Westmoreland Intermediate Unit 7 v. Westmoreland Intermediate Unit 7 Classroom Assistants Educational Support Personnel Ass'n

977 A.2d 1205, 186 L.R.R.M. (BNA) 3045, 2009 Pa. Commw. LEXIS 566, 2009 WL 1940720

• Court: Commonwealth Court of Pennsylvania
• Decided: July 8, 2009
• Docket: 1746 C.D. 2008
• Status: Published

Opinions

OPINION BY

Judge McGINLEY.

The Supreme Court remanded this case to the Court of Common Pleas of West-moreland County (trial court) to apply the newly recognized “public policy” exception to the essence test. On remand, the trial court upheld the grievance arbitration award which reinstated Sherie Vrable (Grievant) without backpay or benefits after she had been terminated for wearing a Fentanyl patch to Westmoreland Intermediate Unit # 7 (Intermediate Unit) where she was employed as a classroom assistant. Intermediate Unit now appeals.

1. History

Grievant was employed at Intermediate Unit as an elementary school classroom assistant. She was responsible for working on a one-to-one basis or in small groups with eleven emotionally disturbed children. She also assisted in general administrative duties, and escorted children to the restroom, lunch, recess and to and from the buses.

On March 18, 2002, Grievant was found unconscious in the school’s restroom as the result of a drug overdose. The evidence established that Grievant was wearing a 100 meg (microgram) Fentanyl patch¹ on her back while she was performing her duties as a classroom assistant in grades three through five. Grievant obtained the Fentanyl patch from a friend. It was not prescribed to her by a physician. The evidence establishes that Grievant wore the patch because it was “a temptation.” Monongahela Valley Hospital Emergency Room Records, March 20, 02, at 1; Reproduced Record (R.R.) at 90a.

By letter dated September 17, 2002, the Intermediate Unit notified Grievant that it intended to terminate her employment due to her “possession and use of a controlled substance, not prescribed to [her], in the workplace during working hours at the West Newton Elementary School.” Letter to Sherie L. Vrable, from Westmoreland Intermediate Unit, September 17, 2002, at l.²

Grievant, through Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association (Association), challenged the termination through grievance arbitration.

The Arbitrator sustained the Intermediate Unit’s grievance and found that the Intermediate Unit lacked “just cause³” to terminate Grievant because her conduct did not rise to the level of “immorality” under Section 1122(a) of the School Code of 1949⁴:

The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, unsatisfactory teaching performance, ... intemperance, cruelty, persistent negligence in the performance of duties, willful neglect of duties, physical or mental disability.... (emphasis added).

The Arbitrator’s conclusion was based on the finding that Grievant had an unblemished 23-year tenure with the Intermediate Unit. He concluded that this single error of judgment did not amount to such a grievous offense that it would offend the morals of the community. Recognizing the gravity of Grievant’s conduct, however, the Arbitrator imposed certain conditions involving rehabilitation that Grievant was required to meet in order to be reinstated. Grievant had to participate in a drug and alcohol treatment program, abstain from mood altering drugs, or chemical substances while on duty, submit to drug/alcohol screenings, and participate in counseling and a treatment program.

The trial court vacated the Arbitrator’s award and reinstated Grievant’s discharge. It determined that the Arbitrator’s award fell within the “core functions” exception to the essence test because Grievant’s use of controlled substances while caring for children directly affected the Intermediate Unit’s ability to perform its function of providing a safe environment for its students. Trial Court Opinion, August 3, 2004, at 10. Grievant appealed.

This Court upheld trial court’s application of the core functions test and concluded that the Intermediate Unit had satisfied the elements necessary to establish the offense of immorality as defined in the School Code. Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 876 A.2d 1108 (Pa.Cmwlth. 2005).

The Supreme Court granted the Intermediate Unit’s petition for allowance of appeal to review whether the “core functions” exception was inconsistent with the essence test. Concluding that the “core functions” exception was “insufficiently precise” the Supreme Court replaced it with the public policy exception.

Turning to whether the Arbitrator’s award met the essence test, our Supreme Court held that whether Grievant’s termination was for just cause was an issue within the terms of the CBA. Next, the Supreme Court concluded, contrary to this Court’s decision, that the Arbitrator’s interpretation was rationally derived from the CBA.

The Supreme Court left open the issue of whether the Arbitrator’s award contravened public policy and remanded the case to the trial court to determine if the arbitration award reinstating Grievant fell within the newly clarified “public policy” exception. The specific issue framed by the Court was “whether [Grievant’s] reinstatement contravenes a well-defined, dominant public policy that is ascertained by reference to the laws and legal precedents and not from mere general considerations of supposed public interests.” Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, 595 Pa. 648, 667, 939 A.2d 855, 867 (2007).

2. On Remand

The trial court considered whether the Arbitrator’s reinstatement of Grievant, with the conditions imposed, was a violation of established public policy.⁵ The well-defined dominant public policy, all parties agreed, was the protection of children in school from the dangers of illicit drugs and drug use.

The trial court held that the Arbitrator’s decision to reinstate Grievant did not violate the above-stated public policy. It reasoned that the numerous conditions of reinstatement imposed by the Arbitrator satisfied this policy and held “[w]ith the imposition of these safeguards, the arbitrator has reinforced the public policy of protecting students from the dangers of drug use.” Trial Court Opinion, August 6, 2008, at 6.

The trial court went on to hold that Grievant’s reinstatement did not contravene the public policy embodied in statutory law, namely the Public Employe Relations Act (PERA)⁶ and the Public School Code. In this regard, PERA does not impair the right of employers to discharge employees for just cause. Similarly, under Section 514 of the Public School Code, 24 P.S. § 5-514, a school district has discretion to dismiss only those employees who have engaged in “incompetence, intemperance, neglect of duty, violation of any of the school laws of the Commonwealth, or other improper conduct.”

The trial court dismissed the Intermediate Unit’s Petition to Vacate the Award of the Arbitrator.

3. The Present Appeal

On appeal, the Intermediate Unit raises one issue. It contends that the Arbitrator’s award, which placed Grievant back into the classroom, clearly contravened public policy and disregarded the protection of elementary school children from the inherent dangers of drugs and drug abuse. Further, the Intermediate Unit argues that medical records admitted into evidence by stipulation at the arbitration hearing demonstrated that Grievant “had an extensive history of drug abuse.” Brief of Westmoreland Intermediate Unit #7, January 14, 2009, at 23.

• I was 30 days clean from opiates. I did detox @ Monsour — it’s a five day program.

• A girl called & said she had this Fen-tanyl patch for me & it was a temptation.

• I started [with] percocets and vicodin then I graduated up to oxycontins.

• I did cocaine over 6 years ago.

• I haven’t done oxycontins in @ least 40 days.

• 3-4 Detox Units. — most recent— Monsour x 5 days.

• The Patient has a history of narcotic abuse and addiction. She has been sober for 30 days and was detoxed at Monsour for five days.

• History of opiate addiction.

• Previous history of abuse of pain pills.

Medical Records, Reproduced Record (R.R.) at 73a-74a, 79a, 81a, 90a-91a.

The Intermediate Unit urges that, given her extensive history of drug abuse her use of the Fentynal patch on the morning she was to report to work, the Arbitrator’s reinstatement of Grievant, in effect, condoned the use of drugs in schools and actually posed a risk to those children exposed to Grievant while she attempts recovery. The Intermediate Unit asks this Court to vacate the Arbitrator’s award on the grounds that its enforcement would violate public policy.

At this juncture, because the Supreme Court expressly held that the Arbitrator’s award met the essence test, this Court must assume that the CBA, as interpreted by the Arbitrator, required Grievant’s reinstatement. The relevant inquiry is whether the Arbitrator’s award should be vacated under the public policy exception to the essence test; that is, whether enforcement of the CBA to reinstate Griev-ant with the imposed conditions violated a well-defined, dominant and explicit public policy.

Consequently, this Court must (1) first determine whether the public policy cited by Intermediate Unit is a well-defined and explicit policy. If it is, we must then (2) determine whether the trial court properly concluded that enforcement of the Arbitrator’s award would not violate that policy.

4. Whether there is an Explicit, Well-Defined, and Dominant Public Policy at Issue

There is a fundamental public policy against allowing a person to be in possession of drugs or be under the influence of drugs while caring for, supervising or having custody of children.

First, a school system has an unmistakable duty to create and maintain a safe environment for its students as a matter of common law. School districts are charged with the responsibility of supervising children under their control during the time that they are at school under the doctrine of “in loco parentis” to protect children. See Section 1317 of the Public School Code, 24 P.S. § 13-1317.

School personnel perform an essential mentoring role and serve as role models for children. Teachers are also in the unique position to observe children to determine if they are involved in activities which may harm or injure them or others. Clearly, if school personnel are themselves under the influence of, or involved in, drugs, their ability to perform their duties is compromised and they may themselves pose a risk to the children and themselves.

Our legislature has explicitly enacted legislation to curtail drug use among teachers. Before a teaching certificate will be granted, Section 1209 of the Public School Code, 24 P.S. § 12-1209, requires the applicant to verify that she does not use narcotic drugs in any form:

No teacher’s certificate shall be granted to any person who has not submitted, upon a blank furnished by the Superintendent of Public Instruction, a certificate from a physician legally qualified to practice medicine in this Commonwealth or in any other state or in the District of Columbia, setting forth that said applicant is neither mentally nor physically disqualified, by reason of tuberculosis or any other communicable disease or by reason of mental disorder from successful performance of the duties of a teacher; nor to any person who has not a good moral character, or who is in the habit of using opium or other narcotic drugs in any form, or any intoxicating drink as a beverage, or to any applicant who has a major physical disability or defect unless such a person submits a certificate signed by an official of the college or university from which he was graduated or of an appropriate rehabilitation agency, certifying that in the opinion of such official the applicant, by his work and activities, demonstrated that he is sufficiently adjusted, trained and motivated to perform the duties of a teacher, notwithstanding his impediment.

24 P.S. § 12-1209 (Emphasis added).

Moreover, studies show that drug availability, trafficking patterns, and beliefs that drug abuse is generally tolerated may influence a young person in the decision to start abusing drugs. Drug use among school-age children is associated with poor grades, sexual promiscuity, high drop-out rates, and criminal activity. Drugs also damage a child’s physical and psychological systems and affect the school as a whole. In order to reinforce the dangers of drugs in and near schools, a number of Pennsylvania statutes articulate a policy in favor of providing a safe drug-free environment for children.

For example, the “School Zone Act” contained in the Crimes Code, 18 Pa.C.S. § 6317(a), mandates enhanced sentences on drug-related convictions for activity occurring within a school zone. The School Zone Act was intended to protect minors from all illegal activity which is necessarily attendant with the drug trade, as well as curtail drug transactions involving minors.⁷

The Legislature also established the “Alcohol, Chemical and Tobacco Abuse Program” which requires public schools to teach school children the dangers of drugs and instruction in alcohol, chemical and tobacco abuse in every year in every grade from kindergarten through grade twelve. Section 1547 of the Public School Code, 24 P.S. § 15-1547.

Also, Section 527 of the Public School Code, 24 P.S. § 5-527, entitled “Drug Law Convictions” provides that any employee of a school district, intermediate unit or area vocational-technical school convicted of delivery of a controlled substance or convicted of possession of a controlled substance with the intent to deliver, as prohibited by the CSDDCA shall be terminated from employment with the school entity.

In addition, the Legislature established a special account in the State Treasury known as the “Drug Abuse Resistance Education (DARE) Fund” to provide moneys for an ongoing educational program in public schools to prevent drug abuse. Section 1905 of the Vehicle Code, 75 Pa.C.S. § 1905.

This Court finds that these statutes and laws taken together serve the public purposes of ensuring that school children are educated about the dangers of drugs and not exposed to drugs or those under the influence of drugs.

5. Whether the Arbitrator’s Reinstatement of Grievant Violated Public Policy

Again, the question is not whether Grievant’s use of the Fentanyl patch while on duty as a school assistant violated public policy. The question is, rather, whether the reinstatement of Grievant with conditions violated public policy.

This Court recently vacated an arbitrator’s award which violated public policy in Philadelphia Housing Authority v. American Federation of State, County and Municipal Employees, 956 A.2d 477 (Pa. Cmwlth.2008), allow, of appeal granted, 558 EAL 2008, filed May 18, 2009.

There, Philadelphia Housing Authority’s (PHA) fired Thomas Mitchell (Mitchell) because he violated the sexual harassment policy. A grievance was filed on Mitchell’s behalf which alleged that PHA violated the parties’ CBA, which provided, in part, that “[n]o disciplinary action or discharge shall be imposed upon any employee without just cause.” Philadelphia Housing Authority, 956 A.2d at 479.

The complainant testified that Mitchell once went into a changing room while she was changing and on another occasion he ground his penis into her for approximately fifteen seconds. He also told her that he wanted to have sex. The Arbitrator credited the testimony of the complainant and characterized Mitchell’s behavior as “lewd, lascivious and extraordinarily perverse.” Philadelphia Housing Authority, 956 A.2d at 481.

Despite these findings, the Arbitrator determined that PHA did not establish just cause to terminate Mitchell because management knew of and condoned horseplay of a sexual nature, and, prior to Mitchell’s discharge, the only action taken in terras of counseling or disciplining him was a warning.

The Arbitrator sustained Mitchell’s grievance and reinstated him with back pay. PHA filed a petition to vacate the award which the trial court denied. On further appeal, this Court held that the PHA’s legal obligation to protect its employees from sexual harassment in the workplace constituted a “core function” of the agency that PHA could not bargain away. This Court reversed the trial court because the arbitrator’s award was not rationally derived from the CBA and should not be enforced.

The Union petitioned for allowance of appeal. The Supreme Court granted the Union’s petition, vacated this Court’s order and remanded with instructions to reconsider PHA’s petition to vacate in light of Westmoreland Intermediate Unit #7.

Recognizing that there is an explicit, well-defined, and dominant public policy against sexual harassment in the workplace, this Court held the arbitrator’s interpretation of the CBA and his reinstatement of Mitchell without conditions so undermined public policy that the award could not be upheld. “To find substantial evidence supporting some type of disciplinary action for Title VII purposes but not for purposes of a ‘just cause’ provision in the CBA would frustrate the important, well-established public policy against sexual harassment in the workplace.” Philadelphia Housing Authority, 956 A.2d at 487.

In the controversy sub judice, clearly, the Arbitrator recognized Grievant had an ongoing drug problem as set forth in the medical records because he required that she participate in a drug and alcohol counseling and treatment program, abstain from mood altering drugs, or chemical substances while on duty, and submit to drug/alcohol screenings. The Court recognizes that his attempt to rehabilitate Grievant is admirable.

However, this Court must conclude that Grievant’s immediate reinstatement to the classroom while she attempted rehabilitation violated public policy. Again, Fenta-nyl is Schedule II controlled substance, the effects of which are much like heroin, except only more potent. The effects of the Fentanyl on Grievant were indeed deleterious based on the graphic description in the record.⁸ As the Intermediate Unit points out, to reinstate an employee who attended work while under the influence, while charged with the duty to oversee young children, with the hope that she will overcome her addiction, defies logic and violates public policy. The award essentially would allow Grievant to be placed back into the classroom pending her attempts at recovery. As noted above, the public policy of educating our children about the dangers of illicit drugs and drug abuse and protecting children from exposure to drugs and drug abuse is compelling. Simply put, an elementary classroom is no place for a recovering addict. It demonstrates a tolerance, rather than intolerance for illicit drug use, and is in direct contravention of public policy.

Accordingly, this Court must conclude that the Arbitrator’s award violated a well-defined, dominant public policy to protect school children from illegal drugs and drug use. It must not be enforced.

The order of the trial court is reversed, and the Arbitrator’s award is vacated as being in violation of public policy.

ORDER

AND NOW, this 8th day of July, 2009, the order of the Court of Common Pleas of Westmoreland County in the above-captioned case is hereby reversed and the Arbitrator’s award is vacated as being against public policy.

1 .Fentanyl, a narcotic (opioid) analgesic, is a Schedule II controlled substance under Section 4 of The Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-104. Under Section 780-113 of the CSDDCA, it is a misdemeanor for a person to possess a Schedule II controlled substance without a valid prescription. According to the National Drug Intelligence Center, Fenta-nyl is approximately 50 times more potent than heroin and 50-100 times more potent than morphine. National Drug Intelligence Center, Fentanyl Situation Report, June 5, 2006.

2 . This letter was contained in the certified record, but not in the Reproduced Record.

3 . Appendix C, Section 9(b) of the Collective Bargaining Agreement (CBA) provided that "employer shall have the right to discipline or discharge for just cause.” CBA, October 24, 2000, at 26; Reproduced Record (R.R.) at 33a.

4 . Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122(a).

5 . On remand the Intermediate Unit posed the issue for the trial court as whether Grievant's conduct was a violation of public policy which would justify termination. However, as the trial court correctly pointed out, the issue was not whether Grievant's conduct violated public policy, but rather whether the Arbitrator's award contravened public policy, in this case, the Arbitrator’s reinstatement of Grievant with conditions.

6 . Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.

7 . Pennsylvania's School Zone Act was based on the federal "Safe and Drug-Free Schools and Communities Act” 20 U.S.C. § 7101 et seq., was enacted to preserve health and safety with respect to the use of drugs, and to safeguard the health and safety of children.

8 . On March 18, 2002, Grievant was found unconscious, partially nude, seated on the commode in the school’s restroom, leaning to her left up against the wall with her head and neck facing downward. She was in respiratory distress. The school was put on Code Blue, and locked down. Grievant was taken from the school by ambulance to a local emergency room where it was determined that she had overdosed. After she was stabilized, Grievant was transferred to the mental health unit where she remained until March 21, 2002.