Police Certification And Arbitration Reinstatement Awards

On October 29, 2008, while he was employed as a patrol officer with the Beaver Falls, Pennsylvania, Police Department, Patsy Peretta temporarily disrobed himself at a local bar. The City fired Peretta, and his labor organization, the Beaver Falls Police Association, challenged the termination in arbitration.

An arbitrator converted the termination into a one-year disciplinary suspension without pay and ordered the City to reinstate Peretta promptly and without loss of seniority. The Arbitrator retained jurisdiction “for the limited purpose of resolving any disputes that may arise in connection with” the relief awarded.

The City informed Peretta of its decision to “recall him to his employment pursuant to the Arbitrator’s decision,” and informed him that (1) he would need to be recertified by the Municipal Police Officers Education and Training Commission, (2) he would need to undergo medical and psychological evaluations, and (3) it would provide him “with a calculation of back pay.”

A City psychologist concluded that Peretta was not “psychologically fit for or capable of exercising appropriate judgment and restraint to be certified as a police officer in Pennsylvania. I feel that presently he is at risk. My feeling is that as his current stress subsides, he may rise above his current emotional instability and acceptably perform as a police officer. Should he be put on probation for a time to allow emotional stabilization – at no expense to the City – I would be willing to meet with him and report his progress to the Police Chief.” Peretta’s personal psychologist disagreed, and concluded that Peretta was suitable for reinstatement.

The Chief contacted the Training Commission with the news of the City psychologist’s opinion. The Commission responded by observing that “it appears from the information provided that Peretta is not presently eligible for certification. However, since Peretta is neither currently certified nor has a pending application for certification, the Commission will not be taking any formal action at this time.”

The City terminated Peretta a second time. The Association then asked the Arbitrator to hold a hearing on whether the City had complied with the original reinstatement decision. The Arbitrator concluded that the City did not comply with his order that Peretta be unconditionally reinstated, and that Peretta’s lapse in certification likely was caused by the City’s delay in implementing the 2009 award. The Arbitrator also held that back pay for Peretta continued to accrue until the City satisfied its obligation to reinstate Peretta, and ordered the City to “act in good faith to meet any certification requirements” that may be necessary for purposes of recertifying Peretta.

The City then challenged the Arbitrator’s opinion in court, arguing that the Arbitrator exceeded his authority by ordering the City to perform illegal acts by reinstating and offering back pay to Peretta who was not certified (or eligible to be recertified) as a police officer by the Commission. Pennsylvania’s Commonwealth Court rejected the City’s arguments.

The Court found that the Arbitrator correctly concluded that the City failed to comply with the 2009 award, because the 2010 offer of reinstatement did not amount to a clear, unequivocal and unconditional offer of current employment and thus was not a valid and sufficient offer. “The Commission did not make a ruling on this issue, but, at best, merely rendered an informal advisory opinion. Indeed, in its letter to the City, the Commission acknowledged that since Peretta is neither currently certified nor had a pending application for certification, the Commission will not be taking any formal action at this time. Furthermore, it is undisputed that the City failed to apply to have Peretta recertified, thereby depriving the Commission of the opportunity to issue a formal ruling. We, therefore, cannot conclude that Peretta was ineligible to be recertified as a police officer. As such, we cannot further conclude that the Arbitrator’s award directs the City to perform an illegal act. Until such time as the Commission acts on an application for certification of Peretta, this issue is premature.

“Finally, we must disagree with the City’s argument that the Arbitrator overturned the Commission’s decision by directing the City to reinstate Peretta. The City contends that the Commission found Peretta to be ineligible for recertification. However, the Commission’s decision did not constitute a final adjudication on Peretta’s eligibility to be recertified as a police officer. Thus, the Arbitrator did not overturn the Commission’s decision or exceed his jurisdiction.”

City of Beaver Falls v. Beaver Falls Police Association, 77 A.3d 75 (Pa. Cmwlth. 2013).