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Firing public workers often means long battle, big bill

January 26, 2019

SCRANTON, Pa. (AP) — Cursing the boss, sleeping on the job or using a work computer to view pornography would get most private-sector employees fired on the spot.

If they work for the government, it’s another story.

Municipalities and school districts often are forced to pay tens or even hundreds of thousands of dollars waging protracted battles defending termination decisions, even when they have a strong case, several attorneys who specialize in labor law say. Since 2011, Dickson City has spent $493,341 in legal fees defending decisions to fire two police officers accused of committing crimes and a Department of Public Works employee accused of insubordination. The Scranton School District spent $106,096 to defend actions it took against a principal accused of mishandling state tests and neglecting to evaluate teachers.In Luzerne County, Exeter borough officials spent $387,574 litigating the decision to fire a police officer who used borough computers to view porn and run his business.

“There is going to be a burden and a cost, even if you win,” said Pittston attorney Joseph Joyce III, who has represented several municipalities in employment disputes. “You have to balance that in your mind before you fire a public employee. You may not like how an employee behaves ... but if you don’t have someone dead to rights, it’s risky.”

That is because most public-sector employees are covered by collective-bargaining agreements, which give them significantly more rights than nonunion, private-sector workers.

Pennsylvania is an “at-will” employment state, meaning workers who aren’t protected by contracts can be fired at any time for any reason. However, state labor laws and collective bargaining agreements ensure that protected employees have the right to due process, arbitration and appeal.

‘Stomach to fight’

Northeast Pennsylvania’s long history of strong public unions contributes to the expense of firing government employees, Exeter Borough Solicitor Raymond A. Hassey said.

“As a result, they were able to negotiate contracts that built all these extra protections in that you don’t typically see in the private sector,” Hassey said. “Because it’s taxpayer money, it’s very easy for boards and public officials just to vote to do it, because it’s not coming out of their pockets.”

By law, employees covered by a “just-cause” provision must be provided a hearing to defend against the charges. If disciplinary action is taken, they can then file a union grievance and an arbitrator will uphold, overturn or modify the penalty imposed.

“Even if you caught me on video stealing out of the till, you have to call me in and give me an opportunity to tell my side of the story,” said Scranton attorney John Dean, who specializes in municipal and school law. “The union will challenge just about every termination. They do that even when they believe the termination was valid, because if they don’t, the employee can come after the union for unfair representation.”

The process is expensive, so employers have to be selective about which cases to pursue, Joyce said.

“You have to counsel (employers) to take a step back,” Joyce said. “If you fire someone, is it going to stick? You have to have the stomach to fight.”

Either side can appeal the arbitrator’s decision to county court and, if dissatisfied there, to state Commonwealth Court. However, Dean said arbitration rulings are very difficult to overturn.

“The standard is so high,” Dean said. “The arbitrator is given great deference by the court on appeal. There is no appeal unless the arbitrator exceeded his authority. Other than that, appealing an arbitration decision is a waste of time.”

Deck stacked?

Wilkes-Barre Area School District Solicitor Attorney Raymond P. Wendolowski said the process is frustrating, particularly when officials believe there is a clear-cut case for termination.

“I understand that one of the benefits of being in a collective bargaining agreement is that you have certain just-cause rights,” Wendolowski said. “But, particularly in the school setting, I think those just-cause rights have been interpreted to the extreme. I mean, you find cases where you just scratch your head and say, ‘What do you mean that person was reinstated?’”

Dickson City has been hit especially hard. The borough spent $306,703 to successfully defend its 2011 decision to fire police officer Thomas Logan, who was convicted of insurance fraud, and $91,980 to defend the 2014 firing of Brian Kaszuba, a Department of Public Works employee who got into an obscenity-laced confrontation with borough manager Cesare Forconi. Most recently, the borough paid $94,658 in an unsuccessful bid to defend its 2018 termination of police Officer John Sobieski, who was accused of assaulting his girlfriend. Sobieski was investigated but never charged with a crime. He recently was reinstated with back pay after an arbitrator overturned his firing, finding there was insufficient evidence that he committed the assault.

Forconi said the borough council realized the employment actions would be expensive but felt it had no choice but to act.

“If you have an employee that for some reason is not performing his duties... and there is just cause to terminate, you are obligated to follow through with it,” Forconi said. “You go through a grievance and arbitration. The nature of those things tend to be expensive.”

Still, it’s frustrating, he said.

“I’m not saying take away people’s rights,” he said. “We certainly want to give everyone their day in court. But, that money could be so much better spent serving the public.”

In Exeter, police Sgt. Leonard Galli was in fired July 2014, after he was accused of using borough computers for personal use, including viewing pornography. He was reinstated after an arbitrator overturned the decision, only to be fired again in August 2017, for again using work computers for personal use. That decision was upheld.

Hassey, the Exeter solicitor, said Galli’s case highlights the importance of having specific policies in place. Council thought it had a strong case against him the first time it fired him. The decision was overturned because there was no specific policy forbidding employees from using borough computers for personal use. The borough won the second case because it later implemented a policy that Galli subsequently violated.

“Even though the first instance was more salacious than the second, the borough was on stronger ground,” Hassey said.

Officials also have to ensure they properly conduct the hearing, Joyce said. Employees must be fully advised of the allegations against them and the evidence the employer has. Failure to do that opens the door for a lawsuit.

Scranton and Honesdale officials learned that lesson. Both municipalities lost costly employment cases and had to pay additional damages to settle lawsuits filed by two employees who claimed their due-process rights were violated. Scranton lost a case against former code enforcement officer Patricia Jennings Fowler, while Honesdale was forced to reinstate police Sgt. Keith Colombo.

“Even when you have a good case, you’ve got to have it set up correctly,” Joyce said. “You are putting yourself at risk of losing a lawsuit and enduring all the burden and lost time involved and end up with a guy you’ve got to work with again.”

Wendolowski, the Wilkes-Barre Area solicitor, said he sometimes questions if the arbitration process is tilted in favor of the terminated employees.

“We’re all cognizant of the fact that arbitrators often second-guess boards’ decisions to terminate employees,” Wendolowski said. “It just seems the system is weighted against the school district and in favor of the employee when it comes to the results in many of these arbitrations.”

While the Pennsylvania State Education Association and the school district equally split the arbitrator’s fee for hearing a case, the union represents teachers from all over the state, he said.

“The lawyers who represent that union are selecting arbitrators on a regular basis whereas the school district, it’s a little more hit or miss,” Wendolowski said. “We might have one or two arbitrations a year, if that. The PSEA has probably hundreds. So, the cynic in me would say that the arbitrator knows that the bread is buttered from that side more than it’s buttered from the school district side. But I can’t prove that. There’s many arbitrators who are very competent and very fair.”

Due process

James McAneny, a Harrisburg attorney who has represented many employees in termination proceedings, said the problem is not biased arbitrators, it is that municipal and school officials do not follow the rules. They either do not have sufficient evidence to support the action or, in some cases, they fail to provide the employee a hearing.

“The biggest problem I’ve seen over the years is it’s not that it costs money to fire someone, it’s that they spend a lot of money firing somebody before they get their ducks lined up,” McAneny said. “If someone thinks I did something wrong, tell me what you think I did and let me respond to it. It’s not rocket science.”

McAneny acknowledged the process is time-consuming and expensive, but said it is there for a reason — and is particularly important for government workers who are more likely to be subjected to political retaliation.

“If my job was in law enforcement and my employer didn’t like the investigation I was doing because I’m going to turn up something nasty on someone (my employer owes) a favor to, I don’t want him coming in and saying this investigation is over — you’re fired,” McAneny said.

Chris Lilienthal, a spokesman for PSEA, noted that union contracts do allow for employees to be fired, but only when there is a “proper, documented, performance-related reason.” The employer must follow the procedure agreed to in the contract prior to termination, he said.

“It gives the worker a chance to improve performance before that employee would be dismissed, and if it does not improve then there is a process for removing that employee,” Lilienthal said. “What’s really at the heart of all of this is due process.”

That includes allowing employees to hear the charges against them, see the evidence and have an opportunity to respond and give their side of the story, he said.

“We will always advocate for our members because, in the long run, we really do believe that by advocating for our members and creating an environment where they can do their job without fear of retaliation, that’s in the best interests of students,” Lilienthal said. “It’s in the best interests of our communities because that’s how good public education happens — when we have educators who are not afraid to do their jobs and to do them well.”

Solutions

Wendolowski said he thinks one problem with the system is that the criteria for meeting the definition of “just cause” for termination is really in the “eye of the beholder.”

While there have been discussions about giving school boards more discretion on disciplining employees, the union is powerful and fights such moves “tooth and nail,” he said.

Some jurisdictions have proposed that the losing party in an arbitration should be required to pay the winner’s legal fees. That might cut down on frivolous claims, but there’s a risk, too, because municipalities and school districts could also be on the hook if they lose.

“It cuts both ways,” McAneny said.

Rick Schuettler, executive director of the Pennsylvania Municipal League, said he understands the concerns. Officials can reduce costs and problems if they work within the system.

“It can be difficult for municipalities, but that’s part of management,” Schuettler said. “Right, wrong, fair, unfair, it’s what you have to deal with.”

The key for municipalities is to ensure they have clear language in their union contracts outlining the disciplinary process, he said.

“Terminating someone’s employment is a big deal, as it should be,” Schuettler said. “You need to do your homework.”

The Municipal League offers training courses for municipal officials in various employment-related matters to help ensure they handle the issues in a manner that protects the rights of employees and those of municipalities and school districts.

“You want to have the right language in the (collective bargaining agreement),” Schuettler said. “It doesn’t mean you’re not going to have a horror story. It does mean you can minimize those chances.”

Here are some of the most costly cases in Northeast Pennsylvania for terminating public-sector employees:

Lackawanna County

Former Scranton School District elementary Principal Gwendolyn Damiano was fired in November 2013 based on allegations she failed to properly oversee the administration of Pennsylvania System of School Assessment tests and neglected to evaluate teachers. She was reinstated in July 2014, after the state secretary of education reversed the decision. She was again suspended with pay in February 2015, for undisclosed reasons and remained on paid suspension until June 2018, when she resigned. Damiano also filed a federal lawsuit against the district, which was dismissed before trial. The district spent $106,096 defending her termination and lawsuit. Attorney Scott Schermerhorn,who represented Damiano in the lawsuit, said procedures are in place to protect employees’ rights. She believed she had a valid claim and pursued her right to sue, he said.

Former Scranton code enforcement Officer

Patricia Jennings Fowler filed two federal lawsuits against the city over employment actions taken against her in 2013 and 2016. She was fired initially in October 2013 for allegedly falsifying a log sheet to show she was inspecting a home when, in fact, she was parked in her car behind a bowling alley. She was rehired three months later as part of a settlement of a grievance. She was fired a second time in March 2016, after being accused of various misconduct, including insubordination. An arbitrator overturned that decision. Jennings Fowler’s first lawsuit alleged, in part, that city officials violated her due-process rights the first time she was fired because they did not advise her there was videotape evidence against her. The city agreed to settle both cases last year for $175,000. Insurance covered part of the cost, leaving the city to pay $114,910 in legal fees and arbitration costs, plus $23,708 in back pay. Jennings Fowler now works as a civilian parking enforcement officer for the city’s police department. Attempts to reach Cynthia Pollick, Jennings Fowler’s attorney, were unsuccessful.

Former Dickson City Department of Public Works employee

Brian Kaszuba was fired in November 2014, over a confrontation with the borough manager. An arbitrator upheld his termination and Kaszuba was denied unemployment compensation. In June 2016, he filed a federal lawsuit, alleging he was fired in retaliation because council members discovered he was the creator of a Facebook page that criticized them. A federal judge dismissed the lawsuit in September. Kaszuba?’s appeal of that decision remains pending. The borough spent $91,980 defending the lawsuit, the arbitration hearing and unemployment compensation hearing. Attorney Joseph Price, who represents Kaszuba in the appeal, said he believes the judge clearly erred in dismissing the case. “Mr. Kaszuba is exercising the rights ... that I am sure the officials you mention would employ if they found themselves in a similar position,” Price said.

Former Dickson City police Officer

Thomas Logan was fired November 2011, after he was charged with insurance fraud for claiming a gun he used to illegally kill a deer was destroyed in a fire. He pleaded guilty in April 2012, and was sentenced to 18 months in Lackawanna County Prison. Despite his dismissal, he filed a grievance alleging he was wrongly denied a disability pension for a work-related injury he suffered in 2008. A convoluted legal battle ensued as the borough and Logan disputed if the case was subject to arbitration. In 2013, a state appellate court ruled it was. In 2014, an arbitrator ruled he was not entitled to the pension. The borough paid $306,703 in legal fees for hundreds of hours spent on the court cases. Attempts to reach Logan’s attorney, Brett Datto, were unsuccessful.

Luzerne County

Former Exeter Borough police Officer Leonard Galli was fired in July 2014 for misusing borough computers by running his personal businesses, viewing pornography and seeking sexual encounters online while on duty. An arbitrator found the borough had no written rules governing computer use and Galli got his job back in September 2015, although he was demoted and placed on probation. After new rules were written, the borough fired Galli again in August 2017 for continuing to use borough computers for personal use. This time, an arbitrator found Galli used borough equipment for “patently prohibited uses.” The borough spent $387,574 to terminate Galli, including $325,800 in legal services and $39,413 in expert services, according to documents the newspaper obtained from a Right to Know Law request. Galli declined comment.

Former Wilkes-Barre police Officer

Kyle Rogers was fired in January 2016 after a string of misconduct allegations, including arguing with a superior, falling asleep while on duty and inappropriately drawing his pistol inside the police station. Rogers filed a civil rights lawsuit in January 2018, alleging the city violated his due-process rights. A federal judge dismissed the suit in July, describing it as a “quintessential shotgun pleading” that failed to give the defendants adequate notice of the claims against them. Litigation related to Rogers’ termination cost the city $33,392, city records show. Attempts to reach Sgt. Phil Myers, the police union president, were unsuccessful.

Wayne County

Honesdale police Sgt. Keith Colombo was suspended without pay for 10 days on Dec. 7, 2015, then fired on Dec. 22, 2015, based on allegations he engaged in various misconduct, including sleeping on the job, using excessive force and having an improper sexual relationship with a female defendant. He filed a federal lawsuit in January 2016, alleging the borough violated his due-process rights when it fired him because it failed to provide him a hearing, as required by law, to address the allegations. On Dec. 23, 2016, the borough agreed to settle the case for $89,906, which includes $51,097 for back pay and benefits, $30,000 in additional compensation and $8,809 in attorneys’ fees. Colombo’s attorney, Marc Gelman, declined to comment.

— TERRIE MORGAN-BESECKER AND JIM HALPIN

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Online:

https://bit.ly/2T3bVgL

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Information from: The Times-Tribune, http://thetimes-tribune.com/

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