Court: W-B must pay firefighters

WILKES-BARRE – The city has lost a two-year court battle to overturn an arbitration award to firefighters that’s estimated to cost taxpayers $1 million.

The state Commonwealth Court on Monday upheld the ruling. Barring a successful appeal to the state Supreme Court, the city will be required to pay each current firefighter a lump sum payment of $13,100 to make up for salary increases they are due dating back to 2002.

The dispute centers on a memorandum former Mayor Tom McGroarty signed in July 2002 that gave police officers an additional lump sum payment of $1,300 in 2002 and 2003 and $1,500 annually for each year thereafter.

Councilman Bill Barrett, who retired as police chief in 2000, said the city authorized the payments to settle a grievance the police union filed after the city turned over parking meter collections and enforcement to civilian employees -- a job previously performed by police.

City officials believed the move would free police to work on more serious criminal matters. It would also save taxpayers money because the civilians were paid significantly less than police officers.

The agreement turned out to be a Pandora’s Box for the city, however, due to a parity clause that was contained in the union contract covering firefighters at the time. The clause required the city to pay firefighters any salary increase given to police.

Barrett said he wasn’t happy about having to pay police the extra money not to do parking enforcement, but the city had no choice after an arbitrator ruled in the police union’s favor.

“Their contention was it wasn’t bargained out (of the contract). It was taking work away from them,” Barrett said.

Now firefighters have been given the same benefit. Barrett said he’s not happy about that either but still believes the decision to hand over parking to civilians was the right thing to do.

“Unfortunately, it didn’t work out as well as the city would have liked,” he said.

The Commonwealth Court ruling stems from a grievance the Wilkes-Barre Firefighters Association Local 104 filed in 2007 that sought the same payments given to police.

An arbitrator ruled in the union’s favor in 2008. The city then filed an appeal in Luzerne County Court seeking to overturn the ruling, arguing that Tom Makar, president of the firefighter’s union, had provided false information at the arbitration hearing.

The key issue revolved around when Makar first learned about the police agreement that gave officers the extra pay.

Makar testified he did not learn about the agreement until 2007, when a neighbor, who was a retired police office, made him aware of the matter. Timing was important because the city maintained the grievance had been filed too late.

The city maintained a letter Makar wrote in 2004 to a city official proved he knew of the agreement back then. In the letter, Makar referenced the “generous deals” the city gave to police, including the lump-sum payments. Based on that, the city argued there was an “irregularity” in the arbitration process, warranting the dismissal of the award.

The problem for the city: It did not discover the letter until a week after the arbitrator had issued his ruling. In its appeal, attorneys for the city sought to enter the document as “after discovered evidence.” But Judge Hugh Mundy denied the request.

Mundy ruled the letter, which was found in a city file, was readily available to the city to present at the arbitration hearing. It therefore could not be considered as new evidence on appeal.

The Commonwealth Court agreed. In its opinion, the court said the city’s attempt to enter the letter was merely a “crafty means to try to challenge the credibility of a witness on appeal.”

“In this court’s view, the city is essentially asking for a second bite of the evidentiary apple, i.e., another opportunity to impeach a witness’s testimony,” the court said. “A party’s failure to remember evidence that might have aided its case by challenging a witness’s credibility simply does not amount to an irregularity of proceedings.”

The court did not rule regarding the merits of the city’s challenge to Makar’s credibility. It made a point to note that the letter in question did not provide unequivocal proof that Makar had provided false testimony.

“There may be a reasonable explanation for the disparity such that an adjudicator reviewing the evidence might not consider the testimony to be perjury but rather an oversight ...,” the court said.

Mayor Tom Leighton issued a brief press release Monday that said only that the city is reviewing the decision to determine whether to seek an appeal before the state Supreme Court.

Stephen Holroyd, attorney for the firefighters union, said Monday he understands the ruling may not be popular with the public. Their anger should be directed to city officials, who he claims tried to “hide” the increases given to police in order to avoid paying firefighters what they are legitimately owed, he said.

“The contract had a parity clause. When the city gave police additional money, we should not have had to find it out. They should have said we are making you aware of this and firefighters will also receive the additional money,” Holroyd said.

Makar noted the city has already raised the money needed to pay the award through a tax increase included in the 2009 budget. Leighton last year said that 13 of the 23 mills included in the increase were to cover the arbitration award. A mill is a $1 tax on every $1,000 of assessed property value

The city placed $1 million in an escrow account last year after the city filed the appeal with Commonwealth Court.

Holroyd said the total amount due will be more, however, as the city will be required to pay 6 percent interest on the $1 million dating back to September 2008 – the date the arbitration award was entered. The exact amount the city will have to pay could not be determined Monday.