Another case rejecting termination of an officer because of prosecutor's unsupported decision not to use them as a witness

A recent post (State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer) addressed the issue of a City's termination of a police officer after the prosecuting attorney's office announced it would not use the officer as a witness in any proceeding.

In a case raising a similar issue, the Commonwealth Court of Pennsylvania has affirmed a decision refusing to vacate an arbitrator's award that reinstated a police officer dismissed because the District Attorney's office would not prosecute cases based on the uncorroborated testimony of the officer. Borough of Gettysburg v. International Brotherhood of Teamsters Local 776, Police Labor Organization.  

The City's action took place after it received a letter from the District Attorney's Office confirming its position but requesting that the City not "disseminate this letter or the information contained therein to any other non-law enforcement entity."  At a Loudermill hearing, the officer was advised of the contents of the letter but a copy of the letter was not produced. The officer's employment was subsequently terminated. The matter was grieved and the Arbitrator found no just cause for the termination.

Seeking to vacate the award, the City claimed that it improperly ordered it to reinstate an officer who could not perform the essential duties of his position. Rejecting this position the Commonwealth Court noted:

Here, unlike in SCI-Forest, the Arbitrator did not find Grievant committed misconduct and place restrictions on Grievant as a result thereof. Rather, the Arbitrator opined: “I am unable to address the substantive merits of the Borough’s termination decision in this case, since I find that the Borough failed to provide [] Grievant adequate procedural due process prior to terminating his employment.” ...  In sum, the Arbitrator determined that, since Grievant was not given any basis for his discharge, and therefore no ability to defend himself at the required Loudermill hearing, the Borough “did not have just cause to fire him.”

The Court also rejected the City's claim that it was denied due process because the Arbitrator concluded that it had an obligation under Loudermill to inform the grievant why the DA's Office no longer intended to prosecute cases involving the Grievant. The Court concluded:

Here, the Borough is essentially asking this Court to find that the Borough’s denial of Grievant’s due process rights in not providing the reasons for his dismissal is justified because the Borough could not obtain said information, and for the Arbitrator to base his award on the Borough’s failure to provide said information denied the Borough its due process rights. This Court cannot draw such a conclusion. The Borough chose to discharge Grievant due to a letter for which the underlying basis was unknown. Thus, the Borough put it itself in a situation wherein it could not provide the required information, not the Arbitrator. Accordingly, the Borough’s due process rights were not violated.