Pennsylvania Record

Thursday, December 12, 2019

How the state police monitors social media among cases heard by Supreme Court

State Court

By Nicholas Malfitano | Nov 22, 2019

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Supreme Court of Pennsylvania

HARRISBURG – The Supreme Court of Pennsylvania heard cases over a three-day span during sessions in Harrisburg this week, with the following cases being among those on the top court’s docket:

ACLU of Pennsylvania v. Pennsylvania State Police

The Pennsylvania State Police monitors public activity on social media sites as part of its investigation of past or prospective criminal activity. The ACLU of Pennsylvania requested a copy of the state police’s policy outlining such activity, which the PSP produced – almost entirely redacted because the police said disclosing its policies, or even definitions, would threaten public safety.

The Office of Open Records reviewed the materials in camera (technically, off-the-record) and concluded that PSP had to produce the entire policy. However, the Commonwealth Court reversed that ruling, holding that no further disclosure was required. In so doing, the Commonwealth Court “broadly” interpreted the Right To Know Law’s public safety exception and conversely, “narrowly” interpreted the OOR’s and courts’ ability to use in camera review in Right To Know Law cases.

In a brief appealing the decision to the Supreme Court, the ACLU commented on the prior rulings.

“These rulings will have the pernicious effect of insulating PSP’s social media surveillance activities from public scrutiny – and of enabling other agencies to leverage the public safety exception to insulate other privacy-impinging practices from public oversight. This Court’s review is needed to ensure that the statutory balance is restored to the Right To Know Law, and the principles of governmental transparency it embodies,” the ACLU said.

Harrison v. Health Network Lab Et.Al

Karen Harrison claims she worked for defendant Health Network Laboratories Limited Partnership from Oct. 1, 1998, until her termination on Nov. 19, 2015, and since 2012, in the role of a Quality Manager.

In March 2015, Harrison says she received a complaint from co-worker Elizabeth Corkery, an employee in HNLLP’s IT Department. The complaint described “abusive, discriminatory and harassing conduct” by Corkery’s supervisor, Arun Bhaskar, the director of the IT Department and a gentleman of “Indian heritage.”

Harrison alleged that Bhaskar made “abusive, discriminatory, threatening” comments to Corkery, subjected her to an intensely hostile working environment, and discriminated against employees who were not of Indian heritage, while further alleging Bhaskar’s conduct was known to and approved by his supervisor, Harvey Guindi.

Harrison says she reported her concerns to HNLLP’s Chief Operating Officer, Elizabeth Rokus, but did not identify the involved parties. After the abusive and discriminatory conduct of Bhaskar continued, Corkery finally resigned on Oct. 1, 2015. On that date, Bhaskar allegedly declared publicly that “Corkery’s replacement would be superior because he is of Indian heritage.”

Harrison alleges on Oct. 15, 2015, Corkery described in writing the abusive and discriminatory conduct of Bhaskar, and forwarded a copy to both Harrison and a Human Resources Generalist. On Oct. 19, 2015, Harrison shared the letter with HNLLP’s Vice-President of Clinical Operations and Director of Quality Services. One month later, Harrison was terminated under the pretext of supposedly using foul language at an after-hours work banquet.

After filing suit in the Lehigh County Court of Common Pleas, the action was removed to the U.S. District Court for the Eastern District of Pennsylvania and then upon ruling Harrison’s Whistleblower Law claims were better left to a state court, the case was remanded to Lehigh County in March 2017.

It was dismissed from the trial court that December, leading Harrison to appeal to the Superior Court of Pennsylvania, which found in December 2018 that the trial court erred in dismissing her complaint and again remanded it back to Lehigh County for further proceedings.

Renner v. Lehigh County Court of Common Pleas Et.Al

Michael Renner, a parole officer with Lehigh County since 1989, disclosed to his supervisor and Chief Probation Officer John J. Sikora in July 2011 that he had been diagnosed with a serious medical condition, as he was hospitalized at that time for said condition and subsequently absent from work on a medical leave for four to six weeks.

When he returned to work, Renner claimed to have been harassed about his condition by Sikora and Benefits Manager Mark Surovy over more than two years, leading to his eventual termination in March 2014, for refusing to administer a urine test to an offender under his supervision.

After being dismissed, Renner undertook training as a police officer and was offered employment by both the boroughs of Northampton and Fountain Hill – but these offers were rescinded after the Lehigh County Court of Common Pleas issued an order that Renner couldn’t possess a firearm or taser.

Renner believes the Court continues to interfere with his employment opportunities, including but not limited to, providing false and misleading job references to municipal police agencies.

Renner filed suit in the Lehigh County Court of Common Pleas in November 2016, to which the Court filed preliminary objections. On July 10, 2017, the trial court sustained the preliminary objections and dismissed all claims against Common Pleas Court with prejudice. Renner appealed to the Commonwealth Court, which upheld the trial court decision – leading Renner to appeal to the Supreme Court.

Northern Berks Reg. Police Comm. v. Berks Co. FOP

The Northern Berks Regional Police Commission terminated Officer Charles Hobart, formerly a member of the Berks County Fraternal Order of Police, Lodge #71 (FOP) bargaining unit, for misconduct.

It chose this action because the Department learned that Hobart kept a file folder in his desk containing (1) Explicit pictures of women in different stages of undress, (2) Photographs printed from a police information system, including one of a female colleague, and (3) Directions printed from MapQuest – leading to the revocation of his access to law enforcement information databases, prior to his termination.

The matter went to arbitration, as the collective bargaining mechanism for police officers and their employers. The arbitrator decided that the Commission did not have just case to terminate Hobart’s employment, reinstated Hobart, and converted his termination into an unpaid suspension with time served.

The Commission then filed a petition with the Berks County Court of Common Pleas to vacate the arbitration award, which it did – finding that “the arbitrator exceeded his powers by ordering the Commission and the Department to commit an illegal act; and placing a burden on taxpayers and the Department, because Hobart cannot perform the necessary duties without access to the data bases in question and others will be required to do his job.”

Hobart’s appeal to the Commonwealth Court led that body to vacate the trial court’s order, and remand the matter with direction that the trial court stay proceedings to allow the Department and Hobart to pursue the possibility of restoring Hobart’s access to the computer databases with the appropriate agencies.

The Supreme Court will be reviewing the Commonwealth Court’s decision, to see if it erred in vacating and remanding the trial court’s decision based upon a hypothetical situation, rather than on-the-record actions.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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