South Windsor v. South Windsor Police Union Local 1480

• Decision Date: 02 May 2000
• Docket Number: (AC 18222)
• Citation: 750 A.2d 465,57 Conn. App. 490
• Court: Connecticut Court of Appeals
• Parties: TOWN OF SOUTH WINDSOR v. SOUTH WINDSOR POLICE UNION LOCAL 1480, COUNCIL 15, AFSCME, AFL-CIO

57 Conn. App. 490

750 A.2d 465

TOWN OF SOUTH WINDSOR v. SOUTH WINDSOR POLICE UNION LOCAL 1480, COUNCIL 15, AFSCME, AFL-CIO

(AC 18222)

Appellate Court of Connecticut.

Argued October 26, 1999.

Officially released May 2, 2000.

O'Connell, C. J., and Landau and Mihalakos, JS.¹

Eric R. Brown, for the appellant (defendant).

David L. Metzger, with whom was Catherine L. Moreton, for the appellee (plaintiff).

Opinion

LANDAU, J.

The defendant, South Windsor Police Union Local 1480, Council 15, AFSCME, AFL-CIO (union), appeals from the judgment of the trial court granting the plaintiffs application to vacate an arbitration award.² In its appeal, the union claims that the court improperly (1) substituted its interpretation of the parties' collective bargaining agreement (agreement) for the arbitrators' interpretation with respect to the applicable standard of proof required to prove just cause, the just cause basis for discipline and the grievant's fitness for duty, and (2) concluded that the arbitrators deprived the plaintiff, the town of South Windsor (town), a full and fair hearing by excluding evidence.³ In the alternative, the union claims that there is no public policy basis on which the trial court's judgment can be affirmed. In its counterstatement of the issues, the town claims that the trial court's judgment can be affirmed on important and clearly defined public policy grounds. We affirm the trial court's judgment on the basis of the town's public policy argument.

The following facts are necessary for our review. For approximately nine years prior to January 8, 1992, John Marchesseault (grievant) was employed by the town as a police officer. On that date, the grievant worked the 3 p.m. to 11 p.m. shift alone in a radio police vehicle. Toward the end of his shift, the grievant was informed of a complaint that several young men had tried to gain access to the Ellsworth School to play basketball at the conclusion of an organized basketball game. Believing that the young men would later try to gain access to the building with a key one of them said he had, the director of the recreation department (director) asked the police to patrol the school to look for unauthorized activity. The grievant proceeded to the school, observed lights in the hallway and found a broken window at the rear of the gymnasium. He reported his observations to the police dispatcher, who asked a second radio patrol officer to go to the school. The grievant knocked on the door but received no response. When the second officer and the director arrived, the director opened the door and the three entered the building. The grievant saw seven young men playing basketball. He then entered the gymnasium with his weapon drawn and ordered the basketball players to the floor. The grievant asked the second officer to frisk the players for weapons. The grievant's weapon was drawn for approximately one minute, but it was never pointed at anyone.

After asking each of the young men for identification and talking with one of them about the key used to gain access to the school, the second officer decided to charge the young men with simple trespass and to issue each of them a citation, which would result in a mail-in fine of $50. While the officers were writing the citations, the second officer suggested to the grievant that he had overreacted to the situation (hereafter referred to as the basketball incident). The grievant agreed that there was no need for him to have pulled his weapon and acknowledged the danger inherent in having done so. When he returned to the police station, the grievant reported to the sergeant and described what he had done. The grievant's supervisor, however, already had ended his shift.

On his next work day, the grievant spoke to his lieutenant saying, "I fucked up last night." The lieutenant and the grievant had two discussions to determine what might have influenced the grievant's inappropriate behavior. The grievant was unable to come to a conclusion about his conduct.

On or about January 13, 1992, the police chief received a letter of complaint from the mother of one of the seven young men who had been in the gymnasium playing basketball.⁴ The police chief assigned a sergeant to investigate the basketball incident. The grievant temporarily was relieved of duty with pay pending the investigation, which included an evaluation of his fitness for duty. On January 23, 1992, the police chief reviewed the basketball incident with the grievant. Again, the grievant admitted that his behavior was not proper. The investigating sergeant interviewed and took statements from the parties involved, including the grievant, and filed a report. The police chief reviewed the report and discussed the situation with the town manager. They concluded that the grievant should submit to a fitness for duty examination.

On approximately February 24, 1992, the town asked Peter Zeman, a psychiatrist, to determine the grievant's fitness for duty. The town supplied Zeman with all of the information in the grievant's file, including information concerning an incident that occurred in 1983, which also resulted in a fitness for duty evaluation. After he met with the grievant, Zeman asked Leslie Lothstein, a psychologist, to administer psychological tests and render an opinion concerning the grievant's fitness for duty. Both Zeman⁵ and Lothstein⁶ submitted reports to the police chief, who shared them with the town manager. The town manager held a hearing on April 15, 1992, to discuss the basketball incident and the results of the fitness evaluation. By letter dated April 28, 1992, the town manager informed the grievant that the town was going to terminate his employment as of May 1, 1992, because during the basketball incident, he had violated §§ 2.3.5 (unnecessary force), 2.3.2 (conduct unbecoming an officer) and 4.7.16 (guidelines and procedures for the use of firearms) of the South Windsor police manual, and because he was unfit for duty in Zeman's and Lothstein's opinions.⁷

The union filed a grievance with the town, claiming that the grievant's termination was without just cause, which the town manager denied. On or about January 25, 1993, the grievant's attorney received a letter from David Johnson, an individual who claimed that he was counseling the grievant.⁸ Johnson's letter stated that there was "no reason why [the grievant] should not return to duty as an officer with the ability to carry and handle firearms. I will continue to work with [the grievant] once he returns to active duty." Later, the grievant obtained reports from Ronald Anderson, a psychologist, and Kenneth Selig, a psychiatrist with a law degree, who opined that the grievant was fit for duty.

The dispute was submitted to a three person arbitration panel (arbitrators). The arbitrators were to decide the following issues: (1) Was the grievant terminated by the town for just cause? and (2) If not, what shall the remedy be? The arbitrators held a hearing on numerous days on and between July 15, 1993, and March 4, 1994. While the hearing was pending, the parties agreed that Ezra Griffith, a professor of psychiatry at Yale University, should evaluate the grievant for fitness for duty. Griffith concluded that the grievant was fit for duty. In February, 1994, Zeman reviewed all of the reports and evaluation materials from the grievant's experts, including Griffith, but did not change his opinion that the grievant was not fit for duty in early 1992.

The arbitrators issued their award on June 11, 1996, sustaining the grievance in part and denying it in part, concluding that the grievant was not terminated for just cause. The arbitrators' award stated that the grievant "shall be reinstated to his position as a South Windsor police officer subject to retraining; a current fitness for duty statement; retraining in firearms; and, counseling as outlined in the analysis and discussion section of the award."

The town filed an application to vacate the award pursuant to General Statutes § 52-418 (a) (3) and (4).⁹ The union moved to confirm the award. The trial court denied the motion to confirm and granted the application to vacate, concluding that the arbitrators (1) improperly imposed an excessive standard of proof on the town, (2) failed to allow evidence of the grievant's purported search for mental health assistance, (3) relied on what the arbitrators termed "universally recognized" tests of just cause on which the parties had never agreed and (4) evaluated the grievant's fitness for duty and the town's actions with information that was not available at the time the town terminated the grievant's employment. Additional facts will be addressed as needed.

"`The scope of review by the court of an arbitrator's power to make an award is limited. Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion.... The parties themselves, by the agreement of the submission, define the powers of the arbitrator.... The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided.... When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits.... An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission.'... Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 583-84, 440 A.2d 774 (1981)." Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 811-12, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).

"In determining whether a submission is unrestricted, we look at the authority of an arbitrator. The authority of an arbitrator to adjudicate the controversy is...