Town of Stratford v. Am. Fed'n of State, Cnty. & Municipal Emps., Council 15, Local 407, 33962.

• Decision Date: 05 February 2013
• Docket Number: No. 33962.,33962.
• Court: Connecticut Court of Appeals
• Parties: TOWN OF STRATFORD v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 15, LOCAL 407.

140 Conn.App. 587

60 A.3d 288

TOWN OF STRATFORD

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

No. 33962.

Appellate Court of Connecticut.

Argued Oct. 22, 2012.

Decided Feb. 5, 2013.

Garrett A. Denniston, Milford, for the appellant (plaintiff).

Richard P. Gudis II, Groton, for the appellee (defendant).

ALVORD, BEAR and MIHALAKOS, Js.

MIHALAKOS, J.

“In any employment, an employer is entitled to expect of his employees the qualities of truthfulness, honesty and integrity.... In the case of police officers of a municipality, these qualities are particularly essential.” (Citation omitted.) Wilber v. Walsh, 147 Conn. 317, 320, 160 A.2d 755 (1960). In this appeal, the plaintiff, the town of Stratford (town), appeals from the judgment of the trial court denying its application to vacate an arbitration award rendered in favor of the defendant, American Federation of State, County and Municipal Employees, Council 15, Local 407 (union), reinstating a municipal police officer who had been terminated from employment for violating police department policy by lying during a medical examination. The town claims that the court improperly denied its application to vacate because the arbitration award violates a clearly discernable public policy against intentional dishonesty by police officers in connection with their employment. We agree and, accordingly, reverse the judgment of the trial court.

The relevant facts, as found by the arbitration panel, and procedural history are undisputed. The town employed Justin Loschiavo as a police officer beginning in 2006. On June 6, 2009, Loschiavo, who suffers from epileptic seizures, experienced a seizure while operating a police vehicle and struck two parked cars. After Loschiavo's personal physician cleared him to return to duty, the town referred Loschiavo to a neurologist for a medical examination to determine what conditions would allow Loschiavo “to return to employment while eliminating or minimizing any potential risks with potentially fatal consequences.” The neurologist cleared Loschiavo to return to work full-time but required that Loschiavo be allowed to “call out sick” whenever he felt signs of an impending seizure.

Ronald Ing, the town's director of human resources, reviewed the neurologist's examination report and discovered discrepancies between the report and the medical information supplied to the town by Loschiavo's personal physician. Specifically, Ing noted that Loschiavo did not inform the neurologist of two additional seizures he had experienced since 2004. Loschiavo also denied to the neurologist that he consumed alcohol, whereas the records from his physician indicated that he had used/abused alcohol previously.¹

After the town provided the neurologist with this additional medical information, the neurologist examined Loschiavo a second time. The neurologist's report of this second examination stated that he was not sure that Loschiavo “ ‘can be trusted to avoid activities that might increase his susceptibility to having seizures, particularly alcohol use,’ ” but he ultimately stated that Loschiavo “ ‘presents no more of a risk now than he did since the time of his initial hiring. Perhaps, he could be even safer because of his increased awareness regarding his disorder and what he needs to do to control it.’ ”

Upon receiving the neurologist's report, the town charged Loschiavo with a violation of police department policy ² for lying during the independent medical examination.³ The town conducted a pretermination hearing ⁴ regarding Loschiavo's possible discharge; Loschiavo was terminated following the hearing.

The union subsequently filed a grievance on Loschiavo's behalf alleging that the town violated the parties' collective bargaining agreement by terminating Loschiavo without just cause. After a hearing before the state board of mediation and arbitration, a three member arbitration panel sustained the grievance and ordered that the town reinstate Loschiavo without back pay and without loss of seniority. The panel stated that although the violation Loschiavo “was accused of committing is a very serious one for a police officer who is charged with upholding the law,” his “lying about his physical and mental condition to doctors that could return (or prevent) [him] to work is understandable because [he] wants [his] job back.” The panel further noted that the town was aware of Loschiavo's condition when he was hired and inferred that Loschiavo's job performance was “at least satisfactory.” The panel thus concluded that Loschiavo's termination “was excessive.”

The town then filed an application to vacate the arbitration award arguing, inter alia, that an arbitration award encouraging dishonesty in a police officer violates the clear public policy in Connecticut against lying by police officers. The court rejected this argument and denied the town's application to vacate, citing the limited standard of review over arbitration decisions and a purported lack of “authority which requires the dismissal of a uniformed police officer, in situations where that officer tells a deliberate untruth.” This appeal followed.

On appeal, the town claims that the court erred in determining that the award reinstating Loschiavo was not against public policy.⁵ Specifically, the town asserts that the award violates a clearly discernible public policy against intentional dishonesty by police officers in connection with their employment. We agree.

We begin by setting forth the standard of review and legal principles applicable to our resolution of this appeal. “Judicial review of arbitral decisions is narrowly confined.... When the scope of the submission [to the arbitrators] is unrestricted,⁶ the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission.... Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.... Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that ... the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved.... In other words, [u]nder an unrestricted submission, the arbitrators' decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact....

“The long-standing principles governing consensual arbitration are, however, subject to certain exceptions. Although we have traditionally afforded considerable deference to the decisions of arbitrators, we have also conducted a more searching review of arbitral awards in certain circumstances. In Garrity v. McCaskey [223 Conn. 1, 6, 612 A.2d 742 (1992) ], [our Supreme Court] listed three recognized grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52–418(a).... The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbitral conclusions, despite the traditional high level of deference afforded to arbitrators' decisions when made in accordance with their authority pursuant to an unrestricted submission.” (Internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Assn., 134 Conn.App. 559, 565–67, 39 A.3d 1146, cert. denied, 305 Conn. 904, 44 A.3d 180 (2012). As the town's appeal primarily implicates the second exception, it will be the focus of our discussion.

Our Supreme Court has stated that “where a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy.” Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000).

“A two-step analysis ... [is] often employed [in] deciding cases such as this. First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator's award violated the public policy.... We note that [t]he party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.... Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail ... only if it demonstrates that the [arbitrators'] award clearly violates an established public policy mandate.... It bears emphasizing, moreover, that implicit in the stringent and narrow confines of this exception to the rule of deference to arbitrators' determinations, is the notion that the exception must not be interpreted so broadly as to swallow the rule.” (Internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Assn., supra, 134 Conn.App. at 568, 39 A.3d 1146. Our courts “have looked to a variety of sources in determining whether an arbitral award violates a well-defined public policy, and have cited, as examples of possible sources, statutes, administrative decisions and case law.” MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 657, 872 A.2d 423, cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960, 126 S.Ct. 479, 163 L.Ed.2d 363 (2005).

The town claims that there is a...