PASSHE, Lock Haven University v. APSCUF ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State System of Higher :
Education, Lock Haven University, :
:
Petitioner :
:
v. : No. 1040 C.D. 2017
: Argued: April 10, 2018
Association of Pennsylvania State :
College and University Faculties, :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: August 31, 2018
The Pennsylvania State System of Higher Education (PASSHE)
petitions for review from a July 3, 2017 award of an arbitrator that determined that
Lock Haven University (Lock Haven), a PASSHE member university, lacked just
cause to terminate a professor in its Mathematics Department (Grievant)1 based on
the result of a 2016 criminal history report that revealed that Grievant was convicted
of sexual offenses in 1990, 14 years prior to being hired by Lock Haven. The
arbitrator awarded Grievant reinstatement to his position with a make-whole remedy
and required that Lock Haven not assign Grievant to classes or programs that admit
1
For privacy reasons, the arbitrator declined to identify Grievant by name in the award and we do
not deviate in that decision or reveal any additional information regarding Grievant not already
discussed in the award.
high school students who enroll in college courses but have not yet matriculated in
the university, referred to as “dual-enrolled students” or “dual enrollees.” The issues
in this appeal are whether the arbitrator’s award contravenes the public policy of
protecting minors from sexual abuse and whether the award violates the essence test
because it intrudes on PASSHE’s inherent managerial right to assign professors and
students to specific classes. We conclude that the award does not contravene public
policy or intrude on PASSHE’s inherent managerial rights and accordingly affirm
the award.
BACKGROUND
Statutory Developments and Related Litigation
Before addressing the facts related to the grievance arbitration under
appeal, it is necessary to review legislative changes to the Child Protective Services
Law (CPSL)2 undertaken by the General Assembly following a widely publicized
child sexual abuse scandal at Pennsylvania State University, several related policy
enactments undertaken by PASSHE and litigation that ensued between PASSHE and
the Association of Pennsylvania State College and University Faculties (APSCUF),
the exclusive representative for a bargaining unit of faculty members employed by
PASSHE. Beginning in 2014, the General Assembly passed several amendments
strengthening the CPSL, including the Act of October 22, 2014, P.L. 2529, No. 153
(Act 153), which, inter alia, amended Section 6344 of the CPSL related to the
requirement of individuals with child care contact or responsibilities to obtain
Federal Bureau of Investigation (FBI) and Pennsylvania State Police (PSP) criminal
history reports and a certification that the individual does not appear in the ChildLine
2
23 Pa. C.S. §§ 6301-6386.
2
and Abuse Registry.3 23 Pa. C.S. § 6344. Act 153, which went into effect on
December 31, 2014, added subsection (a.1) to Section 6344, which relates to the
applicability of Section 6344’s clearance requirement to school employees;
following the passage of Act 153, the CPSL clearances were required of all
employees of institutions of higher education who had direct contact with children.4
Section 6344(a.1) was subsequently amended by the Act of July 1,
2015, P.L. 94, No. 15 (Act 15), which went into effect immediately and clarified
which employees at institutions of higher education were required to obtain
clearances under Section 6344. Section 6344(a.1), as amended by Act 15, now
reads:
(a.1) School employees.--This section shall apply to
school employees as follows:
(1) School employees governed by the provisions of
the act of March 10, 1949 (P.L. 30, No. 14), known
as the Public School Code of 1949, shall be subject
to the provisions of section 111 of the Public School
Code of 1949, except that this section shall apply
with regard to the certification required under
subsection (b)(2).
(2)(i) School employees not governed by the
provisions of the Public School Code of 1949 shall
be governed by this section.
(ii) This paragraph shall not apply to an employee
of an institution of higher education whose direct
3
The FBI and PSP criminal history reports and the ChildLine certification are collectively referred
to in this opinion as “clearances.” The ChildLine Registry is a unit of the Department of Human
Services that operates a statewide system for receiving and maintaining reports of suspected child
abuse and referring reports for investigation. 23 Pa. C.S. § 6332; 55 Pa. Code § 3490.4.
4
“Direct contact with children” is defined in the CPSL as the “care, supervision, guidance or
control of children or routine interaction with children.” 23 Pa. C.S. § 6303(a).
3
contact with children, in the course of employment,
is limited to either:
(A) prospective students visiting a campus
operated by the institution of higher
education; or
(B) matriculated students who are enrolled
with the institution.
(iii) The exemption under subparagraph (ii)(B) shall
not apply to students who are enrolled in a
secondary school.
23 Pa. C.S. § 6344(a.1). Section 6344.4(1)(iv), which was added to the CPSL by
Act 15, requires that existing employees who are identified as needing Section 6344
clearances but who were never previously required to obtain them must do so by
December 31, 2015. 23 Pa. C.S. § 6344.4(1)(iv).
PASSHE’s Board of Governors adopted two policies in response to the
General Assembly’s amendments of the CPSL. First, the Board adopted Policy
2014-01-A: Protection of Minors (Policy), which went into effect on December 31,
2014 and was amended on January 22, 2015. (Reproduced Record (R.R.) 449a-55a.)
The Policy requires all current and prospective employees to obtain FBI and PSP
criminal history reports and is applicable to “all programs and activities involving
minors that fall within the scope of this policy, including graduate and undergraduate
course offerings.” (Policy 2014-01-A §§ A, C(4), R.R. 449a, 453a.) On September
2, 2015, the Board of Governors adopted Policy 2015-21: Background Clearances
and Reporting Requirements, which set forth detailed procedures on obtaining
criminal history reports and ChildLine certifications in light of the amendments to
the CPSL. (R.R. 456a-74a.)
In August 2015, APSCUF filed an unfair labor practice charge against
PASSHE with the Pennsylvania Labor Relations Board (PLRB) and an original
4
jurisdiction petition in this Court seeking an injunction against PASSHE.
Association of Pennsylvania State College and University Faculties v. Pennsylvania
State System of Higher Education, (Pa. Cmwlth., No. 407 M.D. 2015). APSCUF’s
chief complaint in the Commonwealth Court case was that the Policy required many
of its members to have to submit criminal history reports and ChildLine
certifications despite being statutorily exempted from having to submit clearances
pursuant to Section 6344(a.1)(2)(ii) of the CPSL. On September 17, 2015, then-
President Judge Dan Pellegrini entered a preliminary injunction that prevented
PASSHE from requiring APSCUF members to submit clearances except with
respect to PASSHE employees who teach courses containing dual enrollees or who
are involved with programs that require the employees to have direct contact with
children. On January 13, 2016, Judge Pellegrini entered a clarifying order stating
that the injunction would remain in effect pending a contrary arbitration decision or
PLRB decision that determines that the clearances are mandated by law or an
inherent managerial right. Judge Pellegrini’s order stated that all PASSHE
employees teaching an introductory level course, often referred to as a “100-level
course,” must submit Section 6344 clearances. The January 13, 2016 order further
provided that, except as otherwise agreed to by the parties, dual-enrolled students
may not enroll in upper-level courses unless a PASSHE employee who is subject to
the Section 6344 clearance requirement and who has complied with the clearance
requirement is available to teach the course. On April 26, 2017, the Supreme Court
issued a per curiam order affirming the January 13, 2016 order. Association of
Pennsylvania State College and University Faculties v. Pennsylvania State System
of Higher Education, 161 A.3d 193 (Pa. 2017).
On June 20, 2017, the PLRB issued a final order rejecting APSCUF’s
unfair labor charge, ruling that PASSHE’s implementation of its requirement that in
5
the Policy all bargaining unit faculty and coaches submit clearances is a managerial
prerogative and as such is not a mandatory subject for bargaining. Association of
Pennsylvania State College and University Faculties v. Pennsylvania State System
of Higher Education, (PLRB No. PERA-C-15-240-E, filed June 20, 2017), 2017 WL
3129198. The PLRB’s final order, however, was appealed, and on April 19, 2018,
a panel of this Court issued an opinion reversing in part and affirming in part the
PLRB order. Association of Pennsylvania State College and University Faculties v.
Pennsylvania Labor Relations Board, (Pa. Cmwlth., No. 966 C.D. 2017, filed April
19, 2018), 2018 WL 1868303. This Court reversed as to the APSCUF bargaining
unit members who were not required to submit clearances pursuant to Section
6344(a.1) as amended by Act 15, holding that applying the background check
requirement to those employees was not an inherent managerial prerogative and
therefore PASSHE was not exempt from bargaining over this issue. Id., slip op. at
15-17, 2018 WL 1868303, at *7-*8. On the other hand, this Court affirmed the
PLRB’s order as to the bargaining unit members who were required by Section
6344(a.1) to submit criminal history reports and ChildLine certifications because
PASSHE could not bargain over something it was required by law to do. Id., slip
op. at 11-12, 17, 2018 WL 1868303, at *5, *8.
Discharge of Grievant
In 1989, Grievant was charged in Kentucky with two counts of Sodomy
in the third degree and one count of Sexual Abuse in the first degree. (Arbitration
Award at 12.) Though the exact nature of Grievant’s crime is unclear, it appears that
Grievant, who was 19 years old at the time, performed oral sex on an 8-year-old boy
and engaged in another unspecified sexual act with another minor. (Id. at 8, 13, 17.)
Grievant was convicted of the charges in 1990, and he received a 5-year prison
sentence, which was automatically reduced by 25% when he successfully completed
6
a voluntary sex offender therapy program while incarcerated. (Id. at 7, 16 n.11, 17;
Ex. E-19, R.R. 534a-35a; Ex. E-20, R.R. 599a-600a.)
Following his release from prison, Grievant completed his
undergraduate studies where he tutored students and then received a Ph.D. in
Mathematics from Michigan State University where he directed the Mathematics
Learning Center and supervised 110 graduate assistants. (Arbitration Award at 16.)
Grievant was hired by Lock Haven in 2004 as a professor in the Mathematics
Department. (Id. at 11.) In 2009, Grievant was granted tenure by Lock Haven and
promoted to full professor based on his highly regarded teaching and scholarship.
(Id. at 16; Ex. U-3, R.R. 688a-92a.) In 2014, a faculty committee recommended that
Grievant’s tenure be renewed as part of a regular review process that occurs every
five years. (Arbitration Award at 16.)
When Grievant was initially hired at Lock Haven in 2004, the
employment application that he completed asked only whether he had been
convicted of a crime within the previous decade or whether there were any criminal
charges currently pending against him, to which Grievant truthfully responded in the
negative. (Arbitration Award at 18; Ex. E-1, R.R. 447a.) There has been no
allegation that Grievant engaged in any other instance of sexual abuse or any other
impropriety while employed at Lock Haven or at any point after 1989. (Arbitration
Award at 16-17, 19.)
On January 15, 2016, two days after Judge Pellegrini issued his order
stating that all PASSHE faculty members who teach 100-level courses are subject to
the clearance requirement of the CPSL, a human resources employee at Lock Haven
emailed Grievant stating that, because he was teaching a 100-level course during the
spring semester, he was required to submit an FBI criminal history report and
7
ChildLine certification before the first day of classes.5 (Arbitration Award at 6; Ex.
E-8, R.R. 485a.) On February 17, 2016, Grievant delivered to Deana Hill, Associate
Vice President for Human Resources at Lock Haven, an FBI criminal history report
noting the three charges filed against him in Kentucky in 1989 and his subsequent
1990 conviction. (Arbitration Award at 6; Ex. E-12, R.R. 489a-93a.) The
Department of Human Services letter accompanying the report stated that the result
of the FBI background check was “DISQUALIFICATION – Record exists and
contains a conviction(s) that is grounds for denying employment in a childcare
position according to the” CPSL.6 (Ex. E-12, R.R. 489a.) Counsel for PASSHE
obtained a packet of documents related to the charges against Grievant from a LaRue
County, Kentucky official, which were provided to Michael Fiorentino, President of
Lock Haven. (Arbitration Award at 7-8.)
On April 6, 2016, President Fiorentino notified Grievant that he was
being placed on administrative leave with pay and benefits pending a fact-finding
investigation. (Arbitration Award at 8; Ex. E-16, R.R. 526a.) Hill conducted the
fact-finding investigation, which included a meeting and interview in the presence
of a union representative. (Arbitration Award at 8.) According to the investigative
report Hill prepared, Grievant stated during his interview that he had not been
arrested or charged with any crime since he was released from prison, in the 27
intervening years since the incident he has always “done the right thing,” he strictly
5
Lock Haven had previously received a copy of the PSP criminal history report in 2015 stating
that Grievant had no criminal record in Pennsylvania. (Arbitration Award at 5; Ex. E-6, R.R.
482a.) Grievant submitted a certification in February 2016 indicating that there was no record
related to Grievant in the ChildLine Registry. (Arbitration Award at 6; Ex. E-10, R.R. 487a.)
6
Section 6344(c) of the CPSL contains a list of offenses, including sexual assault and sexual abuse
of children, under the Crimes Code or an equivalent crime under Federal law or the law of another
state that disqualify an applicant for employment. 23 Pa. C.S. § 6344(c)(2).
8
observed the PASSHE policy on the protection of minors, he kept his office door
open during all meetings, and he was a “safe member of the faculty.” (Arbitration
Award at 8-9; Ex. E-19, R.R. 534a-35a.)
On May 9, 2016, President Fiorentino conducted a pre-disciplinary
conference. (Arbitration Award at 9-10.) On May 18, 2016, President Fiorentino
sent Grievant a letter notifying him that his employment was terminated. (Id. at 10.)
In the letter, President Fiorentino stated that he considered that Grievant had a
“regular and recurring teaching assignment” of 100-level courses in which non-
matriculated minors could enroll and that he participated in running an annual math
competition for high school students hosted by Lock Haven. (Id. at 11; Ex. E-24,
R.R. 646a.) President Fiorentino stated that he did not agree with Grievant’s
sentiment that he was a changed person since his conviction and that the severity
and relevancy of the criminal offenses outweighed any possible mitigation due to
the passage of time and therefore required Grievant’s dismissal. (Arbitration Award
at 11; Ex. E-24, R.R. 645a-46a.) APSCUF filed a “Step Three” grievance with
PASSHE on behalf of Grievant, which PASSHE denied on October 31, 2016.
(Arbitration Award at 11-14; Joint Ex. 2, R.R. 440a-46a.)
The grievance was then referred to binding arbitration. The arbitrator
conducted two days of hearings in December 2016. President Fiorentino, Hill and
Michael Ferguson, counsel for PASSHE, testified on behalf of PASSHE. Grievant
and the Chair of the Mathematics Department testified for APSCUF.
Arbitration Award
In the award, the arbitrator concluded that the central issue was whether
Grievant’s continued employment constituted an unacceptable threat to any minors
within the Lock Haven student population in spite of the nearly three decades that
have elapsed since his crime without any improper behavior. (Arbitration Award at
9
14.) The arbitrator stated that under the “just cause” standard, PASSHE was required
to show “a concrete reason for separating him from employment.” (Id.)
Addressing PASSHE’s rationale for terminating Grievant, the arbitrator
discussed President Fiorentino’s statements that the passage of time was not a
mitigating factor because of the severity of the offenses involving the sexual
victimization of a minor and that the offenses were relevant to his job duties of
teaching 100-level courses in which high school students might enroll and assisting
in a high school math competition. (Arbitration Award at 15.) The arbitrator
concluded that, while hiring decisions may be based solely on the severity of the
crime and risk that the applicant would commit similar acts in the future, decisions
regarding current employees must take into account objective factors pointing
towards the employee committing a similar act, with the predictive value of an old
conviction receding as evidence of more recent trustworthiness piles up. (Id.) The
arbitrator noted that in 2004 PASSHE implicitly accepted the potential of a candidate
for employment to be rehabilitated from a distant criminal act as Grievant’s
employment application only asked for information regarding pending charges or
criminal convictions in the prior 10 years. (Id. at 18.)
The arbitrator detailed Grievant’s academic accomplishments since his
release from prison and described his unblemished record, excellent reviews and
history of advancement at Lock Haven, including his receipt of tenure and its
renewal. (Arbitration Award at 16.) The arbitrator rejected the contention by
PASSHE that Grievant had not expressed remorse for his actions, describing
Grievant’s testimony in the arbitration hearing regarding his contrition, the voluntary
sex offender program he participated in while in prison where he learned
“ownership” and acceptance of what he had done, and his self-professed
“obligation” and “commitment” to do no harm again and be an upstanding
10
individual. (Id. at 17 (quoting Dec. 16, 2016 Hearing Testimony at 266, 272-73,
R.R. 266a, 272a-73a).) The arbitrator further noted that the only evidence presented
by either side regarding Grievant’s mental state was a 1990 psychiatric report that
indicated that he had a good prognosis and he was “demonstrating significant
insight.” (Arbitration Award at 15 (quoting Ex. E-15, R.R. 512a).)
The arbitrator finally addressed whether Grievant could still perform
his job duties without having contact with high school students, concluding that
PASSHE had not demonstrated that it would be impractical for Grievant to
exclusively teach matriculated students. (Arbitration Award at 18.) The arbitrator
concluded that PASSHE lacked just cause for the termination, holding that the
preponderance of evidence showed that Grievant’s youthful criminal acts had not
followed him into middle age. (Arbitration Award at 19-20.) The arbitrator further
concluded that “being in direct contact with dual enrollees is not an essential aspect
of his role as a professor” and he could perform his job duties with minimal
accommodation to ensure he does not teach dual enrollees. (Id. at 19.) The arbitrator
accordingly reinstated Grievant to his position and made him whole with the proviso
that he would not be assigned to classes or programs that admit dual enrollees. (Id.
at 19, Award.)
DISCUSSION
Essence Test
PASSHE first challenges the remedy in the arbitrator’s award that
limited Grievant from being assigned to classes or programs that admit dual-enrolled
students, arguing that the award is not rationally derived from the collective
bargaining agreement (CBA) between PASSHE and APSCUF and therefore violates
the essence test.
11
The essence test, the applicable standard of review in appeals from
grievance arbitration awards, has been described as one of “great deference” which
requires that an arbitration award be affirmed so long as it draws its essence from
the applicable CBA. Westmoreland Intermediate Unit # 7 v. Westmoreland
Intermediate Unit # 7 Classroom Assistants Educational Support Personnel
Association, PSEA/NEA, 939 A.2d 855, 862-63 (Pa. 2007); State System of Higher
Education (Cheyney University) v. State College University Professional
Association (PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). This test involves a two-
step analysis; first, the court must determine if the issue is properly defined as within
the terms of the CBA and second, if the issue is embraced in the agreement, whether
the award is rationally derived from the agreement. Westmoreland Intermediate
Unit # 7, 939 A.2d at 863; Cheyney University, 743 A.2d at 413. As our Supreme
Court has explained, “a court will only vacate an arbitrator’s award where the award
indisputably and genuinely is without foundation in, or fails to logically flow from,
the” CBA. Westmoreland Intermediate Unit # 7, 939 A.2d at 863 (quoting Cheyney
University, 743 A.2d at 413).
Under the essence test, the arbitrator’s findings of fact are binding on
the courts, and the reviewing court may not undertake any independent factual
analysis. Rose Tree Media Secretaries & Educational Support Personnel
Association-ESPA, PSEA-NEA v. Rose Tree Media School District, 136 A.3d 1069,
1078 (Pa. Cmwlth. 2016); Bethel Park School District v. Bethel Park Federation of
Teachers, Local 1607, 55 A.3d 154, 159 n.4 (Pa. Cmwlth. 2012). In addition, a court
may not review the merits or reasonableness of the arbitrator’s award under the guise
of the essence test. Westmoreland Intermediate Unit # 7, 939 A.2d at 863; Cheyney
University, 743 A.2d at 410-11, 413 n.8.
12
PASSHE asserts that the arbitrator’s remedy encroaches on its inherent
managerial rights under the CBA to direct the teaching assignments of faculty.
PASSHE contends that the award changes Grievant’s job description and removes a
significant amount of the work (teaching 100-level courses) of the position for which
Grievant was hired. PASSHE argues that it never negotiated with APSCUF
regarding the assignment of faculty to teaching assignments and in fact that this
power was explicitly reserved to PASSHE, citing Article 10 of the CBA, which sets
forth the right of PASSHE and its member universities and provides that PASSHE
has the right to “manage all operations including the direction of FACULTY,” and
Article 5(D) of the CBA, which provides that the “arbitrator shall have no authority
to add to, subtract from, or modify this Agreement.” (R.R. 292a, 304a.) Moreover,
as PASSHE points out, Section 702 of the Public Employe Relations Act provides
that “[p]ublic employers shall not be required to bargain over matters of inherent
managerial policy, which shall include but shall not be limited to such areas of
discretion or policy as the…selection and direction of personnel.”7
It is well-established that an arbitrator may fashion a remedy in a
particular case that is not explicitly prescribed in the CBA so long as the remedy
furthers the essence of the CBA. Rose Tree Media Secretaries, 136 A.3d at 1080;
Greater Latrobe Area School District v. Pennsylvania State Education Association,
615 A.2d 999, 1002 n.1 (Pa. Cmwlth. 1992). “[A]n arbitrator must be given latitude
and flexibility in fashioning a proper remedy and should not be limited in his or her
problem solving to the exact language in the Agreement.” Pennsylvania Turnpike
Commission v. Teamsters Local 250, 988 A.2d 789, 795 (Pa. Cmwlth. 2010)
(quoting Pennsylvania Turnpike Commission v. Teamsters Local Union No. 250,
7
Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.702.
13
639 A.2d 968, 974 (Pa. Cmwlth. 1994)). As the United States Supreme Court
explained in one of the seminal decisions formulating the essence test:
When an arbitrator is commissioned to interpret and apply
the collective bargaining agreement, he is to bring his
informed judgment to bear in order to reach a fair solution
of a problem. This is especially true when it comes to
formulating remedies. There the need is for flexibility in
meeting a wide variety of situations. The draftsmen may
never have thought of what specific remedy should be
awarded to meet a particular contingency.
United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593,
597 (1960); see also Midland Borough School District v. Midland Education
Association, PSEA, 616 A.2d 633, 635 (Pa. 1992) (quoting United Steelworkers).
While an arbitrator has broad authority with respect to crafting an award
and remedies, that power is not limitless. An award that changes the language of a
CBA or that adds new or additional provisions to the agreement fails the essence
test. Cheyney University, 743 A.2d at 422; Department of Corrections, State
Correctional Institution at Pittsburgh v. Pennsylvania State Corrections Officers
Association, 56 A.3d 60, 64 (Pa. Cmwlth. 2012) (en banc). “[W]here the arbitrator’s
words exhibit an infidelity to the agreement, courts have no choice but to refuse
enforcement of the award.” Cheyney University, 743 A.2d at 422; Southern Tioga
Education Association v. Southern Tioga School District, 668 A.2d 260, 262 (Pa.
Cmwlth. 1995). Thus, for example, where the arbitrator adds an “arbitrary and
capricious” standard to the CBA concerning the employer’s discipline of a
probationary employee, Cheyney University, 743 A.2d at 422, or changes the time
period for filing a grievance as set forth in the CBA, Department of Corrections, 56
A.3d at 64, the arbitration award does not draw its essence from the agreement.
14
In this case, the arbitrator concluded that the decision to discharge
Grievant was based in part upon PASSHE’s supposition that Grievant could not
perform his duties as a mathematics professor at Lock Haven without coming into
contact with dual-enrolled students. (Arbitration Award at 18-19.) The arbitrator
addressed the rationale underlying this belief to see whether an accommodation
could be made to alleviate PASSHE’s concerns, finding that there was high demand
among the other professors in the Mathematics Department to teach the 100-level
classes in which high school students would enroll and there were sufficient other
courses for Grievant to teach, including graduate courses. (Id. at 18.) The arbitrator
observed that the Chair of the Mathematics Department testified that he was
comfortable in not assigning Grievant to classes with dual-enrolled students and had
accommodated one professor in the past who did not want to teach high-school level
classes and agreed to not place students who had complained about another professor
in future classes with that professor. (Id.) The arbitrator further found that summer
session courses and an annual math competition for high school students were
staffed by volunteers and therefore they were not essential to Grievant’s duties. (Id.
at 18-19.) The arbitrator accordingly concluded that being in contact with dual-
enrolled students was not an essential aspect of Grievant’s job and Grievant could
be exempted from being assigned to teach in classes or programs in which dual-
enrolled students could enroll. (Id. at 19-20, Award.)
While the “selection and direction of personnel” is an inherent
managerial policy, 43 P.S. § 1101.702; Borough of Ellwood City v. Pennsylvania
Labor Relations Board, 998 A.2d 589, 601 (Pa. 2010), and is specifically reserved
to PASSHE in the CBA, any concern that the arbitrator’s remedy is not rationally
derived from the CBA is allayed in this case for several reasons. First, by imposing
the remedy to remove Grievant from having responsibility to teach 100-level
15
courses, the arbitrator was both responding to the concerns of PASSHE concerning
Grievant’s exposure to minors at Lock Haven and crafting the award to the language
of the CPSL. As this Court has explained in previous cases, pursuant to Section
6344(a.1) of the CPSL, PASSHE is required to request background checks of
employees with direct contact with minors in the course of their employment,
excluding matriculated students or visiting prospective students. This requirement
extends to academic faculty who taught 100-level or equivalent courses in which
minors could enroll, and the employees must submit updated clearances every 60
months pursuant to Section 6344.4(1)(i) of the CPSL. For all other faculty members,
PASSHE cannot unilaterally demand that they submit background checks but
instead is required to bargain regarding any such policy as it would over any other
proposed change to the terms and conditions of employment. The challenged
remedy thus effectively tracks the General Assembly’s intent to create two classes
of faculty based on exposure to minors and potential risk of abuse, removing
Grievant from the first group that was subject to the mandatory requirements of
Section 6344 and placing him in the second group where he is not required by law
to submit clearances.
Furthermore, the arbitrator amply demonstrated that in this case the
alteration to Grievant’s course load would not be a burden on PASSHE. The
testimony of Grievant’s Department Chair showed both that there was a demand for
other professors to teach the 100-level courses in which high school students would
generally enroll and that Grievant was qualified to teach upper-level courses and that
there were sufficient other upper-level courses that he could pick up to satisfy his
workload requirement. In addition, as the testimony of President Fiorentino
demonstrates, there were a limited number of dual-enrolled students at Lock Haven
with a total of 30 enrolled during the semester in which he testified before the
16
arbitrator compared to approximately 4,300 matriculated students. (Dec. 15, 2016
Hearing Testimony at 120-21, 143, R.R. 120a-121a, 143a.)
Moreover, although PASSHE maintains that Grievant’s job required
him to teach 100-level courses, there is no evidence in the record that Grievant
specifically was hired with the understanding that he would teach entry-level
mathematics courses or that other academic faculty members, in the Mathematics
Department or otherwise, were required to teach 100-level courses during their
employment.8 Nor does the CBA contain any requirement that academic faculty
members teach 100-level courses. The award therefore does not preclude Grievant
from performing his principal duty as an academic faculty member to teach
undergraduate and graduate classes. Cf. Department of Corrections, State
Correctional Institution at Pittsburgh v. Pennsylvania State Corrections Officers
Association, 173 A.3d 854, 859-60 (Pa. Cmwlth. 2017) (holding that an arbitrator’s
award reinstating a corrections officer with the condition that the officer could not
be involved in the supervision of inmates infringed on the Department’s managerial
rights and therefore violated the essence test because the condition placed by the
arbitrator on the officer’s reinstatement was in direct conflict with a corrections
officer’s statutorily defined “principal duty” to supervise inmates).
8
President Fiorentino explained during his testimony:
I would say there’s flexibility to cover the majority of the courses and the variety of courses
that the Math Department teaches from semester to semester based on the qualifications of
the faculty that are assigned to the Math Department.
One of the specific aspects of assignment does deal with the 100-level courses, and as a
general practice within the Math Department, it’s not specific to each semester, but it’s a
general practice that all faculty will be engaged in teaching 100-level courses at some point
in time, in some rotation. There is no specific plan for that, but there certainly is a general
concept.
(Dec. 15, 2016 Hearing Testimony at 143, R.R. 143a.)
17
Accordingly, we conclude that the remedy in the award requiring
Grievant to teach in courses and programs where dual-enrolled students are not
admitted drew its essence from the CBA.
Public Policy Exception
PASSHE also argues that the arbitrator’s award violates the well-
defined public policy in Pennsylvania of protecting minors from sexual abuse. In
cases where a court finds that the essence test is satisfied, the court may then consider
whether the award violates a well-defined and dominant public policy of the
Commonwealth. Philadelphia Housing Authority v. AFSCME, District Council 33,
Local 934, 52 A.3d 1117, 1121 (Pa. 2012); Westmoreland Intermediate Unit # 7,
939 A.2d at 865-66. The public policy exception to the essence test is a “narrow”
one, Westmoreland Intermediate Unit # 7, 939 A.2d at 865; Neshaminy School
District v. Neshaminy Federation of Teachers, 171 A.3d 334, 337-38 (Pa. Cmwlth.
2017) (en banc), but is not to be interpreted so narrowly “that it would be, as a
practical matter, completely negated.” Philadelphia Housing Authority, 52 A.3d at
1125; Neshaminy School District, 171 A.3d at 338. The public policy exception
requires the application of a three-part test:
First, the nature of the conduct leading to the discipline
must be identified. Second, we must determine if that
conduct implicates a public policy which is “well-defined,
dominant, and ascertained by reference to the laws and
legal precedents and not from general considerations of
supposed public interests.” . . . Third, we must determine
if the arbitrator’s award poses an unacceptable risk that it
will undermine the implicated policy and cause the public
employer to breach its lawful obligations or public duty,
given the particular circumstances at hand and the factual
findings of the arbitrator.
18
Neshaminy School District, 171 A.3d at 338 (quoting City of Bradford v. Teamsters
Local Union No. 110, 25 A.3d 408, 414 (Pa. Cmwlth. 2011) (en banc)). The burden
of establishing a violation of public policy rests on the party asserting the public
policy exception. Westmoreland Intermediate Unit # 7, 939 A.2d at 864. Whether
the public policy exception to the essence test applies in a given case is a question
of law subject to this Court’s plenary, de novo review. Philadelphia Housing
Authority, 52 A.3d at 1121; Neshaminy School District, 171 A.3d at 337 n.3.
In this matter, there is no disagreement regarding the first part of the
public policy exception test. The nature of the conduct that resulted in Grievant’s
termination was the criminal offenses he committed in 1989 that resulted in a
criminal conviction and prison term. The parties, however, express contrasting
views regarding the application of the second and third parts of the test. Regarding
the second part of the test, the parties cite to no decision of a court of this
Commonwealth that found that there exists a public policy of protecting minors from
abuse. PASSHE finds evidence of the well-defined public policy in Pennsylvania
of protecting minors from sexual abuse in several Pennsylvania statutes, including
the CPSL which provides that the purpose of the legislation includes, inter alia,
“providing protection for children from further abuse.” 23 Pa. C.S. § 6302(b).
PASSHE cites to other laws that advance this public policy against child sexual
abuse, including the Public School Code of 1949, which requires criminal
background checks of current or prospective employees,9 and the Sexual Offender
Registration and Notification Act (SORNA), which sets forth a registration and
monitoring program for sexual offenders. Sections 9799.10 to 9799.42 of the
Sentencing Code, 42 Pa. C.S. §§ 9799.10–9799.42.
9
Section 111 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, added by the
Act of July 1, 1985, P.L.129, as amended, 24 P.S. § 1-111.
19
We agree with PASSHE that a well-defined and dominant public policy
exists in Pennsylvania in favor of protecting children from child abuse, including
abuse of a sexual nature. The existence of this public policy can be chiefly
ascertained by reference to the CPSL, which was enacted for the overarching
purpose of protecting children from abuse. 23 Pa. C.S. § 6302(a), (b); see P.R. v.
Department of Public Welfare, Office of Hearings and Appeals, 801 A.2d 478, 483
(Pa. 2002) (“The need [demonstrated in the CPSL] to prevent child abuse and to
protect abused children from further injury is critical.”). In addition to setting forth
the clearance procedure at issue in this case, the CPSL mandates that each county
create a child protective services agency to investigate reports of suspected child
abuse, report substantiated reports to the statewide ChildLine Registry, provide
protective services to assess the risk of harm to a child and respond adequately to
such risks and rehabilitative services for children and families. 23 Pa. C.S. §§
6302(a), (b), 6362, 6368, 6375. Child abuse, under the CPSL, is defined to include
causing sexual abuse or exploitation of a child through any act or failure to act or
creating a likelihood that a child will be sexually abused or exploited. 23 Pa. C.S. §
6303(b.1)(4), (6). Evidence of the public policy of protecting children from abuse
can also be found in the Crimes Code, which criminalizes child abuse in various
forms10 and provides for increased punishment for criminal acts when the victim is
a child,11 the Juvenile Act, which provides a mechanism through dependency
10
See, e.g., 18 Pa. C.S. §§ 4304 (Endangering Welfare of Children), 6312 (Sexual Abuse of
Children), 6318 (Unlawful Contact with Minor), 6320 (Sexual Exploitation of Children).
11
See, e.g., 18 Pa. C.S. §§ 2702(a)(8), (9), (b) (providing for more serious grading of offense of
aggravated assault where victim is under 6 or 13 and perpetrator is older than 18 years of age),
3121(c)-(e) (defining crimes of rape of a child and rape of a child with serious bodily injury and
providing for increased punishment).
20
hearings to take abused children into protective custody and to strip permanent
custody from a parent or guardian found to have caused the abuse,12 and SORNA,
which is “in direct furtherance of the government’s compelling interest in keeping
sexually violent predators away from children to the extent possible.”
Commonwealth v. Williams, 832 A.2d 962, 973-974 (Pa. 2003) (discussing prior
version of SORNA). The public policy is also grounded in federal laws such as the
Victims of Child Abuse Act of 1990, which was enacted to assist local organizations
in the investigation and prosecution of child abuse cases, and the Adam Walsh Child
Protection and Safety Act of 2006, which was enacted to prevent child abuse, child
pornography, sexual exploitation of children and promote internet safety. Pub. L.
No. 109-248; Pub. L. No. 101-647.
Furthermore, Grievant’s conduct that led to his termination implicates
the public policy in favor of protecting children from abuse. Grievant was
terminated based solely on his 1990 Kentucky convictions of two counts of Sodomy
in the third degree and one count of Sexual Abuse in the first degree based on activity
with two minors. This conduct clearly constitutes “sexual abuse or exploitation of a
child” under the CPSL, which includes a list of criminal offenses that would
encompass the activity that Grievant was convicted of, including rape, sexual assault
and sexual abuse. 23 Pa. C.S. § 6303(a), (b.1)(4). Grievant’s convictions also serve
as disqualifying convictions for an individual subject to the clearance requirement
of the CPSL. 23 Pa. C.S. § 6344(c)(2).13
12
42 Pa. C.S. §§ 6301-6375.
13
APSCUF argues that no well-defined and dominant public policy is implicated in this case
because the CPSL does not prohibit the continued employment of workers with convictions for
otherwise disqualifying offenses whose background checks are performed after they have begun
working at the employer. Instead, APSCUF maintains, the CPSL only requires an automatic ban
on hiring new employees or retaining provisional employees with disqualifying offenses. See 23
21
Having concluded that Pennsylvania maintains a well-defined and
dominant public policy in favor of protecting minors from child abuse, including
abuse of a sexual nature, and that this policy is implicated here, we must address the
third part of the public policy test, whether the award by the arbitrator poses an
unacceptable risk of undermining the public policy and would cause PASSHE and
Lock Haven to breach their lawful obligations and public duty with respect to this
policy. This third part of the public policy exception test “‘allows for consideration
of the particular circumstances of the case and any attendant aggravating or
mitigating factors’ to determine if an award strikes the appropriate balance between
the public employer’s obligations and duties to the citizens it serves and the goal of
binding arbitration under” the Public Employe Relations Act. Neshaminy School
District, 171 A.3d at 338-39 (quoting City of Bradford, 25 A.3d at 415). “[T]he
Pa. C.S. § 6344(c.1) (“If the information obtained pursuant to subsection (b) reveals that the
applicant is disqualified from employment or approval pursuant to subsection (c), the applicant
shall be immediately dismissed from employment or approval.”). APSCUF argues that public
policy in fact requires the employer to assess the employee’s current risk rather than relying simply
on the nature of the conviction, citing decisions of this Court holding that Pennsylvania law may
not enforce blanket lifetime employment bans based on criminal convictions without requiring an
individualized risk assessment of each applicant or employee. See, e.g., Peake v. Commonwealth,
132 A.3d 506, 521-23 (Pa. Cmwlth. 2015) (en banc). This argument misses the mark. In public
policy cases, the question of whether a public policy exists is a separate question from whether the
public policy is implicated in a particular case and whether the arbitrator’s award violates a public
policy. See Shamokin Area School District v. AFSCME District Council 86, 20 A.3d 579, 582-83
(Pa. Cmwlth. 2011) (en banc) (holding that there exists a public policy of protecting students from
violence on school property, but that the policy was not implicated because the grievant, a
groundskeeper, threatened violence to his supervisor rather than a student and that the award
requiring the groundskeeper’s reinstatement did not undermine this public policy). Here, the
public policy in favor of protecting children from abuse is firmly established in the law and
Grievant’s conduct, however remote from his hiring or dismissal, implicates that public policy.
While, as APSCUF points out, there are countervailing reasons rooted in law and policy that
support the arbitrator’s award, this does not undermine the existence of the public policy to protect
children from abuse; consideration of the issues raised by APSCUF are properly reserved to the
third part of the public policy exception test in which we are called upon to determine whether the
arbitrator gave proper weight to the public policy in crafting the award.
22
rational way to approach this question is to recognize the relationship between the
award and the conduct; and to require some reasonable, calibrated, defensible
relationship between the conduct violating dominant public policy and the
arbitrator’s response.” Philadelphia Housing Authority, 52 A.3d at 1128; see also
Neshaminy School District, 171 A.3d at 340.
PASSHE argues that the award reinstating Grievant undermines the
public policy of protecting children from abuse by requiring PASSHE and Lock
Haven to violate their obligation to keep children present on the college campus safe.
While recognizing that the CPSL does not mandate that current employees be
automatically terminated if their Section 6344(b) criminal history reports uncover
convictions that would disqualify an applicant from being initially hired, PASSHE
argues that the CPSL does not forbid such terminations of current employees and
envisions that any information will be considered by the employer in deciding
whether to retain the employee. PASSHE argues that that is exactly what occurred
in this case when President Fiorentino considered the severity of Grievant’s crime,
the limited responses he gave to questions during the disciplinary review, his job
duties that require him to be in direct contact with minors and PASSHE’s policy
regarding ensuring a safe environment for children. As plain evidence of the severity
of Grievant’s criminal act, PASSHE notes that if Grievant committed his crimes
today he would be placed in the most dangerous tier of sexual offenders under
SORNA and he would be subject to lifetime registration. 42 Pa. C.S. §§ 9799.14(d),
9799.15(a)(3).
PASSHE argues that our case law supports the overturning of the award
on public policy grounds. PASSHE argues that it is irrelevant that Grievant engaged
in a single criminal act because courts have held that reinstatement violates public
policy even where the grievant engaged in only a solitary error of judgment. In
23
Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7
Classroom Assistants Educational Support Association, PSEA/NEA, 72 A.3d 755
(Pa. Cmwlth. 2013), we held that it violated the public policy of protecting children
from the dangers of drug abuse to reinstate a classroom assistant based on a single
incident where the assistant came to school wearing a fentanyl patch and was found
unconscious in the school restroom following an overdose. Id. at 759. PASSHE
further argues that in Philadelphia Housing Authority, our Supreme Court endorsed
a public employer’s adoption of a “zero tolerance policy” when an employee
engages in particularly noxious behavior that is inimical to the employer’s function,
which in that case consisted of persistent sexual harassment. 52 A.3d at 1124. As
the Court explained, the arbitrator’s “absurd” award of reinstatement made “a
mockery of the dominant public policy against sexual harassment in the workplace”
and “render[ed] public employers powerless to take appropriate actions to vindicate
a strong public policy.” Id. at 1125. PASSHE contends that the award here also
effected an absurd result as the arbitrator recognized that Grievant did not belong in
a classroom with minors based on the conditions imposed on the types of courses he
could teach yet still reinstated him.
APSCUF argues that there is one principal distinction between each of
the cases that PASSHE relies upon and this appeal: in this case, Grievant was not
terminated for misconduct that took place at Lock Haven or even while he was
employed by Lock Haven. Instead, Grievant’s termination was based on crimes
committed when he was 19 years old, 27 years prior to the imposition of disposition,
15 years before Grievant was hired at Lock Haven and long before he was engaged
in any role as a mathematics instructor at the university level. APSCUF notes that
under Article I, Section 1 of the Pennsylvania Constitution, an individual, even an
individual convicted of a serious felony, has the right to pursue a lawful occupation
24
and that such right cannot be abridged unless there is a rational basis furthering a
legitimate government purpose. Pa. Const., art. I § 1; Nixon v. Commonwealth, 839
A.2d 277, 288 (Pa. 2003). As APSCUF points out, this right is embodied in the
“deeply ingrained public policy of this State to avoid unwarranted stigmatization of
and unreasonable restrictions upon former offenders” to obtain gainful employment.
Secretary of Revenue v. John’s Vending Corp., 309 A.2d 358, 362 (Pa. 1973).
APSCUF argues that, far from violating public policy, the arbitrator award properly
accounted for this countervailing public policy in Pennsylvania that individuals
should not be subject to automatic disqualifications from gainful employment based
on distant convictions with little predictive value for the future.
We conclude that the arbitrator’s award here reinstating Grievant to his
position as a faculty member at Lock Haven with the qualification that he would no
longer teach in classes or programs that admit dual-enrolled students did not violate
public policy. The arbitrator found that various mitigating factors existed that
militated against Grievant’s dismissal, including the fact that over 25 years had
elapsed since Grievant’s crime, his relatively young age at the time of the incident,
the fact that he completed a voluntary sexual offender program, and the fact that
after being released from prison he completed two advanced degrees at other
universities while serving as a tutor and supervisor of graduate students. The
arbitrator also focused on the fact that Grievant had worked at Lock Haven since
2004, was promoted to full professor, attained tenure and received excellent reviews
for his teaching and scholarship with no indication that he had ever engaged in any
impropriety.
In addition, the arbitrator also appropriately considered the substantive
due process right under the Pennsylvania Constitution prohibiting legislation that
deprives an individual of the right to conduct a lawful business unless the regulation
25
has a real and substantial relationship to a valid state objective. Peake v.
Commonwealth, 132 A.3d 506, 518-21 (Pa. Cmwlth. 2015) (en banc); Johnson v.
Allegheny Intermediate Unit, 59 A.3d 10, 21 (Pa. Cmwlth. 2012) (en banc). A long
line of decisions have invalidated legislation imposing blanket prohibitions on
employment based on past convictions, beginning with John’s Vending, wherein our
Supreme Court recognized that over 15-year-old convictions related to drug
possession and transporting untaxed liquor had little value in predicting whether an
individual should have his license revoked under the Cigarette Tax Act. 309 A.2d
at 361-62. The Court explained that “[t]o forever foreclose a permissible means of
gainful employment because of an improvident act in the distant past completely
loses sight of any concept of forgiveness for prior errant behavior and adds yet
another stumbling block along the difficult road of rehabilitation.” Id. at 362. More
recently, in Johnson and Warren County Human Services v. State Civil Service
Commission (Roberts), 844 A.2d 70 (Pa. Cmwlth. 2004), this Court struck down
lifetime employment bans based on disqualifying criminal convictions in the Public
School Code and Section 6344(c) of the CPSL, respectively; in both cases, the Court
found the legislation wanting because it did not allow the employers to perform an
individualized, case-by-case assessment of whether the conviction was predictive of
future behavior. In this case, the arbitrator performed exactly the type of
individualized assessment of whether Grievant was suitable for continued
employment at Lock Haven, determining that, in light of his exemplary work record,
Grievant’s remote convictions did not reflect on his present ability to perform the
duties of his position. The arbitrator added the proviso that Grievant would not teach
in classes or programs that admit dual-enrolled students so that Grievant would be
excluded from the class of employees at institutions of higher education that the
General Assembly determined should be required to submit Section 6344 clearances.
26
While PASSHE may be correct that President Fiorentino weighed all
of the mitigating and aggravating factors when considering Grievant’s future
employment at Lock Haven and determined in good faith that the remote risk that
Grievant would relapse and commit another similar act necessitated his dismissal,
the question before us is not whether Grievant’s actions were contrary to public
policy or whether the decision to discharge Grievant furthered public policy.
Instead, the issue is whether the public policy would preclude the enforcement of the
arbitration award and force PASSHE and Lock Haven to breach their legal
obligations or public duty. See Neshaminy School District, 171 A.3d at 338;
Shamokin Area School District v. AFSCME District Council 86, 20 A.3d 579, 583
(Pa. Cmwlth. 2011) (en banc). Based upon the arbitrator’s ample explanation of the
rationale for the award, we conclude that the award bore a “reasonable, calibrated
[and] defensible relationship” to the threat posed by Grievant’s conduct,
Philadelphia Housing Authority, 52 A.3d at 1128, and therefore did not violate
public policy.
CONCLUSION
For the foregoing reasons, we conclude that the arbitrator’s award in
this matter does not violate the essence test or the public policy exception to the
essence test. The award is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
Judge Fizzano Cannon did not participate in the decision of this case.
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State System of Higher :
Education, Lock Haven University, :
:
Petitioner :
:
v. : No. 1040 C.D. 2017
:
Association of Pennsylvania State :
College and University Faculties, :
:
Respondent :
ORDER
AND NOW, this 31st day of August, 2018, the arbitration award entered
on July 3, 2017 in the above-captioned matter is AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge