Grievance hearing reveals Tisbury police contract issues

Tisbury selectmen held a grievance hearing in public Tuesday, at the request of police officer Kelly Kershaw, who complained that town administrators had enforced pay rules against her but not other officers.

The ensuing discussion revealed discrepancies in the town’s enforcement of pay rules. Police officers are prohibited from collecting overtime when the calculation that allows an officer to qualify for overtime takes into account so-called unscheduled sick leave hours taken without seven days’ notice, as provided in the police contract.

Ms. Kershaw lodged the grievance with the Tisbury Police Union on November 4. The union submitted it to town administrator John Bugbee.

The selectmen posted the grievance hearing as an executive session. Officer Kershaw invoked her right to make the hearing public.

Ms. Kershaw told selectmen Tuesday that she was not fully compensated for overtime hours worked during the week that ended October 30. She said she worked an overtime shift that week, in addition to her scheduled hours. She later took five hours of sick leave on a subsequent day because of a migraine headache.

Her next paycheck reduced the amount of overtime pay by five hours. She was told later that the reduction occurred because she did not give seven days’ notice that she planned to use her sick leave hours, as required by the terms of the police contract.

“How can I know seven days ahead of time that I’m going to have a migraine, or my kid’s going to have an earache and I’m going to have to take him to the doctor or something like that?” Officer Kershaw asked.

Mr. Bugbee said he denied the grievance in accordance with the police department’s contract provisions, which provide that officers must work 40 hours to be eligible for overtime pay at 1.5 times the straight time hourly rate.

For hours worked over 40 hours, sick leave is counted in hours worked only if it is scheduled seven days in advance. Otherwise, if someone uses “unscheduled” sick leave during a given work week, those hours must be made up in hours worked in order to meet the 40-hour threshold to kick into overtime pay.

Town accountant Suzanne Kennedy said since Officer Kershaw took unscheduled sick time, she reallocated the eight hours of overtime for the extra shift worked and paid her for five hours of sick time at straight pay and three hours of overtime pay.

Ms. Kennedy said the requirement for scheduled sick time in conjunction with overtime aims to reduce abuse of the system.

“It’s intended to avoid sometimes a manipulation of overtime, where someone may work a double shift and say, ‘I’m beat today, I’m going to call in sick tomorrow and I’m not going to come in,’” Ms. Kennedy said. “And this really has happened, not necessarily just in the police department but also in other departments.”

Ms. Kennedy said the police department submits a payroll sheet and does not include copies of time-off request slips that detail whether sick leave is scheduled or unscheduled. “We do try to do it accurately and beneficially to the officer and try to get it right,” she said.

Mr. Bugbee said he and town hall staff researched the issue and found eight other incidents where the same action was taken to amend paychecks for officers who called in sick on days in weeks during which they also had worked overtime shifts.

But Officer Kershaw insisted she had been singled out. Ms. Kershaw told the town officials that based on her research, there were five occasions in the first 10 weeks of this fiscal year when the town paid overtime to police, when that payment included a calculation based on unscheduled sick leave hours.

The town officials acknowledged that the policy was not always adhered to. “Mistakes have happened, where people got full pay for weeks that they called in sick, and that was due to some miscommunication about whether it was coded scheduled or unscheduled,” Mr. Bugbee said. “But I guess for me, a mistake or violation of the contract is what we’re looking at here, and I don’t feel that one mistake should warrant us amending paychecks to do the right thing by the contract.”

Officer Michael Gately, the department’s senior patrolman and union shop steward, accompanied Officer Kershaw to the hearing. Officer Gately told selectmen he spoke with Mr. Bugbee in December and recommended he not hold a grievance hearing. He recommended that Mr. Bugbee settle the matter with Officer Kershaw because she had evidence of disparities and a perception that she was being singled out.

Mr. Bugbee said because there was conflicting information, he thought everyone needed to go through the grievance process.

Selectmen were divided on the question of whether to recheck bookkeeping records to find and correct mistakes, which might involve docking some officers’ pay.

Selectman chairman Jeff Kristal said it was unfortunate that the issue had not come to light and been remedied sooner, given the strides the town and the police department have made together in the past year. He and Ms. Kennedy asked Officer Kershaw for copies of her information.

“Personally, I think the contract regarding sick time and schedules is pretty clear,” selectman Geoghan Coogan said. “So I think for the purposes of this grievance, I would be up for holding on to what we’ve done. That doesn’t mean that I think that it’s right and that it’s not one of the things we’re working on to try to clean up in this thing going forward.

“But I don’t want to go back in time and be going through all of these things to try to dock people,” he added. “I don’t think that makes sense.”

Selectman Tristan Israel said that although the contract is clear, it could be made clearer. But, he added, if the union requested the selectmen to go back through records a couple of years and redress any inequalities found, Mr. Israel said although he thought his fellow selectmen disagreed, he would not mind doing that.

The selectmen agreed they would look at the issues Officer Kershaw raised and at other police contract language issues going forward. They agreed to uphold Mr. Bugbee’s decision to deny her grievance.

Officer Kershaw and town officials have had a contentious relationship. She filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) in April 2009, alleging sexual discrimination, harassment, and retaliation by Tisbury and the Tisbury Police Department. In August, she filed an amended complaint that named former Tisbury Police Chief John Cashin and Mr. Bugbee individually as respondents.