Court-ordered release of decisions sheds light on Philly police arbitration

Philadelphia police officers fired for major violations of departmental rules have sometimes been reinstated by arbitrators who would not act without a conviction in criminal court, according to a review of 42 cases reached over the last decade.

The cases involve officers disciplined by the department for drunken driving, assault, insubordination, and other infractions. Punishment sought by police supervisors ranged from a day's suspension to termination.

The decisions by arbitrators, released by Common Pleas Court on Thursday, shed light on the police union grievance system, a process long hidden from public view.

In one instance, an officer charged with attempted rape and assault was dismissed from the force in 2002. In 2005, his criminal case was "withdrawn" by prosecutors after 12 postponements. The officer was then ordered reinstated in 2006, with full back pay, because he had not been found guilty.

The collective bargaining agreement between city and the Fraternal Order of Police does not require a conviction for an officer to be discharged from the force.

The 42 cases were ordered released by Judge Paul P. Panepinto after a lengthy legal battle by the Philadelphia Daily News. They are among about 200 cases being made available to the Daily News and The Inquirer under Pennsylvania's Right to Know Act.

The release of the cases was opposed by the FOP, which argued in court that they included "highly inflammatory and scandalous allegations" that would damage the officers' reputations.

Philadelphia FOP lodge president John McNesby on Friday did not return a call and e-mail seeking comment.

The arbitration hearings are courtlike sessions in which both sides - the city and lawyers for the union - can call witnesses. Typically, it takes years to reach a final decision.

The findings released so far include details involving police and prosecutors that are little known or seldom discussed. For example, one report by an arbitrator reveals that in 2006, the District Attorney's Office had "a list of officers banned by the D.A. from testifying in court."

In a 2004 case, an arbitrator wrote that some officers worked for a "low solvability squad" - a unit assigned cases that had few facts and apparently little chance of being cracked. Some police called the unit the "dead squad," a term higher-ranking officers disliked.

Of the 42 decisions released Thursday, arbitrators favored police officers in 22 and the city in 10. There were 10 split decisions.

In seven of the cases, the department moved to dismiss officers charged with crimes, including attempted rape, theft, stalking, domestic violence, and assault. In two of those cases, officers were convicted and their discharges upheld by arbitrators.

In the others, arbitrators cited the lack of criminal convictions, among other reasons, for ordering the city to rehire the officers. Typically, they also granted the officers back pay.

In 2006 an arbitrator ordered the police to rehire Brian J. Zaleski, 34, who in 2002 was suspended with intent to terminate. A police spokesman could not immediately say Friday if he returned to the force. Zaleski was not listed on the 2009 city payroll, and he could not be reached by telephone.

Zaleski was discharged after an internal police investigation found he had assaulted his girlfriend. He was charged with five counts each of simple assault and recklessly endangering another person, and single counts of attempted rape, attempted sexual assault, indecent assault, false imprisonment, and unlawful restraint.

But charges were withdrawn after 12 continuances in Municipal Court, 11 of them sought by his attorney and none opposed by prosecutors, according to the arbitrator's report and court records.

Zaleski filed a grievance to get his job back, and asked for documents outlining the department's charges against him. The city never provided the paperwork.

The arbitrator, Jeffrey B. Tener, wrote that he had "sympathy for the position of the FOP and stated that the failure to provide requested documents in advance prevented the FOP from having a fair opportunity to prepare its case."

After negotiations, city attorneys "agreed to reinstate Zaleski and to provide back pay" dating to when charges were withdrawn in 2005. Tener ruled that Zaleski was entitled to back pay, seniority, lost overtime, and health insurance contributions dating back to 2002.

"He was as innocent on the day he was arrested as the day he was acquitted," Tener wrote, referring to the withdrawn charges. "He has struggled financially the last three-plus years to make ends meet through no fault of his own."

Tener said the city's failure to provide documents for the arbitration hearing was unsurprising. "This is said to be the fourth time that this has occurred in past three months or so," he wrote.

The cases were more straightforward in the two instances in which arbitrators upheld the firing of the officers.

Kim Bacone, who joined the force in 1996, was caught on tape shoplifting at Cherry Hill Mall in 2000 and given notice she was being dismissed. Bacone filed a grievance against her firing, and a hearing was held over three days in 2003 and 2004.

In 2005 an arbitrator upheld her firing for "conduct unbecoming of an officer" because of her "proven shoplifting."

Robert J. O'Brien III was dismissed in 2003 after police found he had pointed a loaded gun at an Explorer Scout in 2002. The incident resulted in a "criminal conviction," the arbitrator said, which was grounds for upholding the dismissal.