In 2020, Philadelphia fired a police lieutenant who sent sexual text messages and a pornographic video to two subordinates, then asked one to lie to investigators.

Whether that termination stands was the subject of a state Supreme Court argument Thursday in Philadelphia that could have statewide implications — including in Pittsburgh, which just appealed the court-ordered reinstatement of a police officer it fired.

At issue is a nearly 60-year-old state law called Act 111 that governs discipline for police and firefighters.

The law effectively bars courts from reviewing discipline for police officers.

Critics say that has led to bad cops being allowed back on the job by arbitrators, leaving no way to challenge them.

Supporters say the status quo should not change and that the law blocks unwelcome judicial activism.

In the Philadelphia case, the lieutenant got his termination reduced to a 50-day suspension.

Philadelphia challenged the reinstatement, but courts ruled against the city.

During hour-long oral arguments Thursday, Craig Gottlieb, who represents the City of Philadelphia, focused on one question: Where is the line between the courts interpreting law and crafting public policy?

Gottlieb also argued Act 111 mainly addressed the general collective bargaining process for union contracts, not specifically grievances over discipline. Favoring the latter has resulted in poor decisions that draw the public’s ire, Gottlieb said.

“Thirty years of horrendous decisions have created problems,” he argued. “The message that is sent to the public is that the police can get away with this.”

“We have described dozens, if not more, cases where the results have been egregious,” he added.

Attorney John Bielski, who represents the Fraternal Order of Police Lodge No. 5, argued the current system works.

“We have a decision — it’s 30 years old,” Bielski said. “To suggest somehow, ‘Oh my gosh, I didn’t realize this statute has been misinterpreted’ is an error.”

Because of the potential statewide ramifications of the case, a dozen friend-of-the-court briefs were filed by parties on both sides of the issue, including the City of Pittsburgh.

Those who support Philadelphia government argue that the absence of judicial review increases police misconduct, damages public trust in the police, erodes the authority of municipal and police department leaders and emboldens bad cops.

“This case is not an outlier; to the contrary it is emblematic of a broader, systemic pattern in which the courts have been rendered almost powerless to review unjust arbitration decisions,” wrote attorneys for the Advocacy for Racial and Civil Justice Clinic; Defender Association of Philadelphia and the American Civil Liberties Union of Pennsylvania in a brief in the case.

“As a result, the city’s ability to maintain discipline and hold officers accountable for serious misconduct is severely compromised.”

But those supporting the Fraternal Order of Police Lodge No. 5 union argue that since Act 111’s implementation in 1968, Pennsylvania’s courts have upheld only a narrow set of circumstances in which an arbitrator’s decision can be reviewed.

That precedent should not change, they argue, lest the courts engage in judicial activism and policymaking.

Grounds for appeal

Act 111 was passed by the General Assembly in 1968 establishing collective bargaining for police and firefighter unions with their municipal employers.

It allowed for arbitration to settle employment disputes in exchange for ensuring that public safety employees could not go on strike.

In the event of discipline, the act explicitly bars appeals to “any court.”

That language is clear, said the Pennsylvania Professional Fire Fighters Association, which represents nearly 5,000 paid firefighters, and Pittsburgh’s International Association of Fire Fighters Local No. 1.

Since the law took effect, Pennsylvania’s Supreme Court has established a limited set of circumstances in which an arbitration decision can be appealed:

An arbitrator acted outside his authority The arbitrator lacked jurisdiction The proceedings were irregular Someone was deprived of their constitutional rights.

Advocates for expanding Act 111 review argue that the current state of the law allows for police officers accused of misconduct to earn their jobs back when they shouldn’t.

In Pittsburgh, Officer Keith Edmonds was fired in 2022 after deploying his Taser 10 times in three minutes on a homeless man who died the next day.

Edmonds, however, was reinstated through arbitration. Last month, the Commonwealth Court upheld his rehiring, though it called the arbitration award “repugnant.”

The City of Pittsburgh on Monday filed its notice of appeal to the state Supreme Court.

‘Unlimited power’

The Pennsylvania Chiefs of Police Association, which filed a brief on behalf of the City of Philadelphia in the pending state Supreme Court case, cited two studies showing officer discipline is frequently overturned through arbitration.

According to the Philadelphia Inquirer, from 2011 to 2019, a police union was successful in having the penalties overturned or reduced in 70% of cases.

Nationally, between 2006 and 2020, a review of 624 cases where officers were terminated, showed that, through arbitration, 46% were rehired.

“The current standard grants arbitrators virtually unlimited power, thus hindering the city’s ability to discipline officers and ensure integrity within the police force,” the chiefs wrote in their brief.

“The decision to reinstate an officer despite egregious misconduct undermines public safety. The costs are more acute for communities of color, which bear the brunt of the consequences of misconduct from reinstated officers, thus exacerbating the effects of historical racism in policing. “

The city of Philadelphia’s brief outlines other cases of officers accused of misconduct who were reinstated to their positions through arbitration.

They included an officer who drove her police car under the influence of cocaine and alcohol and crashed into parked cars; an officer who jammed his police-issue, loaded weapon into his ex-girlfriend’s mouth and threatened to kill her; and another officer who impermissibly accessed government files on citizens to use pictures for sexual gratification.

“We do not suggest that all, or even most, of the reinstatements are misguided,” Philadelphia’s attorneys wrote. “But even a few untoward reinstatements are dangerous.”

‘Disturbing trend’

Robert Swartzwelder, the president of Pittsburgh’s police union, said the state Supreme Court should reject the public policy exception being requested.

He suggested Philadelphia could have handled the lieutenant’s case differently. Instead of appealing the arbitrator’s decision, officials could have asked a state municipal police training center to decertify him, for instance.

“There are other administrative remedies available,” Swartzwelder said.

Swartwelder said the public employers in cases like this have all the power, including being able to present evidence without issuing subpoenas.

He said municipalities aren’t arguing for a “public policy” exception, but a political one.

“They will sacrifice an officer’s career for political expediency,” he said. “If it’s politically expedient to get rid of an officer, they don’t want due process.”

Swartzwelder said he believes in the arbitration process and has sat on many panels where a termination has been upheld.

“When they need fired, they’re fired,” he said.

But in its friend-of-the-court brief, the City of Pittsburgh disagreed. It outlined as an example the case of former Officer Paul Abel.

Suffering public

Abel had been the subject of multiple lawsuits, citizen complaints and disciplinary actions over nearly two decades.

He was fired after being charged with driving under the influence, reckless endangerment and assault.

According to the brief, in June 2008, Abel had a blood alcohol concentration of 0.11% and claimed he was punched at a stop light. He grabbed his gun from the trunk of his car, pursued the alleged attacker and then pistol-whipped a man and accidentally shot him in the hand.

The city settled claims against it for $40,000. But Abel was found not guilty in a bench trial and was reinstated through arbitration.

Later, the city fired Abel again for an incident involving a homeless man in October 2020.

That time, the termination was upheld, the city wrote, “But not before the public suffered at the hands of this officer, and the city was subject to further liability.”

In its brief, Pittsburgh’s attorneys argued that the court’s previous decisions interpreting Act 111 have impacted the city’s budget and its right to manage its workforce.

They call the reinstatement of problem officers “a disturbing trend permeating police discipline in the United States and Pennsylvania in particular.”

Sara Rose, an attorney with the ACLU of Pennsylvania, said the relief being sought by Philadelphia’s attorneys is limited — to overturn an arbitrator when it’s in the public interest.

“It’s a very limited exception, but it’s an important one,” Rose said. “We’ve seen time and time again, arbitrators who reinstate officers for egregious misconduct.

“When that happens, there has to be a check on the system.”

Staff writer Justin Vellucci contributed to this report.

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