Key Points

  • The Pennsylvania Supreme Court reaffirmed under stare decisis that Act 111 police and firefighter grievance arbitration awards are reviewable only under the narrow certiorari standard set out in Betancourt (1995).
  • The court declined to overrule Smith (1999) and refused to adopt a public policy exception to narrow certiorari review, holding that the city showed no special justification to depart from precedent.
  • The majority held that PERA case law, including its public policy exception, does not apply because PERA expressly excludes employees covered by Act 111, and it left any change to the General Assembly.
  • The ruling affirms the Commonwealth Court and leaves in place an arbitration award reinstating a Philadelphia police lieutenant with back pay after a 50-day suspension.
  • Chief Justice Todd joined the reaffirmance of Betancourt but dissented on the public policy question and would have remanded for public policy review.

The Pennsylvania Supreme Court on Oct. 29 refused to give judges more power to overturn arbitration awards in police and firefighter discipline cases. The ruling leaves in place an award that returned a Philadelphia police lieutenant to his job after he sent sexual text messages and a bestiality video to two female officers he supervised.

Justice Donohue, writing for a six-justice majority, held that the City of Philadelphia had not shown the "special justification" the court requires before it overrules its own precedent. The court reaffirmed two decisions involving the Pennsylvania State Police, known as Betancourt (1995) and Smith (1999), and affirmed the Commonwealth Court's ruling for the Fraternal Order of Police, Lodge No. 5. Chief Justice Todd agreed that Betancourt should stand but dissented from the refusal to recognize a public policy exception.

The decision keeps courts' role in police and firefighter discipline sharply limited. Under the Policemen and Firemen Collective Bargaining Act, known as Act 111, police and firefighters may not strike, and arbitration decisions are final. Courts reviewing those awards apply "narrow certiorari," a test confined to four questions: the arbitrator's jurisdiction, the regularity of the proceedings, whether the arbitrator exceeded his powers, and whether constitutional rights were denied. The majority said any broader review would have to come from the General Assembly.

The case arose from texts that Lt. Marc Hayes, a supervisor in the city's 24th Police District, sent on Aug. 13, 2018. According to the opinion, Hayes made sexual innuendos, boasted about his sexual prowess, discussed one officer's use of the restroom, and sent a video showing a dog performing oral sex on a woman. The city also claimed that Hayes later tried to influence one officer's statement to internal affairs investigators. Philadelphia's police commissioner decided in July 2020 that Hayes should be fired.

Hayes challenged the firing through the union's grievance process. The arbitrator found that the city had not proved sexual harassment. He wrote that there was not a sufficient basis to find the texts "were unwelcome or rose to the level of creating a sexually hostile work environment," and he described them as "questionable banter in which Hayes, Officer One and Officer Two all appeared willing to engage." He found that Hayes broke three other disciplinary rules, including failure to supervise, but he reduced the firing to a 50-day suspension and ordered Hayes reinstated with back pay.

The Philadelphia County Court of Common Pleas denied the city's petition to vacate the award. The Commonwealth Court affirmed, and President Judge Cohn Jubelirer dissented without opinion. The Supreme Court agreed to hear only the scope-of-review question. It declined to hear the city's separate argument that the arbitrator had exceeded his authority.

Before the high court, the city argued that Act 111's bar on appeals covered only contract-impasse arbitrations, not individual grievances. It also argued that narrow certiorari had "proven disastrously unworkable, leading to the reinstatement of police officers who have betrayed the public trust." The city asked the court to adopt either the review standard of the Uniform Arbitration Act or the "essence test" that governs other public workers under the Public Employe Relations Act, or PERA. The city's fallback request was a limited public policy exception.

The majority rejected each request. It noted that the court had applied Betancourt repeatedly for three decades and that the legislature had not amended the relevant section of Act 111 in that time. The majority also said the city "conflates controversial outcomes of grievance arbitrations with the workability of the narrow certiorari scope of review itself."

"Precluding judicial review of grievance arbitration awards—whether the awards are correct or outrageously wrong—is exactly what the General Assembly intended, as interpreted by Betancourt," Justice Donohue wrote. She added, "While we might also find some outcomes distasteful, correcting course by allowing more robust judicial review is a matter for the General Assembly."

The opinion also identified a possible weakness in the court's 1985 Moon Township decision, on which Betancourt relied. Even so, the majority said the outcome would be the same under either reading of the statute. "If negotiation of the contract is subject to non-appealable arbitration, then enforcement through grievance arbitration should be afforded the same protection," the court wrote.

The majority treated the city's reliance on PERA cases as misplaced because PERA expressly excludes employees covered by Act 111. The city had pointed out that three justices in Smith would have allowed public policy review. The majority answered that "a narrow majority is certainly not a special justification to overturn precedent."

In a footnote, the court said its ruling "does not in any way alter our determination that the Commonwealth has a well-defined and dominant public policy against sexual harassment in the workplace." It held that stare decisis still barred that policy from widening review. "It is for the General Assembly to address any public policy inconsistencies," the court wrote.

Chief Justice Todd wrote that under narrow certiorari, an Act 111 award "is insulated from judicial vacatur in the extreme." She said Smith's reasoning "was dubious when written" and had been overtaken by the court's 2007 adoption of a public policy exception for PERA awards. "I do not believe that our Court should countenance an arbitration award that contravenes our Commonwealth's public policy," she wrote.

Almost 60 years after Act 111's enactment, the chief justice added, "It is a mature labor relationship." She cited decisions from courts in Alaska, Connecticut, Massachusetts, Michigan and Montana that recognize such an exception for police arbitration awards.

Amici supporting the city included the Women's Law Project, the Pennsylvania Chiefs of Police Association, the Citizens Police Oversight Commission, the American Civil Liberties Union of Pennsylvania and the City of Pittsburgh. The Pennsylvania AFL-CIO, the Pennsylvania Lodge of the Fraternal Order of Police and firefighter unions filed briefs supporting the union.

The affirmance leaves the arbitrator's award, including Hayes' reinstatement and back pay, undisturbed. Chief Justice Todd would have sent the case back to the Commonwealth Court to decide whether the award violated Pennsylvania public policy. The majority instead closed by noting that "the General Assembly again has the opportunity and prerogative to correct course if our decision is not consistent with its intent."