town unions. The dual role of executive and elected official can result in confusion as to where a board member’s loyalty should lie, especially during contentious contract negotiations. It is best to view the role as protecting the town’s interests as a whole. Collective bargaining does not have to end with a victory for one side and a defeat for the other. Negotiating responsible wages and benefits is in the interest of both parties. Collective bargaining agreements with overly generous wages and benefits can become unsustainable during lean economic times. The price of unsustainable contracts is ultimately borne by employees when layoffs and other reductions become necessary.

Contract negotiation, or interest bargaining, is a process that can last more than a year — or sometimes two or more — especially during lean economic times. While the Select Board typically operates as the employer under the law, the board is usually represented at the bargaining table by the town manager or administrator and/or counsel. The union will almost always be represented by a professional negotiator or by an employee who has substantial experience in bargaining, so a Select Board member who actively participates in negotiations can put the town at a significant disadvantage, particularly if he or she has no collective bargaining experience. If board members are going to participate in contract negotiations, they should understand that it is a complex process, particularly when negotiating wages or other financial increases. It is best to rely on the town manager or administrator to play a primary role.

The most important role of the Select Board in contract negotiations is establishing the parameters or goals for the negotiations. Generally, this means starting several months before a collective bargaining agreement expires, working with the town manager or administrator and financial professionals to establish fiscal parameters, identifying the amount of revenue projected to be available, and calculating the true cost of wage or benefit increases.

The financial package typically involves a cost-of-living adjustment (COLA), applied to all wage categories. The COLA negotiated with town unions constitutes one of the biggest variables in the town’s budget, and a single percentage point can mean the difference between maintaining staff and services and being forced to lay off employees.

Select Board members should also strategize with respect to other objectives they wish to accomplish during collective bargaining, such as lowering the cost of benefits or clarifying areas that have been the subject of disputes or grievances. Once the board develops a bargaining agenda, those charged with negotiating at the table will have clear objectives and parameters, which can dramatically simplify the bargaining process. The Open Meeting Law allows the Select Board’s meetings about collective bargaining strategy to be confidential (executive session). Disclosing confidential material to others is a violation of the state’s conflict-of-interest law,2 not to mention that such disclosure can undermine the town’s bargaining position.

Board members should include department managers as a resource in the strategy process, to consult on proposals that may restrict their ability to assign staff or manage their operation. Subtle changes in contract language can have serious implications.

If the Select Board is representing a responsible fiscal position, it is important to have patience and accept the fact that it may take time to bring negotiations to a conclusion. The best strategy when bargaining gets bogged down is to continue to meet and to attempt to explore creative solutions, such as reworking some of the long-term obligations contained in many contracts. Those obligations may include sick leave buyback or longevity payments. Reducing the cost of long-term obligations in exchange for short-term salary increases can make sense for both the town and its unions.

Impasse

Despite the best efforts of both parties, the collective bargaining process can sometimes reach an impasse. When this occurs for municipal police and fire unions, the state’s Joint Labor-Management Committee may be petitioned by either party to intervene. The initial steps of the intervention include mediation by a professional JLMC staff mediator, and potentially by volunteer management and union representatives from other communities. If mediation fails to resolve the dispute, the matter can proceed to arbitration, which is typically conducted by a panel that includes a management representative, a union representative, and a neutral arbitrator. After a hearing, the panel will issue an award, which must be submitted to Town Meeting or the town council for appropriation. As the employer under Chapter 150E, the Select Board is obligated to support the award of the panel, but Town Meeting can vote to reject the award.

If unions other than police or firefighter unions reach an impasse in negotiations, they can petition the Massachusetts Department of Labor Relations for mediation or fact-finding. The DLR has professional mediators who will attempt to work with the parties to achieve a mutual agreement. There is, however, no arbitration process to resolve unsettled contract disputes with non-police and fire unions.

Impact Bargaining

Select Board members may also be confronted with the issue of what is known as impact bargaining: the obligation to bargain with a union over the impact, on employees, of changes the employer wishes to make during the term of a collective bargaining agreement. The most common issue that requires impact bargaining is layoffs. When a town is forced to lay off employees, there is an obligation to bargain with the union over the impact the layoffs will have on union members. Generally, impact bargaining involves listening to the concerns of the employees regarding the proposed changes and considering any proposals that may mitigate the impact of the change. If proposals are made, the town should consider them as part of good faith bargaining and offer counter proposals. Impact bargaining is frequently triggered by a demand to bargain by the union, which should be sent to the Select Board. A demand to bargain should be referred to counsel, since the town will generally need guidance as to its obligations, depending on the circumstances that resulted in the demand.

Union employees have the right to file grievances, or complaints, with the town. The Select Board generally has a formal role in the grievance process, which is governed by the terms of the collective bargaining agreement. Grievances are generally defined as a dispute regarding interpretation of a specific term of the collective bargaining agreement. Some collective bargaining agreements state that a grievance can be any complaint, even if it pertains to non-contract issues. Employee discipline can be subject to the grievance process, as the employee is claiming that there was not “just cause” for the discipline imposed. Most collective bargaining agreements include language that state that the employee cannot be disciplined unless there is “just cause” for that discipline.

Typically, the grievance process calls for the union or the individual employee to file a grievance with the department manager. If the employee is not satisfied with the answer at this first step, he or she may proceed to the next step in the process, usually the town manager or administrator. If the employee remains unsatisfied with the decision, he or she may file a grievance with the Select Board. If dissatisfied with the outcome of that hearing, the union (not the individual employee) can bring the matter to arbitration. The arbitration process, including the means for selection of a qualified neutral arbitrator, should be described in the collective bargaining agreement.

A grievance hearing before the Select Board should, as part of the collective bargaining process, be conducted in executive session. Board members should receive all relevant documentation in advance of the hearing, including the answers issued at the department and town manager/administrator levels. At the hearing, the union and/or the employee should be allowed to present their case. Board members may then ask the department head to explain the action that triggered the grievance, and his or her position. Following any questions by Select Board members, it is recommended that the board take the matter under advisement and consider its decision. The Select Board may deliberate while the union and/or employee are present, but it is not obligated to do so. Since a written decision may provide the basis of defense should the matter proceed to arbitration, it is recommended that draft decisions be written by the town manager/administrator or by counsel. After review of the draft answer, the Select Board should vote on the grievance.

Towns provide a very wide variety of services, many of which are seasonal in nature. The wages for these employees (and benefits, if any) should be addressed in a personnel bylaw or classification plan, to ensure consistency. Seasonal employees may be eligible for unemployment benefits at the conclusion of their seasonal service unless they are employed for less than 16 weeks and the Department of Unemployment Assistance certifies their position as seasonal. The town may also employ intermittent employees such as call firefighters or auxiliary police officers, whose wages and benefits should also be included in the personnel bylaw.

In many communities, the Select Board is the appointing authority under the state’s civil service law.3 Most often, that role involves the appointment and promotion of police officers. In some communities, the Select Board can be appointing authority for firefighters as well.

The goal of civil service is to assure employees that employment decisions, including promotion and discipline, are not improperly motivated by politics and are not “arbitrary or capricious.” Typically, applicants for initial appointment or for promotion become eligible by taking an exam and then being placed on a list based on their score. Placement on the list can also be affected by status as a military veteran, especially if the veteran is disabled. It is increasingly common for civil service police and fire departments to employ assessment centers for promotions, since an assessment center is generally viewed as a more comprehensive means of evaluating applicants.

The role of Select Board members may include interviewing eligible candidates. After a review of all relevant data, including background information, résumés and the candidate’s placement on the list, the board should select the best candidate. The appointing authority is not bound to choose the person who is placed highest on the list. If a candidate is bypassed for appointment or promotion by a person lower on the list, however, the town must justify the bypass. That justification would typically include documenting the perceived strengths of the candidate selected and documenting the perceived weaknesses of a candidate who was bypassed.

As the appointing authority, the Select Board may also be called upon to review serious discipline — usually suspensions of five days or more — or termination. As is the case for sustaining discipline under a union contract, the town must show that there was just cause for the discipline.

Of the 10 purposes for which a public body may meet in executive session under the Open Meeting Law,4 the first three are most relevant to personnel or labor relations issues. (See Chapter 2 for a thorough discussion of the law.) They are:

1. “To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual.” (The rights of an individual set forth in this paragraph are in addition to the rights that he or she may have from any other source, including, but not limited to, rights under any laws or collective bargaining agreements, and the exercise or non-exercise of the individual rights under this section shall not be construed as a waiver of any rights of the individual.)
2. “To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel.”
3. “To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.”

Issues related to collective bargaining, including grievance hearings, are covered under exceptions 2 and 3, and the chair should note, prior to going into executive session, that the meeting is to hear a grievance with the specified union.

Discussions of professional performance or competence, including performance appraisals, are not permitted to take place in executive session. The law also makes evaluation documents completed by individual members of the Select Board a public record. If the board conducts a performance review or evaluation of an employee, and the results of that review lead the board to consider discipline or discharge, the board may then go into executive session under exception 1, after complying with the appropriate notice requirements.

One of the most precarious aspects of executive session is that board members, in the absence of the public, media and local access cable cameras, may let their guard down and discuss persons or issues not declared by the chair to be the subject of the executive session. Such a discussion can have serious consequences, especially if it were found to have violated the rights of an individual not present for the meeting. If a board were found to have violated an individual employee’s rights by discussing him or her during an executive session without fulfilling the posting and notice requirements in exception 1, a subsequent action to terminate the employee, even if lawfully done, could be overturned, with back pay, by the Office of the Attorney General. Given the potential risks involved with discussing personnel matters in executive session, it is recommended that no board consider executive session until the matter has been reviewed in detail with counsel.

Health insurance is a mandatory subject of bargaining under Chapter 150E. Chapter 69 of the Acts of 2011, known as the municipal health insurance reform law, made changes in the process for negotiating health insurance benefits with employees. The most significant changes were that the law allows the Select Board, after local adoption of Chapter 32B, sections 21-23, to enter into an expedited negotiation process with unions and retiree representatives to make modifications (“plan design changes”) to existing plans, or to join the Group Insurance Commission (GIC), which provides health insurance for state employees. The law created a process by which communities could negotiate these changes with a coalition of union representatives and a retiree representative.

Prior to the enactment of Chapter 69 of the Acts of 2011, towns had to bargain plan design changes (such as changes to copayments and annual deductibles) with each individual union. The process was time-consuming and difficult, and as a result most municipalities were offering plans that were more expensive than those offered to private sector employees in Massachusetts.

Many communities have adopted Chapter 32B, sections 21-23, and have been successful in negotiating changes in their health insurance plans. The law mandates that a portion of the resulting savings be shared with employees and retirees, and many communities elected to use those savings to mitigate the impact of the changes on those employees and retirees most adversely affected by changes such as higher copayments and deductibles. Ultimately, the reform law has provided cities and towns in Massachusetts with a means of more effectively controlling the increasing cost of providing health benefits.

Select Boards have no official role in administering the pensions of municipal employees. Under state law,5 municipal employees may have their pensions overseen by a local retirement board or by a county retirement board. These boards manage the assets and liabilities of the pension fund and issue assessments to the town based upon actuarial analysis of the projected cost.

Employees hired after 1996 contribute 9% of their regular (non-overtime) wages, with an additional 2% for amounts in excess of $30,000 per year. That amount far exceeds the contribution of their private sector counterparts toward Social Security. The municipality pays about 2% of pension costs for retirees. It is important to understand that the pension system calls for payment of a fixed benefit to eligible retirees based upon the age and years of service of the employee.

Over the years, the Legislature has enacted a series of changes to pension laws, most of which are intended to eliminate overly rich pensions or loopholes that allow some individuals to collect substantial pensions without having made significant contributions.

There are also provisions for employees who are permanently disabled by accidents while on duty. Those employees can qualify for retirement benefits equal to 72% of their wages.

The Massachusetts workers’ compensation law, Chapter 152, covers most municipal workers, as well as private sector employees. Many communities are insured for workers’ compensation claims (as is true in the private sector as well).

Full-time police officers and firefighters are not covered by Chapter 152 for injuries that occur while on duty, but are covered under Chapter 41, Section 111F. One of the differences between traditional workers’ compensation benefits and Section 111F benefits is that injured police officers and firefighters receive 100% of their pay while out due to injury, as compared to roughly 60% for employees on traditional workers’ compensation. Another critical distinction is that there is no state agency responsible for administration and adjudication of claims for police and firefighter injuries, as is the case for other employees, who pursue claims through the Department of Industrial Accidents.

Contract Employees: Professional Managers

• Fair Labor Standards Act

Collective Bargaining

• Department of Labor Relations

Impasse

• Joint Labor-Management Committee

Workers’ Compensation and Injured-on-Duty Claims

• Department of Industrial Accidents