BPD challenges order to reinstate officer accused of harassment

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(Scott Eisen for The Boston Globe)/Globe Freelance

Boston Police Commissioner William B. Evans wants a Suffolk Superior Court judge to overturn an arbitrator's decision to reinstate a police officer accused of sexually harassing a department employee, according to a lawsuit filed two weeks ago.

Police Officer Helen Bucelewicz was fired in 2015 for touching a civilian employee's buttucks four separate times without her consent, and for whistling and blowing kisses at her, according to the complaint.

Bucelewicz often referred to officers and civilian employees as "sweetie," "honey," "cutie," or "beautiful."

The arbitrator in the case, Michael Ryan, determined that Bucelewicz had harassed two employees but said she should not have been fired. Ryan said the conduct was "not appropriate" but "termination was too severe a penalty."

It is not the first time the Police Department and an arbitrator have been at odds over what constitutes a fireable offense. Legal analysts say the commissioner faces an uphill battle in having the decision overturned because judges have ruled in similar cases that an arbitrator's decision is binding.

"Generally an arbitrator's ruling is pretty final," said labor lawyer Douglas Louison. "The judge is limited in his or her review."

Under the union's collective bargaining agreement with the city, employment disputes can be settled by an independent arbitrator. In Bucelewicz's case, the Boston Police Patrolman's Association, the city's largest police union, appealed the firing to an arbitrator.

Because police officers are civil service employees, employers must prove "just cause" for termination.

Last month, Ryan ordered the department to reinstate Bucelewicz with back pay and benefits and restored seniority. He also required that Bucelewicz receive training on "acceptable police behavior."

In the lawsuit filed against the Boston Police Patrolman's Association, the department argued that the commissioner was within his right to fire Bucelewicz.

"I'm always about disciplining officers and I'm troubled when arbitrators overrule my decisions," Evans said in an interview.

In the lawsuit, the city argued that the arbitrator exceeded his powers, and his decision "is inconsistent with public policy and unlawfully intrudes into the . . . managerial prerogative vested exclusively in the city, through its police commissioner, over the discipline of the police force."

Ryan said in his arbitration ruling that the department had the authority to discipline Bucelewicz for her actions because "a police station is not a locker room, a living room, or a coffee shop."

But he said that the officer "neither knew nor should have known that she was doing anything wrong when she engaged in the conduct complained of."

Ryan did not return calls seeking comment.

Attorney Alan H. Shapiro, who is representing Bucelewicz, said that the officer who joined the department in 2011 and worked at a police station in Hyde Park was known to touch people. The employee who complained "misconstrued her actions as a sexual come-on," he said.

"There's a difference between being overly friendly and being a sexual predator," Shapiro said.

Civil service rules in Massachusetts require that officials practice progressive discipline and that the level of discipline be based on an employee's track record, Louison said.

"Arbitrators look unkindly if there isn't a paper trail," said Eugene O'Donnell, a professor at John Jay College and a former NYPD officer.

Arbitrators review three things, including whether there is well-defined policy prohibiting the offense, whether the conduct was integral to the employee's duties, and whether a lesser sanction would violate public policy, said Margaret H. Paget, an attorney in Waltham.

Even under that standard, there have been instances in which officers with a demonstrated track record of misconduct have been returned to the force by an arbitrator.

Ryan, the arbitrator in Bucelewicz's case, also ordered the Police Department to reinstate Officer David C. Williams in 2015. Williams had been fired twice for allegations that he used excessive force, and the city paid more than $2 million to settle lawsuits related to his conduct. The latest incident was in 2012, when he was accused of violently arresting a Middlesex correctional officer and lying about the incident in court, in department reports, and to police investigators.

Ryan ruled that the correctional officer was not a credible witness and was intoxicated at the time of the arrest.

If the arresting officers were aggressive, it was because the behavior of the correctional officer warranted it, Ryan said.

A Suffolk Superior Court Judge upheld Ryan's decision, saying "the court is constrained by the arbitrator's finding of fact." The city has appealed.

It would be "extremely noteworthy" if a judge ruled in Evans's favor in Bucelewicz's case, but highly unlikely, an employment lawyer said. A reversal would not be unprecedented, however.

In 2005, the state's highest court determined an arbitrator was wrong to reinstate then Boston Police Officer John DiSciullo, who arrested two people over a double-parking violation and lied to justify the arrests.

The Supreme Judicial Court said the department was right to fire DiSciullo because his "continued employment as a police officer would frustrate strong public policy against the kind of egregious dishonesty and abuse of official position in which he was proved to have engaged."