Public Policy Against Illegal Drug Use

In the March 2008 edition of MB&M Education News, we discussed a Pennsylvania Supreme Court decision which impacted the standard of review for arbitration decisions involving school employees.  The case of Westmoreland Intermediate Unit No. 7 v. Westmoreland Intermediate Unit No.7 Classroom Assistants Education Support Personnel Association, PSEA/NEA involved the discharge grievance of a classroom aide with 23 years service who was found passed out in a bathroom stall.  The aide was partially undressed with a non-prescribed Fentanyl patch on her back.  The school went under a full-scale security alert when the bathroom could not be accessed because the aide had locked herself in and passed out.  The arbitrator found that the IU‘s decision to discharge the aide lacked just cause, and the IU appealed.  The case worked its way to the Pennsylvania Supreme Court, which held that arbitration awards can now be reviewed under a “public policy” standard which asks whether the arbitrator’s decision violates a settled public policy.  The Supreme Court remanded the case to the lower courts to determine whether the arbitrator’s decision violated public policy.

On remand, the case was first heard by the Westmoreland County Court of Common Pleas, which held that the arbitration decision did not violate public policy, and the IU appealed.  The Commonwealth Court has now held that the arbitrator’s decision reinstating the employee does violate public policy and upheld the aide’s termination. 

The IU argued before the Commonwealth Court that the aide’s reinstatement, given her history of drug abuse, would pose a significant risk of harm to the students, and thus public policy was violated.  The Court first addressed whether there was a well-defined and explicit public policy, and second, whether that policy had been violated.

Regarding the first question, the Court held that there is a public policy in favor of educating children concerning the danger of drugs and also against allowing individuals under the influence of drugs to play any role in the supervision or instruction of students.  The Court cited School Code provisions requiring safety measures and discussed the mentoring role played by school personnel.  The Court took notice of studies concerning the effects of tolerated drug use upon children and made reference to the various criminal laws and programs devoted to combating drug use and, in particular, adolescent drug use. 

The Commonwealth Court disagreed with the lower court’s conclusion that reinstating the aide did not violate this public policy.  The Court held succinctly that the reinstatement of an employee who had reported to work under the influence of non-prescribed controlled drugs was a clear violation of public policy. In a dissenting opinion, Judge Friedman took issue with the Court’s conclusions and stated that while the aide’s conduct on the day in question certainly violated public policy, the arbitrator’s conditional reinstatement of the aide did not.

As a result of this decision, a new standard of review of arbitration awards for violating a clearly-stated public policy has emerged.