Dallas Boro v. Dallas Boro Police Dept (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dallas Borough, Appellant v. Dallas Borough Police Department BEFORE: : : : : : : No. 1623 C.D. 2007 Submitted: April 7, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: May 14, 2008 Dallas Borough appeals from the order of the Court of Common Pleas of Luzerne County (common pleas), which sustained the grievance arbitration award reinstating Police Chief John Fowler and directing payment of back wages as of July 15, 2004. The Borough contends that the arbitrator lacked jurisdiction after the parties agreed in their 2006-2010 Collective Bargaining Agreement (CBA) to exclude the police chief position from the collective bargaining unit and that the award is illegal insofar as Fowler had failed to maintain his certification to serve as a municipal police officer. We discern no merit in these contentions and, therefore, affirm. Fowler, who was initially hired as a Borough police officer in January of 1973 and appointed as Police Chief in 1988, injured his shoulder in an off-duty accident in July of 2003. Shortly after the accident, Fowler underwent surgery to repair his rotator cuff and remained absent from work during the remainder of 2003, a portion of that time on unpaid leave after exhausting his sick, vacation and leave time. In 2004, still unable to return to work, Fowler exhausted his allotted paid sick and other leave time and then returned to unpaid status. In April of 2004, the Borough directed Fowler to submit to a physical examination by a doctor of the Borough s choosing. In a report dated April 22, 2004, Dr. Sanjiv Naidu, the examining doctor, opined that Fowler s shoulder injury prevented, and would prevent for the reasonable foreseeable future, Fowler s return to unrestricted fulltime duty. Based on Dr. Naidu s report, the mayor indicated in a letter to Fowler that he may be honorably discharged due to inability to perform his full duties but invited Fowler to submit any additional information bearing on his ability to return to work. Within the time prescribed in the mayor s letter for submitting additional information, Fowler provided a letter from his surgeon, in pertinent part, stating: I feel that, at some point in the future, he stands a chance of returning to his preinjury level. This would allow him to return to his previous job of Chief of Police. In a follow-up letter produced in response to the mayor s request for a medical opinion concerning Fowler s present or future ability to meet the Municipal Police Education and Training Commission (MPOETC) physical performance criteria,1 1 See 53 Pa. C.S. §§ 2161 2171, defining certification and establishing the Municipal Police Officers Education and Training Commission (MPOETC) to oversee standards and administration of municipal police education and training. Section 2162 defines certification as The assignment of a certification number to a police officer after successful completion of a mandatory basic training course or receipt of a waiver of basic training from the commission and successful completion of mandatory in-service training. Certification is for a period of two (Footnote continued on next page ¦) 2 _____________________________ (continued ¦) years. Section 2164, stating the powers and duties of the commission, provides, in pertinent part, as follows: (6) To require every police officer to attend a minimum number of hours of in-service training as provided for by regulation, unless the officer s employer files a show cause document with the commission requesting additional time for the officer to comply with the in-service training requirements. Approval of this request shall be made by the commission on a case-by-case basis. .... (8) To require minimum standards for physical fitness, psychological evaluation and education as prerequisites to employment as a police officer. .... (12) To certify police officers who have satisfactorily completed basic educational and training requirements as established by the commission and to issue appropriate certificates to those police officers. 53 Pa. C.S. § 2164. The physical fitness criteria referenced in subsection (8) are set forth in 37 Pa. Code § 203.11(a)(8), as follows: § 203.11 Qualifications (a) Except as provided in subsection (b), persons who are to be employed as police officers by police departments within this Commonwealth from December 21, 1996, shall: .... (8) Be evaluated to determine physical fitness using the standards developed by the Cooper Institute for Aerobics Research in Dallas, Texas. Each applicant shall score no lower than the 30th percentile of the Cooper standards, which coincides with the 30th percentile of the general population, in each of the required evaluations to be eligible for employment. A person will not be enrolled in a recruit training program at a police academy certified by the Commission unless the person has obtained a score in the 30th percentile or higher for the person s age and gender as specified in the Cooper standards for each of the required evaluations. The required evaluations are: (i) 1.5 mile run (ii) 300 meter run (iii) one repetition bench press (iv) one minute sit ups. .... (Footnote continued on next page ¦) 3 Fowler s surgeon, Dr. Kim, further opined that since the surgery and post_____________________________ (continued ¦) (b) Subsection (a) does not apply to persons who meet one of the following conditions: (1) Previously held valid certification issued by the Commission within 2 years prior to the date of employment on the application. . . . The requirements for Renewal of certification, do not include reestablishing ability to meet the physical performance criteria demanded of new hires. The relevant regulations provide: Renewal of certification (1) The Commission will issue a renewal certificate only to police officers who have satisfied the mandatory in-service training requirements set forth under § 203.52 (relating to mandatory in-service training courses). Mandatory in-service training schools shall provide written notice to the Commission of all police officers who have successfully completed the mandatory in-service training course. (2) Certification shall be renewed every 2 years. 37 Pa. Code § 203.13(c). Section 203.52, in relevant part, provides: (b) Mandatory in-service training shall consist of continuous inservice requirements and academic in-service requirements. (1) Continuous in-service requirements shall consist of the following: (i) Annual qualification on a police firearms course with any firearms, shotguns, or rifles authorized for use, including personal weapons carried in lieu of issued weapons or as a second weapon. A weapon may not be carried on duty for which an officer is not qualified. (ii) Maintenance of a first aid and CPR certification issued by the American Red Cross, the American Heart Association, the Department of Health or other agency approved by the Department of Health. (2) Academic in-service requirements shall consist of at least 12 hours of annual training as determined yearly by the Commission. The Commission will publish a notice in the Pennsylvania Bulletin and in the Commission newsletter regarding the course content and specific hours. 53 Pa. Code § 203.52(b). Section 2168, concerning automatic certification, in pertinent part provides: All police officers . . . hired prior to June 18, 1974, shall be automatically certified for basic training but shall be required to complete the in-service training as set forth in section 2164(7) (sic) [should be (6)]. 53 Pa. C.S. § 2168(a). 4 operative rehabilitation Fowler has some continued difficulty with range of motion and loss of strength. However, Dr. Kim further wrote: I cannot state with certainty that he will not be able to return to his pre-injury status. I do feel that he has the potential to walk or run 1.5 miles within 14 minutes and 55 seconds, perform 25 sit ups within 60 seconds and bench press 75% of his body weight and run 300 meters [in] 67.7 seconds. See Arbitrator s decision at 25. In a letter dated June 17, 2004, Borough Council President notified Fowler that he was honorably discharged due to physical inability to perform his duties. Shortly thereafter, Fowler filed a grievance, which proceeded to a hearing on August 23, 2006, before an arbitrator. At the hearing, the parties disputed whether the arbitrator had jurisdiction to resolve a grievance involving the police chief in light of the 2006-2010 CBA provision newly excluding the position of police chief from the bargaining unit. In addition, the parties sought a determination as to whether the Borough s discharge of Fowler constituted discrimination or lacked just cause. Following the hearing, the arbitrator rejected the Borough s contention that the 2006-2010 CBA removed jurisdiction to arbitrate, noting that the events giving rise to the grievance and the filing of the grievance took place during the term of the 2001-2005 CBA. The arbitrator further opined that, while the later exclusion of the police chief position from the bargaining unit could arguably raise an issue as to the arbitrator s authority in 2007 to direct 5 reinstatement as a remedy, the 2006-2010 CBA could not alone effect such an exclusion from the bargaining unit. The arbitrator opined that in order for such an exclusion to become effective, the Pennsylvania Labor Relations Board (PLRB) must certify a unit change.2 As to the merits, the arbitrator found that, based on details regarding their professional interactions since 1999, the relationship between Fowler and the mayor, who supervised the police department, had deteriorated into animosity. The arbitrator described the mayor as working overtime to make Chief Fowler s life miserable. Arb. Decision at 38. Focusing on the mayor s insistence that Fowler meet the MPOETC physical performance criteria prior to returning to work, the arbitrator noted the absence of law, ordinance, policy, CBA provision or practice authorizing imposition of these standards to an officer returning to work after sick leave. The arbitrator ultimately found that, while Fowler had not proven discrimination, the discharge was not supported by just cause but, rather precipitated by the mayor s animosity towards Fowler. The arbitrator particularly noted the complete lack of evidence as to any adverse affect on the operation of the police department that may have resulted from Fowler s prolonged absence. Based on these findings and conclusions, the arbitrator directed immediate reinstatement and back pay as of July 15, 2004. The Borough petitioned common pleas to vacate or modify the award, reiterating its contention that the arbitrator lacked jurisdiction and exceeded his 2 On April 20, 2006, the Union filed a Unit Clarification Petition with the Pennsylvania Labor Relations Board (PLRB) seeking to restore the police chief position into the bargaining unit. Six days later the PLRB Secretary refused a hearing on the petition based, in part, on the conclusion that the chief of police position was still included in the most recent certification of the bargaining unit. 6 authority in directing reinstatement and back pay because (1) the police chief position had been removed from the bargaining unit under the terms of the 20062010 CBA, and (2) if back pay was properly awarded, it could only be awarded up until the police chief position was removed from the bargaining unit as of the effective date of the 2006-2010 CBA reinstatement. The Borough also contended that the award of back pay is illegal absent proof of certification from the MPOETC. Common pleas found no merit in these contentions, agreeing with the arbitrator that no exclusion from the bargaining unit could occur absent PLRB approval, and in any event, the 2001-2005 CBA controlled the resolution of the grievance inasmuch as the operative events occurred, and the grievance was filed, during the term of that contract. Finally, common pleas rejected the illegality contention based on the absence of anything in the arbitrator s findings or the record that supports the contention that Fowler actually lacked recertification from MPOETC. Based on these conclusions, common pleas affirmed the award. Thereafter, the Borough filed the instant appeal reasserting the arguments presented to common pleas. In support of its contention that the award is illegal, the Borough asks our court to take judicial notice of the information in a letter from the MPOETC attached to its brief, stating that Fowler s certification lapsed on June 16, 2004. This request must be denied. It is axiomatic that in performing appellate review this court cannot accept and consider new evidence. Furthermore, the information contained in the letter is not susceptible to judicial notice because it is neither generally known nor capable of accurate and ready determination by resort to unquestionable sources. See Pa. R.E. 201(b). 7 Our review of an Act 1113 arbitration award is limited to consideration of questions regarding (1) the arbitrator s jurisdiction, (2) the regularity of the proceedings, (3) whether the arbitrator exceeded his powers, and (4) whether there occurred a deprivation of constitutional rights. See Pennsylvania State Police v. Pennsylvania State Troopers Ass n (Betancourt), 540 Pa. 66, 71, 656 A.2d 83, 85 (1995). In considering the legal question as to whether the arbitrator had jurisdiction, our review is plenary. See Town of McCandless v. McCandless Police Officers Ass n, 587 Pa. 525, 539, 901 A.2d 991, 1000 (2006). The Borough argues that the arbitrator lost jurisdiction to consider the grievance after the parties agreed in their 2006-2010 CBA to drop the police chief position from the bargaining unit and, even if the grievance remained arbitrable, the arbitrator lacked authority to impose reinstatement or back pay as a remedy after the effective date of the 2006 CBA. In response, the union maintains that the chief s exclusion from the bargaining unit never became effective because such a change could only be achieved by the PLRB s recertification of the bargaining unit not by agreement in a CBA. The Borough responds, in turn, that even accepting the union s premise that PLRB recertification is required, caselaw well establishes that the parties cannot avoid an explicit provision in their negotiated CBA by claiming illegality. All of this argument ignores the dispositive factor. As the arbitrator stated, the events giving rise to the grievance and the filing of the grievance occurred while the 2001-2005 CBA was in effect. Consequently, jurisdiction to arbitrate the grievance and authority to formulate a remedy arise under the earlier 3 Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1 217.10. Act 111 governs collective bargaining between public employers and their police and fire departments. 8 CBA, and the appropriate measure of damages was for the arbitrator to determine and is beyond our scope of review. The Borough argues that Fowler s reinstatement and the payment of back wages is prohibited by 53 Pa. C.S. § 2167, which provides: Police training (a) General rule. All municipalities of this Commonwealth or groups of municipalities acting in concert and all colleges and universities shall be required to train all members of their police departments pursuant to this subchapter prior to their enforcing criminal laws, enforcing moving traffic violations under Title 75 (relating to vehicles) or being authorized to carry a firearm. (b) Ineligibility for compensation. - Any person hired as a police officer shall be ineligible to receive any salary, compensation or other consideration for the performance of duties as a police officer unless the person has met all of the requirements as established by the commission and has been duly certified as having met those requirements by the commission. (c) Penalty. Any person who orders, authorizes or pays as salary to a person in violation of the provisions of this chapter commits a summary offense and shall, upon conviction, be sentenced to pay a fine of $100 or be imprisoned for a term not to exceed a period of thirty days. The commission may stop payment of all funds paid and payable to municipalities under this subchapter for any violation of this subchapter. It shall notify the State Treasurer to discontinue disbursement of any State funds until a municipality is in compliance with this subchapter. 53 Pa. C.S. § 2167. The Borough maintains that Fowler lacks current certification and, therefore, the arbitrator s award requires the performance of an illegal act. 9 Thus, the arbitrator acted outside the bounds of his authority to fashion a remedy. The union responds that inasmuch as the record is devoid of any evidence as to Fowler s certification status, no factual basis exists to support any conclusion as to the illegality of the award under the statute. The union is correct; the Borough did not submit evidence as to Fowler s certification status and, moreover, it did not make any assertion before the arbitrator that Fowler s certification status affected his right to back pay.4 Having failed to preserve the issue before the arbitrator, the Borough may not raise it for the first time on appeal. Moreover, even if we could consider the issue, in the absence of any evidence as to certification5 status, we have no basis upon which to base a conclusion that the award is illegal. 4 Rather, after the arbitration the Borough changed its argument concerning MPOETC standards from insisting that Fowler must meet physical performance criteria to asserting that Fowler lacks certification. Before the arbitrator, Fowler challenged the requirement that he meet physical performance standards as discriminatory, i.e., that fellow officers returning from sick leave had not been subject to this demand. Now, the Borough has shifted its focus to whether Fowler maintained his certification. Under the statutory certification provisions, Fowler s recertification, as an experienced officer, depends not on meeting physical performance criteria but on attending in-service education programs. See 37 Pa. Code §§ 203.13 and 203.52, which are set forth, in relevant part, in footnote 1 above. 5 The Borough asserts that it was Fowler s burden to prove certification. In support of this premise, the Borough cites Fraternal Order of Housing Police v. Philadelphia Housing Authority, 38 PPER 79 (PLRB Final Order May 15, 2007), where the PLRB concluded that an employer s failure to pay back wages pursuant to an arbitration award was not an unfair labor practice where the officer was not certified. The case before the PLRB, involving an unfair labor practice charge where employee/union bore the burden of proof, is not necessarily controlling as to the burden of proof in the present grievance arbitration. More to the point, even if Fowler had the burden to justify the remedy he sought, and the lack of evidence regarding certification were thus relevant to whether he met such a burden, that issue is not before us and would be outside our scope of review. What is before us is an assertion that the award was illegal and the record as it stands, with nothing regarding certification, simply does not support that assertion. 10 Accordingly, we affirm.6 _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 6 In addition, in the present case, the fact that the grievance stems from events surrounding a prolonged period of disability caused by a non-work related injury is significant. Under the statute the Borough could have sought a temporary waiver of the mandatory in-service attendance during the time period when Fowler s injury prevented him from taking the necessary steps to recertify. Section 2164(6) of the statute provides for such a waiver, stating that every officer shall be required to attend in-service training unless the officer s employer files a show cause document with the commission requesting additional time for the officer to comply with the in-service training requirements. 53 Pa. C.S. § 2164(6). The Borough s ability to seek such a waiver during Fowler s period of non-work related disability certainly undermines the Borough s present argument that Fowler s lapse in certification renders the award per se illegal. 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Dallas Borough, Appellant v. Dallas Borough Police Department : : : : : : No. 1623 C.D. 2007 ORDER AND NOW, this 14th day of May, 2008, the order of the Court of Common Pleas of Luzerne County in the above captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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