OPINION NOT REPORTED
MEMORANDUM OPINION BY LEADBETTER, Senior Judge.
Cornwall-Lebanon Education Association (the Association) appeals from an order of the Court of Common Pleas of Lebanon County that (1) granted Cornwall-Lebanon School District's (the District) petition to vacate an arbitrator's award sustaining in part and denying in part the consolidated grievances of teacher Luke Scipioni (grievance sustained by arbitrator as to improper relationship with student and unlawful possession of music downloads, but denied as to lying to Superintendent about relationship and improper review and preservation of inappropriate e-mail images on a district computer); and (2) modifying the arbitrator's remedy of suspension, with a serious contingency and penalty,
The relevant facts as found by the arbitrator are as follows.
After the 2004 season, rumors of the relationship continued to circulate and Scipioni did not coach after that time allegedly due to family pressures. When he subsequently expressed interest in coaching again, he was told that the District did not want him to do so due to those rumors. Regarding those rumors, the high school principal credibly testified that when he questioned Scipioni about them both in 2010 and 2012, the teacher denied having an inappropriate relationship with AH. August 16, 2015, Arbitration Award at 12 and 23; Reproduced Record (R.R.) at 83a and 94a. Scipioni admitted to the principal, however, that he had gotten "too close" to AH and that it had caused him "a lot of marital problems." Id. at 12; R.R. at 83a. Nonetheless, he continued teaching from September 2004 forward without incident.
Subsequently, when Scipioni was in protracted matrimonial litigation in the early summer of 2014, the District received an anonymous phone call from someone claiming knowledge of the 2004 relationship. The Superintendent carried out an investigation, which resulted in the District's suspension and subsequent termination of Scipioni's employment. Ultimately, the District alleged that the teacher committed five violations: (1) failing to be frank, candid, and intellectually honest and acting in an insubordinate manner; (2) being immoral by lying to the Superintendent; (3) engaging in a physical, sexual relationship with an eighteen-year old female student, beginning shortly after her graduation; (4) repeatedly and willfully failing to comply with various laws, official directives, and policies by illegally downloading and saving music onto a district computer; and (5) repeatedly and willfully failing to comply with various laws, official directives, and policies by reviewing and preserving e-mails with inappropriate and offensive photographs and captions on his work computer. Id. at 6-7; R.R. at 77-78a.
Following the Association's grievances on Scipioni's behalf, both of which were related to the District's alleged violation of the just cause provision of the parties' collective bargaining agreement, the matter went to arbitration with the stipulated issue of whether the District had just cause to suspend and, subsequently, to terminate Scipioni's employment and, if not, the appropriate remedy. Ultimately, the arbitrator determined that the District failed to establish just cause and that the interests of justice warranted mitigation of the District's termination of the teacher's employment.
Subsequently, the District filed a petition to vacate the arbitrator's award, arguing that it contravened public policy. Common pleas granted the petition, concluding that termination was the best option because it
April 21, 2016, Common Pleas' Opinion at 20. The Association's appeal to this Court followed.
On appeal, the issues are as follows: (1) whether common pleas erred in vacating the arbitrator's award based on the public policy exception to the essence test; and (2) whether the court improperly modified the arbitrator's award. It is now axiomatic that "an arbitration award will be upheld if it can rationally be derived from the collective bargaining agreement, unless it contravenes public policy." City of Bradford v. Teamsters Union No. 110, 25 A.3d 408, 413 (Pa. Cmwlth. 2011). Our three-step analysis for application of the public policy exception provides that the court 1) identify the nature of the conduct leading to the discipline; 2) determine if that conduct implicates a well-defined and dominant public policy; and 3) determine if the arbitrator's award poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand, including any attendant aggravating or mitigating factors, and the factual findings of the arbitrator. Id. at 414. Although resolution of the third step is determinative, we briefly review the first two steps to provide context for our analysis.
Pursuant to the first step, the nature of the conduct leading to the discipline primarily consists of the relationship that Scipioni had with a troubled female student in 2004, his subsequent failure to be candid with District superiors, and his review and preservation of inappropriate e-mails. Turning to the second step, the District maintained that some of the well-defined and dominant public policies implicating that conduct were the District's duty to assure that staff members were not acting inappropriately with students, duty to ensure the safety of pupils for whom it had a direct responsibility, and duty to terminate an employee who violated the duty of honesty to his employer. Assuming arguendo that the District met the first two steps, we conclude that common pleas erred in determining that it satisfied the third.
In support of its determination that the District satisfied the third step, common pleas concluded that, taking into consideration the collective conduct of the teacher, the District proved that there was an unacceptable risk that the one-year suspension, with a contingency and penalty, would undermine the implicated policies or cause the District to breach its lawful obligations or public duty such that Scipioni should not be permitted to return to a classroom. In making its determination, however, the court ignored both the factual findings and the actual violations found by the arbitrator.
Although the arbitrator concluded that the pair was involved in a physical, sexual, and romantic relationship beginning on or shortly after AH's graduation and ending in August 2004, he nonetheless sustained the grievance as to the charge of having an inappropriate relationship. In so ruling, he observed that the District did not contend that Scipioni had an improper relationship with AH before graduation and that, "the evidence that the two had significant communication and more interaction than usual between a coach or former coach and athlete while AH was still a student does not demonstrate any impropriety." August 16, 2015, Arbitration Award at 20; R.R. at 91a. Accordingly, the arbitrator concluded that Scipioni did not have culpability for whatever relationship he had with AH after graduation when she was over eighteen and no longer a student.
In contrast, common pleas reweighed the facts relating to the timing of the relationship, concluding that the "sexual/romantic relationship had its roots firmly planted during the time that AH was a District student, with plans being made to consummate that relationship as soon as she had her diploma in hand. We do not believe that public policy condones such conduct." April 21, 2016, Common Pleas' Opinion at 17. However, the arbitrator made no such finding of fact.
The arbitrator found Scipioni's falsehoods to be "somewhat excusable and understandable," while at the same time acknowledging that the denials were self-serving. He opined as follows:
August 16, 2015, Arbitration Award at 25; R.R. at 96a. Nonetheless, the arbitrator denied the grievance as to the charge of lying, concluding that because the timetable of the pair's relationship justified the suspicion that it may have been improper during AH's school days, the District had a right to question Scipioni and that, as its employee, he had a duty to be honest. Id. at 24; R.R. at 95a. Accordingly, taking into account the fact that the teacher owed the District a duty of honesty, the arbitrator also weighed the teacher's "otherwise good and lengthy record with the District" in determining that he should be afforded a second chance "albeit one with a serious contingency and penalty." Id. at 25; R.R. at 96a.
In contrast, common pleas concluded that a teacher who lied to his superiors was not the type of mentor who should be entrusted with the District's implementation of its duties to protect and serve its students and, therefore, should be subject to termination. Common pleas, however, inappropriately weighed the harshness of the award and deemed it to be too lenient for the conduct at issue. See Westmoreland I, 939 A.2d at 863. The arbitrator dealt with the dishonesty issue and, in so doing, weighed the reasonableness of the appropriate consequences. We turn now to the e-mail images found on Scipioni's work computer.
The arbitrator denied the grievance as to the teacher's receipt, retention, and forwarding of certain e-mail images found on his district computer, (1) rejecting his explanation as to how the images came to be there and were forwarded; and (2) concluding that he deliberately downloaded and retained them. August 16, 2015, Arbitration Award at 20; R.R. at 91a. Regarding the content of the e-mails, the arbitrator determined as follows:
Id. at 19; R.R. at 90a (footnote added). Accordingly, observing that the number of e-mails was miniscule, that there was no evidence that Scipioni ever displayed them to anyone in the school community, and that none of the individuals depicted were members of that community, the arbitrator determined that they warranted a penalty short of discharge. Id.
Acknowledging that, standing alone, the e-mails would not justify anything more than suspension, common pleas nonetheless made a leap and concluded that, when combined with the teacher's improper relationship and dishonesty, they warranted a greater penalty. April 21, 2016, Common Pleas' Opinion at 19. In concluding that the e-mails did not form the basis for a termination case, however, the arbitrator examined the e-mails and considered the teacher's explanations regarding them. Accordingly, in reweighing the arbitrator's findings and penalty for the e-mails, common pleas improperly acted as a superarbitrator.
Pursuant to our comparison of the arbitrator's fact-findings and common pleas' decision, we conclude that the court improperly reweighed the evidence and, as well, the reasonableness of the award. In so doing, it erred in determining that the District met the third step to the public policy exception to the essence test. In that regard and contrary to common pleas' implication, the arbitrator rendered an award with serious consequences for a tenured teacher.
In conclusion, the parties bargained for the award and the District did not dispute that it satisfied the essence test. Keeping in mind that the public policy exception is narrow, we must agree with the Association that the arbitrator's modification of Scipioni's penalty did not contravene public policy. Accordingly, we must reverse.
AND NOW, this 3rd day of February, 2017, the order of the Court of Common Pleas of Lebanon County is hereby REVERSED.
August 16, 2015, Arbitration Award at 25-26; Reproduced Record (R.R.) 96-97a.
August 16, 2015, Arbitration Award at 19; R.R. at 90a.