N. Berks Reg'l Police Comm'n v. Berks Cnty. Fraternal Order of Police
| Decision Date | 19 May 2020 |
| Docket Number | No. 53 MAP 2019,53 MAP 2019 |
| Citation | 230 A.3d 1022 |
| Parties | NORTHERN BERKS REGIONAL POLICE COMMISSION, Appellant v. BERKS COUNTY FRATERNAL ORDER OF POLICE, LODGE #71, Appellee |
| Court | Pennsylvania Supreme Court |
Diana Patricia Cortes, Esq., City of Philadelphia Law Department, for City of Philadelphia, Amicus Curiae.
Richard Gerson Feder, Esq., City of Philadelphia Law Department, for City of Philadelphia, Amicus Curiae.
Rachel Renee Hadrick, Esq., McNees Wallace & Nurick LLC, for Pennsylvania State Association of Township Supervisors, et al., Amicus Curiae.
Jane Lovitch Istvan, Esq., City of Philadelphia Law Department, for City of Philadelphia, Amicus Curiae.
Cara Elizabeth Leheny, Esq., City of Philadelphia, for City of Philadelphia, Amicus Curiae.
Adam Lawrence Santucci, Esq., for Pennsylvania State Association of Township Supervisors, et al., Amicus Curiae.
Quintes D. Taglioli, Esq., Markowitz & Richman, for Pennsylvania Lodge, Fraternal Order of Police, Amicus Curiae.
Susan Pickett Peipher, Esq., Blakinger Thomas, PC, for Northern Berks Regional Police Commission, Appellant.
Sharon Whitney Rahman, Esq., for Northern Berks Regional Police Commission, Appellant.
James Edward Gavin, Esq., for Berks County Fraternal Order of Police, Lodge #71, Appellee.
OPINION
We granted the Northern Berks Regional Police Commission's ("Commission") petition for appeal in this Act 1111 grievance arbitration appeal. An arbitrator reinstated Officer Charles Hobart ("Hobart") to the Northern Berks Police Department ("Department"), but the trial court vacated the award based on a finding that the award required the Department to commit an illegal act. The trial court's ruling was based on factual developments occurring after Hobart's termination. The Commonwealth Court reversed, finding that Hobart had not yet exhausted administrative remedies that would theoretically remove the purported illegality. For the reasons set forth herein, we find that the award of the arbitrator was not illegal and reverse the decision of the Commonwealth Court.
On September 13, 2016, a Department officer rummaged through Hobart's desk while looking for motor vehicle report forms. Arbitrator's Opinion, 5/30/17, at 3. The officer discovered a folder containing approximately eighty pages of documents falling within two relevant categories. The first category was photographs of women downloaded from the internet, which included photos of women in lingerie and bathing suits, while others were pornographic and showed women in bondage and varying stages of undress. The second category was material that Hobart had saved and printed from the Pennsylvania Judicial Network ("JNET"), the primary computer interface used by police officers to rapidly access information needed for efficient day-to-day police work.2 Hobart's JNET material was largely if not exclusively comprised of seven photographs of attractive young women that Hobart apparently saved from unauthorized JNET searches and then printed them using police department equipment and supplies. Hobart admitted that he took photographs into the departmental bathroom and masturbated.
Within twenty-four hours of the folder's discovery, Officer Robert Wood, Jr., who was delegated by JNET to manage the Department's JNET access, immediately requested a suspension of Hobart's access privileges pending further review. Officer Wood then prepared a report dated September 26, 2016 summarizing Hobart's misuse of his access, which he transmitted to JNET. Under the "Requested Action" box Officer Wood wrote, "Suspension of Officer Hobart's access until final determination of disciplinary action is made." N.T., 10/26/17, at 160. The next day Chief of Police Scott Eaken issued a notice of disciplinary action to Hobart, recommending his termination. The notice cited a number of Departmental policies and general orders that Hobart violated, including failing to maintain a level of moral conduct in his police work, bringing disrepute to the office, collecting personal information of individuals for private use, and abusing his power. The Commission terminated Hobart on September 27, 2016.
The Fraternal Order of Police, Lodge #71 ("FOP") filed a grievance. In response, the Department denied its material allegations, leading to arbitration. The Commission and the FOP appeared before the arbitrator on March 22, 2017. The arbitrator received testimony and documentary evidence. The arbitrator framed the issue as "whether the Commission had just cause to discharge [Hobart] and, if not, what shall be the remedy?" Arbitrator's Opinion, 5/30/17, at 4. The Commission's argument "focuse[d] on [Hobart]’s misuse of the JNET [system]" and his abus[ing] the public trust extended to every sworn officer who utilizes these police informational services." Id . at 5. The Commission did not justify its termination of Hobart by citing any particular component of Hobart's JNET violations in terms of his fitness to serve as a police officer. Rather, the Commission claimed that Hobart's improper use of JNET, with its "access to personal information on millions of citizens," id ., was enough as a generic matter to warrant termination. Chief Eaken "testified that the activities engaged in by [Hobart], aside from his use of JNET, could have been done at [Hobart]’s home and that would have been his business." Id . at 8. He cited the fact that Hobart used Department computers and printers to commit the JNET violations as a relevant factor and "admitted that if the JNET violations were separated from the other matters, [Hobart] would ‘probably not’ have been terminated." Id . at 9. There was no evidence that Hobart ever attempted to contact any of the women he looked up on JNET, and the targets of Hobart's searches were unaware of his activities.
The FOP conceded that Hobart was warned of possible discipline and that the cited general orders were reasonable and related to efficient and safe operation of the police department.3 It argued, however, that the Commission "did not apply its rules, orders and penalties evenhandedly and without discrimination," and that termination was "disproportional when compared to the discipline issued to Officer DeBlasi," id . at 6, who had committed thousands of JNET violations yet had received only a four-day suspension.
The arbitrator agreed with the FOP and issued an award and accompanying opinion on May 30, 2017, reinstating Hobart. The opinion extensively focused on the comparative discipline issue argued by the FOP. The arbitrator quoted the notice of disciplinary action given to DeBlasi, which established that he "used JNET improperly for personal use on a daily basis (each day that he worked) for approximately 3 years, improperly accessing many thousands of JNET records on the system." Id . at 11. The Commission sought to justify the disparate treatment by arguing that Hobart produced and kept hard copies of the information he obtained whereas DeBlasi had not done so. The arbitrator did not find that distinction convincing because "the information would obviously be easily retrievable to Officer DeBlasi by simply performing another improper JNET query," id. at 14, and in any event the extent to which Officer DeBlasi used the information was not clear. Additionally, in Officer DeBlasi's case the Chief "spent [six] months going over the JNET records that Officer DeBlasi accessed to see if he could find any nexus with the work of the Department." Id . at 12. He could not. Thus, Hobart and Officer DeBlasi both violated JNET policies by obtaining information that had no legitimate law enforcement purpose.
The arbitrator determined that "the punishment assessed to [Hobart] is glaringly disproportionate to the offense." Id . at 14. Unlike Officer DeBlasi's thousands of JNET violations, the Commission identified only six civilians who were targets of Hobart's improper JNET searches. The arbitrator accepted the testimony of his co-workers who "generally regarded [Hobart] as a good police officer and friend within the Department." Id . at 14. The conduct, while disturbing, "does not appear to have influenced his interactions with his co-workers or his general police work for the Commission." Id . at 14-15. Furthermore, Hobart began receiving therapy and "demonstrated a strong intent to follow all medical and/or psychological advice and or direction." Id . at 15. The arbitrator determined that Hobart's conduct in total warranted "a severe punishment." Id . at 16. He was troubled by Hobart's use of Departmental property to print risqué and pornographic pictures and his unsavory activities in the building's bathroom. He awarded reinstatement with the time off converted into a disciplinary suspension without back pay.4
The Commission filed a Petition to Vacate with the Berks County Court of Common Pleas, alleging that the arbitrator "exceeded his powers in ordering Hobart back to work." Petition to Vacate, 6/27/17 at 10. The scope of review applied when reviewing Act 111 awards is in the nature of narrow certiorari, with the reviewing court limited "to questions regarding: (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." PSP v. PSTA, 540 Pa. 66, 656 A.2d 83, 85 (1995) (" Betancourt "). A plenary standard of review governs "the preliminary determination of whether the issue involved implicates one of the four areas of inquiry encompassed by narrow certiorari, thus allowing for non-deferential review." City of Philadelphia v. FOP Lodge No. 5 (Breary) , 604 Pa. 267, 985 A.2d 1259, 1266 (2009). Here, the Commission argued that the "excess of powers" prong was implicated because the Commission could not lawfully return Hobart to work, which qualifies under the third prong. Dep't of Corr. v. Pennsylvania...
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