How a Philly police officer's case could reshape arbitration

The big picture: Nationally, 46% of fired officers were reinstated after arbitration, per an analysis of 624 grievance cases between 2006 and 2020 that was cited in a joint brief filed in the case.

• In Philadelphia, 75% of officers fired between 2019 and 2024 were reinstated, per an analysis cited by the brief.
• A separate analysis conducted by the Inquirer found that in 170 grievance cases between 2011 and 2019, officers won reinstatement or had their discipline reduced 70% of the time.

Driving the news: The city is asking the Pennsylvania Supreme Court to overturn Lt. Marc Hayes' reinstatement and broaden the standard for reviewing future arbitration cases. Hayes had been fired for allegedly sexually harassing two female officers.

• Those backing the city include a "who's who" of advocates that typically bang the drum for police reform: groups like the Citizens Police Oversight Commission (CPOC), the UPenn Carey Law School's Advocacy for Racial and Civil Justice Clinic and the Defender Association of Philadelphia.

But the city's allies also include the Pennsylvania Chiefs of Police Association, the state's largest group of command-level law enforcement supervisors.

• The arbitration system is eroding morale among rank-and-file police officers who get a bad rap from their colleagues' bad acts, the group wrote. Police chiefs and commissioners are best positioned to be "the final word" on disciplinary matters, not arbitrators.

Zoom in: Under the current standard used by the courts, to appeal an arbitration decision, cities and municipalities must prove that either the arbitration process was flawed; the arbitrator lacked jurisdiction or exceeded their powers; or the decision deprived the police of their constitutional rights.

• The state Supreme Court has refused to broaden these grounds, citing concerns about prolonged legal battles and workforce instability.
• City officials and others who want to change the system say this has resulted in the retention of rogue officers who are threats to women and communities of color.

Case in point: Six Philadelphia police officers from an elite plainclothes unit were reinstated after being acquitted in a 2015 federal corruption case. The fallout included more than 1,100 dismissed criminal cases and at least $7.2 million in city settlements.

• Most of the officers remain employed today, with one promoted to sergeant.

What they're saying: Arbitrators "bizarrely have more power than the courts," the Pennsylvania State Association of Township Supervisors wrote in a brief.

Catch up quick: Hayes was fired in 2020 for sending sexually explicit text messages and a bestiality video to two female officers.

• After learning of the investigation, Hayes told one officer she could pretend she didn't remember the messages, per court records. He told another he had recommended her for promotion, per the city's brief.

• The arbitrator reduced Hayes' termination to a 50-day suspension, saying his actions weren't harassment because the women hadn't said they were offended, according to the arbitrator's decision.

The latest: Philadelphia argues that the arbitrator wrongly interpreted what constitutes sexual harassment despite clear definitions in the police contract.

• The city either wants the Supreme Court to overturn Hayes' reinstatement on that basis, or, carve out a "public policy exception" under which the firing could stand because Hayes violated the city's policies protecting employees from sexual harassment.

Between the lines: Minnesota, Connecticut and Nebraska have "public policy exceptions" that allow courts to overturn arbitration decisions, even for police officers, municipal advocates say.

The other side: The Philly Fraternal Order of Police writes in its brief that the city wants the court to rule by "judicial fiat," casting aside "multiple decisions over many decades."

• "It is the province of the legislature, not the courts, to write the law and make policy determinations," the union wrote.

The Pennsylvania AFL-CIO, Pennsylvania Professional Fire Fighters Association, the International Association of Fire Fighters Local No. 1, and the Pennsylvania Fraternal Order of Police have all filed briefs supporting the city police union.

The bottom line: Philadelphia argues police officers must be held to a higher standard.

• "Reinstating [Hayes] eviscerates the [police] commissioner's ability to pursue the department's mission," the city wrote.

Editor's note: This story has been updated to correct the name of the UPenn Carey Law School's Advocacy for Racial and Civil Justice Clinic.