By Danielle N. Rodier, Of the Legal Staff March 30, 2001 Friday Copyright 2001 American Lawyer Media The Legal Intelligencer March 30, 2001 Friday
(PHILADELPHIA) - Although an arbitrator ruled that a police officer''s charge of possession of an illegal substance should be expunged from his employment records, the city may retain notice of the charge in an Internal Affairs Division record, the majority of an en banc Commonwealth Court has ruled.
Two out of the seven judges on the panel dissented in City of Philadelphia v. Pennsylvania Labor Relations Board, finding that the arbitrator''s ruling that the officer''s record should be expunged "to the fullest extent" naturally included the IAD report. The majority played on the ambiguousness of that phrase, indicating that the arbitrator could have mentioned the IAD file specifically if he intended it to be expunged too. "Without some express basis for intrusion into IAD files, the language of the award here should not be interpreted to indicate an intent to affect matters beyond the narrow question of just cause for termination," Commonwealth Court Judge Doris Smith wrote for the majority. "At most the award was ambiguous on the question of whether the arbitrator intended for the IAD file to be expunged."
On Jan. 13, 1994, 27 vials of cocaine were found in Philadelphia Police Officer Bruce DeNoble''s patrol jacket in his locker during an unannounced search. The district attorney decided not to prosecute for possession. During an interview, DeNoble claimed he found the vials on the highway during the arrest of 14 males for disorderly conduct, although he admitted to not filing a report or notifying his supervisors that he had improperly held onto the drugs. Under Section 1.75 of the Police Disciplinary Code, which pertains to conduct unbecoming an officer, the police commissioner discharged DeNoble.
The parties went to arbitration to decide whether DeNoble had been fired for just cause. The arbitrator, who noted DeNoble''s commendations, said the city''s allegations that DeNoble could have been dealing drugs were pure speculation and declined to apply the presumption that possession of an illegal substance invokes an intent to deliver them. The arbitrator also noted that DeNoble had passed a urine test for drugs.The arbitrator determined DeNoble was not fired for just cause. Rather than appeal, the city reinstated DeNoble and expunged from his employment file any reference to his termination. However, the city did not remove the indication in the Internal Affairs Division file, which was kept separately, that a complaint against DeNoble for "drugs found in locker" was sustained, Smith said.The Fraternal Order of Police lodged a complaint with the Pennsylvania Labor Relations Board, which found that the city violation the Pennsylvania Labor Relations Act by maintaining the IAD record.
On appeal to the Commonwealth Court, the city argued it was not required to remove the indications on the IAD record. It said because the arbitrator''s consideration was limited to whether DeNoble was terminated for just cause, its award was limited to matters concerning only the termination. Analogizing DeNoble''s case to a criminal proceeding, the city said he was not "acquitted," but that his "sentence" of termination was overturned."[The city] asserts that the hearing officer and the board broadened relief beyond the scope of the award, which made no mention of the IAD record," Smith said. "Further, as a matter of public policy the department owes a duty to monitor misconduct charges. An IAD record contains a notation that charges were either sustained, not sustained, unfounded or exonerated. "Here, although Officer DeNoble admitted misconduct in the handling of contraband, the board''s interpretation of the award would place him in a better position than an officer whose record showed an unfounded complaint."The city also said the award was ambiguous as to what record was to be expunged.The board counted that the award said the record should be expunged "to the fullest extent" which included the IAD record and that the arbitrator did not sustain the charges against DeNoble."[The board] contends that permitting the sustained case notation to remain and to have an impact on all future personnel decisions does not return DeNoble to his former position and make him whole in every respect," Smith said. Smith said the court agreed with the city that the arbitrator''s decision should not have gone beyond the narrow question presented to it. "The arbitrator refrained from applying an otherwise applicable directive relating specifically to mishandling of property taken into custody, and limited himself to reversing the termination," Smith said. "Thus there is little reason to suppose that the direction that Officer DeNoble''s record be cleared ''to the fullest extent'' referred to anything other than the record of termination."
I her dissenting opinion, joined by President Judge Joseph Doyle, Commonwealth Court Judge Rochelle Friedman focused on the phrase " to the fullest extent." She said it naturally included the IAD record. "Clearly, an IAD file must be considered part of an employee''s employment record where, as conceded by the city, a check of the IAD record may impact on future transfer and promotion decisions affecting the employee," Friedman said. Friedman said the city was effectively narrowing the award by "picking and choosing between those records it wishes to retain and those it believes are covered by the arbitration award. "The city chose not to appeal the arbitration award, so it should not now attack it, Friedman said.(Copies of the 18-page opinion in City of Philadelphia v. Pennsylvania Labor Relations Board, PICS NO. 01-0622, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases not available until 1 p.m.)