City of Tulsa v. Fraternal Order of Police

• Decision Date: 17 June 2015
• Docket Number: No. 111,537.,111,537.
• Citation: 365 P.3d 82
• Parties: CITY OF TULSA, Plaintiff/Appellee, v. FRATERNAL ORDER OF POLICE, LODGE 93, and Kendra Miller, Defendants/Appellants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

365 P.3d 82

CITY OF TULSA, Plaintiff/Appellee,
v.
FRATERNAL ORDER OF POLICE, LODGE 93, and Kendra Miller, Defendants/Appellants.

No. 111,537.

Court of Civil Appeals of Oklahoma, Division No. 2.

June 17, 2015.

James W. Connor, Jr., Randy Lewin, Richards & Connor, PLLP, Tulsa, Oklahoma, Gerald M. Bender, Assistant City Attorney, City of Tulsa, Tulsa, Oklahoma, for Plaintiff/Appellee.

Scott B. Wood, Wood, Puhl & Wood, P.L.L.C., Tulsa, Oklahoma, for Defendants/Appellants.

JANE P. WISEMAN, Judge.

¶ 1 Fraternal Order of Police, Lodge 93 (FOP) and Kendra Miller appeal from the trial court's order vacating the July 30, 2012, arbitration decision. Based on our review of the facts and applicable law, we conclude the trial court's decision should be affirmed.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In May 2004, Kendra Miller was hired as a police officer for the Tulsa Police Department (TPD). In October 2006, the Federal Bureau of Investigation began investigating Miller in connection with her romantic involvement with Julio Lujan. Lujan, a club manager, was suspected of drug trafficking and later arrested, convicted of weapons possession, and deported. The FBI investigation also included reports that Miller was warning bar owners and/or managers about future bar raids and Fire Marshall inspections. In July 2009, the FBI notified Chief Ronald Palmer of the TPD "that after conducting an extensive joint investigation with the TPD," it was ending its investigation because the U.S. Attorney's office determined it did not have enough evidence to prosecute Miller. Based on the information from the FBI, Chief Palmer requested Internal Affairs to begin an investigation.

¶ 3 Miller was notified about the investigation and received notification of a pre-termination hearing to take place on December 10, 2009. On December 11, 2009, Miller was terminated for violating seven TPD Rules and Regulations. Miller filed a grievance contesting her termination pursuant to the Collective Bargaining Agreement between the City of Tulsa and Lodge # 93 Fraternal Order of Police. The arbitration hearing regarding the grievance took place on September 12–15, 2011. In his 35–page "Opinion and Award" issued on July 30, 2012, the arbitrator concluded:

Conclusion

I find that Miller violated Rule and Regulation # 8, Conduct unbecoming an Officer or Police Employee (the Second Reason), and Rule and Regulation # 11, Use of Department Vehicles (the Sixth Reason). I find that there was just cause for discipline. However, since I did not uphold the City with respect to the First, Third, Fourth, Fifth and Seventh Reasons and in light of Miller's superior performance evaluations, I find that discharge was too severe.

I am not awarding back pay in this case because Miller exercised poor judgment in befriending and associating with Lujan, manager of a bar that was a hotbed of criminal activity. Miller engaged in serious misconduct. Her behavior was unbecoming for a police officer. (Tr. 180, Vol. 2; City Ex. 2, Miller's Interview on August 11, 2009, p. 3) Her poor judgment resulted in rumors, a citizen's complaint, a TPD

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internal investigation, and an FBI investigation.

Award

The discharge is reduced to a 30–day suspension without back pay. The City is directed to reinstate Miller forthwith to her former position as a police officer with full and unbroken seniority rights. The time that Miller was away from work (beyond the 30–day suspension) will be reflected in her personnel records as an excused absence. Miller will not receive any back pay. The City is directed to remove Miller's termination letter from her file and substitute a 30–day suspension.

¶ 4 Following this Opinion and Award, the City of Tulsa filed a petition to vacate the arbitrator's decision in the trial court. FOP and Miller filed an "Answer and Counterclaim to Enforce Decision of Arbitrator." FOP and Miller also filed a motion for partial summary judgment to enforce the arbitration award. The City of Tulsa filed a response to the motion for partial summary judgment and filed a cross-motion for summary judgment. After considering the briefs, supplemental briefs, and oral argument, the trial court denied FOP and Miller's motion for partial summary judgment and granted the City's cross-motion for summary judgment. The trial court ordered the arbitration award to be vacated finding:

The Arbitrator's sole issue, as stated in his award was, "Was Kendra Miller's employment with the City of Tulsa, Oklahoma, terminated for just cause? If not, what shall be the remedy?" The City of Tulsa stated seven separate reasons for termination in its termination letter dated December 11, 2009. The Arbitrator found just cause for two of the City's reasons for termination, and specifically found by a clear and convincing standard that Defendant Miller violated Rule # 8, CONDUCT UNBECOMING [AN] OFFICER OR POLICE EMPLOYEE, which was the primary reason for termination. Only if there was not "just cause" was the Arbitrator to fashion a remedy.

The Court finds that the Arbitrator exceeded his authority when he fashioned a remedy after finding just cause.

¶ 5 FOP and Miller appeal.

STANDARD OF REVIEW

¶ 6 "In reviewing an arbitrator's decision, the district court must afford the arbitrator great deference, and cannot review the merits of the award, including any of the factual or legal findings." Fraternal Order of Police, Lodge 142 v. City of Perkins, 2006 OK CIV APP 122, ¶ 4, 146 P.3d 829 (citing City of Yukon v. International Ass'n of Firefighters, Local 2055, 1990 OK 48, ¶ 8, 792 P.2d 1176 ). "Because the parties bargain for the arbitrator's construction of the contract, a reviewing court cannot overturn that decision merely because it disagrees with the arbitrator's interpretation of the contract." Id. "An arbitration award is only legitimate if it ‘draws its essence from the collective bargaining agreement.’ " Id. (quoting United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960) ). "Where there is a valid arbitration agreement, the courts will submit the dispute to arbitration; and where the arbitrator's award is within the submission and the authority established by the arbitration agreement, the courts will enforce the award." Sooner Builders & Invs., Inc. v. Nolan Hatcher Constr. Servs., L.L.C., 2007 OK 50, ¶ 13, 164 P.3d 1063. However, "[i]f the arbitrator's words manifest an infidelity to this duty, the reviewing court has no choice but to refuse to enforce the award." Perkins, 2006 OK CIV APP 122, ¶ 4, 146 P.3d 829.

ANALYSIS

¶ 7 "The OUAA [Oklahoma Uniform Arbitration Act, 12 O.S.2011 1851 –1881 ] authorizes the district courts to vacate or modify an arbitrator's award on specific grounds." Sooner, 2007 OK 50, ¶ 23, 164 P.3d 1063. A trial court may vacate an arbitrator's award if it finds:

1. The award was procured by corruption, fraud, or other undue means;

2. There was:

365 P.3d 85

a. evident partiality by an arbitrator appointed as a neutral arbitrator,

b. corruption by an arbitrator, or

c. misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;

3. An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to Section 6 of this act, so as to prejudice substantially the rights of a party to the arbitration proceeding;

4. An arbitrator exceeded the arbitrator's powers;

5. There was no agreement to arbitrate, unless the

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