Town Counsel Goes Too Far In Communicating With Arbitration Panel

Written on 12/10/2022

When New England PBA Local 20 and the Town of Chelmsford, Mas­sachusetts, could not reach agreement on a new contract, the dispute was sent to a tri-partite arbitration panel. The panel included labor representative Alan Andrews, management represen­tative Andrew Flanagan, and neutral arbitrator Beth Ann Wolfson.

On December 11, 2018, Town Counsel attached a draft of the Town’s post-arbitration brief to Flanagan and requested feedback. A month later, Flanagan forwarded the draft arbitration award to Town Counsel, who responded several days later by indicating that he had several concerns with Wolfson’s draft award, including her proposed wage increases. Town Counsel also noted that “we only addressed the cost valuation of the steps because she indicated to you early on that she was going to go with the original agreement and saw the steps as a fair exchange for the wage package.”

On January 22, 2019, Town Coun­sel thanked Flanagan for his “contin­ued advocacy on behalf of the Town,” and provided additional thoughts on a wage increase to include in the award. Flanagan later advised Town Counsel and the Chelmsford Town Manager that he was going back and forth with Wolfson and Andrews, and that he hoped to have a resolution the next day. He also advised them that he had maintained a position “that the total package has to be valued at or close to 7% if I’m going to sign the award.”

The ex parte communication between Town Counsel and Flana­gan culminated with Town Counsel forwarding Flanagan a dissenting opinion based on Town Counsel’s “understanding of the likely award.” Flanagan submitted the dissenting opinion unchanged.

When the Town’s Board of Select­men voted not to fund the arbitration award, Local 20 filed an unfair labor practice complaint with the Massa­chusetts Labor Relations Commission. A hearing officer for the Commission found that the ex parte communication between Town Counsel and Flanagan went too far.

The hearing officer ruled that “a full and fair hearing requires that the parties abstain from engaging in ex parte communications with mem­bers of the arbitration panel unless so authorized. To permit the parties to ignore this rule would endanger the fairness of our process.

“Here, the parties do not dispute that it would be impermissible to communicate with Wolfson directly without including the arbitration panel and opposing counsel. How­ever, the Town argues that the same communications with Flanagan are permissible because Flanagan served on the panel as an advocate. How­ever, the Massachusetts Joint Labor Management Committee appointed Flanagan to assist with the petition and to serve on the arbitration panel based on his general experience in municipal management. The Town did not choose Flanagan as its repre­sentative on the panel.

“Further, Flanagan was not an employee or representative of the Town and had no personal or financial interest in the matter. An arbitrator’s role is not to advocate for a party’s interest, but rather to advocate for the dispute resolution process. In order to advocate for the fair and equitable resolution of disputes, the expectation to abstain from ex parte communication to allow for a full and fair hearing similarly applies.

“This is not to say, however, that all communications between a party and a partisan arbitrator during the deliberation period, without includ­ing the panel and opposing counsel, violate the law. Presumably, there are instances in which such commu­nication may be appropriate, such as communications authorized or at the request of the neutral arbitrator, or communications necessary to effectuate settlement outside of the arbitration proceeding.

“I find that the Town acted in bad faith when Town Counsel en­gaged in ex parte communications with Flanagan with the intent to gain information about the arbitration panel’s confidential deliberations and influence the Award. Neither Wolfson nor Andrews knew that Town Counsel had received information about the panel’s confidential deliberations from Flanagan and the information was not similarly shared with the Union. Through these communications, the Town gained an unfair advantage by receiving information about the confi­dential deliberations of the arbitration panel before the Award was issued.

“Furthermore, the Town acted in bad faith when Town Counsel engaged in ex parte communications with Fla­nagan with the intent to influence the opinion of the panel and modify the Award. The Union, who was not pro­vided a copy of the Draft Award, had no knowledge of the Town’s ex parte communication with Flanagan and was not offered the same opportunity to object to the Draft Award and pro­pose changes. The evidence also shows that the Town knew that its objections and proposals would be forwarded to the panel because Flanagan informed Town Counsel that he intended to send an almost identical version of the email to Wolfson and Andrews. Through this communication, the Town engaged in unlawful ex parte communications with Flanagan with the intent to influence the opinion of the panel and modify the Award.”

By way of remedy, the hearing officer ordered the Board of Select­men to hold a new hearing and vote on whether to accept the arbitration award.

Town of Chelmsford, 2022 WL 5175336 (MA LRC 2022).

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