State College is fighting the reinstatement of a police officer who was fired in 2020. Here’s why
State College appealed Friday an arbitrator’s ruling that reinstated a fired borough police officer who faced allegations of professional misconduct dating back to 2017.
The borough argued officer Joseph Scharf should have remained fired after he committed at least three “serious violations of department policy” last year, attorney Julie Aquino said Tuesday.
“A reasonable person in the place of an arbitrator could justifiably recoil in disgust and horror at his admitted conduct,” arbitrator Kathleen Jones Spilker wrote in her decision that did not contest the allegations. “One has but to put oneself in the place of an innocent bystander who may have been injured or killed because of the grievant’s hijinks. He was pursuing cowboy justice, without proper regard for the possible consequences.”
Violations of SCPD policy
Scharf, who was hired in July 2015, was fired in December 2020. The 41-page lawsuit outlines three misconduct allegations from last year, in addition to other “highly unprofessional” behavior.
June 14, 2020: Scharf spotted a car speeding through downtown State College and along North Atherton Street. He activated his vehicle’s lights and siren.
The vehicle was largely out of sight and the driver was not aware he was being chased. Scharf reached speeds upward of 87 mph in a 25 mph zone and passed a civilian driver at 72 mph. Neither Scharf nor his partner reported the incident, according to the lawsuit.
June 23, 2020: Scharf attempted to stop a vehicle about 3:45 a.m. for a traffic violation. The driver fled and Scharf pursued the vehicle for nearly one minute, reaching speeds of about 75 mph.
He did not notify a supervisor of the pursuit or complete an incident report as required, according to the lawsuit. In the days after, Scharf asked two borough detectives whether the driver could be identified using information from cellphone towers.
The detectives told Scharf he was required to create an incident report and would report the incident themselves if he refused. Scharf told the detectives he did not want to “draw attention” to the pursuit.
July 12, 2020: Scharf was on bicycle patrol about 2:45 a.m. in downtown State College. A driver was playing loud music and did not have his headlights on as he pulled out of a parking lot.
Scharf shouted several times for the driver to stop, but did not identify himself as a police officer. The driver slowed to about 5 mph, Scharf pulled alongside the vehicle and pepper-sprayed the driver. The incident was recorded by two body cameras.
The driver was disoriented, told Scharf he was having trouble with his headlights, did not see or hear him, and did not know he was a police officer, according to the lawsuit.
Police department launches an internal investigation
An internal affairs investigation was carried out for each incident. The conduct and procedures review board found Scharf’s use of pepper spray was “unjustified,” while all three incidents amounted to at least 10 policy violations.
Scharf’s decision to not report the June 23 pursuit and request to identify the driver using information from cellphone towers raised a “significant trust concern,” the board wrote.
The board passed its findings along to borough police Chief John Gardner, who was aware that Scharf faced several other allegations years prior.
In May 2017, Scharf was accused of a “highly unprofessional” interaction with a doctor at Mount Nittany Medical Center. His actions and demeanor were “disrespectful, unprofessional and unacceptable,” Gardner wrote.
Scharf was also placed on a performance improvement plan in December 2018 due to “performance challenges,” ranging from criminal law to investigative skills to written communication. That was one month after Scharf improperly searched three men during a traffic stop.
In February 2020, he left a woman stopped for DUI unattended to engage in a “profanity-laden argument” with her husband. His actions were “unnecessary and created a safety risk,” Gardner wrote.
The allegations raised during the summer of 2020 led the board to recommend a written reprimand and a five-day suspension without pay.
Gardner disagreed, writing the severity of the sustained violations and continuing pattern of behavior would not “prove effective in bringing about positive change in performance and behavior that is required.”
“The failure of the grievant to make the proper notifications and to follow the established policy, procedure and the law causes me to question his trustworthiness and truthfulness. His behavior portrays someone who desires to act as an independent contractor, free from the restrictions and shackles of policy, procedure, the law and from supervisory input,” Gardner wrote. “That is very troubling and disconcerting to me as a chief and something that I cannot and will not tolerate.”
What’s next?
Gardner recommended that Scharf be fired and Borough Manager Tom Fountaine signed off on the recommendation. Scharf’s use of pepper spray on a driver of a moving vehicle warranted termination alone, Fountaine testified at an arbitration hearing.
Scharf was fired Dec. 3, 2020. He was on administrative leave during the internal affairs investigation, a borough spokesperson wrote in an email. He has not yet returned to the department pending the appeal, attorney Sean Welby said.
The State College Police Association — the union that represents the borough police department’s rank-and-file officers — filed a grievance one day later that alleged a violation of Scharf’s right to due process.
The department’s policy does not allow for Gardner to find violations that the internal affairs board rejected or consider past incidents, Spilker wrote.
“The State College Police Association has a legal duty of fair representation toward all its members and is committed to ensuring that each police officer employed by the borough is afforded the due process that the law demands,” the union wrote in a statement Tuesday. “All citizens have a right to due process and equal protection under the law. As police officers, we are committed to this principle for all serve and protect. We only ask that we, as police employees, are treated likewise.”
Spilker’s Nov. 5 ruling called for Scharf to be reinstated with back pay, seniority and all benefits. The board’s recommendation of a written reprimand and five-day suspension without pay was upheld.
But Scharf must undergo “rigorous retraining to curb his rogue, lone wolf tendencies,” Spilker wrote. His reinstatement would be considered a “last-chance agreement.” Any violations would result in immediate termination without an opportunity to appeal.
Michael Gennaco, a police reform expert not connected to the case and former federal civil rights prosecutor who specialized in police misconduct cases, said the borough is facing “an uphill battle” to overturn Spilker’s ruling.
“Cops love arbitration,” Gennaco said Tuesday. “... It gives them an opportunity to get their job back if the arbitrator doesn’t agree with the chief’s decision.”
This story was originally published December 8, 2021 at 5:00 AM.