The Borough of Gettysburg is challenging a ruling that it must reinstate a fired police officer whose veracity was questioned by the district attorney.
In an appeal filed Thursday, the borough argues that it is impossible for Michael Carricato to perform the duties of a patrol officer.
The appeal cites a letter dated Oct. 10, 2017 in which Adams County District Attorney Brian Sinnett wrote that his office “will not participate in any future cases which are based solely upon the uncorroborated observations and testimony” of Carricato, who was the subject of a criminal investigation.
The borough council voted to fire Carricato Nov. 13, 2017.
Carricato was named in a lawsuit and charged with illegally videotaping the officer who brought the suit without her permission. Carricato avoided jail time by entering into a 12-month Accelerated Rehabilitative Disposition program. To settle the federal civil rights lawsuit, which alleged sex discrimination and retaliation, the other officer eventually received more than $213,000. She also resigned.
An arbitration hearing took place Nov. 16, 2018 after Carricato and Teamsters Local 776, which represents borough officers, filed a grievance, according to the appeal.
Arbitrator James Darby granted the union’s motion not to admit a memorandum summarizing Sinnett’s letter as evidence because it was “hearsay,” according to the appeal.
Former Police Chief Joe Dougherty read the letter to Carricato and his union representative Oct. 30, 2017 and gave them the memorandum, which they signed, according to the appeal. It also argues that regular evidentiary rules do not apply to arbitrations.
Darby also held that, even if Carricato had received a copy of the letter itself, it would not have provided legally required notice of the charges against him, according to the appeal.
The appeal, on the other hand, argues that Sinnett’s letter “provides more than sufficient notice of the charges” and “the borough also provided Carricato with more than sufficient opportunity to respond to those charges, but Carricato voluntarily declined to do so.”
Carricato did not testify during the arbitration hearing and Sinnett, “citing the confidentiality of the District Attorney’s deliberative process, refused to provide any additional information” beyond that in the Oct. 10, 2017 letter, the appeal says.
Sinnett’s letter asked the borough not to share it with “any other non-law enforcement entity,” according to the appeal.
The appeal also alleges that, “prior to” the letter, “Sinnett acknowledged having communicated with Dougherty about Carricato showing up late for court or failing to appear in court as a witness.”
The appeal argues that Carricato’s dismissal was not “disciplinary” because it derived from inability to perform the job’s duties, and therefore was not subject to regular disciplinary procedures,
“Nevertheless, out of an abundance of caution,” the appeal says, the borough provided the “procedural due process” that applies to disciplinary dismissals, including a so-called “Loudermill” hearing on Nov 8, 2017, “during which Carricato was again informed of the information contained in Sinnett’s letter.”
Carricato asked for a copy of the letter, but when he “was informed that a copy was unavailable, he refused, via his union representative, to provide any information during the Loudermill meeting” according to the appeal.
The borough notified Carricato of his termination Nov. 14, 2017, the appeal says.
Also, it says, “to the extent that Carricato’s termination was considered discipline, the borough had just cause” to fire him “because his actions rose to the level of neglect or violation of an official duty and/or conduct unbecoming of a police officer.”
On Nov. 20, 2017, “the union filed a grievance alleging that the Loudermill was insufficient, but the Union later withdrew that grievance of its own accord” prior to the arbitration hearing, the appeal says.
“The grievance was processed in accordance” with the collective bargaining agreement between the union and borough, the appeal says.
The appeal also says “there is no patrol officer position in the borough’s police department that would accommodate a police officer who is unable to provide testimony.”
The appeal asks the court to “vacate the arbitration award, and affirm Carricato’s discharge.” It alleges that “the arbitrator exceeded his powers by issuing an option and award in violation of the applicable law.” The borough also asks that, if the court orders a rehearing, “that Arbitrator Darby be relieved of his authority over this matter.”
Darby wrote he was “unable to address the substantive merits of the Borough’s termination case” because “the borough failed to provide” Carricato with “adequate procedural due process,” according to the appeal.
Carricato was hired as a part-time officer in March 2014 and made full-time in June 2014, the appeal says.