The City Of Piqua v. Fraternal Order Of Police

• Decision Date: 11 December 2009
• Docket Number: No. 09-CA-19.,09-CA-19.
• Citation: City of Piqua v. Fraternal Order of Police, 185 Ohio App.3d 496, 924 N.E.2d 876, 2009 Ohio 6591 (Ohio App. 2009)
• Parties: The CITY OF PIQUA, Appellee,v.FRATERNAL ORDER OF POLICE, OHIO LABOR COUNCIL, INC., Appellant.
• Court: Ohio Court of Appeals

185 Ohio App.3d 496

924 N.E.2d 876

2009 Ohio 6591

The CITY OF PIQUA, Appellee,v.FRATERNAL ORDER OF POLICE, OHIO LABOR COUNCIL, INC., Appellant.

No. 09-CA-19.

Court of Appeals of Ohio Second District, Miami County.

Decided Dec. 11, 2009.

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Stacy M. Wall, Piqua Law Director, for appellee.

Douglas J. Behringer and Paul L. Cox, Columbus, for appellant.

Downes Fishel Hass Kim, L.L.P., and Jonathan J. Downes, Columbus, urging affirmance for amici curiae, Ohio Public Employer Labor Relations Association, County Commissioners Association of Ohio, OMLA, the city of Lima, Ohio Association of Chiefs of Police, Ohio Municipal League, and the city of Dayton.

BROGAN, Judge.

{¶ 1}This case is before us on the Fraternal Order of Police's (“the union”) appeal of the trial court's decision to vacate an arbitrator's award ordering the city of Piqua's police department to reinstate Officer Brett Marrs.The union contends that the arbitrator did not exceed his power by using the clear-and-convincing standard of evidence to find that the department failed to prove that it had cause to discharge Marrs.The union also contends that the award does not violate Ohio public policy.Finally, the union contends that Marrs is entitled to statutory prejudgment interest on the award.We will reverse the trial court's decision to vacate the arbitrator's award.However, because the trial court did not address the issue, we decline to consider whether Marrs is entitled to prejudgment interest.

I

{¶ 2} It was dark on the night of May 4, 2008, when Officer Brett Marrs, out on patrol, came to a four-way intersection and stopped.As he began to drive through the intersection, a bicycle struck the front side of the cruiser, or the cruiser struck a bicyclist; the fact is contested.The department, Marrs's employer, believed that Marrs had hit the bicyclist, and it cited him for violating a traffic ordinance that prohibits “improper starting.”The department also concluded that Marrs had violated two departmental standards of conduct-Standard of Conduct 06 (committing unsafe acts or endangering themselves or others) and Standard of Conduct 12 (directing employees to display competent performance and achieve competent performance results).Based on these violations, ten days later, May 14, the department discharged Marrs.

{¶ 3} While the accident was a necessary cause of the department's decision to discharge Marrs, it was not the sole cause.Marrs had already been disciplined three times in the past two years.He had received a written reprimand for backing into another cruiser, causing damage; a one-day suspension for excessive personal use of the department's cellular phone while on duty; and a written reprimand for being late to duty assignments.The accident, then, was the straw that broke the camel's back, convincing the department that Marrs did not have the good judgment needed to be an effective police officer.

{¶ 4} The labor relationship between police officers and the department is governed by a collective bargaining agreement.Under this agreement, there is a three-step grievance-resolution procedure.The union, on behalf of Marrs, initiated this procedure.While the parties were trying to resolve the grievance, on August 8, 2008, Marrs was tried at a bench trial in municipal court on the “improper start” citation.Both Marrs and the bicyclist testified.Finding the evidence insufficient to prove that he violated the traffic ordinance, the court found Marrs not guilty.Unable to otherwise resolve Marrs's grievance, on September 26, 2008, the parties proceeded to the third and final step of the grievance-resolution procedure: arbitration.

{¶ 5} In his written decision, the arbitrator noted that the agreement permits the department to discharge or discipline officers only for “just cause,” which is not defined in the agreement.The arbitrator said that “just cause” required the department to prove by clear and convincing evidence that Marrs had committed the wrongdoing that provided the grounds on which the department decided to discharge him.The arbitrator concluded that the department had failed to prove that Marrs was in any way at fault for the accident.The evidence shows, said the arbitrator, that as Marrs proceeded through the intersection, a bicycle hit the cruiser; the rider, having failed to stop at the intersection, had jumped off moments before.The arbitrator noted that the officer who first arrived on the scene and investigated the incident concluded that Marrs had not violated any standard, policy, rule, regulation, statute, ordinance, or law indicative of misconduct.It was later, when those “higher up” reviewed the incident, that Marrs was charged with the traffic-ordinance violation.The arbitrator also cited several times the municipal court's acquittal.Based on the totality of the evidence presented, concluded the arbitrator, the department failed to meet its burden of proving by clear and convincing evidence that Marrs had committed the misconduct that formed the basis of the disciplinary action.Therefore, the arbitrator ordered the department to reinstate Marrs to his former position.

{¶ 6} The department appealed the arbitrator's award to the Miami County Court of Common Pleas, contending that the arbitrator exceeded his powers and asking the trial court to vacate the award.The department argued that the arbitrator should not have used a heightened standard of proof.It also contended that the award violated Ohio public policy.The trial court agreed with both contentions, concluding that the arbitrator erred when he determined that the department had no “just cause” to discipline Marrs.As a matter of law, said the court, the arbitrator should have used a “preponderance of the evidence” standard because that is the standard called for by the agreement.Also, the court concluded, reinstating as a police officer someone with Marrs's checkered history violates Ohio public policy.“Therefore,” said the court, “the Court remands this matter to arbitration, consistent with and constrained by, the mandates set forth herein, to (1) determine sufficient and appropriate discipline in view of the prior disciplinary violations and the violations of the two standards of conduct cited herein (2) in a manner and amount that does not undermine or diminish the City's ‘right to direct, manage and control the affairs' of the City (3) with proof by a preponderance of the facts and evidence.”

{¶ 7} The union's appeal from this order is now before us.

II

{¶ 8} The union's first four assignments of error concern whether the trial court correctly concluded that the arbitrator exceeded his powers, and we will consider them together.The fifth assignment of error concerns whether the trial court correctly concluded that the arbitrator's award violates Ohio public policy.And the sixth (and final) assignment of error concerns whether Marrs is entitled to prejudgment interest on the arbitrator's award.

A

{¶ 9} These are the first four assignments of error:

{¶ 10}“The trial court erred to the prejudice of appellant when it determined that the arbitrator exceeded his power.”

{¶ 11}“The trial court erred to the prejudice of the appellant when it determined that the arbitrator imperfectly performed his duties so that the arbitration decision was both arbitrary and contrary to law.”

{¶ 12}“The trial court erred to the prejudice of the appellant when it substituted its interpretation of the collective bargaining agreement for the interpretation made by the arbitrator.”

{¶ 13}“The trial court erred to the prejudice of the appellant when it misapplied the test for overturning an arbitrator's award pursuant to O.R.C. 2711.10.”

{¶ 14} The union's essential contention in the first four assignments of error is that the arbitrator did not exceed his authority by ordering the department to reinstate Marrs.We agree.

{¶ 15}We will limit, as we must, the scope of our review to the trial court's decision to vacate.SeeDayton v. Fraternal Order of Police(1991), 76 Ohio App.3d 591, 597, 602 N.E.2d 743(review “is confined to an evaluation of the order issued by the court of common pleas pursuant to R.C. 2711.10”).And we will review the decision de novo.SeeDayton v. Internatl. Assn. of Firefighters, Local No. 136, Montgomery App.No. 21681, 2007-Ohio-1337, 2007 WL 866999, at ¶ 11.Upon review, we conclude that the trial court erred as a matter of law by exceeding the permissible scope of its review and vacating the arbitrator's award.

Judicial review of arbitration awards

{¶ 16} Judicial review of arbitration awards is limited in order to encourage parties to resolve their disputes with arbitration.Dayton, 2007-Ohio-1337, 2007 WL 866999, at ¶ 9, citingKelm v. Kelm(1993), 68 Ohio St.3d 26, 27, 623 N.E.2d 39.This has long been public policy in Ohio.SeeSpringfield v. Walker(1885), 42 Ohio St. 543, 546(“Arbitration is favored”).The state and courts encourage arbitration because it “provides parties with a relatively speedy and inexpensive method of conflict resolution and has the additional advantage of unburdening crowded court dockets.”Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. Trainable Mentally Retarded Edn. Assn.(1986), 22 Ohio St.3d 80, 83, 22 OBR 95, 488 N.E.2d 872;see alsoSpringfieldat 546(“[T]he purpose of an arbitration is[ ] to avoid needless and expensive litigation”).Appellate courts must ensure that trial courts, the front line of arbitral review, do not exceed the scope of their review authority.Otherwise, “[a]rbitration, which is intended to avoid litigation, would instead merely become a system of ‘junior varsity trial courts' offering the losing party complete and rigorous de novo review.”Daytonat ¶ 13, quotingMotor Wheel Corp. v. Goodyear Tire & Rubber Co.(1994), 98 Ohio App.3d 45, 52, 647 N.E.2d...