Appealed From Grievance Arbitration # 96-DD-305.
Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Pellegrini. Concurring Opinion BY Judge Doyle.
The opinion of the court was delivered by: Pellegrini
OPINION BY JUDGE PELLEGRINI
Because it is incomprehensible that an arbitrator would put back to work a state trooper who, after drinking heavily, pulls his service revolver on a woman in the midst of a disagreement and threatens to blow her brains out, the Pennsylvania State Police petitions for review of an arbitration decision finding no just cause for the dismissal of Trooper Rodney Smith.
The facts are not disputed. On the evening of May 19, 1995, Smith, who was off-duty, left a bar about 6:30 p.m. where he had been drinking since noon. He saw an old girlfriend, whom he had not seen for four or five years, and he stopped his car and induced her to stop her car. Smith allegedly wanted to speak to her because he believed she owed him money, about 30 dollars. An argument ensued between them, ending when Smith pulled his service revolver, forced it between her teeth and threatened to "blow off your head". Smith then drove away to continue drinking. He later returned to the scene, where the woman had summoned the police. Smith was arrested, charged with three counts of driving under the influence and one count each of simple assault and making terroristic threats. He pled guilty to the five charges.
Based on this incident, the State Police notified Smith that he was dismissed because his actions violated the regulations regarding "Unbecoming Conduct" and "Conformance to Laws". Smith, through the Pennsylvania State Troopers Association (Union), grieved his dismissal. The arbitrator found that although the record clearly established that Smith committed the criminal offenses, the discipline imposed was excessive. *fn1 The Arbitrator modified the discharge by directing an immediate reinstatement of Smith (amounting to a suspension of eight and one-half months), without payment of lost wages, and imposed one year of probation.
The State Police argue that it is manifestly unreasonable for an arbitrator to put back to work a state trooper who had been dismissed by the State Police for egregious, criminal behavior, lessening the public's trust in its law enforcement. While the manifestly unreasonable standard is applied to arbitrators' decisions regarding all other public employees, *fn2 in Pennsylvania State Police v. Pennsylvania State Troopers' Association (Trooper James Betancourt), 540 Pa. 66, 656 A.2d 83 (1995), the Supreme Court, reversing this court, rejected such a review over an arbitrator's awards under Act 111. *fn3 The Supreme Court held that a court's scope of review over an arbitrator's award in Act 111 grievance arbitration is narrow certiorari, which is limited to questions regarding: (1) the jurisdiction of the arbitrator, (2) the regularity of the proceedings, (3) an excess of the arbitrator's powers, *fn4 and (4) deprivation of constitutional rights. Id.
Even though we would emphatically agree with the State Police that the arbitrator's decision was manifestly unreasonable because Smith's conduct - excessive drinking, brandishing his service revolver against a member of the community, forcing the revolver into her mouth, threatening to "blow your head off" - was egregious, criminal and violative of the public trust, we are simply unable to act due to the narrow certiorari standard mandated by the Betancourt decision. Under the present state of the law, if Smith had "blown off" the woman's head, as he explicitly threatened to do with the gun in his hand, and the arbitrator had put him back on the job as a law enforcement officer, this court could do nothing. While such an outcome is incomprehensible, it is just as incomprehensible that there is no review or accountability if an arbitrator makes such an irrational decision. *fn5 Because of our extremely limited review of the arbitrator's decision, no one - not the governor, not the State Police, not this court, not the Supreme Court, unless it reverses Betancourt, or the General Assembly, unless it amends Act 111 - has the power to change an arbitrator's irrational award. *fn6
By putting this trooper back to work, this arbitrator not only increased the risk to the public, but also brought disrespect to the force, making it more difficult for other troopers who carry out their day-to-day duties in a professional and competent manner. We remind arbitrators, even though they may be virtually unaccountable, that they are not involved in the usual industrial arbitration setting. *fn7 When the employer is a public employer and the arbitrator is acting as a part of the public system, one of his or her basic concerns should be the public trust in police officers *fn8 or other public employees. When they make their decisions, arbitrators must recognize their fiduciary obligation to the public to make sure that police officers properly serve the community.
Only because we are compelled to do so, we affirm the arbitrator's award. *fn9
AND NOW, this 24th day of July, 1997, the award by Arbitrator Stanley J. Schwartz sustaining the grievance filed by the Pennsylvania State Troopers Association on behalf of Trooper Rodney Smith is affirmed.
CONCURRING OPINION BY JUDGE DOYLE
I concur in the result reached by the majority, to affirm the award of the arbitrators. I do not join in the strident tone of the majority opinion that evinces a frustration with higher authority which is uncommon in judicial opinions, most especially with opinions from this Court.
Specifically, I do not join in the challenge to our Supreme Court to reverse their decision in Pennsylvania State Police v. Pennsylvania State Troopers' Association (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995), which the majority views as the sole obstruction to reaching the correct and desirable result in this case: "Even though we would emphatically agree with the State Police that the arbitrator's decision was manifestly unreasonable because Smith's conduct . . . was egregious, criminal and violative of the public trust, we are simply unable to act due to . . . the Betancourt decision." (Slip op. at 4.)
The Pennsylvania Supreme Court's opinion in 1995 in Pennsylvania State Police (Betancourt) was both thorough and judicially sound. By that decision, the Supreme Court, after reviewing the historical background of Act 111, *fn1 held that Act 111 commands judicial review of both interest and grievance arbitration awards under the narrow certiorari scope of review. *fn2 The Court so held because it found that such was the intent of the General Assembly when it wrote into the Act that "no appeal [from an arbitration award] shall be allowed to any court." Id. at 77 n.15, 656 A.2d at 89 n.15; see 43 P.S. § 217.7(a). In so holding, the High Court specifically rejected the "essence test" employed in private sector arbitration awards and in awards for public sector employees under the Public Employe Relations Act (PERA), *fn3 which pertains to public employees other than police and fire personnel.
There are two separate and discrete reasons why the majority is in error in its analysis: the first concerns the specific facts in this appeal; the second concerns the narrow certiorari scope of review under which the majority chafes when reviewing an Act 111 grievance arbitration award.
I. The Specific Award on Appeal
While the majority opinion states that "the facts are not disputed," and thereby sets its own stage for a finale which can emit of no other result, the facts the majority refers to deal only with Trooper Smith's conduct, and, while certainly true, are only one part of the total question which was presented to the arbitrator. The complete issue placed before the arbitrator also included a comparison of the discipline in Smith's case with other similar cases, or, as arbitrator Schwartz stated:
The issue to be resolved from a just cause point of view is not [just] the egregiousness of Smith's behavior but whether, on a comparative basis, discipline ...