Published in the August, 2019 issue of the PELRAS newsletter
Published on: Tue 27th Aug, 2019 By: Hobart J. Webster
On July 3, 2019, the Pennsylvania Supreme Court granted Northern Berks Regional Police Commission’s (the “Commission”) Petition for Allowance of Appeal in Northern Berks Reg’l Police Comm’n v. Berks County Fraternal Order of Police, 196 A.3d 715 (Pa. Commw. 2018). The Commission appealed a Commonwealth Court decision overturning a Berks County Court of Common Pleas’ order vacating an arbitration award that reinstated a police officer who had been terminated after permanently losing access to the Pennsylvania Justice Network (“JNET”), Commonwealth Law Enforcement Assistance Network (“CLEAN”) and PennDOT’s systems.
In Northern Berks, the Pennsylvania Supreme Court will address two questions:
(1) Whether the Commonwealth Court erred in vacating and remanding the lower court’s decision despite the fact there was no finding of error in the lower court’s opinion and because it relied upon hypothetical actions that could occur in the future, rather than on the record before it.
(2) Whether the “narrow certiorari” scope of review used in Act 111 matters should encompass a public policy exception, or, in the alternative, whether the narrow certiorari scope of review set forth in Pennsylvania State Police v. Pennsylvania State Troopers’ Ass’n (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995) should be replaced by the “essence test” or JNOV/error of law test.
Currently, the standard of review for cases arising under Act 111, the Act governing collective bargaining by police and firefighters, is narrow certiorari, which is a very strict standard, and much narrower than the standard used to review arbitration awards for non-uniformed public employees. Under narrow certiorari, a court can only review questions pertaining to: (1) the jurisdiction of the arbitrator; (2) the regularity of the proceedings; (3) an excess of the arbitrator’s powers; and (4) a deprivation of constitutional rights.
In Northern Berks, the Commission dismissed long-time officer, Charles Hobart, after learning that he kept a file folder in his desk containing (1) explicit pictures of females in different stages of undress, (2) photographs printed from the police information system, and (3) directions printed from MapQuest. After investigating the matter, the Commission discovered that Hobart used these pictures for personal sexual gratification, and that he exceeded his authorization for JNET and CLEAN. Because of these violations, Hobart’s access to JNET, CLEAN, and an information system maintained by PennDOT, was permanently revoked. The union filed a grievance and the matter proceeded to arbitration.
The arbitrator determined that because another Commission officer had only received a four (4) day suspension for inappropriate JNET use, Hobart’s discipline was disproportional. Even though the other officer’s JNET access had not been permanently terminated, the arbitrator ordered the Commission to reinstate Hobart without back pay. The Commission then appealed to the Court of Common Pleas, which granted the appeal and vacated the arbitrator’s award. The union appealed to the Commonwealth Court, which vacated the lower court’s order, concluding that the Commission’s claim that Hobart, if reinstated, would unlawfully gain primary or secondary access to JNET information for which he was permanently restricted, was too speculative.
On appeal to the Pennsylvania Supreme Court, the Court is being asked to expand the narrow certiorari standard of review to include a public policy exception that would allow courts to vacate Act 111 arbitration awards that violate a well-established, dominant public policy. In the alternative, the Court is being asked to replace the narrow certiorari standard of review with either the “essence test” (i.e. an arbitrator’s award can be vacated where it is indisputably without foundation in the collective bargaining agreement, or fails to logically flow from the collective bargaining agreement), or a JNOV/error of law test (i.e. an arbitrator’s award can be vacated if there is insufficient evidence to support the arbitrator’s conclusions, or when the arbitrator does not correctly apply the law).
While it is possible that the Pennsylvania Supreme Court chose to hear this case in order to affirm the decision or merely to clarify a point of law, it is perhaps more likely that the Supreme Court disagrees with some portion of the Commonwealth Court’s ruling. It is also possible that the Pennsylvania Supreme Court will choose only to address the first question presented on appeal (whether the Commonwealth Court relied upon hypotheticals, rather than on the record before it). If, however, the Pennsylvania Supreme Court chooses to address the second question and expand the scope of the review to include a public policy exception, or abandon narrow certiorari all together in favor of the “essence test”, it will mark a dramatic shift in the Act 111 grievance arbitration landscape.