Opinion
No. CV 09-4042280-S
May 25, 2011
MEMORANDUM OF DECISION
Plaintiff, City of Hartford moves to modify or vacate an arbitration award of the Connecticut State Board of Mediation and Arbitration on public policy grounds. Defendant, Hartford Police Union, acting on behalf of grievant Matthew Secore, countermoves to confirm the award. The facts are as follows.
Hartford police officer Secore learned that his brother had been severely beaten by a group of people and was in Hartford Hospital. He found his brother on a gurney in the hospital hallway with a neck brace and covered with blood all over his face. He learned that one of the people who had allegedly attacked his brother was still at the Hartford Police Station. Secore, out of uniform and off duty, went to the station where he gained access to the holding cell. Here he confronted the only individual in the cell, named Mr. Perez. Words were exchanged. Secore grabbed Perez, slammed him against a wall in the cell and punched him once with his fist. Another officer put his arm on Secore, and Secore backed off.
Perez filed a citizen's complaint against Secore, resulting in his being arrested for the assault. Subsequently he was allowed accelerated rehabilitation on that charge. The incident was investigated by a police panel which found that the behavior of Secore violated the police Code of Ethics and recommended to the Chief of Police that Secore be terminated for conduct unbecoming a Hartford police officer. He was terminated. The union, on behalf of Secore, grieved the discipline and the matter came to the Board of Mediation for arbitration.
The submission was: "(1) Whether the Chief of Police for the City of Hartford had just cause to terminate the employment of Officer Matthew Secore? (2) If not, what should the remedy be?"
The award, after reciting at great length the claims of the city and the union, in its discussion stated: "The treatment of a person by an off duty officer was, without question unacceptable. On this point there is no disagreement." The award went on to state: "The City was well within its rights to discipline the aggrievement. It had just cause to do so." Nonetheless, the Panel found that termination was too severe a penalty. Rather a long term suspension would have the same impact upon the grievant and the Department with regard to unacceptable behavior of an Officer when dealing with a person in custody.
Therefore, the award states, "The Panel is issuing a long term suspension in lieu of termination as well as ordering the grievant to enroll in an anger management course. The purpose of discipline is to correct, as well as to punish, an inappropriate job performance. The long term suspension, coupled with anger management, hopefully will allow this Officer to return to duty and be a credit to himself, the Department and the City."
The award was: "The Chief of Police for the City of Hartford did not have just cause to terminate the employment of Officer Matthew Secore. The termination shall be replaced by a ninety (90) day suspension. The grievant is further required to attend and successfully complete an appropriate anger management course. He is to be made whole for any lost regular wages and benefits beyond the ninety (90) days suspension until he is reinstated."
The City maintains that the arbitration award in this case must be vacated "because Secore's reinstatement as a police officer violates clear public policy and is contrary to law."
When an arbitration award is challenged, a court always begins by stating the principle that arbitration is favored as a means of settling private disputes. As stated in State v. New England Health Care Employee's Union, 271 Conn. 127, 134 (2004)" ° `. . . we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternate dispute resolution . . . Furthermore, in applying this general rule of deference to an arbitrator's award, [e]very reasonable presumption and intent will be made in favor of the [arbitral] award and of the arbitrator's acts and proceedings.'" (Citations omitted.)
When an arbitration award is challenged on the basis of violation of clear public policy, the court goes on to say: "A challenge that an award is in contravention of public policy is premised on the fact that the party 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 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 the arbitrator's decision but with the lawfulness of enforcing the award."
The public policy must be ascertained by reference to laws and legal precedents and not from general consideration of supposed public interest. Id.
In resolving public policy challenges, the Supreme Court requires a two-step analysis. As stated in State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 476 (2000), "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."
This court has no difficulty identifying the explicit, well defined and dominate public policy involved in this case. Secore at the very least assaulted Perez in violation of Conn. Gen. Stat. § 53a-61. Because Secore was a police officer and Perez was in custody, Secore also violated Perez's constitutional rights. § 42 U.S.C. 1983.
The next question is whether the arbitrator's award itself violated public policy. The arbitration panel recognized that Secore's treatment was unacceptable. It further recognized the City had a right to discipline Secore and had just cause to do so. But the Panel found that termination was too severe a penalty. The Panel further found that the City was not consistent with similar discipline issued by the City to other officers which allegedly violated the Code of Conduct in their physical treatment of suspects/prisoners. The Board could also have found from the evidence that the penalty was too severe because Secore acted in a flash of anger, threw a single punch and that when restrained by another officer, he backed away and later was truly remorseful of the single act. The Panel then, having found that the police chief did not have just cause to terminate Secore, in response to the second part of the submission, found the remedy should be a three months suspension without pay and Secore taking an anger management class.
The question then is whether such an award violates public policy.
In Board of Police Commissioners v. Stanley, 92 Conn.App. 723, 741 (2005), the Appellate Court states, "When a municipal employee violates public policies enumerated in state statutes and employment regulations, a reviewing court cannot enforce an arbitral award reinstating him to employment as police officer." However, in a footnote, the court said, "We do not hold that the violation of a criminal statute is a per se public violation sufficient to justify vacating an arbitrator's decision. Instead, we conclude that this case poses a narrow, blatant example of the board's proper exercise of its power to dismiss."
In State v. New England Healthcare Employees Union, 271 Conn. 127, 138 (2004), the Supreme Court specifically rejected the notion that because an employee violates public policy by abusing a patient in a mental hospital that "the conduct is grounds for termination, per se." The court stated: "We agree with the union that such a rule is not required to advance the public policy of protecting clients from mistreatment. Rather, an arbitrator reasoning may consider circumstances such as the length of employment, previous instances of harmful conduct by the employee, and the circumstances and severity of the misconduct under review in determining the likelihood of future misconduct and whether discipline less severe than termination would constitute a sufficient punishment and deterrent."
In this case, the Panel, taking into account all the circumstances of the incident at the jail, determined that rather than terminating Secore, a three months suspension without pay and requiring him to take an anger management course was a more appropriate punishment. This court concludes that such an award does not violate public policy.
Based on the foregoing, defendant's motion to modify or vacate the Board's award is denied and plaintiff's motion to confirm the award is granted.