By: Jim Cline and Geoff Kiernan
In Town of Stratford (Connecticut), the City attempted to vacate an arbitration decision that had reinstated a police officer who was discharged for lying to an independent neurologist by withholding medical information about his seizures and alcohol abuse. The City argued that the police officer must be fired because there is a public policy against intentional dishonesty in connection with police employment. The Court agreed that while there was a public policy against intentional policy officer dishonesty in connection with employment, the dishonesty at issue here was not so extreme as to make the arbitrator’s award a violation of public policy.
Officer Loschiavo started working as a probationary police officer for the Town of Stratford in 2006. He suffered from latent epilepsy and as a condition to his hiring the town required that he remain seizure free during his probationary period. Loschiavo fulfilled this requirement and was (apparently) seizure free until June of 2009, when he suffered a seizure and struck two parked cars. Loschiavo’s doctor cleared him to return for light duty in August of 2009, at which point he was referred to an independent neurologist to assess his ability to return to work.
The neurologist determined that Loschiavo was capable of returning to work so long as he was subject to certain conditions. Upon reviewing the report the town’s Human Resource Director found some discrepancies between the reports of Loschiavo’s personal doctor and the independent neurologist, notably that Loschiavo failed to disclose to the independent neurologist about two seizures he suffered in 2005 and 2008, he further failed to disclose that he had used, and abused, alcohol. Upon reviewing the file the neurologist determined that the seizures were likely related to alcohol, but that Loschiavo presented no greater risk of seizure now than he did at the time of his hiring.
The town then terminated Loschiavo’s employment on the ground that he violated police department policy when he lied during the examination. The union filed a grievance on behalf Loschiavo and the arbitration panel determined that his termination was excessive. They found that regardless of Loschiavo’s lie, two physicians ultimately determined that he was fit for duty. Furthermore, the town had full knowledge of Loschiavo’s condition when hired they him and raised no issues about his work performance.
The arbitration panel had concluded that Loschiavo should face a 9 month suspension, without back pay and he should be subject to periodic medical exams. The town then challenged this decision, seeking a court order to vacate the award. The trial court denied the City’s request, but it was appealed and the appellate court unanimously voted to vacate the award as a matter of public policy. That decision was then appealed to the Connecticut Supreme Court. The Court reinstated that award, using cases from our law firm, (Kitsap Deputy Sheriff’s Guild), as justification for the decision.
The Court started with explaining what the standard of review was for challenging an arbitration award. They made it clear that generally a court shouldn’t vacate an award unless there was a clear violation of public policy regardless of if they thought the award was correct or not. The Court explained:
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… accordingly, the sole issue before the Court is whether the arbitration award of nine months without back pay…violates public policy.
The Court used a two pronged analysis to determine if the award should be vacated. First, is there well-defined public policy, and then did that award violate the public policy? Under the first prong the Court determined that there was a clear public policy against the employment of police officers who engage in dishonesty that directly pertains to their qualification and ability to perform official duties. The Court then looked at the specific facts to determine if the award reinstating Loschiavo violated this policy. Here the Court found it did not, explaining:
Loschiavo’s conduct, although serious, did not compromise his qualifications or ability to perform his official duties as an officer… [both physicians] were aware of the dishonesty and still cleared him to return to duty….Loschiavo did not lie under oath and his dishonesty was not disruptive or repeated; he was not dishonest before his fellow police officers or while performing his official duties.
So the Court found that this arbitration award was well within the discretion of the arbitrator and Loschiavo’s dishonesty was not too extreme as to make his suspension a violation of public policy. The Court again reiterated that courts must show deference to arbitration awards and should not overturn them lightly.
In previous blogs, “Ninth Circuit Decision May Provide an Additional Tool for Enforcement of Arbitration Decisions” and, “Washington State Supreme Court Rules Once Again that Final and Binding Decisions are In Fact Final and Binding,” we discussed the high deference courts provide to arbitration decisions. In a 2009 decision involving the Kitsap County Deputy Sheriff’s Guild, the Washington State Supreme Court affirmed the high level of deference owed to such awards. Other courts provide a similar high level of deference. We have also discussed some other cases that had accorded less deference to arbitrator rulings (Other cases). The general ruling that is emerging is that the high deference owed to final and binding arbitrator rulings extends to issues concerning officer truthfulness. In other words, while arbitrators may generally find that sustained truthfulness warrants discharge, where they conclude that extenuating factors exist that warrant mitigation, that determination is unlikely to be overturned in court. In short, “final and binding” is supposed to mean “final and binding.”
** Visit our Premium Website for more information on Discipline and Prediscipline.
