In Re: Appeal of S. Melamed, The Philadelphia Inquirer
Date Filed2022-12-19
Docket914 C.D. 2021
JudgeCovey, J.
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Samantha Melamed, :
The Philadelphia Inquirer :
:
From a Decision of: :
Office of Open Records :
:
Appeal of: Samantha Melamed, : No. 914 C.D. 2021
The Philadelphia Inquirer : Argued: November 14, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COVEY FILED: December 19, 2022
Samantha Melamed and The Philadelphia Inquirer (collectively,
Requester)1 appeal from the Philadelphia County Common Pleas Courtâs (trial court)
July 23, 2021 order affirming the Office of Open Recordsâ (OOR) Final
Determination that granted in part and denied in part Requesterâs appeals from the
City of Philadelphia (City) Police Departmentâs (PPD) denial of the Right-to-Know
Law (RTKL)2 request for records reflecting PPD officers dismissed in 2020
(Request). Requester presents one issue for this Courtâs review: whether the trial
court erred by concluding that Section 708(b)(7)(viii) of the RTKL, 65 P.S. §
67.708(b)(7)(viii), did not require PPD to produce a list of officers whose dismissals
were pending a grievance arbitration process in 2020.3 After review, this Court
affirms.
1
Melamed is a staff writer for The Philadelphia Inquirer.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
3
Requester presents two issues in her Statement of Questions Involved: (1) whether records
reflecting 2020 PPD personnel dismissals concern the âfinal action of an agency that results in
On July 6, 2020, Requester emailed the Request to PPD for â[a]ny
record that reflects the police personnel dismissed in 2020, including name and rank
and effective date of dismissal. Please include all dismissals from Jan[uary] 1,
2020[,] until the date a response is provided.â Reproduced Record (R.R.) at 1a.
Because PPD did not respond to the Request or invoke an extension to respond
within five days, the Request was deemed denied.4 See Sections 901 and 902(b) of
the RTKL, 65 P.S. §§ 67.901, 67.902(b).
On July 23, 2020, Requester appealed to the OOR, declaring, in
relevant part:
[I]t is well documented that the [R]equest falls within
those materials rendered public by the [RTKL]. I request
final dismissals of police personnel in 2020, and the
[RTKLâs] exemption for personnel records [in Section
708(b)(7)(viii) of the RTKL] states[:] âThis subparagraph
shall not apply to the final action of an agency that results
in demotion or discharge.â [65 P.S. § 67.708(b)(7)(viii).]
This is a time-sensitive matter, as it is the Cityâs position
that those dismissals are no longer public once a fired
officer has appealed or entered arbitration. Thus,
according to the [C]ity, these public records then become
un-public. While I do not agree with that position, my goal
right now is not to argue that issue[,] but to obtain the
records in a timely fashion - that is, ideally, within the five
days required by the [RTKL]. This [R]equest, given that
it is limited in scope and has been made and granted
repeatedly for previous time periods, should not trigger
demotion or dischargeâ such that their disclosure is mandated by Section 708(b)(7)(viii) of the
RTKL, 65 P.S. § 67.708(b)(7)(viii); and (2) whether the trial court erred by deciding that the PPD
is not required to produce records related to the termination of personnel who are arbitrating their
dismissals. See Requester Br. at 4. Because both issues are subsumed in this Courtâs analysis of
whether the trial court erred by affirming the OORâs interpretation of Section 708(b)(7)(viii) of
the RTKL, they will be addressed accordingly herein.
4
Requester received an auto-reply to her email indicating that RTKL operations had been
suspended. See R.R. at 5a, 14a. Thereafter, Divisional Deputy City Solicitor Feige Grundman
assured Requester that although City department responses may be delayed because of the
COVID-19 pandemic, the City was processing RTKL requests. See R.R. at 13a-14a.
2
any of the reasons for extension of time listed under the
[RTKL]. The legal review has been conducted in the past,
no redactions are needed, and no remote filing system is
involved.
R.R. at 5a (emphasis added). The OOR invited the parties to supplement the record
and directed the PPD to notify third parties of their ability to participate in the appeal.
By September 10, 2020 letter, PPD responded to Requesterâs appeal,
therein asserting that it should be dismissed or denied because the PPD âhas no
records responsive to [Requesterâs] Request to the extent it seeks final actions of
discharge for PPD officers dismissed in 2020.â R.R. at 7a. PPD claimed that, since
its notices of dismissal are subject to further review under a mandatory grievance
arbitration process, they are not final agency actions until that process is complete,
and, thus, they are exempt from disclosure under Section 708(b)(7)(viii) of the
RTKL and what is referred to as the Personnel Files Act (Act).5 In support of its
position, PPD produced affidavits by PPDâs Open Records Officer, Lieutenant Barry
Jacobs (Jacobs), and Deputy Director of the Mayorâs Office of Labor Relations,
Rebecca Hartz (Hartz).6 Jacobs attested that he searched PPDâs records and âthere
were no final actions of discharge for PPD officers dismissed in 2020.â R.R. at 17a.
Jacobs added:
5
Act of November 26, 1978, P.L. 1212, as amended, 43 P.S. §§ 1321-1324.
6
A local agency may provide affidavits to detail the search its RTKL
officer conducted for documents responsive to a[n] RTKL request
and the justification, if applicable, for any exemption from public
disclosure or privilege relied upon for denying a requester access to
responsive documents[.] Off[.] of Governor v. Scolforo, 65 A.3d
1095, 1103 (Pa. Cmwlth. 2013). Relevant and credible testimonial
affidavits may provide sufficient evidence in support of a claimed
exemption[.]
Off. of the Dist. Attây of Phila. v. Bagwell, 155 A.3d 1119, 1130(Pa. Cmwlth. 2017). âWhere, as here, no evidence has been presented to show that [PPD] acted in bad faith, the averments in the [PPDâs] affidavits should be accepted as true.â McGowan v. Pa. Depât of Envât Prot.,103 A.3d 374, 382-83
(Pa. Cmwlth. 2014).
3
a. Per the PPD Collective Bargaining Agreement
[(CBA)] with the Fraternal Order of Police [(FOP)],[7]
officers who are dismissed by PPD have the opportunity
to arbitrate their dismissal[s].
b. Any records PPD maintains of officers dismissed in
2020 are not final actions of discharge because no officers
that were dismissed by PPD in 2020 have completed the
arbitration process. Thus, none of the pending 2020 PPD
officer dismissals constitute final actions of demotions or
discharge.
c. As soon as any of the officers dismisse[d] by PPD in
2020 complete the arbitration process, if their dismissals
are upheld, the dismissal would be a final action of
discharge and considered public.
R.R. at 17a.
Hartz expounded in her affidavit:
4. Per [Section 7-303 of] the [Philadelphia Code, Phila.
Code § 7-303,] when a City agency wishes to terminate or
demote a City employee who is a member of the Civil
Service, it must have just cause for doing so.
a. The agency must first issue a notice of intent to
demote or dismiss the employee. The employee
may respond, in writing, within ten (10) days of
service of the notice. Within twenty (20) days
after the expiration of that 10-day period, the City
may issue to the employee a notice of the effective
date of the demotion or dismissal.
b. Under [Section 7-201 of] the [Cityâs] Civil
Service [Commission (Commission)] Regulations
[(Regulations), Phila. Code § 7-201], an employee
may, within thirty (30) days, appeal the dismissal
or demotion to the [Commission].
c. Represented employees may have a contractual
right to grieve the disciplinary action and have the
issue submitted to a neutral arbitrator for decision,
in lieu of decision by the [Commission]. The
7
The FOP CBA is not part of the record before this Court.
4
timeline for the grievance process is set forth in the
respective collective bargaining agreement.
5. Per the Cityâs [CBA] with [FOP], PPD employees
represented by the FOP may file a grievance with the
Police Commissioner or his/her designee, challenging the
discipline.
6. Per the CBA, if the grievance is not resolved by the
Police Commissioner or his/her designee, the [g]rievant
may next file a grievance with the Director of Labor
Relations. If the grievance is not resolved at that stage, the
[FOP] may demand arbitration. The discipline remains in
effect while any such demand is pending.
a. If the [FOP] elects to pursue arbitration, the
decision of the arbitrator is final and binding on all
parties.
7. If an arbitrator sustains the grievance, the arbitration
award may - in addition to any award reinstating the
grievant to his/her last position - require the City to
expunge the notices of discipline - both the notice of
intended discipline and the notice of the final disciplinary
action - from that employeeâs personnel file.
R.R. at 19a-20a.
On September 18, 2020, Requester responded:
[T]his case[] . . . deals with a record that the [City] has
produced previously, pursuant to the [RTKL], but which
it now deems exempt from that law.[8]
I believe the [RTKL] is clear in this matter, as it says the
exemption for personnel files âshall not apply to the final
action of an agency that results in demotion or discharge.â
[65 P.S. § 67.708(b)(7)(viii).] Iâm not asking for access to
the contents of personnel files, written criticism, or any
internal information, other than access to final actions of
discharge, whether or not they have subsequently been or
8
Requester included with her September 18, 2020 email a list of dismissed PPD officers
the PPD previously produced in response to a 2019 RTKL request by the Defender Association of
Philadelphia, plus a 2019 PPD press release announcing the intent to dismiss an officer. See R.R.
at 21a, 23a-25a.
5
will possibly be contested. The former employeeâs quest
to be reinstated does not change the final nature of those
dismissals. And even if an employee is reinstated, the end
result of the arbitration is public pursuant to [the RTKL],
including any order for reinstatement.
....
Finally, even if the [C]ityâs perspective on dismissals --
that they are only final once arbitration has concluded or
the period to seek arbitration has expired -- is deemed
correct, the [C]ity should be then compelled in response to
this [R]equest to produce any documents related to
dismissal that became final per the [C]ityâs definition, in
2020 [] (arbitration was concluded with an outcome other
than reinstatement).
R.R. at 21a-22a.
On December 4, 2020, the OOR issued the Final Determination,
holding â[PPD] has met its burden of proving that no final actions resulting in
demotion of [sic] discharge for police personnel who received a notice of dismissal
in 2020 exist, as of the date of the Request.â OOR Final Determination at 6
(quotation marks omitted). However, âwhile [PPD] is not required to produce
records related to the termination of personnel who are still involved in the grievance
process, it must produce records of personnel whose dismissal became final during
the timeframe identified in the Request, regardless of when the dismissal was
initiated.â Id. at 7. On December 29, 2020, Requester timely appealed to the trial
court.
On June 28, 2021, Jacobs issued a supplemental affidavit providing
Requester with a list of officer discharges that became final in 2020 after completion
of the officersâ grievance arbitration processes. See Requester Br. at 5 n.1; see also
R.R. at 124a-127a. Specifically, Jacobs attested that, although there were no final
2020 dismissal actions at the time PPD received the July 6, 2020 Request, on July
31, 2020, PPD dismissed Officer Luis Miranda, who did not appeal from his
6
dismissal, and, thus, PPD provided a record of that dismissal to Requester after it
was final. See R.R. at 124a. Jacobs further disclosed that PPD officer Bryan
Turnerâs September 10, 2018 dismissal became final on January 20, 2020; PPD
officer Jessica Kovacsâ January 15, 2019 dismissal became final on March 18, 2020;
and PPD officer Daniel Farrellyâs August 19, 2019 dismissal became final on
December 18, 2020. See R.R. at 127a. Jacobs also reported that PPD officer Javier
Montanez was initially discharged on May 20, 2020, but was reinstated on March
22, 2021, and the City was ordered to delete all references to the May 20, 2020
dismissal because it was without just cause. See R.R. at 125a.
After briefing9 and oral argument, by July 23, 2021 order, the trial court
affirmed the OORâs Final Determination, holding that, because police officer
discharges are uniquely governed by the grievance arbitration process set forth in
the act commonly referred to as the Policemen and Firemen Collective Bargaining
Act or Act 111 (Act 111),10 then the grievance arbitratorâs decision, not PPDâs
decision, is the final action. Requester appealed to this Court.11 On October 20,
9
The ACLU-PA filed an amicus curiae brief supporting Requester, reversal, and disclosure
of the requested records. See R.R. at 86a-108a.
10
Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.12.
11
This Courtâs âreview of a trial courtâs order in a[n] RTKL dispute is
âlimited to determining whether findings of fact are supported by
[substantial] evidence or whether the trial court committed an error
of law, or an abuse of discretion in reaching its decision.ââ Butler
Area Sch. Dist. v. Pennsylvanians for Union Reform, 172 A.3d 1173,
1178 n.7 (Pa. Cmwlth. 2017) (quoting Kaplin v. Lower Merion
Twp., 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth. 2011)). âThe scope of
review for a question of law under the [RTKL] is plenary.â SWB
Yankees LLC v. Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth.
2010) (quoting Stein v. Plymouth Twp., 994 A.2d 1179, 1181 n.4
(Pa. Cmwlth. 2010), affâd, . . . 45 A.3d 1029([Pa.] 2012)). Borough of Pottstown v. Suber-Aponte,202 A.3d 173
, 178 n.8 (Pa. Cmwlth. 2019).
On November 9, 2021, this Court granted a motion to admit Gunita Singh, staff attorney
for Reporters Committee for Freedom of the Press, pro hac vice to represent Requester in this
appeal, as she did before the trial court.
7
2021, the trial court issued its opinion pursuant to Pennsylvania Rule of Appellate
Procedure (Rule) 1925(a) (Rule 1925(a) Opinion).
Initially, â[t]he purpose of the RTKL is âto promote access to official
government information in order to prohibit secrets, scrutinize the actions of public
officials, and make public officials accountable for their actions.ââ Mun. of Mt.
Lebanon v. Gillen, 151 A.3d 722, 730(Pa. Cmwlth. 2016) (quoting Pa. State Educ. Assân v. Commonwealth,148 A.3d 142, 155
(Pa. 2016)). To that end,
[p]ursuant to the RTKL, a public record must be accessible
for inspection and duplication. Section 701(a) of the
RTKL, 65 P.S. § 67.701(a). A record in the possession of
an agency . . . is presumed to be a public record, unless the
record is exempt under Section 708 of the RTKL, 65 P.S.
§ 67.708, protected by a privilege, or exempt from
disclosure under other law or court order. See Section
305(a) of the RTKL, 65 P.S. § 67.305(a). The agency
bears the burden to prove that a record is exempt from
public access.[12] See Section 708(a)(1) of the RTKL.
Sturgis v. Depât of Corr., 96 A.3d 445, 446(Pa. Cmwlth. 2014). However, â[w]hen resolving disputes regarding the disclosure of government records under the RTKL, agencies and reviewing courts must begin from a presumption of transparency.â Payne v. Pa. Depât of Health,240 A.3d 221
, 225 (Pa. Cmwlth. 2020). Further,
â[c]onsistent with the RTKLâs goal of promoting government transparency and its
remedial nature, the exceptions to disclosure of public records must be narrowly
12
The âburden of proving that a record of a . . . local agency is exempt
from public access shall be on the . . . local agency receiving a
request by a preponderance of the evidence.â Section 708[(a)(1)] of
the RTKL, 65 P.S. § 67.708(a)(1) . . . . A preponderance of the
evidence is such evidence as would lead a fact-finder to find that the
existence of a contested fact is more probable than the nonexistence
of the contested fact. P[a.] Off[.] of Att[ây] Gen[.] v. Bumsted, 134
A.3d 1204, 1210 n.12 (Pa. Cmwlth. 2016); P[a.] State Troopers
Ass[ân] v. Scolforo, 18 A.3d 435, 438-[]39 (Pa. Cmwlth. 2011). Bagwell,155 A.3d at 1130
(emphasis omitted).
8
construed.â Off. of the Governor v. Davis, 122 A.3d 1185, 1191 (Pa. Cmwlth. 2015)
(en banc).
Relevant to the instant matter, Section 708(b) of the RTKL declares:
[T]he following are exempt from access by a requester
under this [RTKL]:
....
(7) . . . [R]ecords relating to an agency employee:
....
(viii) Information regarding discipline, demotion or
discharge contained in a personnel file. This
subparagraph shall not apply to the final action of an
agency that results in demotion or discharge.
65 P.S. § 67.708(b) (emphasis added). Therefore, under Section 708(b)(7)(viii) of
the RTKL, records of âthe final action of an agency that results in . . . dischargeâ are
publicly accessible. 65 P.S. § 67.708(b)(7)(viii).
Requester argues that the clear language of Section 708(b)(7)(viii) of
the RTKL mandates that PPDâs 2020 officer dismissals are final actions, and PPD
may not use the CBA to subvert the RTKL.13 PPD retorts that, based on Section
708(b)(7)(viii) of the RTKLâs plain meaning, a PPD dismissal is final only after the
discharge is upheld through the grievance arbitration process.14 Accordingly, the
issue is whether the Cityâs dismissal of a PPD officer pending the grievance process
is a âfinal action of [(PPD)],â 65 P.S. § 67.708(b)(7)(viii), at the time PPD issues the
dismissal notice, or after a grievance arbitrator has rendered a decision.
13
Alternatively, Requester adds that the publicâs interest in disclosure vastly outweighs
PPDâs interest in denying access.
14
In the alternative, PPD contends that, if the language of Section 708(b)(7)(viii) of the
RTKL is considered ambiguous, PPDâs approach properly balances privacy interests against the
publicâs interest in full disclosure.
9
The OOR held that PPDâs interpretation that the Request sought only
records in which notices of dismissal were sent in 2020 and grievance procedures
were concluded was unreasonably narrow. The OOR declared that âthe context
makes clear that the Request sought records reflecting the dismissal of officers that
became final in 2020, regardless of the original date of the notice of dismissal[,]â
and â[PPD] is not required to produce records related to the termination of personnel
who are still involved in the grievance process . . . .â15 Id. at 7.
The OOR reasoned:
In Nolen v. Phila[delphia] Police Dep[artment], the
request, filed near the end of February of 2017, sought
notices of dismissal and demotion âplaced in personnel
foldersâ in 2016. [PPD] produced the notices but denied
access to records related to matters that were still involved
in labor disputes, holding that records were not yet âfinal
actionsâ subject to the exception from the exemption.
OOR Dkt. AP 2017-1039[] . . . [(July 19, 2017)]. The
OOR noted the Commonwealth Courtâs reliance in Silver
v. Borough of Wilkinsburg, 58 A.3d 125 (Pa. C[mwlth.] []
2012), on Websterâs Third New College Dictionaryâs
definition of âfinal actionâ as âforming or occurring at the
end . . . or constituting the last element in a series, process
or procedure.â Id. The Court in Silver concluded that the
âfinal actionâ in that case was the act of the agency in
terminating the employeeâs employment. Id. at 130.
Based on this definition, the OOR held that records related
15
The OOR represented that, although the responding agency may interpret the meaning
of an RTKL request, the interpretation must be reasonable. See Ramaswamy v. Lower Merion Sch.
Dist., OOR Dkt. AP 2019-1089 (Apr. 10, 2020), at 2.
When a request is subject to multiple interpretations, it is the OORâs
task to determine if the agencyâs interpretation was reasonable.
Ramaswamy . . . . The OOR determines this from the text and
context of the request alone, as neither the OOR nor the requester is
permitted to alter a request on appeal. See McKelvey v. Off[.] of the
Att[â]y Gen., 172 A.2d 122, 127 (Pa. C[mwlth.] [] 2016); Smith Butz,
LLC v. Depât of Env[â]t Prot[.], 142 A.3d 941, 945 (Pa. C[mwlth.]
[] 2016).
OOR Final Determination at 6.
10
to dismissals that were still in the grievance process did
not qualify as âfinal actions.â See also Black v. Pa. State
Police, OOR Dkt. AP 2016-0203 . . . [(Apr. 7, 2016)]
(stating that the Notice of Imposition of Arbitration Award
âconstitutes the final action of an agency that results in
demotion or dischargeâ under Section 708(b)(7)(viii) of
the RTKL).[16]
OOR Final Determination at 7.
On appeal, the trial court affirmed the OORâs Final Determination, but
on the basis that â[p]olice departments are not typical agencies, [as] they are subject
to different rules for police officer discharge[;]â in particular, Act 111âs âgrievance
arbitration process is mandatoryâ for police officers. OOR Final Determination at
5. The trial court added that, while other agencies may have different processes in
place, â[i]n the unique circumstances of police officers, [] reversal or modification
must come about via mandatory grievance arbitration[.]â Id. at 6-7. The trial court
reasoned:
If an arbitrator, as part of a mandatory grievance
arbitration, has the authority to reinstate a police officer
who had been previously discharged by [PPD], [PPDâs]
action cannot be the final action.
The arbitratorâs decision, and not [PPDâs] decision, is the
âlast elementâ in the process. See Silver, 58 A.3d at 127.
To conclude otherwise would not only frustrate the very
purpose of Act 111, but it would be inconsistent with the
RTKL exemption.
Trial Ct. Rule 1925(a) Op. at 6.
In Silver, a newspaper appealed to this Court from a trial court order
upholding the OORâs determination that granted the newspaper access to a redacted
16
This Court acknowledges: âAlthough the issue presented here is one of first impression
for this Court, [the] OOR has previously addressed the meaning of the phrase in its decisions.
However, . . . [e]ven if [the] OORâs decisions were consistent, they are not binding precedent in
this Court.â UnitedHealthcare of Pa., Inc. v. Pa. Depât of Hum. Servs., 187 A.3d 1046, 1055 (Pa.
Cmwlth. 2018).
11
version of a municipal employeeâs termination letter.17 The newspaper argued, inter
alia, that because an employment termination letter is a final action resulting in
discharge, the entire letter should have been produced in accordance with Section
708(b)(7)(viii) of the RTKL. On appeal, this Court affirmed the trial courtâs
decision, reasoning:
The RTKL does not define âfinal action.â It is âa well-
settled rule of statutory construction that when statutory
provisions are not ambiguous, legislative intent should be
effectuated by according the words their plain and
ordinary meaning and not by disregarding their obvious
meaning in search of a particular result.â In re
Condemnation of a Permanent Right-of-Way, 873 A.2d
14, 17 (Pa. Cmwlth. 2005). According to Websterâs Third
New College Dictionary 428, 12 (2008), the definition of
final is âforming or occurring at the end . . . or constituting
the last element in a series, process[,] or procedure[;]â
and the definition of action is âthe process of acting or
doing . . . [a]n act or deed.â
Silver, 58 A.3d at 127 (emphasis added). Although the Silver Court concluded that
a municipal agencyâs discharge of an employee is the final action contemplated by
Section 708(b)(7)(viii) of the RTKL, Silver did not involve a police officer subject
to the mandatory Act 111 grievance arbitration process.
Section 3101.1 of the RTKL states: âIf the provisions of [the RTKL]
regarding access to records conflict with any other [f]ederal or [s]tate law, the
provisions of [the RTKL] shall not apply.â 65 P.S. § 67.3101.1. âAct 111 gives
police . . . personnel, who are not permitted to strike, the right to bargain collectively
with their public employers.â Fraternal Ord. of Police Fort Pitt Lodge No. 1 v. City
of Pittsburgh, 203 A.3d 965, 966 n.3 (Pa. 2019); see also City of Pittsburgh v. Fraternal Ord. of Police Fort Pitt Lodge No. 1,111 A.3d 794
(Pa. Cmwlth. 2015).
17
The municipality redacted all information contained in the letter, except the employment
termination language itself, and that the employee had been given notice of the termination. The
redacted information related to previous disciplinary action.
12
According to Hartz, PPD officers bargained for the right to grieve their disciplinary
actions and have a neutral arbitrator conduct just cause reviews when they are
discharged. See R.R. at 19a-20a.
The Pennsylvania Supreme Court has ruled:
[B]y casting the arbitrator into the role of resolving
disputes arising under the [CBA], . . . the parties intended
for the arbitrator to have the authority to interpret the
terms of the [CBA], including the undefined term âjust
causeâ and to determine whether there was just cause for
discharge in [a] particular case.
Off. of Attây Gen. v. Council 13, Am. Fedân of State, Cnty. & Mun. Emps., AFL-CIO,
844 A.2d 1217, 1224(Pa. 2004) (emphasis added). Moreover, this Court has recognized that âthe arbitration process allows arbitrators to modify disciplinary penalties and fashion appropriate awards based on the specific facts of a given case.â Cnty. of Allegheny v. Allegheny Cnty. Prison Emps. Indep. Union,244 A.3d 873
, 882 (Pa. Cmwlth. 2020) (emphasis added). In addition, âthere is a limited right of review [of a grievance arbitratorâs decision] in the nature of narrow certiorari.â18 Pa. State Police v. Pa. State Troopersâ Assân,656 A.2d 83
, 89 n.15 (Pa. 1995); see alsoid.
at 85 n.3; City of Wash. Arb.,259 A.2d 437
(Pa. 1969).
In light of an Act 111 grievance arbitratorâs authority to reverse PPDâs
dismissals and direct the evidence thereof be expunged, PPD is not using the CBA
to subvert the RTKL by refusing to disclose police officer dismissals before a
grievance has been filed and the grievance process completed. Rather, the PPD is
complying with Section 708(b)(7) of the RTKL, and exempting officer discharge
18
âThe narrow certiorari scope of review limits a reviewing court to questions regarding:
(1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the
arbitratorâs powers; and (4) deprivation of constitutional rights.â City of Phila. v. Fraternal Ord.
of Police Lodge No. 5, 677 A.2d 1319, 1322(Pa. Cmwlth. 1996) (quoting Pa. State Police v. Pa. State Troopersâ Assân,656 A.2d 83, 85
(Pa. 1995)). Thus, further appeal from a grievance
arbitratorâs award to this Court is only to review the propriety of the arbitratorâs award, not whether
a police department employer had just cause to discharge an officer.
13
information in a personnel file from public inspection until âthe last element in [the
Act 111] series, process[,] or procedureâ has occurred. Silver, 58 A.3d at 127.
The CBA that governs the employment relationship provides for
mandatory arbitration in which an arbitrator is authorized to determine if PPD had
just cause to end the employment relationship. Because mandatory arbitration is
part of PPDâs employment termination process, if a PPD officer files a grievance in
response to his dismissal, there is no final agency decision until a grievance arbitrator
renders his/her decision. Only if the officer does not file a grievance is PPDâs officer
employment termination the final agency decision.
Narrowly construing the plain language of Section 708(b)(7)(viii) of
the RTKL, as it must, this Court rules that PPDâs officer dismissals pending review
under the Act 111 grievance arbitration are not final actions subject to disclosure.
Accordingly, the trial court properly concluded as a matter of law that PPD did not
have to produce to Requester records of 2020 PPD officer dismissals that were
pending the grievance arbitration process when the Request was submitted.19
Based on the foregoing, the trial courtâs order is affirmed.
_________________________________
ANNE E. COVEY, Judge
19
Because this Court agrees with the parties that Section 708(b)(7) of the RTKL is
unambiguous, this Court need not address the partiesâ alternative public policy arguments. See
Requester Br. at 19 (âHere, the plain text of [Section 708(b)(7) of the RTKL] is unambiguous.â);
see also PPD Br. at 17 (âThe statutory language here is plain and unambiguous.â).
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Samantha Melamed, :
The Philadelphia Inquirer :
:
From a Decision of: :
Office of Open Records :
:
Appeal of: Samantha Melamed, : No. 914 C.D. 2021
The Philadelphia Inquirer :
ORDER
AND NOW, this 19th day of December, 2022, the Philadelphia County
Common Pleas Courtâs July 23, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge