Power Check: PA Supreme Court could expand review of police arbitration cases

• Between 2011 and 2019, the police union successfully fought to reduce or overturn discipline about 70% of the time, per a 2019 Inquirer analysis.

The big picture: A legal expert tells Axios that could change if the Pennsylvania top court reviews the case of Marc Hayes, a lieutenant fired in 2018 after the city accused him of sexually harassing two female officers.

• Philadelphia's lawyers argue in an appeal of Hayes' 2022 reinstatement that the court should reverse because the arbitrator strayed from the bounds of the police contract dictating officer conduct.
• The city also wants to challenge decisions undermining its ability to uphold public policies, such as protecting employees from sexual harassment.

Reality check: David Rudovsky, a civil rights attorney and senior fellow at Penn Law not connected to the case, says the case could be a game-changer for agencies embracing greater accountability for police officers.

• If the Supreme Court sides with the city, there may be "some cases reversed, and I think arbitrators will be more careful," Rudovsky says.

The intrigue: The court could expand the current standard of review in police arbitration cases, which may encourage many other agencies across Pennsylvania to challenge decisions they believe are flawed.

• The narrow certiorari review prohibits courts from hearing arguments that arbitrators misapplied a collective bargaining agreement.
• The standard was established in a case involving a Pennsylvania state trooper placed on restricted duty and forced to do janitorial work for two months after exposing himself to colleagues at police headquarters.

What they're saying: City attorney Craig Gottlieb argues in a brief the current standard of review keeps courts from intervening more often in police arbitration cases.

• That has forced the city to accept many "untenable and repugnant results" undermining public confidence and forcing police departments to take back police officers who "forfeited any right to wear the badge," Gottlieb writes.

State of play: While the city believes it has made compelling arguments for why the Supreme Court should hear its case, these types of appeals are rare. Only a fraction are taken up because state law makes it difficult to challenge police disciplinary cases decided through binding arbitration.

• Police and firefighters have extra protection in labor disputes because they don't have the right to strike.

Zoom out: The city faces another hurdle — Hayes is suing the city to halt any appeal, arguing he's being retaliated against because he's white.

• In a complaint filed in federal court in February, Hayes says the city has singled him out by challenging his reinstatement before the top court.
• He points to other Black officers charged with similar misconduct whose reinstatements weren't appealed.
• He blames former police commissioner Danielle Outlaw, the first Black woman to lead the force, for instituting what he calls discriminatory policies that targeted white upper brass to make room for more officers of color in influential positions.
• "In this case, it's not whataboutism. It's evidence," Steven Feinstein, Hayes' attorney, tells Axios. "They treated my client differently."

City spokesperson Ava Schwemler tells Axios the city won at least two prior appeals of police arbitration decisions, but those cases were decided in lower courts.

• The city is appealing Hayes' case to assure residents they can be "confident in the integrity of the police force," Schwemler says.

Between the lines: The state Supreme Court has maintained the "narrow certiorari" standard of review to guard against "protracted litigation" and "workforce destabilization."

• Agencies successfully appealing under the current standard must show arbitration proceedings were somehow flawed, an arbitrator lacked jurisdiction to decide a case, or that they acted in bad faith, unconstitutionally or outside of their powers.

The other side: John Bielski, another of Hayes' attorneys, wrote in response to the city's brief that two lower court judges upheld the arbitrator's decision in Hayes' case.

• The city's demand for a broader scope of review, Bielski says, conflicts with prior rulings barring courts from intervening "whenever that award could be deemed to be violative of 'public policy' — however that nebulous concept may be defined by a particular appellate court."

According to court and arbitration records, Hayes spent nearly two decades with Philadelphia police and was up for a promotion to captain when the city fired him in 2020 for sending sexually explicit text messages to two female officers.

• He sent a video of a dog performing oral sex on a woman, despite one of the officers urging him not to "send me things like that."
• After he learned internal affairs was looking at him, Hayes asked one of the officers if she had kept the video, then told her she could lie to investigators and tell them she didn't recall receiving the messages, per court records.

What happened: Prosecutors reviewed the case but didn't bring criminal charges against Hayes. Outlaw stepped in and ordered Hayes fired.

• Two years later, after a hearing, arbitrator David Reilly reduced Hayes' firing to a 50-day suspension.
• While Hayes violated specific city policies, Reilly ruled Hayes hadn't sexually harassed the officers because neither woman was offended by his messages — with one officer calling the texts a "joke."
• Reilly wrote in his decision that the conversation showed that Hayes and the two officers were engaged in "questionable banter."

Behind the scenes: The city's appeals have focused on Reilly's interpretation of Philadelphia's sexual harassment policies, arguing he essentially reformed, rather than simply misinterpreted, the police contract.

• The Commonwealth Court wrote that Reilly may have misapplied the law, but his mistake wasn't reversible under the "narrow certiorari" standard.

The bottom line: If courts can't act when arbitrators create their "own contractual language out of whole cloth," Gottlieb says, the current standard of review for arbitration decisions "has reached an unacceptable destination."