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Fraternal Order of Police Pennsylvania
State Lodge |
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 Legal Report
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Announcing the opening of a second office of the Lightman & Welby Law Firm:
220 Grant Street, 6th Floor
Pittsburgh, PA 15212
Phone: 412-562-0111
Fax: 412-232-0233
STATE F.O.P. ATTORNEYS' UPDATE
Lightman &
Welby
2705 North Front Street
P.O. Box 911
Harrisburg, Pennsylvania, 19108-0911
Phone: 717-234-0111
Fax: 717-234-8964
Gary M.
Lightman, Esquire Sean T. Welby, Esquire
Eric C. Stoltenberg, Esquire
Anthony M. Caputo, Esquire Ian J. Blynn, Esquire
Richardson Todd Eagen, Esquire Emma A.
Cuevas, Esquire
Legal Report - April 2001
Recently, the State Lodge participated as amicus curiae in two
disciplinary appeals originating from Montgomery County Lodge 14 brought
pursuant to the Police Tenure Act and the First Class Township Civil Service
Code. Unfortunately, despite
manifest injustice done to the officers involved in both appeals, the inherent
limitations in the statutory appeal process have again resulted in unfair
discipline being imposed on our membership.
In Momme v. Lower Providence Township, No. 1129 C.D. 2000
(Commonwealth Court 2001), a police Sergeant was subject to a two grade demotion
after being charged with a number of violations of the Township Duty Manual. The officer appealed pursuant to the Police Tenure Act, which
governs disciplinary appeals in Second Class Townships, and was granted a
hearing before the Township Manager, who had previous involvement in the matter.
After being found guilty of all of the charges brought, the officer
appealed to County Court.
The County Court refused to consider whether the Township Manager was
biased in hearing the case. The
County Court also held that the officer had actually not violated one of the
offenses charged by the Township and found by the Manager.
However, even though it found that one of the charges brought was
actually not substantiated, the County Court refused to either modify the
penalty imposed, or to remand the case back for consideration of a new penalty
based on the charges actually sustained.
On appeal to the Commonwealth Court, the State Lodge joined with Lodge 14
contending that because the charges on which the discipline were not all
sustained, the County Court should have either modified the penalty itself, or
at least, remanded the case back to the Township manager to consider a new
penalty based on the charges actually proven.
The Commonwealth Court rejected these positions, holding that in a
statutory appeal, even where all of the charges are not proven, a court on
appeal can refuse to modify the penalty imposed and approve a penalty even
though an officer did not commit all of the offenses alleged.
In Halota v. Lower Moreland Township, 1533 C.D. 2000 (Pa.
Commonwealth Ct. 2001), an officer was also demoted from the rank of Sergeant. In this case the officer appealed the demotion to the
Township Civil Service Commission, which found that the officer did not commit
all of the charges alleged, and reduced the demotion to time served, thus
reinstating the officers rank as of the date of the decision. The Township appealed to the County Court.
The County Court reversed the Civil Service Commission’s action in
modifying the Penalty on the basis that some of the charges had
been proven and that where enough charges are proven to warrant any discipline,
a civil service commission has no authority to modify the penalty chosen by the
employer.
The State Lodge joined again with Lodge 14, contending that where a civil
service commission modifies a penalty based upon some charges against an officer
not being proven, the commission has that authority. This issue was not addressed by the Commonwealth Court,
however, because when it reviewed the civil service commission decision, it
found that the commission wrongly absolved the officer of some of the charges,
and because it did, the commission was wrong to modify the penalty.
Neither of these cases was published by Commonwealth Court, making a discretionary appeal to the Supreme Court all but impossible because unpublished decisions cannot be cited elsewhere, and consequently carry no precedential effect. Despite the clear injustice to these officers, therefore, the statutory system of challenging discipline and the system of judicial review failed them. Once again, these cases only serve to underscore the unfairness of the statutory appeal system and the absolute necessity to turn to the grievance and arbitration provisions of a collective bargaining agreement for justice in disciplinary matters.
Township
of South Park v. South Park
Township Police Association
In a recent decision, the Pennsylvania Labor Relations Board reversed a
Hearing Examiner’s determination that the municipality must bargain with
police before eliminating a long standing practice wherein a dayshift
officer’s court appearance counted as his day of work.
The municipality began requiring officers to report back to work where
court appearances did not last for an eight hour shift.
The Association filed an unfair labor practice charge contending that the
municipality must bargain prior to imposing such a requirement.
The Board determined that the municipality’s interest in getting a
complete shift of work on normal working days substantially outweighs the
interest of the officers in time off from work.
Therefore, it held bargaining is not required.
The Association is appealing this determination to the Commonwealth
court.
Tansey
v. Township of Lower Merion, et al.
Tansey, a former police lieutenant with the Lower Merion Township Police
Department, suffered a work-related injury in 1997 which left him permanently
disabled from performing his police duties.
Following the injury, Tansey sought and obtained benefits pursuant to the
Workers’ Compensation Act and retired from the police department on a
disability pension. Pursuant to the
1996 amendments to the Workers’ Compensation Act, the employer attempted to
offset Tansey’s workers’ compensation benefits by the amount of the
employer-funded portion of Tansey’s disability pension benefit. Tansey filed suit in the Court of Common Pleas, arguing the
collective bargaining agreement provides for a full-disability pension without a
workers’ compensation benefit offset. As
a preliminary matter, Tansey must establish that the benefits of the collective
bargaining agreement apply to him pursuant to the Chiefs’ Act.
The parties have entered into a Stipulation of Facts and have submitted
and briefed cross-motions for summary judgment.
A decision is pending.
Delaware
River Port Authority, et al. v. Fraternal Order of Police, Penn-Jersey Lodge
#30, et al.
The patrol officers employed by the Delaware River Port Authority (DRPA) sought to have the FOP, Lodge #30 recognized by the DRPA as their exclusive representative for collective bargaining purposes. The DRPA refused, arguing the DRPA is a federal “Authority” and is, therefore not required to engage in collective bargaining with police officers pursuant to Act 111 or the comparable New Jersey statute. Suit was filed in the lower courts of New Jersey and the matter was litigated to the New Jersey Supreme Court with the Fraternal Order of Police prevailing at every stage. During this litigation, the corporals and sergeants sought to have the FOP, Lodge #30 recognized by the DRPA as their exclusive representative for bargaining purposes. As the DRPA had been unsuccessful in litigating the issue with the patrol officers in all of the New Jersey state courts, the DRPA filed suit in federal court. Following discovery, cross-motions for summary judgment were submitted with supporting briefs. The U.S. District Court issued an Opinion & Order concluding the DRPA was under no legal obligation under the U.S. or Pennsylvania Constitutions, Act 111 or the New Jersey bargaining statute to recognize the superior officers for bargaining purposes. An appeal to the Third Circuit Court of Appeals is pending.
Municipality
of Monroeville v. Monroeville Police Department Wage Policy Committee
In Monroeville v. Monroeville Police Department, the Commonwealth Court
issued a decision holding that pension benefits in excess of Act 600 could not
be paid to police officers in Townships and Boroughs even if such municipalities
were Home Rule. The court did not
address the issue of whether workers already in the pension system were vested
as to their benefits, because the issue was not preserved.
With the permission of the Monroeville Police Wage Policy Committee the Pennsylvania State Lodge has filed a Petition for Allowance of Appeal with the Supreme Court to address not only the Home Rule exception issue, but also the effect that the court’s refusal to consider individual property rights in ruling on this issue.
International
Association of Firefighters, Local 1749 v. City of Butler, No.
PF-C-00-71-W (PDO 2001). Firefighters
Local Union filed a charge of unfair labor practices challenging the City’s
unilateral enactment of a policy mandating that employees on Heart and Lung Act
Leave be simultaneously charged any annual entitlement to leave under the Family
and Medical Leave Act (FMLA). The
City claimed that Dept. of Labor (DOL) regulations permitting concurrent running
of FMLA leave with Workers’ Compensation Leave gave it the managerial right to
make the policy. The Hearing
Examiner sustained the charge. He
held that changes in leave are mandatorily negotiable under Act 111 and the PLRA.
The Examiner stated that the DOL regulations are permissive, merely
allowing, and not requiring, an employer to run FMLA leave concurrently.
Therefore, the regulations do not give the City the managerial right to
impose the policy. It must bargain
with the Union before running the FMLA leave concurrently with Heart and Lung
Act Leave.
Recording
Secretary Phone: 1-800-706-9959
Recording Secretary Fax: 814-254-1727
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State Office: 2949 North Front Street
Harrisburg, PA 17110-1250
State Office Phone: 1-888-551-8125
or 717-236-6981
State Office Fax: 717-236-8902
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Email the
FOP
Webmaster
Webmaster Fax: 717-236-8902
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