Opinion
No. CV 08 4014659 S
June 16, 2009
MEMORANDUM OF DECISION RE APPLICATIONS TO VACATE OR MODIFY AND TO CONFIRM ARBITRATION AWARD (101.00. 102.00)
This matter comes before the court by means of the City of Stamford's (City) application to vacate or modify an arbitration award and an application to confirm the same award by the Stamford Police Association representing Officer Rainone of the Stamford Police Department. The arbitration award, dated July 12, 2008, reinstated Officer Rainone whose employment as a police officer had been terminated on September 24, 2007.
The captions and applications in this case may cause a certain amount of confusion. The initial filing of the City's application to vacate or modify unnecessarily named the American Arbitration Association as a party. The objection to the City's application and the subsequent application to confirm is purportedly made by Officer Rainone and the Stamford Police Association. However, Rainone is not formally a party to this proceeding, and the court deems the Association as the applicant for confirmation.
I. Facts and Prior Proceedings
This case involves the sale of certain pieces of equipment such as Weber barbeque grills, a Stihl backpack blower, an electrical generator and a chain saw at significantly below normal retail prices to Officer Rainone and other Stamford police officers. The sales were made in the spring of 2006 by Gary Mantegna who purchased the equipment at local hardware stores using a credit card entrusted to him by his employer, a boyhood friend, Dan Grogans. Weeks later, as a result of a fraud prevention steps initiated by Grogans and the credit card issuer, Mantegna was arrested for improper use of the credit card. Officer Rainone learned about Mantegna's arrest and Officer Rainone's father arranged for Mantegna's bail. The charges were never pursued. However, Mantegna was subsequently convicted of and incarcerated for a violation of the probation he was serving based on other criminal activities.
Documents in this case also refer to a Dan Groggins. It is evident that the references are to the same individual.
Almost a year later, while in jail in May 2007, Mantegna, a narcotics user and an undercover informant for the Stamford Police for a number of years, told investigators of the Police Internal Affairs Division (IAD) that Officer Rainone has purchased from him two Weber grills and a Stihl blower for prices substantially below the normal retail prices: $200 for a $600 blower; $200 for a three-burner grill and $300 for a four-burner grill. Mantegna stated Officer Rainone knew what the actual retail prices were for the grills because Mantegna showed him receipts. In response to questions from the IAD, Officer Rainone stated he bought a used blower from Mantegna for $400, that his wife paid $600 for a thee-burner Weber grill when Mantegna, a friend of her family for years, told her of a friend who had an employee discount. Rainone said he sold that grill to his father who admired it and Rainone paid $1,100 to Mantegna for another Weber grill.
A police investigation ensued during which Rainone and the other officers delivered to the police the items purchased from Mantegna. In Rainone's case, this involved the two Weber grills and backpack blower. All three of these items were missing the serial numbers. The investigation report was prepared by Police Lieutenant Francis Cronin, dated June 29, 2007, and sent to Chief of Police Brent Larrabee. Record of Arbitration (ROA) Item C (City Exhibits) IAD Investigation Binder, 2007-003, Summary P.O. Rainone. The report recommended a finding that Officer Rainone violated the following Stamford Police Rules and Regulations:
The Record of Arbitration was compiled by counsel for the City. It contains among other things, hearing transcripts, exhibits, correspondence and the arbitrator's award. There has been no objection to the contents of the Record of Arbitration.
1.1 Every member owes a solemn duty to uphold the integrity and honor of the Department and his profession; to encourage respect for the law; to act as a person dedicated to public service; to conduct himself so as to reflect credit and to inspire confidence, respect and trust in the Department, and to strive to avoid not only improper conduct but also the appearance of impropriety.
4.7 (4 Counts) "Conduct unbecoming an officer: Any violation of the Rules and Regulations, published orders, directives, memoranda, or any lawful order, or any act which tends to undermine the good order, efficiency and discipline of the Department, or which reflects discredit upon the Department or any member thereof, shall constitute conduct unbecoming a member. Such conduct shall include, but not be limited to:
4.7b Associations or dealings with persons they know, or should know, are racketeers, sexual offenders, gamblers, suspected felons, persons under investigation, or who have a reputation in the community for present involvement in felonious or criminal behavior, . . .
Id.
The report was based in part on interviews of and statements by Officer Rainone and the other two officers and the interview of and statement by Mantegna. The report made clear that the investigators (Lt. Cronin and two police sergeants) believed Mantegna's story that Officer Rainone had purchased for considerably less than the retail price two barbeque grills and a blower from Mantegna which Mantegna had purchased with his employer's credit card.
"Believing all or some of Mantegna's testimony was the question?
Making the decision you had to take into account a number of factors including:
1. Was Mantegna able to see, hear or know the things about which he testified?
2. How well was Mantegna able to recall and describe those things?
3. What was Mantegna's attitude in testifying?
4. How reasonable was the testimony of Mantegna considering all the evidence in the case?
5. Was there another witness who contradicted Mantegna's testimony?
6. Was there evidence that contradicted Mantegna's testimony?
Carefully considering all these factors it was clear he was telling the truth in that there were no contradictions to his testimony other than the Officers denying certain facts or circumstances.
Mantegna was definitely present and with great detail described the grills, places of the purchases, prices and who else may have been present.
Mantegna was very calm and determined while being interviewed and did not vary as to specifics of items in questioned and conversations that took place.
Mantegna was very specific in his description of the grills by describing make and models and prices as well as the sale prices Rainone paid for the grills.
There were no witnesses or evidence that contradicted his testimony.
It was his word against three Officers and in particular Officer Rainone. He never strayed or varied from the onset of his original version of his statements. He described each and every aspect with such detail and intimate knowledge that only a person deeply involved would be privy to know these subtleties and nuances."
Mantegna's definitive explanations and distinctness in detail of the various incidents in question never deviated even in follow up interviews. Describing, explaining and making perfectly clear the unique details which were unquestionably free of ambiguity made the case that more compelling and convincing.
One must consider all the facts, circumstances and testimony in order to believe or not to believe a person.
Id.
Mantegna's stated rationale for implicating Rainone and the others was that he felt they had broken promises to put money in his prison commissary account and to see that his mother's driveway was plowed.
It is also clear that the investigators did not credit Officer Rainone's statements that his wife bought the goods at what they both thought was an "employee discount." Id.
Based on the investigation, the Stamford Chief of Police recommended termination of Officer Rainone's employment with the Police Department, and this recommendation was approved by the Stamford Police Commission. Pursuant to Paragraph 23 of the collective bargaining agreement between the City and the Police Association, a grievance was filed and the decision whether there was just cause to terminate Officer Rainone was submitted to the American Arbitration Association for a binding decision. The issue submitted was: "whether the City of Stamford had just cause to terminate Joseph Rainone, effective September 24, 2007, and if not, what shall the remedy be." ROA, Item A.
There were several days of testimony beginning in December 2007. Chief Larrabee and Lt. Cronin testified extensively. The arbitrator was advised by the City that Mantegna would exercise his Fifth Amendment right not to testify. Officer Rainone did not testify. The hearing record, including briefs, was closed on June 2, 2008. The arbitrator rendered an award and then an amended award on July 11, 2008. The award stated the grievance was sustained, and Rainone was reinstated to full employment and made whole for all losses. ROA, Item H.
The City's Application to vacate the arbitration award is made pursuant to General Statutes § 52-418(a). That statute authorizes a Superior Court to vacate an award if there are any of the following defects.
(1) if the award has been procured by corruption, fraud or undue means. (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct which prejudiced the rights of any party; or (4) if 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."
It is not entirely clear on which of these provisions the City's application to vacate is premised. The initial application itself refers only to Section 52-418(a)(3) and (4). Application to Vacate, 7-10. Dkt, Entry 101.00. The City's brief in support of the application argues that Section 52-418(a)(2) applies because of the arbitrator's "evident partiality" and makes little or no reference to the other portions of Section 52-418(a). Dkt. Entry 106.10, pp. 19, 26-28. The major thrust of the City's Application and its brief is that the award is against public policy. In the case of an unrestricted submission of a dispute to arbitrations, which is the case here, the Connecticut Supreme Court has recognized two circumstances when a court may vacate an arbitration award in addition to the statutory provisions of Section 52-418(a) set out above. These circumstances are when (1) an award rules on the constitutionality of a statute, and (2) an award violates a clear public policy. See Schoonmaker v. Cummings Lockwood of Connecticut, P.C., 252 Conn. 416, 427-28 (2000); see also Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 80-81 (2005).
CT Page 10200
II. Standard of Review
As a general rule, when the scope of a submission to arbitration is unrestricted, judicial review of an arbitration award which conforms to the submission is limited. State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 84-85 (2001). "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 construction placed upon the facts or 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 question involved. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135 . . . [1977]." Id., 85-86 [quoting Bic Pen Corporation v. Local 134, 183 Conn. 579 (1981)]."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 means of alternative dispute resolution." Id., 85 [quoting Groton v. United Steel Workers of America, 254 Conn. 35, 44 (2000)].
As noted, the Connecticut Supreme Court has also held that while challenges to an arbitrator's authority are limited, an additional challenge exists under Section 52-418(a) when an award is claimed to be in contravention of public policy. See State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 474 (2000) [quoting Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339 (1989)]. In Schoonmaker v. (Cummings Lockwood of Connecticut, P.C., supra, the Connecticut Supreme Court held that where a party challenges an arbitral award on that ground, and that challenge has a "legitimate, colorable basis" de novo, judicial review of the award is appropriate to determine whether the award does violate public policy. 249 Conn. 429.
The City seeks to vacate the award because it violates public policy. Essentially, the City claims that reinstating Officer Rainone who, it is alleged, consorted with a known felon and received stolen goods from that person, disparages the Stamford Police Department and violates the clearly delinated public policy against larceny. Therefore, this court will review the question of whether in fact the award does violate public policy de novo. In this connection, the Connecticut Supreme Court has laid out the following rules:
"The public policy exception applies only when the award is clearly illegal or clearly violative of a s strong public policy . . . A challenge that an award is in contravention of public policy is premised on the fact that the parties 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 . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court's refusal to enforce an arbitrator's interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. The 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 in the present case only if it demonstrates that the [arbitrator's] award clearly violates an established public policy mandate." (Citations omitted; internal quotation marks omitted.)
State v. AFSCME, AFL-CIO, Council 4, Local 2663, supra, 257 Conn. 90-91 [quoting Groton v. United Steel Workers of America, supra]. The Appellate Court has stated it must be "a clearly articulated public policy." Metropolitan District Commission v. AFSCME, Council 4, Local 184, 89 Conn.App. 680, 685, cert. denied, 275 Conn. 912 (2005) (there is clear public policy against theft — General Statutes § 53a-118 et seq., however, arbitration award found employee did not commit theft and termination was not for just cause; therefore, the court properly did not vacate award).
In conducting a de novo review of an award rendered in a consensual arbitration that is attacked on public policy grounds the Connecticut Supreme Court has recently held that trial courts are bound by the arbitrator's factual findings. HH East Parcel v. Handy Harmon, 287 Conn. 189, 204 (2008).
This holding overturned several Appellate Court holdings that a reviewing court should ascertain whether an arbitrator's fact findings were supported by substantial evidence before relying on them. HH East Parcel, supra, 201-04.
CT Page 10202
III. The Award
The eight-page award (ROA, Items G, H) contained a summary of the evidence presented, a review of the arguments by the City to sustain Rainone's termination and by the Police Association to modify or overturn the termination and the findings of fact and conclusions of the arbitrator. The arbitrator's award, in summary, stated:
This is a civil, contractual matter in which the City has opted to declare the grievant in breach of the contract and has exercised its putative right to terminate the employment contract "for just cause" under the terms of the agreement.
Under commonly accepted criteria, the City, as the moving party, assumes the burden of proving the allegations of its "complaint," the stated grounds for termination; or, as stated in the issue, whether the City had "just cause" to terminate.
I am unable to concur with the City's assertion that a negative inference should be drawn from the grievant's failure to testify. To repeat: the burden is the City's.
As set forth above, it is found that the City has not sustained its burden of proof, based primarily on the lack of reliable, credible evidence, particularly the hearsay testimony of Gary Montegna, (sic) the dubious nature of Montegna's "authority" to use Grogans' credit card and the grievant's long time familiarity with Montegna.
The award, apparently inadvertently, refers to Gary Montegna. From the rest of the record it appears that the spelling of the individual's name as Montegna as used in this decision is correct.
The primary bases for the arbitrator's determination was two-fold. First, the arbitrator gave very little, if any, credence to Mantegna's story as set forth to the police investigators. The award stated:
The most glaring inadequacy of this entire proceeding is the fact that the entire process hinged on what I have called the "unsupported word" of Gary Montegna. That is putting it mildly. For all that appears, Montegna's contribution consisted mainly in sitting in his jail cell being interviewed by IA officers. Some question remains whether his long association with Captain Conklin resulted in his being handled with kid gloves.
But, having started this whole proceeding with his accusations, Montegna thereafter became strangely reclusive refusing thereafter to appear before the Police Commission or in this arbitration hearing. According to City Corporation Counsel Jim Minor, Montegna would, if summoned to appear before the Commission, cite his 5th Amendment rights and refuse to testify.
This puts the City in the fragile position of attempting to sustain its burden of proof and persuasion of the allegations of wrongdoing armed with nothing more than the hearsay statements of what would be at best an unreliable witness.
The second basis was the arbitrator's finding that the City had not carried its burden of proving Officer Rainone knowingly accepted stolen goods. The award stated:
But the City has another, equally fundamental problem, whether or not the goods in question were, in fact, "stolen." They were obtained by use of a credit card belonging to Dan Grogans, described as the friend and employer of Montegna. He was obviously not pleased by Montegna's cavalier use of the credit card, judging by the fact that he apparently filed a fraudulent use complaint with the credit card issuer some time after May 31, 2006. However, the process seems to have stopped there. The goods in question were all turned in to the SPD property custodian and, for all that appears, still remain there.
It is, however, uncontested that the original acquisition of the grills and blower was in accordance with an authority extended by Grogans to Montegna.
The record does not show that any judicial disposition was ever made of the charges on which Montegna was briefly jailed on or about May 31, 2006 until he was bailed out by the grievant's father. His subsequent incarceration for thirty months was the result of probation violations related to what the IA report called "several arrests during the summer of 2006 in Stamford, CT."
The status of the Weber grills and blower would appear to be in legal limbo, at least in the contemplation of this case; hardly a sufficient basis on which to terminate a 20 year career.
But even if, purely for the purpose of discussion, it be assumed that Montegna was acting clearly illegally, the question becomes, was the grievant at fault in buying the grills and blower at discount prices.
The record now shows that Montegna was virtually a career criminal who would willingly lie cheat and/or steal to support a lifelong cocaine habit. What it does not show was whether or not the grievant should have been aware of that fact. The grievant and his wife welcomed Montegna to their home and on occasion entrusted the care of their children to him. He was the son of a man who had had a long time business relationship with the grievant's father.
The grievant denied being aware of any current drug problem by Montegna. Whether or not, in retrospect, he showed good judgment in dealing with him it is highly unlikely that either he or, most certainly his wife, would have knowingly had an anything to do with him. Despite the winks and references to buying goods "off the back of a truck," there is insufficient evidence on which to conclude that the grievant should have known that Montegna had no right to sell them to him.
One final note: as one making over $140,000 a year, the grievant hardly needed to buy "hot" property.
IV. Discussion A. The Parties' Contentions.
The City's application to vacate or modify makes several arguments. The primary contention is that the award is in violation of a clear public policy set out in the State larceny statute, specifically General Statutes § 53a-119(8) which states:CT Page 10205
Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains or disposes of stolen property knowing that it has probably been stolen or believing it has probably been stolen . . .
The City argues that the arbitrator exceeded his powers and the award violated public policy when he found that there was insufficient evidence to conclude that Rainone "should have known that Mantegna had no right to sell the stolen goods," and when the arbitrator found the City had not proven just cause "when the evidence was overwhelming" that Rainone had purchased three items at "bargain prices under suspicious circumstances." The City also contends that the arbitrator violated public policy and was guilty of misconduct by requiring the reinstatement of Officer Rainone without any punishment or suspension, thus implying endorsement of his conduct. And the City argues that there was "evident partiality" in favor of the police union in several of the arbitrator's actions.
In response, and in support of its application to confirm the award, the Stamford Police Association contends that the argument that the award violates public policy is not supported by the evidence or the facts found by the Arbitrator and that the City is improperly attempting to reargue its case. The Association also argues that there was no or insufficient evidence of partiality toward the union to vacate the award.
B. Public Policy.
As noted, the Connecticut Supreme Court has held that courts are bound by an arbitrator's factual findings even when reviewing a claim that the award violates public policy. NH East Parcel v. Handy Harmon, supra, 287 Conn. 204. Therefore, there is no need for this court to conduct a review of the arbitrator's factual conclusions to see if they are supported by the record. Id. n. 15 Thus, while another arbitrator or a different fact finder might have given more weight to Mantegna's statements and the City's assertions and concluded that Officer Rainone's possession of the grills and other items delivered by Mantegna, plus his knowledge of Mantegna's arrest for fraudulent use of a credit card, and the missing serial numbers, added up to possession of stolen goods, so as to conclude that Officer Rainone had violated the larceny statute and police policies and rules, that finding and conclusion were not made in this case. In this case, the arbitrator found that the City had not sustained its burden of proof "primarily" because of "the lack of reliable credible evidence, particularly the hearsay testimony of Gary Mantegna" ROA, Item H, 8. Specifically, the arbitrator found that Mantegna's statements to be unsupported and a "glaring inadequacy" which put the City in the "fragile position" of attempting to sustain its burden of proof by the statements of an "unreliable witness." Id., 7. In short, the arbitrator found as a fact that Mantegna's story (presented through his interview with IAD since Montegna refused to testify) not credible. Since even the City witnesses testified the case in support of Officer Rainone's termination rested almost entirely on Mantegna's statements (ROA, Item B, Tr. 577-79, Chief Larrabee; 352-53, Lt. Cronin) the finding of Mantegna's non-credibility is devastating to the City's position. While the IAD officers believed Mantegna, the arbitrator did not.
Chief Larrabee considered the fact that Rainone had the two grills and one blower to be corroboration of Mantegna's story, but Officer Rainone never contested that these items were purchased from Mantegna.
In addition, the arbitrator found other significant weaknesses in the City's presentation. As he pointed out, there was never any judicial disposition of the charges against Mantegna. He was not charged with larceny ( Id., Tr. 463, Lt. Cronin) and the items which Officer Rainone had were never the subject of any criminal charges. ( Id., Tr. 272, 465-68, Lt. Cronin). The Arbitrator also found another "fundamental problem, whether or not the goods in question were, in fact `stolen.'" ROA, Item H, 7. The complaint made by Grogans to the police was found by the arbitrator to have been made some time after May 31, 2006. This was well after Rainone came into possession of the items. It was not clear that Grogan's complaint related to the two grills and blower in Rainone's possession and the Arbitrator found that the original acquisition of the grills and blower by Mantegna "was in accordance with an authority extended by Grogans to Mantegna." Id., 7. In sum, the arbitrator found the status of the Weber grills and blower to be in "legal limbo" and there just was not enough reliable or credible evidence to find in favor of the City. Id., 7, 8.
The Stamford Police IAD did not seek to interview Grogans. ROA, Item B, Tr. 311, Lt. Cronin; Tr. 630-81, Chief Larrabee. In addition, IAD never established whether the Stihl blower bought by Officer Rainone was new or used. Id. Tr. 276-78.
Moreover, even assuming that Mantegna sold stolen goods to Officer Rainone, the arbitrator found "there is insufficient evidence on which to conclude that [Rainone] should have known Mantegna had no right to sell [the grills, blower] to him Id., 8.
In its de novo review the court concludes that, based on the findings of the arbitrator, the decision to reinstate Officer Rainone was not in violation of public policy. The public policy relied on by the City was the policy against larceny as articulated in the General Statutes. The arbitrator found a lack of evidentiary support to conclude that (1) Mantegna committed larceny, (2) the goods in Officer Rainone's possession were the result of larceny, and (3) Officer Rainone had reason to believe that the goods had probably been stolen. On the basis of these findings it was not a violation of public policy to find in favor of Officer Rainone. In addition, the arguments of the City that the award violated public policy by ordering reinstatement and imposing no penalty on Rainone at all, must fail for the reasons stated above. The findings of the arbitrator, that the City failed to prove its allegations against Rainone, lead inevitably to the conclusion that discipline against Rainone is not warranted.
To the extent that the City's arguments that the award violates Section 52-418(a)(3)and (4) (arbitrator misconduct, arbitrator exceeded his powers) are based on the violation of public policy argument the court finds no violation of these statutory provisions.
C. Evident Partiality.
The City has pointed to several instances in support of its argument that the award should be modified or vacated pursuant to General Statutes § 52-418(a)(2) because of the arbitrator's "evident partiality." Specifically, the City cites (1) the arbitrator's statement that the equipment Rainone received from Mantegna was in "legal limbo" when, according to the City, the proof was overwhelming they were stolen goods, (2) the arbitrator believing Rainone's statements to IAD but dismissing the sworn testimony of other police officers, including Chief Larrabee and Lt. Cronin, and the others who found Mantegna credible, (3) the arbitrator's comment which "belittled" Lt. Cronin, (4) the arbitrator's comment to the effect that Officer Rainone making over $140,000 per year did not have to buy "hot" property, and (5) criticizing the use of Mantegna's out of court statements but accepting Rainone's statements when neither individual testified at the hearing. City Memo (Dkt. Entry 106.10), 2, 16, 17-19, 27.
The burden of proving bias or evident partiality under General Statutes § 52-418(a)(2) rests on the party making such a claim. The Connecticut Supreme Court has quoted with approval the following:
evident partiality will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration. To put it in the vernacular, evident partiality exists where it reasonably looks as though a given arbitrator would tend to favor one of the parties.
Alexon v. Foss, 276 Conn. 599, 617 (2006) [quoting Vincent Builders, Inc. v. American Application Systems, Inc., 16 Conn.App. 486, 495 (1988), cert. denied, 210 Conn. 809 (1989).]. The Alexson court also pointed out that adverse rulings, without more, do not amount to evidence of bias. Alexson, supra, 276 Conn. 618 [citing Burton v. Mottolese, CT Page 10208 267 Conn. 1 (2003), cert. denied, 541 U.S. 1073 (2004).]
For the most part, and particularly with respect to the first two contentions of the City noted above, this court finds the examples of bias or partiality proffered by the City to be no more than disagreement, sometimes vehement, with the arbitrator's findings on the evidence presented and on issues of credibility. This is not sufficient to warrant vacating the award. The reference to Lt. Cronin in the Award appears in the arbitrator's discussion of the union's position and reads in full: "The union then addresses what it calls Lt. Cronin's statement that `wives will lie to protect their husbands' calling it `sexist, insulting and condescending.'" ROA, Ex. H. 6. It is obvious that this is no more than the arbitrator's summary of the Police Association's contentions and not his own conclusions. Indeed, the quotes used by the arbitrator in describing the Police Association's arguments are either a fair summary of Lt. Cronin's testimony as to why he chose not to interview Officer Rainone's wife and the actual language appearing in the Association's post-hearing brief ROA, Item B, Tr. 280-84 ROA, Item B, 65 (apparently based in part on Mrs. Rainone's characterization. ROA, Item E, Tr. 933.).
The court also does not find the arbitrator's reference to Officer Rainone's income level and the inference apparently drawn as to lack of motivation to deal in stolen goods to be significant evidence as to partiality to the union. The statement is not very well considered or persuasive. However, it is not gratuitous because the Association put Officer Rainone's income into evidence and the City commented upon the subject in its post-hearing brief.
Similarly, as noted by the arbitrator, both sides argued at length about the weight to be accorded to evidence from Mantegna and Officer Rainone. See ROA, Item H, 4-6. By stating his opinion of Mantegna's credibility, and not applying a negative inference from Rainone's failure to testify the arbitrator was not exhibiting bias or partiality, but responding to the parties' disparate arguments and setting forth his decision.
Based on the reasons set forth above and a reading of substantial portions of the arbitration hearing transcript, the court finds the City's contentions of improper bias and partiality to be unfounded.
V. Conclusion
For the reasons stated above the application to vacate or modify the award is denied, and the application to confirm the award is granted.