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COMMONWEALTH PENNSYLVANIA v. COUNCIL 13 (11/20/80)

decided: November 20, 1980.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
COUNCIL 13, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, AND ITS EXECUTIVE DIRECTOR, GERALD W. MCENTEE, RESPONDENTS



Appeal from an arbitration Award in case of Commonwealth of Pennsylvania and American Federation of State, County and Municipal Employes -- Grievance of Charles Berkheimer, December 5, 1979.

COUNSEL

Debra K. Wallet, Assistant Attorney General, with her John D. Raup, Assistant Attorney General, for petitioner.

Johnathan Walters, with him Theodore M. Lieverman, Kirschner, Walters & Willig, for respondents.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 54 Pa. Commw. Page 615]

The Commonwealth of Pennsylvania appeals from a decision of an arbitrator which sustained a grievance filed by Council 13, American Federation of State, County and Municipal Employees (AFSCME) on behalf of one of its members, Charles Berkheimer (Berkheimer). We reverse.

The facts are not disputed. Berkheimer, a corrections officer at the Huntingdon State Correctional Institution, was acquitted of criminal charges brought by the Commonwealth, relating to his employment. After the acquittal, AFSCME, on behalf of Berkheimer, requested the Attorney General to reimburse Berkheimer for legal fees spent in defending the charges. The Attorney General denied the request, prompting AFSCME to file a grievance with the Commonwealth, alleging a violation of Article 37, Section 20 of the collective bargaining agreement. When the grievance process failed to resolve the dispute, AFSCME requested binding arbitration. The arbitrator, after hearing, determined that the Commonwealth had violated the agreement and ordered the Commonwealth to reimburse Berkheimer for reasonable attorney's fees. This appeal followed.

[ 54 Pa. Commw. Page 616]

Article 37, Section 20 of the collective bargaining agreement provides that "[t]he Employer shall provide liability coverage and legal defense as detailed in Title 4, Pa. Code, Chapter 39 and Management Directives [MD] 205.6 and 630.2." Under Section 39.1(a) of the Code, " where it is determined by the Attorney Page 616} General. . . that there is no basis for the prosecution . . . , the Commonwealth will reimburse the employe for reasonable attorneys fees. . . ." (Emphasis added.) Section 39.1(b) provides that, if there is a basis for the prosecution, the Attorney General "may nevertheless in his discretion authorize reimbursement of reasonable attorneys fees if the employe's defense is successful."*fn1 MD 205.6 establishes the procedure whereby an employee may obtain reimbursement:

[A]n employe must report immediately to his or her agency that he or she has been charged with a crime. The agency, upon receipt of such notification, must report to the Attorney General all of the circumstances known to the agency concerning the prosecution. Based upon such information and any independent investigation he may direct, the Attorney General will decide whether or not and in what amounts reimbursement or advancement of attorneys' fees are warranted. (Emphasis added.)*fn2

[ 54 Pa. Commw. Page 617]

The arbitrator, recognizing that "[n]o criteria are established for the discretionary action on the part of the Attorney General," nevertheless proceeded to erect criteria in the instant case by concluding: "I believe the proper interpretation of that portion of the Code requires that if a defense is successful, the discretion of the Attorney General should be exercised, even if there is a basis in fact for the prosecution, in favor of the payment of reasonable attorney's fees." (Emphasis added.) The arbitrator supported his conclusion on policy grounds:

To hold otherwise would permit the Commonwealth to engage in the luxury of only paying those claims of favored employees as opposed to non-favored employees. While no evidence was presented to me to substantiate a claim of this nature, I believe that it is in the best interest of the parties ...


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