State College appeals reinstatement of dismissed police officer

State College Borough is seeking to overturn an arbitrator’s decision to reinstate a police officer who was fired last year over allegations of improper conduct.

In a Dec. 3 motion filed with the Center County Court of Common Pleas, borough lawyer Julie Aquino argued that arbitrator Kathleen Jones Spilker had exceeded her powers and forced the State College to break the law in her decision to reinstate Officer Joseph Scharf for almost a year. after his dismissal.

Spilker did not dispute the allegations against Scharf and, in fact, wrote in a notice and award on November 5 that it was understandable for Chief John Gardner to recommend the dismissal.

“A reasonable person in the place of the referee might rightly recoil in disgust and horror at [Scharf’s] permitted conduct, ”Spilker wrote. “You just have to put yourself in the shoes of an innocent spectator who may have been injured or killed because of [Scharf’s] detours. He pursued cowboy justice without proper consideration of the possible consequences. “

Nevertheless, Spilker concluded that Gardner and Borough Director Tom Fountaine have added charges and taken into account past incidents dating back to 2017 that were not deliberated by the Police Department‘s Internal Affairs Council, contrary to the regulations of the ‘borough.

The borough says, however, that these did not determine the decision to fire Scharf and that Gardner and Fountaine made it clear that one of the incidents examined by the AI ​​board warranted termination.

Scharf, who joined the force in 2015, was fired on December 3, 2020 after an investigation into three incidents last summer.

On June 14, 2020, Scharf reportedly chased a vehicle at excessive speeds – up to 87 miles per hour in a 25 mph zone – on North Atherton Street.

“Scharf drove without due regard for the safety of all persons and endangered life and property,” Aquino wrote.

The AI ​​board has determined that Scharf violated two departmental policies during the incident. In his review, Gardner identified three other policy violations.

On June 23, 2020, Scharf reportedly chased a vehicle for about a minute and then stopped the chase. According to the file, Scharf did not file a report and instead asked two detectives if the driver could be identified using data from the nearby cell tower.

Detectives told Scharf he was required to report the chase and if he didn’t, they would report it themselves.

Scharf reportedly texted a colleague telling him he hadn’t reported the lawsuit because he “wasn’t trying to draw attention” to it.

The AI ​​board determined that Scharf had violated five departmental policies and Gardner identified two more.

On July 12, 2020, Scharf was on a bicycle patrol when he pedaled alongside a moving vehicle that did not have its headlights on to trigger a traffic stop. According to the file, Scharf deployed pepper spray through a small opening in the driver’s side window, temporarily disorienting and blinding the driver.

Scharf did not shout “police” before spraying and the incident was captured by body-worn cameras, Aquino wrote. The driver told another officer he was unaware of Scharf’s existence until he was sprayed because the driver was playing loud music and had tinted windows.

“No citation was issued to the driver and Scharf had no probable reason to make an arrest,” Aquino wrote.

The AI ​​Council determined that the use of pepper spray was unwarranted and in violation of ministry policies.

After reviewing the three incidents, the IA board recommended a five-day unpaid suspension and written reprimands for each incident.

Gardner testified at the arbitration hearing that the pepper spray incident alone warranted termination. Aquino wrote in the petition that the incident was a “flagrant abuse of the authority and strength of the police.”

The AI ​​board only considers current incidents under investigation, but Gardner, in his recommendation to terminate Fountaine, took into account several previous incidents involving Scharf.

In May 2017, Scharf received a corrective “specific incident log” – a process for documenting informal complaints and any corrective action – in his departmental record for “unprofessional conduct” with a physician at Mount Nittany Medical Center, according to the case. Gardner said that “in retrospect” the incident should have given rise to an internal affairs investigation, but it was hoped that corrective action would resolve the issue.

Scharf received specific incident logs and a performance improvement plan in 2018 after allegedly conducting an inappropriate search of three men without probable cause or consent following a legal traffic stop. He also allegedly submitted an incomplete report lacking critical details of the incident.

In the same year, he received a written warning for driving against the traffic on a one-way street with no lights or sirens.

In February 2020, Scharf received another specific incident log after he “left a DUI suspect unattended while engaging in a swearing-in-argument with the suspect’s husband, creating a security risk,” wrote Aquino.

In total, Gardner wrote in his dismissal recommendation, Scharf had 17 sustained policy charges of improper conduct – 15 of the three incidents reviewed by the AI ​​board in 2020.

“The failure of [Scharf] making proper notifications and following established policy, procedure and law make me question its reliability and truthfulness, ”Gardner wrote. “… All previous efforts to [Scharf’s] The performance issues gradually failed to elicit the desired or required changes sought. “

Fountaine agreed with the recommendation and that Scharf should be fired for the single pepper spray incident. Fountaine held a due process hearing with Scharf and a union representative present on October 27, 2020 and on December 3, 2020 informed him of his termination. The statement of charges terminating Scharf’s employment indicated that one of three incidents reviewed by the AI ​​board in 2020 was grounds for dismissal.

Scharf filed a grievance alleging the lack of just cause for termination. Spilker was appointed arbiter and heard four days of testimony.

The Borough of State College Police Association disputed the additional policy violations identified by Gardner and said it did not have the authority to find policy violations rejected by the board. The union added that logs of specific incidents could not be cited as disciplinary history and that the performance improvement plan did not involve investigation or administrative charges.

The union also questioned the inclusion of past incidents in the statement of charges if these were not actually factored into the decision to fire Scharf.

Siding with Scharf, Spilker wrote that “the addition of charges which were not part of the [IA] The deliberation of the board of directors was contrary to the regulations. Accordingly, I conclude that [Scharf’s] the termination was not justified.

She added that Gardner could potentially have simply changed the discipline recommended by the board of directors from suspension to termination at no additional cost, as long as the recommendation was not “arbitrary, capricious or discriminatory.”

Spilker ruled that Scharf’s dismissal was overturned and he was reinstated with retroactive pay, seniority and benefits. She also confirmed the five-day suspension recommended by the IA Council.

The reinstatement of Scharf is subject to a “last chance deal” and “rigorous retraining to curb his rogue and lonely tendencies”.

The borough argued that the award exceeded the jurisdiction and powers of the arbitrator under the police department’s collective agreement and AI policy and demanded that the State College break the law “by handing over to the work a police officer who she said had engaged in serious police abuse. authority and force against a citizen.

Aquino wrote that Spilker reinstated Scharf despite the pepper spray incident being a blatant abuse of force.

“The arbitrator’s decision undermines the borough’s ability to discharge its government function to provide safe and reliable policing services to the community,” Aquino wrote.

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