Stratford v. Am. Fed'n of State

• Decision Date: 23 December 2014
• Docket Number: SC19130
• Court: Connecticut Supreme Court
• Parties: STRATFORD v. AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, COUNCIL 15, LOCAL 407

STRATFORD v. AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES, COUNCIL 15, LOCAL 407

SC19130

Supreme Court of Connecticut

December 23, 2014

DISSENT

PALMER, J., with whom ESPINOSA, J., joins, dissenting. The majority acknowledges, as it must, that there is a well-defined and dominant public policy against intentional dishonesty by police officers in connection with their employment. The majority nevertheless concludes, contrary to the unanimous opinion of the Appellate Court, that the arbitration award reinstating Justin Loschiavo as a police officer with the plaintiff, the town of Stratford (town), despite his concededly intentional and serious lies made in the course of his employment, did not violate public policy. Because I believe that the majority's conclusion seriously undermines the strong public interest in ensuring that the law enforcement officers of this state conduct themselves with honesty and integrity, I respectfully dissent.

The relevant facts are undisputed and straightforward. Loschiavo was hired by the town as a probationary police officer in 2006. At the time, he had a history of epilepsy but his condition was controlled by medication. On June 6, 2009, as a result of an epileptic seizure, Loschiavo lost control of his police cruiser and struck two parked cars. Loschiavo was ordered not to drive for six months by his personal physician, Philip Micalizzi. Micalizzi then cleared Loschiavo for light duty work, to commence on August 17, 2009, subject to the condition that he not engage in any activity that might cause severe injury if he were to lose consciousness. On December 29, 2009, Micalizzi returned Loschiavo to full duty status without restriction. Micalizzi also indicated, however, that he could not guarantee that Loschiavo would not have another seizure, and that the town would have to determine what restrictions, if any, to place on Loschiavo in connection with the performance of his official duties.

Thereafter, the town referred Loschiavo to a neurologist, Samuel L. Bridgers, for an independent medical examination to determine whether Loschiavo could safely return to work and, if so, under what conditions. After examining Loschiavo and reviewing his medical history, Bridgers submitted a report to the town's human resources director, Ronald Ing, in which Bridgers expressed the opinion that Loschiavo was capable of returning to work as a full-time police officer subject only to the restriction that he be allowed to call in sick whenever he felt the warning signs of an impending seizure. Bridgers also stated, however, that there were no guarantees that Loschiavo would not suffer seizures in the future.

In the course of reviewing Bridger's report, Ing noticed several discrepancies between the medical records provided by Micalizzi and the medical historythat Loschiavo had provided to Bridgers. In light of these inconsistencies, it was apparent to Ing that Loschiavo did not disclose to Bridgers, first, that he had experienced two other seizures since 2004, and, second, that he had used or abused alcohol, which may well have precipitated those seizures. In this regard, it also was apparent to Ing that Loschiavo had removed certain notes from Micalizzi's medical file before Loschiavo turned that file over to Bridgers. Ing therefore provided Bridgers with a complete set of the medical records from Micalizzi's file detailing Loschiavo's history.

After reviewing those records, Bridgers reexamined Loschiavo and reported his findings. Bridgers observed that Loschiavo had acknowledged to Micalizzi for the first time in June, 2009, that he had a problem with alcohol and that his seizures were related to his alcohol abuse. Loschiavo also told Micalizzi that he was enrolled in an alcohol treatment program. In light of these revelations, Bridgers indicated that he did not know whether Loschiavo could be "trusted to avoid activities" that would increase his likelihood of suffering seizures, in particular, his use or abuse of alcohol. Although expressing the view that people with epilepsy probably should not be employed as police officers, Bridgers stated that Loschiavo likely posed no greater risk at that time than he did when he was hired in 2006.

The town charged Loschiavo with lying during the independent medical examination in violation of police department policy concerning integrity, conduct unbecoming an officer, and attention to duty.¹ Shortly thereafter, the town held a hearing to afford Loschiavo the opportunity to respond to that charge. At the conclusion of the hearing, the hearing officer found that Loschiavo had violated police department policy by lying in connection with the independent medical examination, and he recommended Loschiavo's termination. Loschiavo's employment was terminated that same day.

Following his termination, and in accordance with the collective bargaining agreement between the town and the defendant union, American Federation of State, County and Municipal Employees, Council 15, Local 407 (union), the union filed a grievance on Loschiavo's behalf claiming that his termination was without just cause and in violation of the parties' agreement. The matter was referred to an arbitration panel which, following a hearing, issued a written decision that states in relevant part as follows: "The first thing that we note is that the violation that [Loschiavo] was accused of committing is a very serious one for a police officer who is charged with upholding the law. The public does expect that the conduct of their law enforcement officials be above that of their neighbors and fellow citizens. A police officer's lying about his physical and mental condition to doctors that could return (or pre-vent) him/her to work is understandable because he/she wants his/her job back. However, it is very dangerous for the citizens and public at large should that police officer suffer a seizure that could cause injury or death to the officer and/or to the citizens of that community.

"We also note, however, that once [Loschiavo's] true conditions were known and considered by both doctors Micalizzi and Bridgers, they returned [Loschiavo] to his full duties without restrictions. The only reservation was that of . . . Bridgers, who felt that [Loschiavo] should be allowed to call out sick if he felt a seizure coming on when waking up. He stated that [Loschiavo] knew the signs of an upcoming seizure and could predict it and should be allowed to call out sick when [he] felt the signs coming on.

"We further note that the [t]own knowingly hired [Loschiavo] recognizing his potential limitations, regarding his epileptic seizures, and that he completed his probationary period and went on to perform well until the seizure of June 6, 2009. There was no evidence presented by the [t]own about his job performance and so we infer that his job performance was at least satisfactory. We therefore find that the termination of [Loschiavo] was excessive and so we hereby order that he be returned to work, without [back pay] but with no loss to seniority. . . . [In addition] the [t]own is well within its rights to have [Loschiavo] examined by a medical doctor, from time to time, to make sure that his condition is stable and that he is not using alcohol. Accordingly, based on the above, the unanimous [p]anel sustains the grievance." The panel's award imposed a total effective sanction on Loschiavo for his misconduct of nine months suspension, without pay.

The town filed an application to vacate the arbitration award with the Superior Court claiming, inter alia, that the award violated the clearly defined and important public policy against intentional dishonesty by officers in the course of their employment. The court rendered judgment denying the town's application, concluding that the award suspending Loschiavo without pay for nine months and returning him to active duty did not contravene that policy.² The town appealed from the judgment of the trial court to the Appellate Court, renewing the public policy claim that it had raised in the trial court. The Appellate Court agreed with the town, reversed the judgment of the trial court and remanded the case to that court with direction to grant the town's application to vacate the arbitration award. Stratford v. AFSCME, Council 15, Local 407, 140 Conn. App. 587, 597, 60 A.3d 288 (2013). This court granted the union's petition for certification, limited to the issue of whether the Appellate Court correctly concluded that the panel's award must be vacated as violative of public policy.

As the majority has explained, our review of theunrestricted arbitral submission in the present case is limited: the award of the panel is entitled to deference, and therefore must be sustained, unless enforcing the award would be contrary to public policy. E.g., State v. AFSCME, Council 4, Local 391, 309 Conn. 519, 526-27, 69 A.3d 927 (2013). This narrow exception to the finality of an arbitration award "is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract . . . ." (Internal quotation marks omitted.) State v. New England Health Care Employees Union, 271 Conn. 127, 135, 855 A.2d 964 (2004). In making that determination, we employ a two step analysis: we first must decide whether the award implicates an explicit, well-defined and dominant public policy and, if it does, we also must decide whether the award itself violates that public policy. State v. AFSCME, Council 4, Local 391, supra, 529. The question, then, is not whether the underlying improper conduct—here, Loschiavo's intentional dishonesty in connection with the independent medical examination—violates public policy, which it most certainly does. Nor are we concerned with the correctness of the award under the collective bargaining...