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)
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 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 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
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 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),
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 a voluntary sex offender therapy program
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 ChildLine certification before the first day of classes.
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
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 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 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.
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 ,
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 ,
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."
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 ,
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. ,
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 ,
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 ,
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 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.
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 ,
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.
Neshaminy School District ,
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
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 ,
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
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 ,
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 Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Association, PSEA/NEA ,
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 and
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 has a real and substantial relationship to a valid state objective. Peake v. Commonwealth ,
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 ,
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.
Judge Fizzano Cannon did not participate in the decision of this case.
ORDER
AND NOW, this 31st day of August, 2018, the arbitration award entered on July 3, 2017 in the above-captioned matter is AFFIRMED.
Notes
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.
23 Pa. C.S. §§ 6301 -6386.
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 ;
"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).
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.)
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).
Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.702.
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.)
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.
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).
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).
42 Pa. C.S. §§ 6301 -6375.
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 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 ,