Grievant's conduct was investigated by the Pennsylvania State Police and the Attorney General's office. The investigations concluded there was no basis for any criminal charges against grievant. The Mount Joy Police Department conducted its own internal investigation and the Detective conducting that investigation concluded that grievant had not used excessive force. Nevertheless, the Chief recommended to the Borough that grievant be dismissed for use of excessive force, and his employment with the Borough was terminated.
After a hearing, Arbitrator William Lowe rejected the allegation of excessive force. Arbitrator Lowe concluded that, taking into account the totality of the circumstances as required by the Borough's Use of Force Policy, the evidence failed to establish that grievant's use of force was excessive.
Arbitrator Lowe also addressed the claim of the Police Association that grievant had been denied due process because he had not been provided with a Loudermill hearing prior to his dismissal. Arbitrator Lowe noted:
The Association provided a prior case decision by Arbitrator Scott Bucheit ... wherein he ruled the discharge was not properly effected in that no Loudermill hearing was extended, and hence, no showing of Just Cause and no due process although, in that case, he reduced the penalty from discharge to a thirty (30) day suspension because of some extenuating factors. In that decision, Burcheit cites several precedent decisions- among them, Arbitrator Walt De Treux's ... arbitration decision in Police Employees of Silver Springs Township and Silver Springs Township .... In that decision De Treux commented,
In and of itself, the failure to provide contractual due process is fatal to the Employer's burden of proving just cause for discharge. It does not, however, negate the Employer's right to discipline....I find that the due process violation, while precluding discharge, does not negate the Employer's right to discipline (grievant) in this matter.
Agreeing with the analysis of Arbitrator's Bucheit and De Treux, Arbitrator Lowe found the failure to provide grievant a Loudermill hearing prior to his termination a "fatal error," resulting a in a lack of due process for the grievant.
Finding no due process, together with no just cause for discipline, Arbitrator Lowe ordered grievant reinstated with full seniority and back pay.
Lancasteronline reports on the decision and links to Arbitrator Lowe's award.