State high court hears lawsuit on police tobacco ban
Justices weigh right of officers to smoke in patrol cars.
By Joe Mandak | Of The Associated Press
March 3, 2009
HARRISBURG | - A state ban on smoking in most workplaces has taken much of the fire -- but not the smokeless tobacco -- out of a long-simmering dispute between a western Pennsylvania municipality and its police force.
Attorneys for Ellwood City, its police union and the Pennsylvania Labor Relations board argued before the Pennsylvania Supreme Court on Monday about whether the Lawrence County borough has a right to ban tobacco use on borough property, including by its officers working in the police station and patrol cars.
The high court heard the arguments because the police union appealed the Commonwealth Court's 5-2 decision early last year overruling the Pennsylvania Labor Relations Board. The PLRB had found that Ellwood City committed an unfair labor practice when it subjected police to the August 2006 tobacco ban without submitting the issue to collective bargaining.
Chief Justice Ronald Castille interrupted the police union attorney, Eric Stoltenberg, by asking whether the Clean Indoor Air Act that took effect in September ''mooted'' the entire dispute.
Stoltenberg acknowledged the statewide ban probably decided all aspects of the Ellwood City dispute except for two:
Are patrol cars considered part of the ''workplace'' governed by the state law or the local ordinance?
Do officers still have a right to bargain for where they will use smokeless tobacco while on duty?
''Isn't the car really also a workplace?'' asked Justice Jane Cutler Greenspan.
The state banned workplace smoking, in part, to prevent the public from being exposed to secondhand smoke. And Castille drove that point home with a quip to Stoltenberg: ''The public is often invited to be in a police vehicle, often handcuffed, often at gunpoint.''
But PLRB attorney John Neurohr said the Ellwood City case is about a larger principle, even if the state workplace smoking ban has largely gutted the dispute.
''Labor relations is different than the other areas of the law,'' Neurohr said, explaining that both sides ''have to go back and live with each other'' after a contract dispute.
''There's really nothing more detrimental in that relationship than to have litigation,'' Neurohr said. As such, he argued, it's still important for the justices to determine whether the Commonwealth Court overstepped by overruling the labor relations board, even if newer state law has largely settled the underlying dispute.
Ellwood City's attorney, Edward Leymarie, took the argument one step further. He argued that if the state of Pennsylvania can ban workplace smoking affecting thousands of state employees, it should have been OK for Ellwood City to do the same.
''I realize we are a borough and not a state, but again, the state exercised its police power [to ban smoking] and that was a condition of working of very many state employees,'' Leymarie said.
Leymarie said the smoking ban applied to all citizens on borough property, not just the police, so it was not simply a workplace issue.
''We didn't just tell our police officers they can't smoke; we're telling everyone they can't smoke,'' Leymarie said.
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