Arbritrator rules for suspended Wilkes-Barre officers, says city should pay for lost time and clear records

By Jerry Lynott - [email protected]
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WILKES-BARRE — An arbitrator ruled the city should wipe clean the disciplinary records of two Wilkes-Barre police officers suspended last year for social media postings critical of the department’s administration, plus pay them for the lost time.

The ruling sided with Sgt. Phil Myers, president of the Wilkes-Barre Police Benevolent Association, and its vice president, former officer Daniel Duffy. It also said the postings were protected speech and done in the interest of the safety of the officers in the department.

The postings were in response to orders issued by then Commander Ron Foy. The PBA argued Foy’s orders limited the information that officers relied upon to do their jobs.

“Commander Ronald Foy has officially made his Officers (sic) jobs more dangerous, and has made them less competent in their patrol duties,” said an April 17, 2017, post.

“It seems Commander Foy has placed his Officers in an ethical dilemma by ordering them to deliberately omit information from reports,” another post read from April 18, 2017.

“Placing Officers in a position to remove documentation is just plain wrong,” it continued.

Two days later — on April 20, 2017 — a post criticized the order by Mayor Tony George for an investigation into posts on the PBA Facebook page.

“Another fine example of ‘Law and Order,’” it said in a sarcastic reference to the mayor’s campaign slogan. “Unbelievable.”

Myers, who was suspended for a total of 12 days without pay and given a written reprimand, said the ruling “speaks for itself. ” Due to pending litigation Monday, he declined further comment.

The litigation he referred to is an arbitration hearing at City Hall for Duffy who was fired last October for an alleged threat in an email to Mayor George and city Administrator Ted Wampole.

Duffy also declined comment. He received two written reprimands and was suspended for a total of seven days without pay.

Wampole said he had not seen the ruling, but was aware of it. “We abide by the arbitrator’s ruling,” he said.

‘Protected activity’

The ruling issued Thursday by attorney Thomas P. Leonard of Harrisburg resurrected the rancor among the ranks under former Chief Marcella Lendacky and former Commander Foy. An independent review done at the city’s request earlier this year by the Pennsylvania Chiefs of Police Association to resolve the departmental discord placed most of the blame on Lendacky and Foy and noted they lacked the professional qualifications for their senior management positions.

Lendacky retired in June and Foy was demoted to detective after his commander’s job was eliminated by the mayor. The city advertised for a replacement for Lendacky, but was unable to come to terms with two finalists. The search has been on hold. Veteran officer, Commander Joseph Coffay, has been running the department.

At issue in the arbitration was whether the city had “just cause” for the discipline imposed on Myers and Duffy. Leonard pointed out that it fell on him to make that determination because the collective bargaining agreement between the union and city lacked a definition for “just cause.”

The burden rested on the city to prove “just cause” and Leonard said in order for an arbitrator to reach a decision it was common practice to apply a test of accepted factors such as whether the employer made an effort to determine a rule or order was violated.

Both sides argued their cases, but Leonard explained the central issue: “The PBA raises several reasons why the City did not prove just cause, but the only one that I am going to address is the one that is most persuasive: the postings were examples of protected activity of a labor officials (sic) under Pennsylvania law and they did not violate the City’s own social media policy.”

The federal cases cited by the city to support its position did not apply because they were instances of single officers speaking out for themselves, Leonard said.

“The present case involved police officers who were union officials who were disciplined for speaking on behalf of fellow union members,” Leonard said.

“The postings may have been harshly worded, but the law gives leeway to union officials in such instances,” the arbitrator went on.

The department’s social media policy allows the PBA to engage in “legitimate labor endeavors and/or business” on its Facebook page, Leonard said, adding the posts critical of Lendacky and Foy “were done with the interests of the officers’ safety in mind, which is certainly a legitimate labor endeavor of the PBA.”

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By Jerry Lynott

[email protected]

Reach Jerry Lynott at 570-991-6120 or on Twitter @TLJerryLynott.

Reach Jerry Lynott at 570-991-6120 or on Twitter @TLJerryLynott.