In Re: Appeal of S. Melamed, The Philadelphia Inquirer ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Samantha Melamed, :
The Philadelphia Inquirer :
:
From a Decision of: :
Office of Open Records :
:
Appeal of: Samantha Melamed, : No. 914 C.D. 2021
The Philadelphia Inquirer : Argued: November 14, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COVEY FILED: December 19, 2022
Samantha Melamed and The Philadelphia Inquirer (collectively,
Requester)1 appeal from the Philadelphia County Common Pleas Court’s (trial court)
July 23, 2021 order affirming the Office of Open Records’ (OOR) Final
Determination that granted in part and denied in part Requester’s appeals from the
City of Philadelphia (City) Police Department’s (PPD) denial of the Right-to-Know
Law (RTKL)2 request for records reflecting PPD officers dismissed in 2020
(Request). Requester presents one issue for this Court’s review: whether the trial
court erred by concluding that Section 708(b)(7)(viii) of the RTKL, 65 P.S. §
67.708(b)(7)(viii), did not require PPD to produce a list of officers whose dismissals
were pending a grievance arbitration process in 2020.3 After review, this Court
affirms.
1
Melamed is a staff writer for The Philadelphia Inquirer.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
3
Requester presents two issues in her Statement of Questions Involved: (1) whether records
reflecting 2020 PPD personnel dismissals concern the “final action of an agency that results in
On July 6, 2020, Requester emailed the Request to PPD for “[a]ny
record that reflects the police personnel dismissed in 2020, including name and rank
and effective date of dismissal. Please include all dismissals from Jan[uary] 1,
2020[,] until the date a response is provided.” Reproduced Record (R.R.) at 1a.
Because PPD did not respond to the Request or invoke an extension to respond
within five days, the Request was deemed denied.4 See Sections 901 and 902(b) of
the RTKL, 65 P.S. §§ 67.901, 67.902(b).
On July 23, 2020, Requester appealed to the OOR, declaring, in
relevant part:
[I]t is well documented that the [R]equest falls within
those materials rendered public by the [RTKL]. I request
final dismissals of police personnel in 2020, and the
[RTKL’s] exemption for personnel records [in Section
708(b)(7)(viii) of the RTKL] states[:] “This subparagraph
shall not apply to the final action of an agency that results
in demotion or discharge.” [65 P.S. § 67.708(b)(7)(viii).]
This is a time-sensitive matter, as it is the City’s position
that those dismissals are no longer public once a fired
officer has appealed or entered arbitration. Thus,
according to the [C]ity, these public records then become
un-public. While I do not agree with that position, my goal
right now is not to argue that issue[,] but to obtain the
records in a timely fashion - that is, ideally, within the five
days required by the [RTKL]. This [R]equest, given that
it is limited in scope and has been made and granted
repeatedly for previous time periods, should not trigger
demotion or discharge” such that their disclosure is mandated by Section 708(b)(7)(viii) of the
RTKL, 65 P.S. § 67.708(b)(7)(viii); and (2) whether the trial court erred by deciding that the PPD
is not required to produce records related to the termination of personnel who are arbitrating their
dismissals. See Requester Br. at 4. Because both issues are subsumed in this Court’s analysis of
whether the trial court erred by affirming the OOR’s interpretation of Section 708(b)(7)(viii) of
the RTKL, they will be addressed accordingly herein.
4
Requester received an auto-reply to her email indicating that RTKL operations had been
suspended. See R.R. at 5a, 14a. Thereafter, Divisional Deputy City Solicitor Feige Grundman
assured Requester that although City department responses may be delayed because of the
COVID-19 pandemic, the City was processing RTKL requests. See R.R. at 13a-14a.
2
any of the reasons for extension of time listed under the
[RTKL]. The legal review has been conducted in the past,
no redactions are needed, and no remote filing system is
involved.
R.R. at 5a (emphasis added). The OOR invited the parties to supplement the record
and directed the PPD to notify third parties of their ability to participate in the appeal.
By September 10, 2020 letter, PPD responded to Requester’s appeal,
therein asserting that it should be dismissed or denied because the PPD “has no
records responsive to [Requester’s] Request to the extent it seeks final actions of
discharge for PPD officers dismissed in 2020.” R.R. at 7a. PPD claimed that, since
its notices of dismissal are subject to further review under a mandatory grievance
arbitration process, they are not final agency actions until that process is complete,
and, thus, they are exempt from disclosure under Section 708(b)(7)(viii) of the
RTKL and what is referred to as the Personnel Files Act (Act).5 In support of its
position, PPD produced affidavits by PPD’s Open Records Officer, Lieutenant Barry
Jacobs (Jacobs), and Deputy Director of the Mayor’s Office of Labor Relations,
Rebecca Hartz (Hartz).6 Jacobs attested that he searched PPD’s records and “there
were no final actions of discharge for PPD officers dismissed in 2020.” R.R. at 17a.
Jacobs added:
5
Act of November 26, 1978, P.L. 1212, as amended, 43 P.S. §§ 1321-1324.
6
A local agency may provide affidavits to detail the search its RTKL
officer conducted for documents responsive to a[n] RTKL request
and the justification, if applicable, for any exemption from public
disclosure or privilege relied upon for denying a requester access to
responsive documents[.] Off[.] of Governor v. Scolforo, 65 A.3d
1095, 1103 (Pa. Cmwlth. 2013). Relevant and credible testimonial
affidavits may provide sufficient evidence in support of a claimed
exemption[.]
Off. of the Dist. Att’y of Phila. v. Bagwell, 155 A.3d 1119, 1130 (Pa. Cmwlth. 2017). “Where, as
here, no evidence has been presented to show that [PPD] acted in bad faith, the averments in the
[PPD’s] affidavits should be accepted as true.” McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d
374, 382-83 (Pa. Cmwlth. 2014).
3
a. Per the PPD Collective Bargaining Agreement
[(CBA)] with the Fraternal Order of Police [(FOP)],[7]
officers who are dismissed by PPD have the opportunity
to arbitrate their dismissal[s].
b. Any records PPD maintains of officers dismissed in
2020 are not final actions of discharge because no officers
that were dismissed by PPD in 2020 have completed the
arbitration process. Thus, none of the pending 2020 PPD
officer dismissals constitute final actions of demotions or
discharge.
c. As soon as any of the officers dismisse[d] by PPD in
2020 complete the arbitration process, if their dismissals
are upheld, the dismissal would be a final action of
discharge and considered public.
R.R. at 17a.
Hartz expounded in her affidavit:
4. Per [Section 7-303 of] the [Philadelphia Code, Phila.
Code § 7-303,] when a City agency wishes to terminate or
demote a City employee who is a member of the Civil
Service, it must have just cause for doing so.
a. The agency must first issue a notice of intent to
demote or dismiss the employee. The employee
may respond, in writing, within ten (10) days of
service of the notice. Within twenty (20) days
after the expiration of that 10-day period, the City
may issue to the employee a notice of the effective
date of the demotion or dismissal.
b. Under [Section 7-201 of] the [City’s] Civil
Service [Commission (Commission)] Regulations
[(Regulations), Phila. Code § 7-201], an employee
may, within thirty (30) days, appeal the dismissal
or demotion to the [Commission].
c. Represented employees may have a contractual
right to grieve the disciplinary action and have the
issue submitted to a neutral arbitrator for decision,
in lieu of decision by the [Commission]. The
7
The FOP CBA is not part of the record before this Court.
4
timeline for the grievance process is set forth in the
respective collective bargaining agreement.
5. Per the City’s [CBA] with [FOP], PPD employees
represented by the FOP may file a grievance with the
Police Commissioner or his/her designee, challenging the
discipline.
6. Per the CBA, if the grievance is not resolved by the
Police Commissioner or his/her designee, the [g]rievant
may next file a grievance with the Director of Labor
Relations. If the grievance is not resolved at that stage, the
[FOP] may demand arbitration. The discipline remains in
effect while any such demand is pending.
a. If the [FOP] elects to pursue arbitration, the
decision of the arbitrator is final and binding on all
parties.
7. If an arbitrator sustains the grievance, the arbitration
award may - in addition to any award reinstating the
grievant to his/her last position - require the City to
expunge the notices of discipline - both the notice of
intended discipline and the notice of the final disciplinary
action - from that employee’s personnel file.
R.R. at 19a-20a.
On September 18, 2020, Requester responded:
[T]his case[] . . . deals with a record that the [City] has
produced previously, pursuant to the [RTKL], but which
it now deems exempt from that law.[8]
I believe the [RTKL] is clear in this matter, as it says the
exemption for personnel files “shall not apply to the final
action of an agency that results in demotion or discharge.”
[65 P.S. § 67.708(b)(7)(viii).] I’m not asking for access to
the contents of personnel files, written criticism, or any
internal information, other than access to final actions of
discharge, whether or not they have subsequently been or
8
Requester included with her September 18, 2020 email a list of dismissed PPD officers
the PPD previously produced in response to a 2019 RTKL request by the Defender Association of
Philadelphia, plus a 2019 PPD press release announcing the intent to dismiss an officer. See R.R.
at 21a, 23a-25a.
5
will possibly be contested. The former employee’s quest
to be reinstated does not change the final nature of those
dismissals. And even if an employee is reinstated, the end
result of the arbitration is public pursuant to [the RTKL],
including any order for reinstatement.
....
Finally, even if the [C]ity’s perspective on dismissals --
that they are only final once arbitration has concluded or
the period to seek arbitration has expired -- is deemed
correct, the [C]ity should be then compelled in response to
this [R]equest to produce any documents related to
dismissal that became final per the [C]ity’s definition, in
2020 [] (arbitration was concluded with an outcome other
than reinstatement).
R.R. at 21a-22a.
On December 4, 2020, the OOR issued the Final Determination,
holding “[PPD] has met its burden of proving that no final actions resulting in
demotion of [sic] discharge for police personnel who received a notice of dismissal
in 2020 exist, as of the date of the Request.” OOR Final Determination at 6
(quotation marks omitted). However, “while [PPD] is not required to produce
records related to the termination of personnel who are still involved in the grievance
process, it must produce records of personnel whose dismissal became final during
the timeframe identified in the Request, regardless of when the dismissal was
initiated.” Id. at 7. On December 29, 2020, Requester timely appealed to the trial
court.
On June 28, 2021, Jacobs issued a supplemental affidavit providing
Requester with a list of officer discharges that became final in 2020 after completion
of the officers’ grievance arbitration processes. See Requester Br. at 5 n.1; see also
R.R. at 124a-127a. Specifically, Jacobs attested that, although there were no final
2020 dismissal actions at the time PPD received the July 6, 2020 Request, on July
31, 2020, PPD dismissed Officer Luis Miranda, who did not appeal from his
6
dismissal, and, thus, PPD provided a record of that dismissal to Requester after it
was final. See R.R. at 124a. Jacobs further disclosed that PPD officer Bryan
Turner’s September 10, 2018 dismissal became final on January 20, 2020; PPD
officer Jessica Kovacs’ January 15, 2019 dismissal became final on March 18, 2020;
and PPD officer Daniel Farrelly’s August 19, 2019 dismissal became final on
December 18, 2020. See R.R. at 127a. Jacobs also reported that PPD officer Javier
Montanez was initially discharged on May 20, 2020, but was reinstated on March
22, 2021, and the City was ordered to delete all references to the May 20, 2020
dismissal because it was without just cause. See R.R. at 125a.
After briefing9 and oral argument, by July 23, 2021 order, the trial court
affirmed the OOR’s Final Determination, holding that, because police officer
discharges are uniquely governed by the grievance arbitration process set forth in
the act commonly referred to as the Policemen and Firemen Collective Bargaining
Act or Act 111 (Act 111),10 then the grievance arbitrator’s decision, not PPD’s
decision, is the final action. Requester appealed to this Court.11 On October 20,
9
The ACLU-PA filed an amicus curiae brief supporting Requester, reversal, and disclosure
of the requested records. See R.R. at 86a-108a.
10
Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.12.
11
This Court’s “review of a trial court’s order in a[n] RTKL dispute is
‘limited to determining whether findings of fact are supported by
[substantial] evidence or whether the trial court committed an error
of law, or an abuse of discretion in reaching its decision.’” Butler
Area Sch. Dist. v. Pennsylvanians for Union Reform, 172 A.3d 1173,
1178 n.7 (Pa. Cmwlth. 2017) (quoting Kaplin v. Lower Merion
Twp., 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth. 2011)). “The scope of
review for a question of law under the [RTKL] is plenary.” SWB
Yankees LLC v. Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth.
2010) (quoting Stein v. Plymouth Twp., 994 A.2d 1179, 1181 n.4
(Pa. Cmwlth. 2010), aff’d, . . . 45 A.3d 1029 ([Pa.] 2012)).
Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 178 n.8 (Pa. Cmwlth. 2019).
On November 9, 2021, this Court granted a motion to admit Gunita Singh, staff attorney
for Reporters Committee for Freedom of the Press, pro hac vice to represent Requester in this
appeal, as she did before the trial court.
7
2021, the trial court issued its opinion pursuant to Pennsylvania Rule of Appellate
Procedure (Rule) 1925(a) (Rule 1925(a) Opinion).
Initially, “[t]he purpose of the RTKL is ‘to promote access to official
government information in order to prohibit secrets, scrutinize the actions of public
officials, and make public officials accountable for their actions.’” Mun. of Mt.
Lebanon v. Gillen, 151 A.3d 722, 730 (Pa. Cmwlth. 2016) (quoting Pa. State Educ.
Ass’n v. Commonwealth, 148 A.3d 142, 155 (Pa. 2016)). To that end,
[p]ursuant to the RTKL, a public record must be accessible
for inspection and duplication. Section 701(a) of the
RTKL, 65 P.S. § 67.701(a). A record in the possession of
an agency . . . is presumed to be a public record, unless the
record is exempt under Section 708 of the RTKL, 65 P.S.
§ 67.708, protected by a privilege, or exempt from
disclosure under other law or court order. See Section
305(a) of the RTKL, 65 P.S. § 67.305(a). The agency
bears the burden to prove that a record is exempt from
public access.[12] See Section 708(a)(1) of the RTKL.
Sturgis v. Dep’t of Corr., 96 A.3d 445, 446 (Pa. Cmwlth. 2014). However, “[w]hen
resolving disputes regarding the disclosure of government records under the RTKL,
agencies and reviewing courts must begin from a presumption of transparency.”
Payne v. Pa. Dep’t of Health, 240 A.3d 221, 225 (Pa. Cmwlth. 2020). Further,
“[c]onsistent with the RTKL’s goal of promoting government transparency and its
remedial nature, the exceptions to disclosure of public records must be narrowly
12
The “burden of proving that a record of a . . . local agency is exempt
from public access shall be on the . . . local agency receiving a
request by a preponderance of the evidence.” Section 708[(a)(1)] of
the RTKL, 65 P.S. § 67.708(a)(1) . . . . A preponderance of the
evidence is such evidence as would lead a fact-finder to find that the
existence of a contested fact is more probable than the nonexistence
of the contested fact. P[a.] Off[.] of Att[’y] Gen[.] v. Bumsted, 134
A.3d 1204, 1210 n.12 (Pa. Cmwlth. 2016); P[a.] State Troopers
Ass[’n] v. Scolforo, 18 A.3d 435, 438-[]39 (Pa. Cmwlth. 2011).
Bagwell, 155 A.3d at 1130 (emphasis omitted).
8
construed.” Off. of the Governor v. Davis, 122 A.3d 1185, 1191 (Pa. Cmwlth. 2015)
(en banc).
Relevant to the instant matter, Section 708(b) of the RTKL declares:
[T]he following are exempt from access by a requester
under this [RTKL]:
....
(7) . . . [R]ecords relating to an agency employee:
....
(viii) Information regarding discipline, demotion or
discharge contained in a personnel file. This
subparagraph shall not apply to the final action of an
agency that results in demotion or discharge.
65 P.S. § 67.708(b) (emphasis added). Therefore, under Section 708(b)(7)(viii) of
the RTKL, records of “the final action of an agency that results in . . . discharge” are
publicly accessible. 65 P.S. § 67.708(b)(7)(viii).
Requester argues that the clear language of Section 708(b)(7)(viii) of
the RTKL mandates that PPD’s 2020 officer dismissals are final actions, and PPD
may not use the CBA to subvert the RTKL.13 PPD retorts that, based on Section
708(b)(7)(viii) of the RTKL’s plain meaning, a PPD dismissal is final only after the
discharge is upheld through the grievance arbitration process.14 Accordingly, the
issue is whether the City’s dismissal of a PPD officer pending the grievance process
is a “final action of [(PPD)],” 65 P.S. § 67.708(b)(7)(viii), at the time PPD issues the
dismissal notice, or after a grievance arbitrator has rendered a decision.
13
Alternatively, Requester adds that the public’s interest in disclosure vastly outweighs
PPD’s interest in denying access.
14
In the alternative, PPD contends that, if the language of Section 708(b)(7)(viii) of the
RTKL is considered ambiguous, PPD’s approach properly balances privacy interests against the
public’s interest in full disclosure.
9
The OOR held that PPD’s interpretation that the Request sought only
records in which notices of dismissal were sent in 2020 and grievance procedures
were concluded was unreasonably narrow. The OOR declared that “the context
makes clear that the Request sought records reflecting the dismissal of officers that
became final in 2020, regardless of the original date of the notice of dismissal[,]”
and “[PPD] is not required to produce records related to the termination of personnel
who are still involved in the grievance process . . . .”15 Id. at 7.
The OOR reasoned:
In Nolen v. Phila[delphia] Police Dep[artment], the
request, filed near the end of February of 2017, sought
notices of dismissal and demotion “placed in personnel
folders” in 2016. [PPD] produced the notices but denied
access to records related to matters that were still involved
in labor disputes, holding that records were not yet “final
actions” subject to the exception from the exemption.
OOR Dkt. AP 2017-1039[] . . . [(July 19, 2017)]. The
OOR noted the Commonwealth Court’s reliance in Silver
v. Borough of Wilkinsburg, 58 A.3d 125 (Pa. C[mwlth.] []
2012), on Webster’s Third New College Dictionary’s
definition of “final action” as “forming or occurring at the
end . . . or constituting the last element in a series, process
or procedure.” Id. The Court in Silver concluded that the
“final action” in that case was the act of the agency in
terminating the employee’s employment. Id. at 130.
Based on this definition, the OOR held that records related
15
The OOR represented that, although the responding agency may interpret the meaning
of an RTKL request, the interpretation must be reasonable. See Ramaswamy v. Lower Merion Sch.
Dist., OOR Dkt. AP 2019-1089 (Apr. 10, 2020), at 2.
When a request is subject to multiple interpretations, it is the OOR’s
task to determine if the agency’s interpretation was reasonable.
Ramaswamy . . . . The OOR determines this from the text and
context of the request alone, as neither the OOR nor the requester is
permitted to alter a request on appeal. See McKelvey v. Off[.] of the
Att[’]y Gen., 172 A.2d 122, 127 (Pa. C[mwlth.] [] 2016); Smith Butz,
LLC v. Dep’t of Env[’]t Prot[.], 142 A.3d 941, 945 (Pa. C[mwlth.]
[] 2016).
OOR Final Determination at 6.
10
to dismissals that were still in the grievance process did
not qualify as “final actions.” See also Black v. Pa. State
Police, OOR Dkt. AP 2016-0203 . . . [(Apr. 7, 2016)]
(stating that the Notice of Imposition of Arbitration Award
“constitutes the final action of an agency that results in
demotion or discharge” under Section 708(b)(7)(viii) of
the RTKL).[16]
OOR Final Determination at 7.
On appeal, the trial court affirmed the OOR’s Final Determination, but
on the basis that “[p]olice departments are not typical agencies, [as] they are subject
to different rules for police officer discharge[;]” in particular, Act 111’s “grievance
arbitration process is mandatory” for police officers. OOR Final Determination at
5. The trial court added that, while other agencies may have different processes in
place, “[i]n the unique circumstances of police officers, [] reversal or modification
must come about via mandatory grievance arbitration[.]” Id. at 6-7. The trial court
reasoned:
If an arbitrator, as part of a mandatory grievance
arbitration, has the authority to reinstate a police officer
who had been previously discharged by [PPD], [PPD’s]
action cannot be the final action.
The arbitrator’s decision, and not [PPD’s] decision, is the
“last element” in the process. See Silver, 58 A.3d at 127.
To conclude otherwise would not only frustrate the very
purpose of Act 111, but it would be inconsistent with the
RTKL exemption.
Trial Ct. Rule 1925(a) Op. at 6.
In Silver, a newspaper appealed to this Court from a trial court order
upholding the OOR’s determination that granted the newspaper access to a redacted
16
This Court acknowledges: “Although the issue presented here is one of first impression
for this Court, [the] OOR has previously addressed the meaning of the phrase in its decisions.
However, . . . [e]ven if [the] OOR’s decisions were consistent, they are not binding precedent in
this Court.” UnitedHealthcare of Pa., Inc. v. Pa. Dep’t of Hum. Servs., 187 A.3d 1046, 1055 (Pa.
Cmwlth. 2018).
11
version of a municipal employee’s termination letter.17 The newspaper argued, inter
alia, that because an employment termination letter is a final action resulting in
discharge, the entire letter should have been produced in accordance with Section
708(b)(7)(viii) of the RTKL. On appeal, this Court affirmed the trial court’s
decision, reasoning:
The RTKL does not define “final action.” It is “a well-
settled rule of statutory construction that when statutory
provisions are not ambiguous, legislative intent should be
effectuated by according the words their plain and
ordinary meaning and not by disregarding their obvious
meaning in search of a particular result.” In re
Condemnation of a Permanent Right-of-Way, 873 A.2d
14, 17 (Pa. Cmwlth. 2005). According to Webster’s Third
New College Dictionary 428, 12 (2008), the definition of
final is “forming or occurring at the end . . . or constituting
the last element in a series, process[,] or procedure[;]”
and the definition of action is “the process of acting or
doing . . . [a]n act or deed.”
Silver, 58 A.3d at 127 (emphasis added). Although the Silver Court concluded that
a municipal agency’s discharge of an employee is the final action contemplated by
Section 708(b)(7)(viii) of the RTKL, Silver did not involve a police officer subject
to the mandatory Act 111 grievance arbitration process.
Section 3101.1 of the RTKL states: “If the provisions of [the RTKL]
regarding access to records conflict with any other [f]ederal or [s]tate law, the
provisions of [the RTKL] shall not apply.” 65 P.S. § 67.3101.1. “Act 111 gives
police . . . personnel, who are not permitted to strike, the right to bargain collectively
with their public employers.” Fraternal Ord. of Police Fort Pitt Lodge No. 1 v. City
of Pittsburgh, 203 A.3d 965, 966 n.3 (Pa. 2019); see also City of Pittsburgh v.
Fraternal Ord. of Police Fort Pitt Lodge No. 1, 111 A.3d 794 (Pa. Cmwlth. 2015).
17
The municipality redacted all information contained in the letter, except the employment
termination language itself, and that the employee had been given notice of the termination. The
redacted information related to previous disciplinary action.
12
According to Hartz, PPD officers bargained for the right to grieve their disciplinary
actions and have a neutral arbitrator conduct just cause reviews when they are
discharged. See R.R. at 19a-20a.
The Pennsylvania Supreme Court has ruled:
[B]y casting the arbitrator into the role of resolving
disputes arising under the [CBA], . . . the parties intended
for the arbitrator to have the authority to interpret the
terms of the [CBA], including the undefined term “just
cause” and to determine whether there was just cause for
discharge in [a] particular case.
Off. of Att’y Gen. v. Council 13, Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO,
844 A.2d 1217, 1224 (Pa. 2004) (emphasis added). Moreover, this Court has
recognized that “the arbitration process allows arbitrators to modify disciplinary
penalties and fashion appropriate awards based on the specific facts of a given
case.” Cnty. of Allegheny v. Allegheny Cnty. Prison Emps. Indep. Union, 244 A.3d
873, 882 (Pa. Cmwlth. 2020) (emphasis added). In addition, “there is a limited right
of review [of a grievance arbitrator’s decision] in the nature of narrow certiorari.”18
Pa. State Police v. Pa. State Troopers’ Ass’n, 656 A.2d 83, 89 n.15 (Pa. 1995); see
also id. at 85 n.3; City of Wash. Arb., 259 A.2d 437 (Pa. 1969).
In light of an Act 111 grievance arbitrator’s authority to reverse PPD’s
dismissals and direct the evidence thereof be expunged, PPD is not using the CBA
to subvert the RTKL by refusing to disclose police officer dismissals before a
grievance has been filed and the grievance process completed. Rather, the PPD is
complying with Section 708(b)(7) of the RTKL, and exempting officer discharge
18
“The narrow certiorari scope of review limits a reviewing court to questions regarding:
(1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the
arbitrator’s powers; and (4) deprivation of constitutional rights.” City of Phila. v. Fraternal Ord.
of Police Lodge No. 5, 677 A.2d 1319, 1322 (Pa. Cmwlth. 1996) (quoting Pa. State Police v. Pa.
State Troopers’ Ass’n, 656 A.2d 83, 85 (Pa. 1995)). Thus, further appeal from a grievance
arbitrator’s award to this Court is only to review the propriety of the arbitrator’s award, not whether
a police department employer had just cause to discharge an officer.
13
information in a personnel file from public inspection until “the last element in [the
Act 111] series, process[,] or procedure” has occurred. Silver, 58 A.3d at 127.
The CBA that governs the employment relationship provides for
mandatory arbitration in which an arbitrator is authorized to determine if PPD had
just cause to end the employment relationship. Because mandatory arbitration is
part of PPD’s employment termination process, if a PPD officer files a grievance in
response to his dismissal, there is no final agency decision until a grievance arbitrator
renders his/her decision. Only if the officer does not file a grievance is PPD’s officer
employment termination the final agency decision.
Narrowly construing the plain language of Section 708(b)(7)(viii) of
the RTKL, as it must, this Court rules that PPD’s officer dismissals pending review
under the Act 111 grievance arbitration are not final actions subject to disclosure.
Accordingly, the trial court properly concluded as a matter of law that PPD did not
have to produce to Requester records of 2020 PPD officer dismissals that were
pending the grievance arbitration process when the Request was submitted.19
Based on the foregoing, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
19
Because this Court agrees with the parties that Section 708(b)(7) of the RTKL is
unambiguous, this Court need not address the parties’ alternative public policy arguments. See
Requester Br. at 19 (“Here, the plain text of [Section 708(b)(7) of the RTKL] is unambiguous.”);
see also PPD Br. at 17 (“The statutory language here is plain and unambiguous.”).
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Samantha Melamed, :
The Philadelphia Inquirer :
:
From a Decision of: :
Office of Open Records :
:
Appeal of: Samantha Melamed, : No. 914 C.D. 2021
The Philadelphia Inquirer :
ORDER
AND NOW, this 19th day of December, 2022, the Philadelphia County
Common Pleas Court’s July 23, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge