Appeals court rejects Pittsburgh effort to block reinstatement of fired police officer

A Pennsylvania appellate court said Wednesday that a Pittsburgh police officer who was fired amid allegations that he sexually assaulted a fellow officer nearly three years ago should be reinstated.

That officer, Aaron Fetty, was investigated by the Allegheny County Police Department but never charged. He denies there was any sexual assault.

“These were all fabricated lies against me,” Fetty said late Wednesday. “I never sexually assaulted her.”

The city said Wednesday evening it will appeal.

According to the Commonwealth Court opinion, Fetty and a group of officers from the Zone 5 station in Highland Park had a cookout at the end of their shift on June 19, 2021, where they drank alcohol. They then drove to a bar.

Fetty’s co-worker became intoxicated, and he drove her home, according to the court documents.

TribLive does not name alleged victims of sexual assault.

Nine days later, the city’s Office of Municipal Investigations received an anonymous complaint alleging that Fetty sexually assaulted the co-worker.

The office launched an investigation, as did the Allegheny County Police Department.

No criminal charges were filed.

But on Sept. 22, 2021, the city suspended Fetty for three days, ordered him to counseling and gave him a five-year “last-chance agreement for sexual harassment,” the court opinion said.

He was also transferred to a different duty station.

Then, on Dec. 30, 2021, the co-worker obtained a temporary protective order against Fetty and sent a mass email to members of the police bureau and others detailing her recollection of what happened that night and her attempts to fill in the blanks.

In the email, the court documents said, she alleged that Fetty sexually assaulted her while she drifted in and out of consciousness. She also criticized the city’s response and what she felt was leniency toward him.

The woman then filed a petition for a short-term protective order against Fetty in Allegheny County Common Pleas Court on Jan. 3, 2022, according to court records.

On March 23, 2022, Judge Kathleen Mulligan issued a final sexual violence protective order in that case, finding that Fetty “‘at a minimum …. committed the act of sexual assault’ against a fellow officer on June 19, 2021.”

A sexual violence protection order is geared toward strangers, co-workers or acquaintances of the victim as opposed to a family member, ex-intimate partner or spouse, according to the Pennsylvania Coalition Against Domestic Violence.

Following Mulligan’s finding, the county police reopened its investigation, but still filed no charges.

On July 12, 2022, Pittsburgh acting police Chief Thomas Stangrecki recommended Fetty be suspended.

Public Safety Director Lee Schmidt amended that to a five-day suspension pending termination.

The police union filed a grievance on Fetty’s behalf, which went to arbitration.

During the arbitration hearing, the union argued that Fetty’s termination was illegal because it occurred beyond the 120-day limit for disciplinary action under the union contract.

Following a hearing in November 2022, the arbitration panel directed the city to reinstate Fetty, but the city appealed to Common Pleas Court.

That court affirmed the reinstatement in April.

In its appeal to the Commonwealth Court, the city argued that there should have been an exception to the 120-day time period because of the second police investigation and because the woman sought a temporary protective order.

But the appellate court said there was no fundamental change in the allegations of the case to meet the exception.

The city also argued that the arbitration panel’s decision was contrary to public policy and that the city had a duty to protect the alleged victim.

Commonwealth Court said it had to abide by court precedent.

It pointed to a 1999 state Supreme Court case involving two state troopers who were dismissed for misconduct but later reinstated by an arbitrator.

Pennsylvania State Police challenged the reinstatements. But the high court declined to reverse the arbitrator’s decision. It rejected an argument that the arbitrator should not have been able to make a decision “contrary to public policy.”

Commonwealth Court noted that the city could still ask the high court to look at the Fetty case.

“The city retains the ability to petition our Supreme Court for review, present its public policy concerns, and ask the court to reconsider [its previous case,]” the appellate court wrote.

Which is exactly what the city intends to do.

“We believe that this ruling hamstrings the city’s mandate to comply with existing laws and ensure it provides its employees with a safe working environment,” Pittsburgh spokeswoman Maria Montaño said.

She said the city was disappointed in the ruling and will appeal to the Supreme Court, arguing “that employees in law enforcement should be of the highest integrity and character.

“The city has real concerns about allowing an individual about whom Judge Mulligan, in a civil proceeding, stated committed a sexual assault, to be permitted to patrol our streets and enforce the laws of the commonwealth,” Montaño said.

But Robert Swartzwelder, the police union’s president, said Wednesday that the burden to obtain a protective order in civil court is low — much lower than that required to sustain criminal charges.

He said the city has lost at every level of the case, and he expects the same result at the state Supreme Court.

“This was not a case about credibility and which officer was right,” he said. “This was about protecting the provisions of the collective bargaining agreement and disciplinary process.”

Lisa Bennington, the attorney who represented the alleged victim when she sought the protective order, said the judge held a three-hour hearing.

“He can deny the allegations all he wants,” Bennington said, but that doesn’t change the judge’s findings.

“It’s unfortunate the collective bargaining agreement that was in place at the time permits police officers who have been found by a court of law to have perpetrated an act of sexual violence against another to be reinstated to the Pittsburgh police force,” Bennington said.

Montaño said Fetty, who has not been paid while not working, will be reinstated to his position pending further appeal.

Swartzwelder said he is entitled to back pay.