PASSHE, Lock Haven University v. APSCUF

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

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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

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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

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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.

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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.

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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.

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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