Sunday, January 10, 2016

Court rejects public policy challenge to arbitrator's reinstatement of teacher accused of inappropriate touching

A music teacher employed by the Franklin [PA] Regional School District was accused  of inappropriately touching a student. The school conducted an investigation and ultimately charged the teacher with "immorality, incompetency and willful violation of school laws" and terminated his employment. The school, as required by law, also reported the allegation to the local police department and the County's Children's Bureau. Both of those organizations investigated and found no basis to prosecute or proceed further.

After a hearing, an arbitrator found that the school district had failed to establish that the teacher had engaged in any inappropriate touching, finding the allegation unfounded and unsupported by the facts. He found further that the conduct that grievant acknowledged engaging in, "snake biting" (squeezing a child's knee between his thumb and forefinger) and "good mannered threats to use a slapstick for discipline," did not support termination. 

The School District sought to set aside the award, asserting that it was contrary to public policy. The Common Pleas court agreed, in part, finding that the conduct the teacher acknowledged having engaged in violated school district policy and  that the award was "not in accord with established public policy of protecting students from impermissible touching by their teachers." As a result, the Common Pleas court modified the arbitrator's unconditional reinstatement and ordered instead a  prospective, and conditional, reinstatement. 

Both the School Board and the Union appealed, and the Commonwealth Court has now reversed that decision. Reaffirming that in reviewing an award of an arbitrator the court is bound by the arbitrator's factual findings, the Court concluded:

 common pleas improperly viewed the situation through another lens and usurped the arbitrator's fact-findings. .... the District acknowledged that [grievant's] conduct was not sexual in nature and that no criminal charges were pursued. We conclude, therefore, that the arbitration award does not pose an unacceptable risk of causing the District to flout its legal obligations and public duty. Accordingly, not only did the District fail to satisfy the narrow public policy exception, but the court also erred in modifying the bargained-for award.

The Commonwealth Court also rejected the School District's challenge to the arbitrator's use of a "beyond a reasonable doubt" standard of proof, noting:

 The arbitrator chose to use that standard in light of the fact that a discharge was at issue, involving, inter alia, an immediate loss of income, a blemish on an employee's record and potential difficulty in securing subsequent employment. In determining that the District did not prove the allegations pursuant to that standard of proof, however, the arbitrator noted that he would have rendered the same decision had he used the preponderance of evidence standard. In any event, the arbitrator has some discretion in choosing a standard of review. See Elkouri and Elkouri, How Arbitration Works, Chapter 15, Section 3(D)(ii)(a) at 15-24, 15-27 (7th ed. 2012) (acknowledgement that many arbitrators apply higher standards of proof in cases involving stigmatizing behavior). Accordingly, the District's argument is without merit.

The Court's opinion in Franklin Regional School District v. Franklin Regional Education Association can be found here.  An earlier decision of the Commonwealth Court upholding a public policy challenge to the reinstatement of a teacher found to have engaged in improper contact is discussed here.

Sunday, January 3, 2016

Arbitrator's finding that police officer's use of force was reasonable precludes public policy challenge to reinstatement award

On March 30, 2012, Arbitrator Jane Wilkinson ordered the reinstatement of Portland police officer Ronald Frashour. Officer Frashour had been dismissed because of the Chef's conclusion that he had used  excessive force in his fatal shooting of an individual who turned out to be unarmed. The Chief deemed Officer Frashour's conduct contrary to the Department's  use-of-force policies. Arbitrator Wilkinson's award is discussed here. She concluded that the City had failed to establish that the officer's conduct was objectively unreasonable or contrary to the Department's policies. 

The City announced that it would not comply with the arbitrator's award (Mayor Will Not Follow Arbitrator's Order To Reinstate Frashour). It claimed, inter alia, that the award was contrary to public policy. The Portland Police Association filed an unfair labor practice charge with the State's Employment Relations Board. The ERB upheld the award (here), holding that in light of the Arbitrator's findings that there was no basis to the claim the Frashour had violated Department policy there was no public policy bar to his reinstatement. The City appealed the decision to the Oregon Court of Appeals. The City's claims, and the Union's response, are discussed in Police discipline and public policy.

The Court of Appeals has now affirmed the ERB's decision. Portland Police Assn. v. City of Portland. The Court agreed with the ERB's analysis that because the arbitrator found that Frashour "was not guilty of the misconduct for which discipline was imposed" there was no violation of public policy in enforcing the award. The Court also rejected the City's alternate argument that the arbitrator's failure to defer to the decision of the Chief was, itself, contrary to public policy:

In the city's view, [the ERB's] approach was flawed because it failed to consider that the arbitrator's conclusion that Frashour did not engage in misconduct itself violated public policy, specifically, the public policy, "clearly defined in statute and case law, that deference be given to the determination by the Chief of Police of the City of Portland that Officer Frashour's use of deadly force violated the City's policies." As a result, according to the city, the award was unenforceable under ORS 243.706(1), and the board therefore erred in concluding that the city had committed an unfair labor practice when it refused to implement the award.

The Court noted that "the statute does not appear to impose that same 'public policy' limitation on the arbitrator's review of the misconduct determination itself."  Affirming the conclusion that once the arbitrator concluded that the officer had not committed the misconduct alleged the public policy exception to enforcement of the arbitrator's award simply didn't apply, the Court observed:

the city has failed to identify statutes or judicial decisions "clearly defin[ing]" a public policy requiring deference to a police chief's determination regarding whether an officer has violated a city's use-of-force policies. See Salem-Keizer Assn. v. Salem-Keizer Sch. Dist. 24J, 186 Or.App. 19, 24-25, 61 P.3d 970 (2003) (for ORS 243.706(1) to bar the enforcement of an arbitration award, "the award must order something that either the legislature or the courts have determined to be contrary to public policy").

The City is currently reviewing the decision and has not yet announced whether it will appeal further. Portland considers taking Frashour's reinstatement order to state Supreme Court.