Appeals Court hears dispute over colonel’s authority to require troopers to work on holidays

The Massachusetts Appeals Court heard competing arguments over whether the colonel of the State Police may, as a matter of law, require troopers to work on holidays and other times off without submitting that decision to arbitration.

At the start of the session Presiding Justice Arian Vuno introduced the panel—Justice Eric Nyman and Justice Paul Smith—and announced the case: Department of State Police v. State Police Association of Massachusetts, No. 2025-0321. Each side was allotted 15 minutes and there would be no rebuttal.

Laurel Kennedy, counsel for the State Police Association of Massachusetts, told the court that the Superior Court’s permanent stay of arbitration was “premature.” Kennedy said the parties have an agreement to arbitrate and that the underlying grievance cites specific contract provisions and a side letter that refer disputes to arbitration. She urged that an arbitrator should first determine whether the colonel’s cancellation of leave was reasonable and factually supportable before the courts preclude arbitration.

Kennedy acknowledged that the legal question about the applicability of the non-delegability doctrine is one for the court, but she said factual disputes remain—most notably whether similar memos were issued in prior years and whether the department provided a contemporaneous explanation for cancelling leave. She emphasized that the association’s grievance record lacked a written departmental response explaining the cancellation, which, she said, undercuts the department’s request to block arbitration.

The justices pressed counsel on whether the issue is purely a question of law or a mixed question of law and fact. Kennedy said the question whether a statute like 22C §18 is non-delegable is a question of law for the court to decide, but that factual determinations about what the colonel did and why would be for an arbitrator to resolve if the court allowed arbitration to proceed.

Dan Bernelli, representing the Department of State Police, urged the court to affirm the Superior Court’s permanent stay. Bernelli characterized the colonel’s authority to allocate and deploy law enforcement personnel—including cancelling vacations or ordering overtime for events such as July 4—as a non-delegable managerial prerogative. He said permitting arbitration of those deployment decisions would place an arbitrator “in the shoes” of the colonel and undermine statutory and public-policy protections that reserve certain core management judgments to the public employer.

Bernelli pointed the court to the record appendix (pages 129–137), which he said contained colonel orders describing the department’s plan to provide an unusually large number of officers for the July 4 celebration and referencing forced overtime and vacation cancellations. He argued that the non‑delegability doctrine and precedent protect those types of allocation decisions from arbitration.

Both sides cited appellate precedents at length during questioning. Counsel and the court discussed Town of Lynn, Drake, Town of Andover, the Sus cases, and the SJC decision involving the Boston Police to illuminate when statutory language or public-policy considerations render a management decision non-delegable. The justices probed hypotheticals—such as classified intelligence that cannot be publicly disclosed and scenarios of alleged retaliatory use of scheduling power—to test the limits of non-delegability and the available legal remedies.

Kennedy urged the court to preserve arbitration as a forum to resolve the reasonableness and factual components of the grievance; Bernelli urged deference to the department’s determinations about allocation and deployment of personnel and asked the court to leave the stay in place. The panel thanked counsel and stated the case had been submitted under advisement.

The court did not announce a decision at argument; the matter will be decided on the briefs and the record already before the court.