Opinion
No. CV05-4002600S
March 1, 2006
Before the court is a motion to confirm and a counter-motion to vacate an arbitration award by which the employment of a fifteen-year police veteran was terminated. The principle issue is whether an arbitration panel can rely to the extent this panel did on unsworn witness statements in rendering this decision.
FACTS
On March 7, 2005, plaintiff, Officer Gary Krassner, filed an application to vacate an arbitration award of the department of labor board of mediation and arbitration, which concluded that defendant City of Ansonia had just cause to terminate the employment of plaintiff. The pertinent facts, as found by the arbitration panel, and procedural history are as follows:
Plaintiff served as a police officer for defendant from 1989 until he was terminated in 2003. In January 2002, plaintiff signed a modified last chance agreement with the department in which plaintiff admitted to past abuse of oxycontin, agreed to participate in an employee assistance program and further agreed that any drug use within one year would constitute automatic grounds for dismissal.
During the spring of 2003, after plaintiff completed the "last chance" employee assistance program, an internal affairs investigation was ordered due to allegations that plaintiff was allegedly using drugs, that he was allegedly in debt and that plaintiff was being inattentive to his duties as a canine officer. According to the findings of the arbitration panel, in May 2003, the internal affairs investigation revealed that plaintiff was purchasing oxycontin as often as two times per week. Plaintiff was subsequently placed on administrative leave for two alleged cases of insubordination and for allegedly violating the following sections of the police duty manual: 2.3.2 conduct unbecoming a police officer; 2.3.8 use of drugs; 2.1.16 inattention to duty; 4.3.7 misuse of telephone; 2.3.10 improper associations; 2.3.22 duty time limited to police work; 2.1.6 truthfulness.
The Ansonia board of police commissioners found just cause to terminate plaintiff. Pursuant to the employment agreement between the city of Ansonia and the Connecticut independent police union, local #13, the matter proceeded through arbitration before the department of labor board of mediation and arbitration. The following issues were presented to a three member arbitration panel: "Whether the city of Ansonia board of police commissioners had just cause to terminate the employment of the [plaintiff], Officer Gary Krassner? If not what should the remedy be?" (Arbitration award, p. 1.) The arbitration panel held hearings on June 17, 2004, and October 13, 2004. On February 2, 2005, the arbitration panel issued a decision, with one member dissenting, in which it concluded that plaintiff's dismissal was for just cause and awarded in favor of the termination by the city.
The arbitration panel determined that "it was apparent from the totality of the record that the vast references to the [plaintiff] involved finances, suggesting financial problems. Given his prior admission to be addicted to oxycontin, the panel further found that his association with drug users did not suggest these phone calls and visits were of a social nature. These too were financial in nature. Although the statements were not sworn, they were considered to have merit. To discount this testimony simply because these statements were made by drug users is as credible as [plaintiff's] claim [that] he had no knowledge of any drug use of those who spoke out against him, especially since he arrested one on drug charges. [Plaintiff] offered no credible reasons for these associations, which could not [sic] have been offered before the board of police commissioners as well as before this [arbitration] panel. [Plaintiff's] selective memory at the hearing was given great weight. His lack of veracity was significant in the (arbitration) panel's decision . . . [T]he preponderance of the evidence, when taken en toto, supported [defendant's] claim that they had just cause to terminate [plaintiff]." (Arbitration award, p. 13.)
On March 7, 2005, plaintiff filed an application to vacate the "award." On May 2, 2005, defendant filed a motion to confirm it. Both motions were heard by this court on October 31, 2005. The court ordered additional memoranda, which were received.
DISCUSSION
"Judicial review of arbitral decisions is narrowly confined . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of . . . judicial review of the award is delineated by the scope of the parties' agreement . . . When the scope of the submission is unrestricted, 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, [our courts] 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." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 611 (2006).
"The resulting award can be reviewed, however, to determine if the award conforms to the submission . . . Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision . . . It is clear that a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results." Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., 273 Conn. 86, 93 (2005).
"The significance . . . of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators' decision . . .
However, "[e]ven in the case of an unrestricted submission, [the Supreme Court has] recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute . . . (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of § 52-418." (Internal quotation marks omitted.) Alexson v. Foss, supra, 276 Conn. 611-12.
"[S]ubmissions that require arbitrators to determine whether a party has violated a particular section of a collective bargaining agreement [constitute] unrestricted submissions." Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., 258 Conn. 101, 111 (2001). In the present case, the parties are in agreement that the submissions to the arbitration panel were unrestricted. Additionally, the arbitration panel was charged with determining if plaintiff was terminated with just cause under the employment agreement between the city of Ansonia and the Connecticut independent police union, local #13.
Arguments of the parties
Plaintiff first argues that the arbitration panel was guilty of misconduct pursuant to General Statutes § 52-418(a)(3) for failure to follow the evidentiary rules of procedure for grievance arbitration by admitting and giving weight to unsworn witness statements. Specifically, plaintiff argues that pursuant to Article 20, section H of the collective bargaining agreement, the arbitrators had a duty to follow § 31-91-39(a) of the Regulations of Connecticut State Agencies. Plaintiff also contends that the arbitrators attempted to amend or alter the collective bargaining agreement between plaintiff and defendant since plaintiff was not timely notified of the charges pending against him and he was not terminated according to proper procedure.
General Statutes § 52-418(a)(3) provides in relevant part that "[u]pon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds . . . [that] the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced . . ."
Plaintiff erroneously referred to § 31-31-39(a) of the Regulations of Connecticut State Agencies in his memorandum of support. The court notes that the section referred to is properly cited as § 31-91-39(a) of the Regulations of Connecticut State Agencies. Section 31-91-39(a) provides that "[t]he panel members may receive and consider the evidence of witnesses by affidavit but shall only give it such weight as deemed proper after consideration of any objection made to its admission."
Plaintiff next argues that the arbitration award violates the pubic policy against discrimination based upon an employee's past mental disability, the policy against termination for filing a workers' compensation claim and the policy of encouraging public safety employees to seek help from employee assistance programs.
In his supplemental memorandum of law, plaintiff argues that the right to cross-examine witnesses is a fundamental procedural right, which should be extended to arbitration proceedings to meet the legitimate expectations of the parties. Plaintiff further contends that he objected to the introduction of the hearsay testimony at the start of the arbitration proceeding and again when the specific hearsay statements were introduced.
Plaintiff also argues for the first time, in his supplemental memorandum of law that the arbitrators disregarded both the collective bargaining agreement and the applicable regulations with regard to their evidentiary rulings and, therefore, demonstrated a manifest disregard for the law in violation of § 52-418(a)(4). Section 52-418(a)(4) provides in relevant part that "[u]pon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds . . . [that] the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made."
Although, plaintiff acknowledges that he did not previously cite § 52-418(a)(4) as a basis for vacating the arbitration panel's award, he contends that defendant has had more than ample notice of the underlying basis of the claim.
Practice Book § 10-3(a) provides in relevant part that "[w]hen any claim made in a complaint . . . or other pleading is grounded on a statute, the statute shall be specifically identified by its number." "[T]his rule has been construed as directory rather than mandatory . . . As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Citations omitted.) Spears v. Garcia, 66 Conn.App. 669, 675-76 (2001), aff'd on other grounds, 263 Conn. 22 (2003).
In Spears, the trial court granted defendants' motion for summary judgment on the grounds of governmental immunity because the plaintiffs failed to plead General Statutes § 52-557n in their complaint. Id., 670-71. In reversing the trial court, the Appellate Court determined that the defendants were sufficiently apprised of the plaintiffs' reliance on § 52-557n because the plaintiffs "relied on the statute in their memorandum of law in opposition to the motion for summary judgment and in oral argument before the trial court." Id., 676.
In the present case, defendant specifically limited its memorandum of law in support of its motion to confirm the arbitration award to that which plaintiff plead. (Defendant's memorandum, p. 17.) Additionally, since both parties simultaneously submitted their supplemental memorandum, per court order, defendant was not given an opportunity to respond to plaintiffs' new allegations. The court finds that defendant was not sufficiently apprised of the nature of this specific argument and, thus, under Spears, was not apprised of the action.
Defendant first argues that for an evidentiary ruling to rise to the level of misconduct prohibited by § 52-418(a)(3), there must have been more than a mere error of law, plaintiff must show that he was in fact deprived of a full and fair hearing. Defendant contends that the panel found plaintiff's objection unpersuasive in light of the cumulative evidence. Defendant also argues that plaintiff was timely notified of the charges pending against him since the seven day notice requirements of Article 14, section G of the collective bargaining agreement were not applicable because the statements offered against plaintiff were the result of an internal affairs investigation, not written complaints from the public. Defendant also contends that the panel did not attempt to amend or alter the provision requiring termination for just cause since that was the precise issue submitted.
Defendant next argues that the award does not violate public policy since plaintiff has failed to establish a clearly defined public policy which has any application to these facts. Defendant maintains that the panel did not conclude just cause because of mental disability or for filing a workers' compensation claim or for participating in the employee assistance program, but instead determined that just cause existed for other valid reasons.
Finally, in its supplemental memorandum, defendant notes that the court asked it to find specific decisions utilizing § 31-91-39(a), but it was unable to do so. Instead, defendant argues that plaintiff was provided a full and fair hearing, that there is no evidence that the arbitrators engaged in misconduct by attempting to amend or alter the collective bargaining agreement and that the arbitration award does not violate a clearly established public policy.
Analysis
"[A]rbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the case of an unrestricted submission, which relieve[s] the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision . . . This relaxation of strict evidentiary rules is both necessary and desirable because arbitration is an informal proceeding designed, in part, to avoid the complexities of litigation. Moreover, arbitrators generally are laypersons who bring to these proceedings their technical expertise and professional skills, but who are not expected to have extensive knowledge of substantive law or the subtleties of evidentiary rules." (Citations omitted; internal quotation marks omitted.) OG/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 148-49 (1987).
Thus, "[t]o establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418(a)(3) requires more than a showing that an arbitrator committed an error . . . [The] party challenging an arbitration award . . . must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel." (Citations omitted.) Id., 149.
In the present case, the parties of course dispute whether the panel's decision to rely on hearsay evidence was in violation of § 52-418(a)(3). This court notes that neither party cited § 31-91-37(a) of the Regulations of Connecticut State Agencies, which provides in relevant part that "[t]he [arbitration] panel members shall be the judge of the relevance and materiality of the evidence offered. Conformity to legal rules of evidence shall not be necessary . . ." The parties instead argue over the implications of § 31-91-39, which provides in relevant part that "the panel members may receive and consider the evidence of witnesses by affidavit . . ." (Emphasis added.) Reading these two regulations together and weighing the most likely necessary meaning of § 31-91-39, this court has become persuaded that the arbitration panel may, at a minimum, consider affidavit testimony.
Therefore, notwithstanding the deference given to arbitrators when making evidentiary rulings and the language of § 31-91-37, this court finds a decision to terminate a fifteen-year police veteran on largely hearsay testimony to an unfair basis on which to deprive him of the opportunity to fully confront the witnesses against him. Defendant's argument that the award was based on more than the hearsay testimony is also unconvincing since the panel's description of its decision states that it was based on "the preponderance of the evidence, when taken en toto . . ." The fact that unsworn witness statements, properly objected to by plaintiff's counsel, were heavily used to terminate this fifteen-year police veteran can hardly be said to have provided plaintiff with a full and fair hearing.
Plaintiff also argues that the arbitration panel attempted to amend or alter the collective bargaining agreement and that the arbitration award violated public policy. The court, however, need not address these arguments since it has determined that the arbitration panel's evidentiary rulings contravene § 52-418(a)(3).
For the foregoing reasons, plaintiff's motion to vacate the arbitration award is granted and defendant's motion to confirm the arbitration award is denied. Pursuant to § 52-418(b), the case is remanded to the department of labor board of mediation and arbitration for another hearing before a different arbitration panel.
Section 52-418(b) provides in relevant part that "[n]otwithstanding the time within which the award is required to be rendered, if an award issued pursuant to a grievance taken under a collective bargaining agreement is vacated the court or judge shall direct a rehearing unless either party affirmatively pleads and the court or judge determines that there is no issue in dispute."
So ordered.