State College Appeals Reinstatement of Fired Police Officer

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

In a petition filed on Dec. 3 in the Centre County Court of Common Pleas, borough attorney Julie Aquino argued that arbitrator Kathleen Jones Spilker exceeded her powers and forced State College to violate the law in her ruling that officer Joseph Scharf be reinstated nearly a year after his termination.

Spilker did not dispute the allegations against Scharf, and, in fact, wrote in an opinion and award on Nov. 5 that it was understandable for Chief John Gardner to recommend termination.

“A reasonable person in the place of the arbitrator could justifiably recoil in disgust and horror at [Scharf’s] admitted conduct,” Spilker wrote. “One has but to put oneself in place of an innocent bystander who may have been injured of killed because of [Scharf’s] hijinks. He was pursuing cowboy justice without proper regard for the possible consequences.”

Nevertheless, Spilker concluded that Gardner and Borough Manager Tom Fountaine added charges and considered past incidents dating back to 2017 that were not deliberated by the police department’s Internal Affairs Board, counter to borough regulations.

The borough says, however, that those did not determine the decision to fire Scharf and that Gardner and Fountaine made clear any of the incidents reviewed by the IA Board warranted termination.

Scharf, who joined the force in 2015, was terminated on Dec. 3, 2020 after an investigation of three incidents last summer.

On June 14, 2020, Scharf allegedly 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 IA Board determined Scharf violated two department policies during the incident. In his review, Gardner identified three additional policy violations.

On June 23, 2020, Scharf allegedly pursued a vehicle for about one minute then discontinued the pursuit. According to the filing, Scharf did not file a report and instead asked two detectives if the driver could be identified through nearby cell phone tower data.

The detectives told Scharf that he was required to report the pursuit and if he did not they would report it themselves.

Scharf allegedly texted a coworker that he had not reported the pursuit because he was “not looking to draw attention” to it.

The IA Board determined Scharf violated five department policies and Gardner identified another two.

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

Scharf did not yell “police” before spraying and the incident was captured on body-worn cameras, Aquino wrote. The driver told another officer that he was not aware of Scharf 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 cause to make an arrest,” Aquino wrote.

The IA Board determined the use of pepper spray was unjustified and in violation of department policies.

After reviewing all three incidents, the IA Board recommended a five-day suspension without pay 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 “gross misuse of police authority and force.”

The IA Board only considers present incidents under review, but Gardner, in his recommendation for termination to Fountaine, considered several prior incidents involving Scharf.

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

Scharf was issued specific incident logs and a performance improvement plan in 2018 after he allegedly conducted an improper search of three males without probable cause or consent following a lawful traffic stop. He also allegedly submitted an incomplete report lacking critical details about the incident.

That same year he was issued a written warning for driving the wrong way on a one-way street without lights or sirens.

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

In total, Gardner wrote in his recommendation for termination, Scharf had 17 policy charges sustained as improper conduct — 15 from the three incidents reviewed by the IA Board in 2020.

“The failure of [Scharf] to make proper notifications and follow the established policy, procedure, and the law causes me to question his trustworthiness and truthfulness,” Gardner wrote. “…All previous efforts to address [Scharf’s] performance issues in a progressive manner have failed to elicit the desired or required changes sought.”

Fountaine agreed with the recommendation and that Scharf should be terminated for the pepper spray incident alone. Fountaine held a due process hearing with Scharf and a union representative present on Oct. 27, 2020 and on Dec. 3, 2020 notified him of his termination. The statement of charges terminating Scharf’s employment indicated that any of the three incidents reviewed by the IA Board in 2020 constituted grounds for dismissal.

Scharf filed a grievance alleging lack of just cause for termination. Spilker was named arbitrator and heard four days of testimony.

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

The union also questioned inclusion of past incidents in the statement of charges if those were not actually considered in the decision to terminate Scharf.

In siding with Scharf, Spilker wrote that “the addition of charges that had not been a part of the [IA] Board’s deliberation ran counter to regulations. Accordingly, I conclude that [Scharf’s] termination was not supported by just cause.”

She added that Gardner potentially could have simply modified the board’s recommended discipline from suspension to termination without additional charges, as long as the recommendation was not “arbitrary, capricious or discriminatory.”

Spilker ruled that Scharf’s termination be rescinded and that he be reinstated with back pay, seniority and benefits. She also upheld the IA Board’s recommended five-day suspension.

Scharf’s reinstatement is subject to a “last-chance agreement” and “rigorous retraining to curb his rogue, lone-wolf tendencies.”

The borough argued that the award exceeded the arbitrator’s jurisdiction and powers under the police department’s collective bargaining agreement and IA policy and required State College to violate the law “by returning a police officer to duty whom she found to have engaged in a gross misuse of police authority and force against a citizen.”

Aquino wrote that Spilker reinstated Scharf despite agreeing the pepper spray incident was a gross misuse of force.

“The arbitrator’s award impairs the borough’s ability to carry out its governmental function of providing safe and reliable police services to the community,” Aquino wrote.