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Some Pa. courts are excluding probation officers from requirements under police misconduct law

Some Pa. courts are excluding probation officers from requirements under the police misconduct law. The decision further undermines the effectiveness of a program once lauded as a national model and championed by Gov. Josh Shapiro when he was attorney general.
Philadelphia Inquirer
Some Pa. courts are excluding probation officers from requirements under the police misconduct law. The decision further undermines the effectiveness of a program once lauded as a national model and championed by Gov. Josh Shapiro when he was attorney general.

This story first appeared in The Investigator, a weekly newsletter by Spotlight PA featuring the best investigative and accountability journalism from across Pennsylvania. Sign up for free here.

At least three Pennsylvania counties are not checking new probation officers against a statewide police misconduct database or uploading current misconduct records, further undermining a law intended to prevent job hopping by bad cops, Spotlight PA has learned.

District courts in Cameron, Carbon, and Elk Counties have opted out of using the database based on guidance they received from the Administrative Office of Pennsylvania Courts.

A spokesperson for that agency said it was told by counsel for the Municipal Police Officers’ Education and Training Commission, a part of Pennsylvania State Police tasked with implementing the program, that participation by probation officers is voluntary.

“That information was provided to all president judges,” Stacey Witalec, communications director for the AOPC, wrote in an email.

In 2020, Pennsylvania lawmakers passed Act 57 in response to widespread protests over police brutality. Among other things, the law requires the state to maintain records of law enforcement officers who have been disciplined or fired over certain offenses, and it requires agencies making new hires to run checks against that database in advance.

But since its inception, the database — once lauded as a national model — has been riddled with loopholes that raise serious questions about its ability to flag potentially problematic officers. There is no enforcement mechanism for those who do not comply, only certain categories of misconduct are tracked, and records are only uploaded to the database when an officer leaves their job — not if an officer receives a warning or suspension and remains employed.

Additionally, records from before the database’s implementation are not included, and the database only includes information on an officer if their misconduct occurred while they were employed in Pennsylvania.

That limitation was central to the July 2022 hiring by Tioga borough of the police officer who shot and killed 12-year-old Tamir Rice. A Spotlight PA investigation found that the law would not have flagged that officer at the time of hiring, despite erroneous claims by Democratic Gov. Josh Shapiro, who was attorney general at the time and championed Act 57.

The latest interpretation governing probation officers appears to be at odds with the law, and a spokesperson for State Police gave conflicting information about their status.

The law defines law enforcement officers as “peace officers” and points to the state’s Crimes Code for that definition, which describes them as “any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses.”

Probation officers work under the supervision of district courts and their salaries are paid by counties. Pennsylvania’s Judicial Code states that a probation officer “is declared to be a peace officer” and has powers including the ability to arrest someone.

State Police spokesperson Myles Snyder confirmed that county probation officers “are explicitly given the powers of a ‘peace officer,’” but did not directly state that they are subject to the misconduct law, nor did he confirm or deny the advice of the training commission to courts.

“A determination of whether [probation officers] participate in Act 57 is one for their employing agency,” he wrote.

Several county and state elected officials said they are skeptical of the courts’ decision and concerned that problematic law enforcement officers might slip through the cracks.

“Not one police department or police chief in the Commonwealth of Pennsylvania wants to mistakenly hire a law enforcement officer with a history of egregious misconduct,” Carbon County Commissioner Chris Lukasevich said during a January public meeting. “We need to take those actions to ensure it doesn’t happen.”

State Rep. Chris Rabb (D., Philadelphia), whose legislation was incorporated into Act 57, has said the law was “diluted” during negotiations. He told Spotlight PA in an email that the required database checks apply to probation officers and noncompliance “brazenly defies clear statutory requirements.”

Carbon County Court of Common Pleas President Judge Roger Nanovic cited what he sees as ambiguity in the law as one of the reasons why he determined probation officers are not subject to it. During a December public meeting, he called the law “a very poorly drafted statute.”

LeeAnn Covac, district court administrator for the Court of Common Pleas of Elk and Cameron Counties, provided a similar rationale to Elk County Chief Clerk Pat Straub, according to emails obtained by Spotlight PA. Straub had questioned the decision, concerned that noncompliance might open up the county to liability.

Lukasevich, the Carbon County commissioner, objects to his district court’s decision to opt out. He told Spotlight PA the rationale is not substantiated by any legal decisions and contradicts the interpretation of the county’s former and current solicitors.

“I know there’s mention … that the law isn’t perfect,” Lukasevich said during a January commissioners’ meeting. “Are imperfect laws to be disregarded? And I will always argue that compliance isn’t simply important because it’s the law, but because we have a moral responsibility to do the right thing.”

Spotlight PA’s Danielle Ohl contributed reporting.

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