N. Berks Reg'l Police Comm'n v. Berks Cnty. Fraternal Order of Police

• Citation: 196 A.3d 715
• Decision Date: 31 October 2018
• Docket Number: No. 254 C.D. 2018,254 C.D. 2018
• Parties: NORTHERN BERKS REGIONAL POLICE COMMISSION v. BERKS COUNTY FRATERNAL ORDER OF POLICE, LODGE #71, Appellant
• Court: Pennsylvania Commonwealth Court

196 A.3d 715

NORTHERN BERKS REGIONAL POLICE COMMISSION

v.BERKS COUNTY FRATERNAL ORDER OF POLICE, LODGE #71, Appellant

No. 254 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued September 14, 2018

Decided October 31, 2018

James E. Gavin, Wyomissing, for appellant.

Sharon P. Peipher, Lancaster, for appellee

BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge (P.)

P. KEVIN BROBSON, JudgeBerks County Fraternal Order of Police, Lodge # 71 (FOP) appeals from an order of the Court of Common Pleas of Berks County (trial court), which vacated an arbitration award (award) ordering the reinstatement of Charles Hobart (Hobart) to his position of municipal police officer with the Northern Berks Regional Police Department (Department). For the reasons discussed below, we vacate the trial court's order and remand the matter to the trial court.

I. BACKGROUND

The Northern Berks Regional Police Commission (Commission) provides police services to certain parts of Berks County. The Commission is a party to a collective bargaining agreement (CBA) with the FOP. Hobart worked as a police officer for the Commission and was a member of the bargaining unit represented by the FOP. While employed by the Commission, Hobart worked at the Department, which is comprised of fourteen officers.

In September 2016, the Commission terminated Hobart's employment due to misconduct. Specifically, the Department learned that Hobart kept a file folder in his desk containing (1) explicit pictures of females in different stages of undress, (2) photographs printed from a police information system, 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 exceeded his authorization of official-use operating systems. These operating systems included the Pennsylvania Justice Network¹ (JNET) and the Commonwealth Law Enforcement Assistance Network² (CLEAN). 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 filed a grievance on Hobart's behalf, arguing that the Commission did not have just cause to terminate his employment. The grievance was denied. The matter then proceeded to binding arbitration under what is referred to as Act 111.³

The issue before the arbitrator was whether the Commission had just cause to remove Hobart and, if it did not, what was the remedy.

Following a hearing, the arbitrator issued his decision and award, in which he concluded that the Commission did not have just cause to terminate Hobart's employment. The award detailed the testimony of then-Chief of Police Scott Eaken (Chief Eaken), who testified to the circumstances surrounding Hobart's termination. According to the award, Chief Eaken testified that the contents within Hobart's file folder could be divided into three categories: (1) JNET violations; (2) MapQuest inquiries; and (3) pictures of women in different stages of undress. (R.R. at 568a.) With respect to the JNET violations, Chief Eaken testified that Hobart used JNET to search and print out driver's license photographs of women. (Id. at 569a.) Chief Eaken conceded that, if not for the JNET violations, the Department probably would not have terminated Hobart's employment. (Id. ) Further, the award noted that Chief Eaken compared Hobart's actions to that of another officer who received punishment for exceeding his JNET access. In the previous situation, the officer improperly used JNET over a three-year period to access thousands of records unrelated to official police business. (Id. at 571a.) That officer received a four-day suspension. (Id. ) The arbitrator determined that Hobart's discipline appeared disproportional when compared to that of the other officer. (Id. at 566a.) Further, the arbitrator concluded that, although the record did not support a penalty of terminating Hobart's employment, his conduct nonetheless merited a severe punishment. (Id. at 576a.) As such, the arbitrator converted the termination into an unpaid suspension with time served and ordered Hobart's reinstatement. (Id. )

The Commission filed a petition with the trial court, seeking to vacate the award. The Commission asserted that the arbitrator exceeded his powers in ordering Hobart's reinstatement, as restoring Hobart to his position would compel the Commission to violate the law. Specifically, the Commission averred that a police officer's duties require that the officer have access to CLEAN and JNET. As Hobart's access to these systems had been permanently revoked—a revocation which the Commission cannot override—restoring Hobart to his position would expose him to information that he is not authorized to access in violation of laws prohibiting unauthorized access. The trial court issued a rule, directing the FOP to show cause why the Commission is not entitled to the relief requested. The FOP responded, essentially denying the Commission's assertions.

The trial court held an evidentiary hearing, at which it received testimony regarding the revocation of Hobart's access to CLEAN, JNET, and the PennDOT system. Further, the trial court received testimony regarding how Hobart's reinstatement would compel the Commission to violate the law. As its first witness, the Commission called the Department's patrol sergeant and head of criminal investigations, Robert Wood, Jr. (Sergeant Wood). (Id. at 372a.) Sergeant Wood testified that using JNET and other information systems is critical to an officer's core function, and he provided examples of how an officer uses these systems throughout the course of a day. (Id. at 401a-16a.) Sergeant Wood further testified that a police officer would be unable to perform many routine tasks without access to these systems. (Id. at 417a.)

On cross-examination, Sergeant Wood testified that, in order to become a municipal police officer in the Commonwealth of Pennsylvania, an individual must receive certification through the Municipal Police Officers' Education and Training Commission (MPOETC). (Id. at 427a.) To that point, Sergeant Wood conceded that access to JNET, CLEAN, or PennDOT's system is not required for certification as a municipal police officer. (Id. at 430a.)

Next, the Commission called the Department's Chief of Police, Brian Horner (Chief Horner). (Id. at 448a.) Chief Horner testified that, after the award ordered Hobart's reinstatement, Chief Horner forwarded letters to JNET, CLEAN, and PennDOT to appeal the revocation of Hobart's access. These appeals were denied. (Id. at 450a.) Chief Horner asserted that Hobart is unable to perform his duties for the Department without access to JNET, CLEAN, and PennDOT's system, as officers' duties regularly necessitate their use. (Id. at 457a, 462a.) Although Chief Horner agreed that certification through MPOETC is all that is required to perform duties as a municipal police officer, he rejected the notion that Hobart would be able to work at the Department in a capacity that did not involve using JNET, CLEAN, or PennDOT's system. (Id. at 459a.) Chief Horner attributed this to the small size of the Department, stating:

With our department, you have to have PennDOT, JNET, and CLEAN access. You have to do all full duties of a police officer in order to work for [the Department]. We are a smaller department compared to big cities. We don't have any true specialized fields other than, like, a criminal investigator's position, detective's position.

So you still have to have all of the PennDOT, JNET, and CLEAN access in order to work at [the Department]. If any of the officers would not have PennDOT, JNET, or CLEAN [access], they would not be working for our police department.

(Id. ) Chief Horner went on to testify that Hobart is not permitted in the Department's barracks because he would be exposed to criminal and PennDOT records. (Id. at 460a.) Although Chief Horner asserted that the Department does not allow individuals within its facility who do not have access to JNET or CLEAN, he conceded that there is no written policy regarding such circumstances. (Id. )

On cross-examination, Chief Horner agreed that it is lawful for an individual with MPOETC certification to work as a municipal police officer without access to JNET, CLEAN, or PennDOT's system. (Id. at 463a.) Chief Horner went on to opine that the Department would violate the law if Hobart returned to work at the Department. (Id. at 467a-68a.) Again, Chief Horner attributed this to the small size of the Department. (Id. at 468a.)

Next, the Commission called PennDOT's Director of Risk Management, Brent Lawson (Lawson). (Id. at 475a.) Lawson testified that his group is responsible for, inter alia , auditing access to PennDOT data. (Id. at 476a.) Lawson testified that PennDOT would reverse its decision to revoke someone's access permanently only if it learned that the data misuses were attributable to legitimate government functions or legitimate law enforcement reasons. (Id. at 480a.) On cross-examination, Lawson conceded that he was not aware of any law that prohibited Hobart from being a municipal police officer. (Id. at 485a.)

The Commission then called Joseph R. McCunney (Corporal McCunney), a corporal with the Department and the audit investigation unit supervisor of the CLEAN administrative unit. (Id. at 489a.) Corporal McCunney testified that the revocation of Hobart's CLEAN access means that he cannot have direct or indirect access to secure areas where information is stored, such as police departments. (Id. at 494a-95a.) Further, Corporal McCunney testified that Hobart is unable to sit in a police vehicle that has a computer due to the potential exposure to unauthorized information. (Id. at 497a.) On cross-examination, Corporal McCunney conceded that CLEAN access is not required for...