Town of Stratford v. Am. Fed'n of State, Cnty. & Mun. Emps.

• Decision Date: 23 December 2014
• Docket Number: No. 19130.,19130.
• Citation: 315 Conn. 49,105 A.3d 148
• Court: Connecticut Supreme Court
• Parties: TOWN OF STRATFORD v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 15, LOCAL 407.

315 Conn. 49

105 A.3d 148

TOWN OF STRATFORD

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

No. 19130.

Supreme Court of Connecticut.

Argued March 25, 2014.

Decided Dec. 23, 2014.

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

Christopher J. Smedick, with whom, on the brief, was James Cresswell, for the appellee (plaintiff).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH and ESPINOSA, Js.

Opinion

ROGERS, C.J.

The dispositive issue in this certified appeal is whether an arbitration award reinstating a police officer, as opposed to the mandated dismissal of the officer, violated a clearly discernible public policy against intentional dishonesty by police officers in connection with their employment. The plaintiff, the town of Stratford, filed an application to vacate an award from an arbitration proceeding initiated by the defendant, American Federation of State, County and Municipal Employees, Council 15, Local 407, that reinstated the grievant, Justin Loschiavo, to his employment as a police officer with the Stratford Police Department after he was terminated for lying in connection with his employment. The trial court rendered judgment denying the plaintiff's application and, on appeal, the Appellate Court reversed that judgment and concluded that the arbitration award violated a clear public policy against intentional dishonesty by police officers in connection with their employment. Stratford v. AFSCME, Council 15, Local 407, 140 Conn.App. 587, 597, 60 A.3d 288 (2013). This court granted the defendant's petition for certification to appeal on the following issue: “Did the Appellate Court properly determine that the arbitration award in this matter reinstating [Loschiavo] violated a clearly discernible public policy against intentional dishonesty by police officers in connection with their employment which mandated dismissal of [Loschiavo]?” Stratford v. AFSCME, Council 15, Local 407, 308 Conn. 922, 923, 94 A.3d 639 (2013). We conclude that while there is a public policy against intentional dishonesty by police officers in connection with their employment, the arbitration award in the present case did not violate public policy. Accordingly, we reverse the judgment of the Appellate Court.

The arbitration decision sets forth the following undisputed facts relevant to our resolution of this appeal. Loschiavo started working as a probationary police officer for the plaintiff in 2006. He suffers from latent epilepsy, and the plaintiff required that as a condition to his hiring, Loschiavo must remain seizure free throughout his probationary period. He satisfied this requirement and was apparently seizure free until June 6, 2009, when he suffered a seizure while operating a police car and consequently struck two parked cars. Loschiavo's physician, Philip Micalizzi, cleared him to return to light duty in August, 2009, at which point the plaintiff referred Loschiavo to a neurologist, Samuel L. Bridgers, for an independent medical examination to determine “what conditions might allow [Loschiavo] to return to employment while eliminating or minimizing any potential risks with potentially fatal consequences.” Although Bridgers determined that Loschiavo was capable to return to work full-time, he restricted this clearance to require Loschiavo to call out sick whenever he felt symptoms of an oncoming seizure.

Upon reviewing Bridgers' report, the plaintiff's human resources director found two discrepancies between that report and the medical report from Micalizzi, Loschiavo's physician. Specifically, Loschiavo failed to inform Bridgers about two seizures he suffered in 2005 and 2008; he further failed to disclose that he had been using or abusing alcohol. Bridgers thereafter reviewed Loschiavo's full medical record and determined that the seizures had been related to alcohol use. He reported that he was unsure whether Loschiavo “ ‘can be trusted to avoid activities that might increase his susceptibility to having seizures, particularly alcohol use.’ ” Bridgers determined, however, that Loschiavo presented no greater risk after these seizures than he did at the time of his initial hiring, and again cleared him to return to duty.

In light of Bridgers' second report, the plaintiff charged Loschiavo with violating police department policy by lying during the independent medical examination. On March 30, 2010, the plaintiff held a hearing at which Loschiavo was represented by the defendant and counsel. Following the hearing, the plaintiff terminated Loschiavo's employment on the ground that he violated police department policy by lying during the independent medical examination. Following Loschiavo's termination, the defendant filed a grievance on his behalf alleging that his termination was without just cause and in violation of the parties' collective bargaining agreement.

A three member arbitration panel conducted a hearing and thereafter determined that Loschiavo's termination was “excessive” for two reasons. First, Micalizzi and Bridgers both returned Loschiavo to his full duties without restrictions and, second, the plaintiff knew of Loschiavo's condition when he was hired and did not raise any issue of Loschiavo's work performance. The arbitration panel concluded that “[a] police officer's lying about his physical and mental condition to doctors that could return ... [him] to work is [a very serious violation, but] understandable because [he] wants [his] job back.” On December 8, 2010, the panel ordered that the plaintiff reinstate Loschiavo “without [back pay] but no loss [of] seniority.” The panel also “recognize[d] that the [plaintiff] 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.” Thus, Loschiavo's total reprimand for the violation was a suspension of nine months without back pay, from his March, 2010 termination to the December, 2010 reinstatement, and his possible subjection to future medical examinations.

The plaintiff filed an application to vacate the arbitration award on the ground that the award encouraged police officer dishonesty and thereby violated Connecticut's clear public policy against lying by law enforcement personnel. The trial court rejected the plaintiff's argument based on the court's limited standard of review over arbitration decisions and the lack of clear authority requiring a police officer to be terminated for this type of misconduct.

The plaintiff appealed from the judgment of the trial court to the Appellate Court. The Appellate Court concluded that the arbitration award violated a well-defined public policy against the intentional dishonesty of a police officer in the course of his or her duties and, accordingly, reversed the trial court's judgment and remanded the case to that court with direction to grant the plaintiff's application to vacate the award. Stratford v. AFSCME, Council 15, Local 407, supra, 140 Conn.App. at 596–97, 60 A.3d 288. This certified appeal followed.

On appeal, the defendant argues that there is no dominant, well-defined public policy against police officer dishonesty during an independent medical exam. The defendant claims that termination is required only when the specific type of a police officer's misconduct or dishonesty is prohibited by statute, and that mandating termination for all degrees of dishonesty would be unnecessary, costly, and a threat to public safety. Given the absence of an articulated public policy prohibiting this type of police officer dishonesty, the defendant argues that the arbitration panel's decision should be upheld.

In response, the plaintiff argues that case law establishes a clear, well-defined, and dominant public policy against police officer dishonesty in connection with official duties. The plaintiff concedes that not every lie told by a police officer that related to his job would require termination. Rather, it argues that “a police officer who intentionally lies regarding the status [of] his condition to return to work, despite the risk that his condition could pose to the public, violates ... public policy, and that an arbitral award mandating the reinstatement of a police officer who has lied in such a fashion violates the concomitant policy that an employer should not be required to retain that police officer.”¹

We conclude that there is a public policy against intentional police officer dishonesty in connection with official duties because integrity and trustworthiness are integral to performing these duties. We also conclude, however, that under the facts in the present case, the arbitration panel's decision to punish Loschiavo with a nine month suspension without back pay and with the possibility of being subjected to future medical examinations did not violate this public policy.

We begin our analysis with the applicable standard of review. “[W]e favor arbitration as a means of settling private disputes, [thus] we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 391, 309 Conn. 519, 526, 69 A.3d 927 (2013). We will, however, submit to higher scrutiny an arbitration award that “is claimed to be in contravention of public policy.” (Internal quotation marks omitted.) Id.; see General Statutes § 52–418(a) (“any judge ... shall make an order vacating the award if it finds ... [4] ... the arbitrators have exceeded their powers”). “[P]arties cannot expect an arbitration award approving conduct which is ... contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.... When a challenge to the arbitrator's authority is made on public policy grounds, however, the court is not concerned with the correctness of...