City of Pittsburgh v. Fraternal Order Police
| Decision Date | 07 January 2016 |
| Docket Number | No. 1228 C.D. 2014,1228 C.D. 2014 |
| Citation | 129 A.3d 1285 |
| Parties | CITY OF PITTSBURGH, Appellant v. FRATERNAL ORDER OF POLICE, FORT PITT LODGE NO. 1. |
| Court | Pennsylvania Commonwealth Court |
Wendy Kobee, Assistant City Solicitor, Pittsburgh, for appellant.
Eric C. Stoltenberg, Pittsburgh, for appellee.
BEFORE: DAN PELLEGRINI, President Judge1 , and BERNARD L. McGINLEY, Judge, and BONNIE BRIGANCE LEADBETTER, Judge, and ROBERT SIMPSON, Judge, and MARY HANNAH LEAVITT, Judge2 , and P. KEVIN BROBSON, Judge, and ANNE E. COVEY, Judge.
OPINION BY Judge LEADBETTER.
The City of Pittsburgh appeals from the order of the Court of Common Pleas of Allegheny County that affirmed a Supplemental Interest Arbitration Award (the Supplemental Award). That award modified the parties' Collective Bargaining Agreement (CBA) by inserting a non-residency clause. We reverse.
The Fraternal Order of Police, Fort Pitt Lodge No. 1 (FOP) and the City were parties to a CBA covering the term January 1, 2010, through December 31, 2014. Section 18(S) of that CBA provided:
[I]f the Pennsylvania State Legislature enacts legislation relating to ... the issue of residency requirements for police officers in cities of the second class, the parties may reopen the contract to negotiate and/or arbitrate under these limited conditions.
Reproduced Record (R.R.) at 576a. It further provided that the arbitration panel retained jurisdiction to address that issue if the parties could not reach agreement. Id.
The Policemen's Civil Service Act (for Cities of the Second Class) (Civil Service Act)3 provides civil service mandates that apply specifically to the City. Prior to October 24, 2012, Section 3 of the Civil Service Act provided that:
[a] person applying for appointment shall not be required to be a resident of the city at the time of application for original appointment. The person shall, however, be required to become a bona fide resident of the city at the time of employment, and city residency must be maintained for the entire period of employment.
53 P.S. § 23532. However, on October 24, 2012, Act 195 of 2012 (Act 195),4 which amended Section 3 of the Civil Service Act, became effective. Section 3 now provides "[a] city of the second class may require a police officer to become a bona fide resident of the city as a condition of employment." (Emphasis added.) Accordingly, where the Civil Service Act once mandated that a person appointed as a police officer "shall" become a city resident at the time of employment and remain so for the entire period of employment, the General Assembly altered that mandate with the passage of Act 195.
Following the amendment of Section 3, the FOP asserted the right to re-open negotiations pursuant to Section 18(S) of the CBA. The FOP sought to negotiate a non-residency clause contrary to the City's long-standing requirement for all employees to live within the City's borders. The FOP and the City were unable to reach an agreement and pursued interest arbitration upon impasse. In June and September of 2013, the interest arbitration panel was re-convened. The City objected to the panel's jurisdiction, arguing that applicable, extant law does not authorize an interest arbitration panel to consider the police union's demand for non-residency.
On July 23, 2013, the Pittsburgh City Council passed a resolution to place a referendum question on the November 5, 2013 general election ballot, asking voters whether the City's Home Rule Charter should be amended to require police officers to remain residents of the city. The voters approved the in-city residence requirement.
On March 14, 2014, a majority of the interest arbitration panel rejected the City's challenge to its jurisdiction. The panel issued the Supplemental Award, modifying the city-only residency requirement to a mileage-based restriction requiring residency within 25 air miles of the City–County Building.
On, March 18, 2014, the City filed a petition for review in the court of common pleas, asserting that the panel acted without jurisdiction and exceeded its authority. Common pleas concluded that Act 195 permitted bargaining over residency as a term and condition of employment. Common pleas also concluded that Act 195 empowered the arbitration panel to address residency. Common pleas rejected the City's argument that the General Assembly did not intend for Act 195 to permit unions to bargain over residency, reasoning that statutory construction principles assume that the General Assembly, when amending a statute, is cognizant of the applicable statutory and judicial authorities. Thus, the General Assembly was aware of case law holding that residency was subject to bargaining unless otherwise preempted or barred by statute. Common pleas also concluded that the award did not compel the City to perform an illegal act because the City's Home Rule Charter provision requiring city residency of all city employees cannot supersede rights guaranteed by the Police and Firemen Collective Bargaining Act (Act 111), 43 P.S. §§ 217.1 —217.10.5 This appeal followed.
Appellate review of an Act 111 interest arbitration award is in the nature of narrow certiorari. Section 7 of Act 111, 43 P.S. § 217.7. It is limited to issues regarding: (1) the jurisdiction of the arbitrator; (2) the regularity of the proceedings; (3) whether the arbitrator exceeded his powers; and (4) deprivation of constitutional rights.
Michael G. Lutz Lodge No. 5 v. City of Phila., 84 A.3d 343, 350 (Pa.Cmwlth.2014). A panel of arbitrators: 1) may not order the employer to perform an illegal act; 2) is limited to requiring that a public employer do that which it could do voluntarily; and 3) must craft an award that encompasses only the terms and conditions of employment. Butler v. Butler Police Dep't, Fraternal Order of Police, Lodge No. 32, 780 A.2d 847, 850 (Pa.Cmwlth.2001). An error of law alone is not sufficient to reverse an award under this narrow scope of review. Id.
The City argues that the Supplemental Award exceeds the authority of the arbitration panel because Act 195 changed residency from a prohibited subject of bargaining to a specific managerial prerogative, thus preempting Act 111. Specifically, the City asserts that because the General Assembly was aware that residency is subject to mandatory bargaining unless otherwise preempted by statute, it intended to give the City the authority to determine whether a resident police force was necessary through enactment of Act 195. The City also contends that the Supplemental Award unduly infringes on its inherent managerial responsibilities involving considerations about where all its employees, not just police officers, should reside.
Article IX, Section 2 of the Pennsylvania Constitution provides, in relevant part:
Municipalities shall have the right and power to frame and adopt home rule charters.... A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.
When the General Assembly implemented this constitutional provision in the Home Rule Charter and Optional Plans Law (Home Rule Charter Law), 53 Pa.C.S. §§ 2901 –2984, it gave home rule charter communities the broadest powers, specifically imposing the presumption that those communities had the power to undertake any action that they desired, and that such action should be upheld unless it was specifically denied by either the Constitution, a statute or the home rule charter itself. Section 2961 the Home Rule Charter Law provides:
A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality.
53 Pa.C.S. § 2961. However, Section 2962(c) of the Home Rule Charter Law, 53 Pa.C.S. § 2962(c), provides that a municipality shall not "[e]xercise powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth."
What is embodied in the concept of home rule is that the citizens of the local democracy—municipality or county—shall be free to determine local concerns. Of course, if there is an overriding statewide policy involved, the General Assembly can pass legislation that supersedes such home rule municipalities' power. In a case where a home rule charter is in direct conflict with a provision of a statute of statewide application, the state statute controls. Wecht v. Roddey, 815 A.2d 1146, 1151 (Pa.Cmwlth.2002), appeal denied, 573 Pa. 707, 827 A.2d 432 (2003).
A home rule charter is adopted and amended by referendum. Sections 2926 and 2943 of the Home Rule Charter Law, 53 Pa.C.S. §§ 2926, 2943. A home rule charter is the equivalent of a constitution—it is the compact by which local citizens set forth the terms and conditions by which they consent to be governed. Importantly, provisions of a home rule charter have the force and status of an enactment of the legislature. Spencer v. City of Reading Charter Bd., 97 A.3d 834, 840 (Pa.Cmwlth.2014).
In accordance with the Home Rule Charter Law, the citizens of the City, by referendum, voted for the adoption of Section 711 of the City's Home Rule Charter that specifically requires all city employees, including police officers, be domiciled in the City. It provides:
All City employees and officials, including Police and Fire Bureau personnel, shall be domiciled in the City at the time of their initial appointment and shall continuously maintain their domicile within the City throughout their terms of employment with the City.
City of Pittsburgh Home Rule Charter, Article 7, § 711. There is no statewide law prohibiting the...
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