No Need To Exhaust Grievance Procedure On Constitutional Claims

Steven Helm is a lieutenant with the Williamsport, Pennsylvania Bureau of Police, and is the President of Lodge 29 of the Fraternal Order of Police (FOP). Helm’s wife has been a prominent critic of the leadership of the Police Bureau.

In 2015, Helm filed unfair labor practice charges against the City, alleging that a captain’s negative Facebook posts and other activity by the Bureau was designed to intimidate members of the FOP from engaging in legitimate union activity during the mayoral election. The Pennsylvania Labor Relations Board entered a consent order on May 19, 2015. The order provided that the Captain would receive a written reprimand for the inappropriate Facebook postings.

The Captain did not desist, however. Later in the summer of 2015, the Captain posted a series of videos, referred to as “hater-ade” videos, wherein he designated himself as a hunter of haters where he would supposedly find empty bottles of “hater-ade” while tracking haters. In the videos, the Captain asserted that he intended to teach a lesson to the haters.

When Helm directed officers not to become involved in a pursuit, the Captain was appointed to conduct an investigation into Helm’s decision. Weeks later, the Captain issued findings accusing Helm of violating the Bureau’s Mission Statement, conduct unbecoming, violation of performance of duty, lack of competency, and failure to cooperate with other agencies. The Chief retired before taking action on the findings, and a new chief failed to take action on the issue.

In December 2016, the Captain provided the new chief with an 11-page untitled document with numerous attachments which contained several allegations, including that Helm was leaking confidential police information to both the Williamsport Sun Gazette and the City Council President, and that Helm’s wife obtained police information from a shared email address with Helm which resulted in the publication of confidential police information. The Captain claimed to have “upwards to 400 screenshots and posts from over the last year and a half” related to Helm’s wife’s internet posts pertaining to the Bureau.

Though Helm passed a polygraph examination during the investigation, the City suspended him for five days without pay. Helm then filed a free speech lawsuit under the First Amendment, claiming that he was retaliated against because of his activities on behalf of the FOP. The City moved to dismiss Helm’s complaint, citing the fact that an arbitration hearing was pending on the five-day suspension and that Helm should be required to exhaust the arbitration process before bringing a lawsuit.

A federal court judge refused to dismiss the lawsuit. The Court found that “the pending arbitration to be of no moment, as Helm is not claiming that the City breached the collective bargaining agreement, but rather alleges that it violated his First Amendment rights. Where an employee is raising a claim based upon breach of the collective bargaining agreement, the employee is bound by the terms of that agreement and must at least attempt to exhaust the grievance procedures established by the agreement.

“Since Helm’s claim in this case does not concern or challenge the terms of the collective bargaining agreement, whether Helm has completed the administrative process under that agreement is not an issue. Courts considering the matter have determined that a plaintiff employee who sets forth a claim based on a federal statute that protects constitutional rights is not subject to the arbitration clause of a collective bargaining agreement.”

Helm v. Foresman, 2018 WL 461246 (M.D. Pa. 2018).