Norwalk Police Union v. City of Norwalk

• Decision Date: 14 February 2017
• Docket Number: SC 19667
• Citation: 324 Conn. 618,153 A.3d 1280
• Court: Connecticut Supreme Court
• Parties: NORWALK POLICE UNION, Local 1727, Council 15, AFSCME, AFL–CIO, et al. v. CITY OF NORWALK et al.

324 Conn. 618

153 A.3d 1280

NORWALK POLICE UNION, Local 1727, Council 15, AFSCME, AFL–CIO, et al.

v.CITY OF NORWALK et al.

SC 19667

Supreme Court of Connecticut.

Argued December 8, 2016

Officially released February 14, 2017

Jarad M. Lucan, with whom, on the brief, was Saranne P. Murray, for the appellant (named defendant).

J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellee (named plaintiff).

Rogers, C.J., and Palmer, Eveleigh, Espinosa, Robinson and Vertefeuille, Js.^*

ROGERS, C.J.

The issue that we must resolve in this appeal is whether the trial court properly vacated an arbitration award that had found that the defendant city of Norwalk (city) had just cause to terminate the employment of Stephen E. Couture, a police sergeant employed by the Norwalk Police Department (department). The plaintiff,¹ Norwalk Police Union, Local 1727, Council 15, AFSCME, AFL–CIO, and the city are parties to a collective bargaining agreement (agreement) governing the terms and conditions of employment for certain police officers employed by the city. The agreement provides that disputes over its interpretation will be resolved through arbitration.

After Couture notified a fellow police officer, Thomas Cummings, of a pending criminal investigation against him, Harry W. Rilling, the chief of the department, reassigned Couture to the department's patrol division. Thereafter, Rilling determined that Couture may have violated a number of department rules and regulations by telling Cummings about the investigation. The allegations of misconduct were litigated in a public trial before the Board of Police Commissioners (board of commissioners). The board of commissioners concluded that Couture had violated a number of departmental rules and that his employment should be terminated. Couture disputed the board of commissioners' decision through the grievance procedures set forth in the agreement and ultimately initiated an arbitration proceeding with the defendant State Board of Mediation and Arbitration (arbitration board). A majority of the arbitration board found that Couture had been terminated for just cause. Thereafter, the plaintiff filed an application to vacate the arbitration award pursuant to General Statutes § 52–418. After conducting an evidentiary hearing, the trial court, Hon. Kevin Tierney , judge trial referee, vacated the arbitration award on the ground that the city had disciplined Couture twice for the same misconduct in manifest disregard of the law. The city then filed this appeal.² We conclude that the decision of the arbitration board was not in manifest disregard of the law and, therefore, that the trial court improperly vacated the arbitration award.

The record reveals the following procedural history and facts that were found by the arbitration board or are undisputed. Couture started working at the department in 1984. He was promoted to the rank of detective in approximately 1987 and to the rank of sergeant in 1991. In 2001, Rilling appointed Couture as commander of the department's youth bureau.

During his tenure at the youth bureau, Couture became an experienced investigator of crimes involving persons under the age of majority. Couture's supervisor, Captain Rosemary Arway, considered him to be a leader in the development of team approaches to interviewing child sexual assault victims and Internet sting operations.

Cummings was a lieutenant in the department and the commander of the detective division. Couture and Cummings had worked together for many years and were on friendly terms, although they were not social friends.

On Friday, October 26, 2007, Couture's subordinate, Detective Charles Perez, returned a telephone call that he had received earlier in the week from Jill Ruggiero, a detective with the Westport Police Department. Ruggiero informed Perez that there was an ongoing sexual assault investigation that was possibly going to be transferred to the department. Perez told Couture about his conversation with Ruggiero, and Couture instructed Perez to get further information. When Perez spoke again with Ruggiero that same day, the information that she provided led Perez to believe that the suspect in the investigation might be Cummings. Perez told Ruggiero that she should speak directly to Couture about the matter. Perez also called Richard Colangelo, an assistant state's attorney, and told him that the sexual assault suspect possibly was Cummings. At approximately 2:43 p.m., Ruggiero called Couture and gave him information about the investigation, and Couture confirmed that the suspect indeed was Cummings. At the end of that telephone call, both Couture and Ruggiero stated that they would report the situation to their respective chiefs of police.

Minutes after speaking to Ruggiero, Couture called Cummings' cell phone and made arrangements to meet him in a parking lot across the street from Norwalk High School. Couture spoke to Perez by cell phone while he was driving to the parking lot, but he did not inform him that he was on his way to meet Cummings.

During the meeting in the parking lot, Couture told Cummings that he was a suspect in a sexual assault case that the Westport Police Department had been investigating. While Couture and Cummings were still together, Couture received a call on his cell phone from Colangelo. Couture spoke to Colangelo by cell phone again after he left the meeting with Cummings. Couture did not tell Colangelo during either conversation that he had met with Cummings and informed him that he was the suspect in the sexual assault investigation.

That same day, October 26, 2007, at 5:34 p.m., Couture telephoned Ruggiero from his extension at the police station. Couture told Ruggiero that the sexual assault investigation of Cummings was a "really big deal" and that, if word of it became public, it would likely draw the attention of the national news media. Couture further stated that if that occurred, it would be a very bad development for the department. Ruggiero had the impression that Couture was trying to tell her not to make the situation "any bigger than it already was" and not to pursue the matter.

On the morning of Monday, October 29, 2007, Colangelo went to the department to meet with Rilling. When Colangelo told Rilling about the investigation of Cummings, Rilling indicated that he was concerned that Cummings might have been notified about it.³ Colangelo assured Rilling that that was not the case. Rilling then called Couture into his office, and Couture confirmed that he had told Cummings about the investigation on the previous Friday. Rilling was angry and upset that Couture had done this without his knowledge or permission.

Later that day, Couture went to Colangelo's office and gave a sworn statement regarding the events of October 26, 2007. Couture stated that Ruggiero had advised him that the criminal investigation would be closed if the alleged victims did not come forward. Couture also stated that, while he was speaking to Cummings in the parking lot, Colangelo had called Couture and informed him that the matter would be investigated by the Westport Police Department. At that point, Couture knew that the investigation against Cummings was ongoing.

On February 12, 2008, Rilling reassigned Couture to the department's patrol division. On March 11, 2008, after being informed by Colangelo that Couture would not be the subject of any criminal charges, Rilling ordered an internal investigation to determine whether Couture had violated any of the department's policies or procedures when he informed Cummings about the sexual assault investigation. Captain Ernest Vitarbo conducted the investigation and provided a report to Rilling and, after reviewing the report, Rilling concluded that Couture may have violated several of the department's rules and directives.⁴ Pursuant to the agreement, Rilling notified Couture that, because the discipline for a violation of those rules and regulations would exceed Rilling's authority under the agreement, Couture had the option either to have a disciplinary hearing before Rilling or to have a hearing before the board of commissioners.⁵ Couture elected to have a hearing before the board of commissioners.

The board of commissioners conducted a hearing over four days, at which Couture was represented by both counsel for the plaintiff and his own private counsel. The board of commissioners found that Couture had violated §§ 4.1, 4.16 and 4.21 of the rules of conduct set forth in the department's police manual; see footnote 4 of this opinion; and concluded that Couture should be discharged from employment. The city terminated Couture on September 23, 2008, the same day the board of commissioners issued its decision.

On the same date, the plaintiff filed a grievance contending that the city had terminated Couture without just cause, in violation of the agreement, and seeking his reinstatement. After exhausting internal grievance procedures, the plaintiff invoked its right to submit the matter to arbitration. The issues to be determined by the arbitration board were: "Was the discharge of ... Couture for just cause?"; and "If not, what should be the remedy consistent with the [agreement]?" The plaintiff contended that Couture's termination violated double jeopardy principles because he previously had been subject to discipline for the same misconduct, namely, Rilling's reassignment of Couture to the patrol division.⁶

A majority of the arbitration board concluded that "[t]he question of double jeopardy is easily disposed of for two reasons, as follows: (1) [t]here was no grievance filed for this question and if there was, it is not before this panel of arbitrators;⁷ and (2) [t]he [c]hief [of police] has the right to reassign officers in his command to any division in the department. The reassignment is not considered discipline." (Footnote added.) The majority further concluded that Couture's discharge was for just cause.

Thereaft...