Should Act 111 continue to use the narrow certiorari scope of review for grievance arbitration of public employees, including police officers, when the outcome creates unreasonable results?

Northern Berks Reg. Police Comm. v. Berks Co. FOP, 196 A.3d 715 (Pa. Cmwlth. 2018), allocatur granted July 3, 2019, appeal docket 53 MAP 2019

The Northern Berks Regional Police Commission (Commission) terminated Officer Hobart, a member of the Berks County Fraternal Order of Police, Lodge #71 (FOP) bargaining unit,  for misconduct.  Specifically, the Department learned that Hobart kept a file folder in his desk containing (1) explicit pictures of women in different stages of undress, (2) photographs printed from a police information system, including one of a female colleague, and (3) directions printed from MapQuest. In investigating the matter, the Commission discovered that Hobart used these pictures for personal sexual gratification. Further, the Commission discovered that Hobart was using his access to official data bases including the Pennsylvania Justice Network (JNET) and the Commonwealth Law Enforcement Assistance Network (CLEAN) to further his illicit activities. Because of these violations, Hobart’s access to JNET, CLEAN, and an information system maintained by the Pennsylvania Department of Transportation (PennDOT) was permanently revoked. 

The FOP’s grievance on Hobart’s behalf was denied and  the matter proceeded to binding arbitration under Act 111, the collective bargaining mechanism for police officers and their employers. The arbitrator decided that the Commission did not have just case to terminate Hobart’s employment, reinstated Hobart, and converted Hobart’s termination into an unpaid suspension with time served.

The Commission filed a petition with the trial court to vacate the arbitrator’s award  asserting that the arbitrator exceeded his powers to reinstate Hobart because reinstatement would compel the Commission to violate the law (police officer’s duties require that the officer have access to the databases that Hobart’s access has been permanently revoked–which Commission cannot override—and expose information to Hobart that violates the laws of prohibiting unauthorized access). Notwithstanding the “narrow certiorari” standard of judicial review the Pennsylvania Supreme Court has held applies to a grievance arbitration award arising under Act 111, the trial court vacated the arbitration award. It found that (1) the arbitrator exceeded his powers by ordering the Commission and the Department to commit an illegal act; and (2) it places a burden on taxpayers and the Department, because Hobart cannot perform the necessary duties without access to the data bases in question and others will be required to do his job.

In addressing Hobart’s appeal, the Commonwealth Court began its analysis by explaining the applicable narrow certiorari scope of review:

[T]he narrow certiorari scope of review limits courts to reviewing questions concerning: (1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrator’s powers; and (4) deprivation of constitutional rights.” Pa. State Police v. Pa. State Trooper’s Ass’n (Betancourt), 656 A.2d 83, 89-90 (Pa. 1995). “An arbitrator’s powers are limited. He or she may not mandate that an illegal act be carried out; he or she may only require a public employer to do that which the employer can do voluntarily.” Id. at 90 (citing City of Washington v. Police Dep’t of City of Washington, 259 A.2d 437, 442 (Pa. 1969)). An arbitrator’s award “must encompass only terms and conditions of employment and may not address issues outside of that realm.” Id. Further, a mere error of law would be insufficient to support a court’s decision to reverse an Act 111 arbitrator’s award. Id.

Slip Op. at 9-10.

After reviewing the evidence and the trial court’s decision, the Commonwealth Court  vacated the trial court’s order and remanded the matter with direction that the trial court stay proceedings to allow the Department and Hobart to pursue the possibility of restoring Hobart’s access to the computer databases with the appropriate agencies.  The arbitrator’s award could be implemented without requiring an illegal act, the court found, if Hobart has his access to the secure databases restored:

Here, just as in [City of] Beaver Falls [v. Beaver Falls Police Association, 77 A.3d 75 (Pa. Cmwlth. 2013, appeal denied, 89 A.3d 662 (Pa. 2014)], it is premature to decide whether the award compels the Commission to perform an illegal act, such that it should be vacated by a court. This is a matter of award implementation. Until such a time that Hobart and the Department have exhausted all avenues of relief to regain Hobart’s access to JNET, CLEAN, and PennDOT’s system, the question of whether the award can be implemented without violation of law cannot be decided finally. We, therefore, will vacate the trial court’s order and remand the matter to the trial court with instructions to stay the matter. Once Hobart and the Department have exhausted all avenues to reinstate Hobart’s access to the systems, the trial court may then consider the question of whether the Commission can implement the award without violating the law.

Slip Op. at 16.

The Commonwealth Court further found that the financial impact to the Department and its taxpayers was auxiliary to the trial court’s main holding that the award required  the Department to commit an illegal act. Since narrow certiorari is the scope of review used by the trial court, “this narrow review precludes the use of public policy consideration to vacate an arbitration award.”  Slip Op. at 17.

Judge Pellegrini, in dissent, argued that although he disagrees with the Supreme Court’s use of the narrow certiorari standard in Act 111 cases, and that the Supreme Court should revisit the issue and adopt instead the JNOV/error of law standard of review required for all arbitrations under the Uniform Arbitration Act, application of the narrow certiorari standard requires affirmance of the arbitrator’s award:

I disagree with the majority because nothing that the arbitrator ordered would cause the Commission to commit an illegal act. Nothing in the arbitrator’s award requires the Commission to give access to those portals, only that it continue to employ him as a police officer. Under the award it is up to the Commission to fashion a position in which Hobart would not have access to that information. While not having access to those portals would limit his usefulness and cause expense and difficulty within the Commission, to fashion such an award does not require the Commission to perform an illegal act. Unfortunately, under the narrow certiorari test, added expense and inconvenience does not justify a reversal of the arbitrator’s award.

While the arbitrator’s award is unreasonable, under the narrow certiorari standard, because the arbitrator had the right to determine whether there was just cause for termination, the award did not order the Commission to do anything illegal and there was no deprivation of anyone’s constitutional rights, I would reinstate the arbitrator’s award and reverse the trial court.

Dissent Slip Op. at 17-18.

The Supreme Court has granted allocatur to examine:

(1) Whether the Commonwealth Court erred in vacating and remanding the trial court ‘s decision despite the fact there was no finding of error in the trial court’s opinion and the Commonwealth Court 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, as part of the review of whether an arbitrator exceeded his powers, or, in the alternative, whether the narrow certiorari scope of review set forth in Pennsylvania State Police v. Pennsylvania State Troopers’ Association (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995) should be replaced by the essence test or JNOV/error of law test.

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.