City of Livingston v. Mont. Pub. Emps. Ass'n ex rel. Tubaugh

• Decision Date: 25 November 2014
• Docket Number: No. DA 14–0083.,DA 14–0083.
• Court: Montana Supreme Court
• Parties: CITY OF LIVINGSTON, Montana, and its Police Department, Petitioner and Appellee, v. MONTANA PUBLIC EMPLOYEES ASSOCIATION on behalf of MATTHEW TUBAUGH, Respondent and Appellant.

377 Mont. 184

339 P.3d 41

2014 MT 314

CITY OF LIVINGSTON, Montana, and its Police Department, Petitioner and Appellee

v.MONTANA PUBLIC EMPLOYEES ASSOCIATION on behalf of MATTHEW TUBAUGH, Respondent and Appellant.

No. DA 14–0083.

Supreme Court of Montana.

Submitted on Briefs July 23, 2014.

Decided Nov. 25, 2014.

For Appellant: Carter Picotte, Attorney at Law, Helena, Montana.

For Appellee: Bruce E. Becker, Livingston City Attorney, Livingston, Montana.

Opinion

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 The Montana Public Employees Association, on behalf of Matthew Tubaugh, appeals the decision of the Sixth Judicial District Court to vacate an arbitrator's award in his favor. We address the following issues on appeal:

1. Whether the Arbitrator exceeded her powers by requiring progressive discipline pursuant to the Collective Bargaining Agreement.

2. Whether the Arbitrator violated public policy by requiring the City of Livingston to reinstate Tubaugh to his previous position or one of comparable pay.

3. Whether the District Court erred when it vacated the Award on the grounds that the Award prevented the City of Livingston from requiring Fitness for Duty Examinations.

4. Whether the Arbitrator exceeded her powers by ordering the City of Livingston to expunge the Fitness for Duty Examination from Officer Tubaugh's personnel file.

¶ 2 We reverse the District Court and remand with instructions to confirm the arbitration award.

PROCEDURAL AND FACTUAL BACKGROUND ¹

¶ 3 The City of Livingston hired Matthew Tubaugh as a police officer in 2004. Tubaugh initially met or exceeded expectations as an officer. Prior to 2011, Tubaugh had received only a few minor reprimands. A series of incidents that occurred in 2011 and 2012, however, led to his being discharged from the police force. The first incident occurred when Tubaugh testified in a criminal case on December 12 and 15, 2011. During a City Court trial, he told the judge that he disagreed with a ruling of the court and later became aggressive and argumentative toward the defendant. Next, on January 6, 2012, Tubaugh disagreed with his supervising officer and attempted to confront the County Attorney. When he was told that the County Attorney was not available, he made a profane outburst. Later, on April 15, 2012, Tubaugh and another officer made an arrest. At the detention center, he lost his composure, called the arrestee a “small child” and a “baby,” and slammed down his clipboard. He then injected himself into the booking process and charged the arrestee with obstruction of justice after the arrestee was reluctant to provide an address.

¶ 4 On June 8, 2012, Tubaugh criticized a co-worker, Jessica Kynett, for using the internet at work and for missing work for physical therapy. Tubaugh was not Kynett's supervisor. The interaction became confrontational and Tubaugh ignored an order from Sergeant Dale Johnson to “knock it off.” On June 23, 2012, Tubaugh and another officer made another arrest, this time for disorderly conduct. At the detention center, Tubaugh's conduct escalated the situation and ultimately provoked a physical altercation. Detention staff helped Tubaugh subdue the arrestee. In addition to the initial charges, Tubaugh charged the arrestee with assault for the altercation.

¶ 5 On June 28, 2012, Police Chief Darren Raney issued a letter of reprimand to Tubaugh, primarily for the confrontation with Kynett, but the letter also referenced other incidents of inappropriate conduct. A letter of complaint was filed concerning Tubaugh's behavior during one of the arrests.

¶ 6 On July 25, 2012, Tubaugh was placed on paid administrative leave. Subsequent investigations, conducted by Raney, found that Tubaugh had engaged in unprofessional conduct and that his use of force against one of the prisoners was not objectively reasonable. Raney also became concerned that Tubaugh had displayed an increasing tendency to respond to disrespectful or insufficiently deferential behavior with charges such as disorderly conduct, resisting arrest, obstruction, or assaulting an officer.

¶ 7 Raney determined that a fitness for duty examination was appropriate. Raney ordered Tubaugh to complete an examination with George Watson, a psychologist with a focus on law enforcement fitness for duty. Watson concluded that Tubaugh suffered from a personality disorder, and that he exhibited symptoms of paranoia, narcissism, and histrionic personality disorder. Watson concluded that he was unable to recommend that Tubaugh continue as an officer. After reviewing Watson's report and providing Tubaugh the opportunity to respond, Raney recommended Tubaugh's discharge. The recommendation was accepted and Tubaugh was discharged on October 29, 2012.

¶ 8 Tubaugh protested his discharge pursuant to his rights under the collective bargaining agreement (CBA) in effect at the time between the City of Livingston and the Montana Public Employees Association (MPEA). Pursuant to the CBA's binding arbitration provision, an arbitration hearing was held. On May 20, 2013, Arbitrator Anne MacIntyre determined that while there was just cause to discipline Tubaugh, the proper disciplinary action was a three-month suspension without pay. She ordered that the City of Livingston reinstate Tubaugh to his previous position or to one of comparable pay, and pay Tubaugh back pay and benefits until his reinstatement. She also ordered that the City of Livingston expunge the fitness for duty examination from Tubaugh's personnel file.

¶ 9 The City of Livingston timely petitioned to vacate the Arbitrator's award. Following briefing and oral argument on the petition, the District Court issued an order on January 15, 2014, vacating the Arbitrator's award. The MPEA now appeals that ruling.

STANDARDS OF REVIEW

¶ 10 The parties cite our precedent that “[t]he standard of review for a court's refusal to modify or vacate an arbitration award is whether the court abused its discretion.” Terra W. Townhomes, L.L.C. v. Stu Henkel Realty, 2000 MT 43, ¶ 22, 298 Mont. 344, 996 P.2d 866 ; Paulson v. Flathead Conservation Dist., 2004 MT 136, ¶ 18, 321 Mont. 364, 91 P.3d 569. But our prior cases also have emphasized that “the scope of judicial review of an arbitration award is strictly limited to the statutory provisions governing arbitration.” Duchscher v. Vaile, 269 Mont. 1, 4, 887 P.2d 181, 183 (1994) ; see Paulson, ¶ 24; Terra W., ¶ 22. After a matter has been submitted to binding arbitration, district courts “are not permitted to review the merits of the controversy, but may only confirm, vacate, modify, or correct an arbitration award pursuant to §§ 27–5–311, –312, and –313, MCA.” Teamsters Union Local No. 2, Int'l Bhd. of Teamsters v. C.N.H. Acquisitions, Inc., 2009 MT 92, ¶ 14, 350 Mont. 18, 204 P.3d 733.

¶ 11 The U.S. Supreme Court has held that “courts of appeals should apply ordinary, not special, standards” when reviewing district court decisions on arbitration awards; a decision on an arbitration award should be reviewed like “any other district court decision ... accepting findings of fact that are not ‘clearly erroneous' but deciding questions of law de novo.” First Options, Inc. v. Kaplan, 514 U.S. 938, 947–48, 115 S.Ct. 1920, 1926, 131 L.Ed.2d 985 (1995). This is consistent with our ordinary standards of review governing a District Court's interpretation of a statute, and its application of controlling legal principles to findings of fact. City of Missoula v. Iosefo, 2014 MT 209, ¶ 8, 376 Mont. 161, 330 P.3d 1180 ; BNSF Ry. Co. v. Cringle, 2012 MT 143, ¶ 16, 365 Mont. 304, 281 P.3d 203. In such cases, we review legal conclusions de novo. Cringle, ¶ 16. Further, our review is plenary to the extent that a discretionary ruling is based on a conclusion of law. Jacobsen v. Allstate Ins. Co., 2009 MT 248, ¶ 17, 351 Mont. 464, 215 P.3d 649. Because the District Court's decision in this case turns on whether it correctly applied the statutory provisions governing review of arbitration awards, we apply de novo review to the District Court's ruling.

DISCUSSION

¶ 12 The District Court held that the Arbitrator exceeded her powers by requiring progressive discipline and that the Arbitrator's decision to reinstate Tubaugh violated public policy. The court alternatively held that the arbitration award may be vacated “under Section 27–5–312(1)(b), MCA, for a manifest disregard of the law.” There have been no allegations that would trigger that subsection of the statute, which requires “evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party[.]” Section 27–5–312(1)(b), MCA ; see Geissler v. Sanem, 285 Mont. 411, 417–18, 949 P.2d 234, 239 (1997). Accordingly, we proceed to examine the claims under § 27–5–312(1)(c), MCA, whether the Arbitrator exceeded her powers, and to determine whether the decision violates public policy.

¶ 13 1. Whether the Arbitrator exceeded her powers by requiring progressive discipline pursuant to the Collective Bargaining Agreement.

¶ 14 “Generally, Montana gives arbitrators broad authority and powers to determine all issues.” Paulson, ¶ 22. “It is well-settled that a court's power to vacate an arbitration award must be extremely limited because an overly expansive judicial review of arbitration awards would undermine the litigation efficiencies which arbitration seeks to achieve.” Fine v. Bear, Stearns & Co., 765 F.Supp. 824, 827 (S.D.N.Y.1991).

¶ 15 Upon the application of a party, the District Court “shall vacate [an arbitrator's] award if ... the arbitrator[ ] exceeded [her] powers.” Section 27–5–312(1)(c), MCA. We have held that an arbitrator exceeds her powers if she decides matters that were not submitted to her. Terra W., ¶ 27; see also Batten v. Howell, 300 S.C. 545, 389 S.E.2d 170, 172 (S.C.Ct.App.1990) (“The question of whether arbitrators have exceeded their powers relates to arbitrability of the issue they have attempted to...