Lead Opinion
Opinion
The defendant, The Kasper Group, Inc., appeals from the judgment of the trial court granting the application of the plaintiff, the city of Bridgeport, to vacate an arbitration award under General Statutes § 52-418 (a) (3),
The record reveals the following facts and procedural history. In 1998, the Bridgeport city council, desiring to construct a new elementary school, adopted a resolution establishing a school building committee (committee) to develop plans and specifications for the construction of the new West Side School and to apply for state grants to defray the construction costs. The committee invited professional design firms, including the defendant, to present proposals for the design of the new school. About one month after the defendant had presented its proposal, the committee notified the defendant that it had been selected as the design firm for the West Side School. The plaintiff attached to the notification a draft contract. Over the next few months, the parties negotiated the terms of the contract. On February 24, 2000, the defendant signed the contract, but a representative of the plaintiff never subsequently signed the contract.
On December 19,2000, the committee, acting through its construction manager, notified the defendant that the scope of the project had changed because the number of grades that the new school would serve was increased from kindergarten through sixth grade to kindergarten through eighth grade. Due to the magnitude of the change, the committee decided to repeat the proposal and selection process for a design firm. In response to the committee’s decision, the defendant instituted an action seeking to enjoin the plaintiff from taking any further action to terminate the
In accordance with the submission, the dispute was submitted to arbitration. The arbitration proceedings began in June, 2001, and consisted of twelve days of hearings spanning nearly nineteen months. During the arbitration, the plaintiff claimed that, if a contract existed, it was void ab initio because it had been procured by illegal means. The undisputed fact underpinning this defense was that, just prior to the start of the arbitration proceedings, Paul Pinto, who owned 99 percent of the shares of the defendant when it was awarded the West Side School project, had entered into a plea agrеement with the United States Attorney for the District of Connecticut, admitting, in part, to having engaged in a bribery and kickback scheme with an elected official, then Bridgeport mayor Joseph Ganim, to obtain Bridgeport municipal contracts. In support of its defense that the contract was void ab initio, the defendant submitted into evidence copies of the information charging Pinto and his plea agreement, along with a copy of Ganim’s criminal indictment. The plaintiff sought to compel Pinto to testify during the arbitration proceedings, but his attorney represented to both parties that Pinto would refuse to testify in accordance with his right to avoid self-incrimination under the fifth amendment to the United States constitution. In the absence of Pinto’s testimony, the parties and the arbitrator agreed that the plaintiff would submit an offer of proof suggesting adverse inferences that the arbitrator could draw from Pinto’s refusal to testify. On January 31, 2003, pursuant to that agreement, the plaintiff submitted its offer of proof, and on February 7, 2003, the defendant submitted a memorandum of law in opposition to that offer of proof.
Ganim’s criminal trial started after the arbitration proceedings at issue in the present case had begun. On February 11, 2003, approximately two weeks after thе last day of hearings in the arbitration, the plaintiff filed with the arbitrator a motion to stay the posthearing briefing schedule until the conclusion of testimony in the Ganim trial. Specifically, the plaintiff sought to supplement the record before the arbitrator with the testimony from Ganim’s trial of certain of the defendant’s employees, most notably Pinto, who already had testified at length regarding many of his illegal activities. The arbitrator denied this motion.
By agreement, both parties submitted their posthearing briefs on March 10, 2003. At the same time, the plaintiff also filed a motion to submit additional evidence in the form of transcripts containing excerpts of Pinto’s testimony in the Ganim criminal trial. The transcripts, submitted with the motion, contained excerpts of Pinto’s testimony on February 6, 7, 10 and 19, 2003. On March 19, 2003, the defendant filed an objection to the plaintiffs motion, and, on
On May 14, 2003, the arbitrator rendered an award in favor of the defendant and ordered the plaintiff to pay the defendant $155,507.36.
On appeal, the defendant claims that the trial court improperly determined that the arbitrator’s denial of the plaintiffs motions had constituted misconduct under § 52-418 (a) (3). Specifically, the defendant contends that it was not misconduct for the arbitrator to refuse to consider Pinto’s testimony because it was irrelevant and, even if it were relevant, the testimony was cumulative of what had been proffered in the plaintiffs offer of proof. The defendant further contends that the arbitrator’s refusal to consider Pinto’s testimony was appropriate because its minimal probative value was outweighed by other considerations. Finally, the defendant contends that the exclusion of Pinto’s testimony did not deprive the plaintiff of a full and fair opportunity to develop its defense that the contract was void because it was procured illegally.
In response, the plaintiff claims that Pinto’s testimony was relevant to its defense that the contract had been procured illegally. The plaintiff also claims that Pinto’s testimony was relevant to rebut the defendant’s argument that a prior course of dealing, namely, a long history between the parties of legally obtained contracts, had been established. In particular, the plaintiff contends that one of the prior contracts between the parties on which the defendant relies to establish the prior course of dealing was identified in Pinto’s testimony as having been procured illegally. The plaintiff further claims that the
Finally, the plaintiff asserts two alternate grounds on which the trial court’s judgment should be affirmed. First, the plaintiff contends that enforcing the arbitrator’s award would violate the public policy against binding a municipality on the basis of the unauthorized acts of its agents. Second, the plaintiff contends that the award also violates the public policy against the enforcement of illegal contracts.
We begin with a restatement of the principles that guide our review of a trial court’s judgment vacating an arbitration award. “This court has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. . . . Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator’s powers, the parties are generally bound by the resulting award. . . . Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings. . . . The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it . . . .” (Citations omitted; internal quotation marks omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3,
“[Arbitrators are accorded substantial discretion in determining the admissibility of evidence, particularly in the
Atrial court’s decision to vacate an arbitrator’s award under § 52-418 involves questions of law and, thus, we review them de novo. State v. AFSCME, Council 4, Local 1565,
Federal case law considering whether an arbitrator’s evidentiary ruling deprived a party of a fair hearing is consistent with requiring the moving party to demonstrate substantial prejudice to vacate an award on this ground. One federal court analogized to the standard of review accorded trial courts’ evidentiary rulings and declined to vacate an arbitrator’s award because “it cannot be said as a matter of law that [the excluded evidence] was decisive or that its exclusion was seriously harmful in the light of the other evidence in the case.” Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co.,
For example, in Hoteles Condado Beach v. Union De Tronquistas Local 901, supra,
Requiring the moving party to establish substantial prejudice by demonstrating that the deсision excluded evidence that was decisive or likely to have altered the outcome of a claim is consistent with the principles underlying arbitration. “A party’s choice to accept arbitration entails a trade-off. A party can gain a quicker, less structured way of resolving disputes; and it may also gain the benefit of submitting its quarrels to a specialized arbiter .... Parties lose something, too: the right to seek redress from the courts for all but the most exceptional errors at arbitration.” (Citation omitted.) Dean v. Sullivan,
We begin our analysis of whether, in the present case, the arbitrator’s exclusion of the transcript of Pinto’s testimony constituted misconduct, with a review of the evidence that was admitted into evidence in support of the plaintiffs defense that the West Side School contract had been procured illegally. First, the plaintiff submitted into evidence copies of the information charging Pinto along with his written plea agreement, in which he admitted that he had engaged in the conduct alleged in the information. The information charged Pinto with participating in a racketeering conspiracy involving the payment of kickbacks and bribes to an elected official to enrich himself and to obtain preferential treatment оf his business interests. Specifically, the information alleged that Pinto had paid bribes and kickbacks to obtain municipal contracts relating to a waste-water treatment facility, a sports complex located in Bridgeport, and asbestos removal from municipal properties. In addition, Ganim’s criminal indictment was admitted into evidence. In relevant part, the indictment alleged that Ganim, in exchange for money and gifts, had directed that contracts be awarded to the defendant for the construction of an arena and a baseball stadium in Bridgeport. The final piece of evidence before the arbitrator on this issue was Pinto’s refusal to testify during the arbitration. As we have noted previously, pursuant to the agreement of the parties and the arbitrator, the plaintiff submitted an offer of proof suggesting specific adverse inferences that could be drawn from Pinto’s refusal to testify, including the inference that Pinto’s illegal activities in procuring municipal contracts had extended to the West Side School contract.
Thus, although the evidence produced during the arbitration proceedings did not directly identify the West Side School contract as being procured illegally, the evidence clearly was sufficient to prоve that the defendant had received a number of municipal contracts as part of an illegal conspiracy. In addition, the arbitrator could have inferred from Pinto’s invocation of his fifth amendment right not to testify in the arbitration that any such testimony would have been incriminating generally as well as with regard to the subject matter of the arbitration — the West Side School contract.
We now review Pinto’s testimony at the Ganim trial, which the arbitrator refused to admit into evidence. In the most relevant parts, Pinto testified that, although he had had no experience or training as an architect, surveyor or engineer, he joined the defendant’s firm, whose largest paying client at the time was the plaintiff. Pinto’s main responsibility with the defendant was “just to interact with [Ganim], continue to get whatever сity jobs the [defendant] was going after, and make sure that work continued to flow and do whatever is necessary to take care of [Ganim] in various ways.” He explained that “tak[ing] care” of Ganim meant “to spend money on, wine, dine, take out to dinner, buy merchandise, clothing, whatever needs he had, I was to take care of him.” In return for taking care of Ganim, Pinto testified that he obtained the major municipal contracts for “the minor league baseball stadium, the indoor hockey arena . . . and some school jobs.” (Emphasis added.) Pinto’s “job was to do whatever [he] had to do to take care of [Ganim] in order to continue the flow of work to the [the defendant].” In addition to “takfing] care” of Ganim, Pinto also testified that he had raised more than $100,000 for Ganim through a political action committee. In return for raising this money, Pinto testified that he got “any job contract or outcome that I needed to get and I was successful in all of them.” Finally, Pinto testified that, during the time period in which he was “takfing] care” of the mayor, “there was not a contract that we wanted or actively sought that we did not get.”
On the basis of a comparison of Pinto’s trial testimony with the evidence admitted at the arbitration, we conclude that Pinto’s trial testimony was both relevant and not cumulative оn the issue of whether the West Side School contract had been procured illegally. Evidence is relevant if it has “any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. In the present case, Pinto’s testimony, while not direct evidence that the West Side School contract was procured illegally, made it more likely that the arbitrator would have found that the contract had been procured illegally than without the testimony. Significantly, Pinto testified that, in return for bribes, the defendant had obtained “some school jobs” and any contract that Pinto actively sought or needed to acquire.
Evidence is not necessarily cumulative if it overlaps with evidence previously received and it obviously is not cumulative if it presents new information. See State v. Parris,
We next must determine whether the plaintiff substantially was prejudiced by the arbitrator’s failure to consider Pinto’s testimony. We conclude, upon a thorough review of the proffered transcript excerpts of Pinto’s testimony, that the plaintiff was substantially prejudiced by the arbitrator’s refusal to consider the testimony because it was highly probative and very likely would have altered the outcome of the arbitration had it been introduced. See Hoteles Condado Beach v. Union De Tronquistas Local 901, supra,
Although Pinto’s refusal to testify in the arbitration coupled with the documentary evidence, including Pinto’s information and plea agreement and Ganim’s indictment, could have provided a basis for drawing an inference that the West Side School contract was awarded as part of a kickback and bribery scheme between Pinto and Ganim, the arbitrator also reasonably could have rejected such an inference because only certain specific contracts that had been procured illegally were identified in those documents, none of which were related to school contracts. Conversely, Pinto’s testimony would have made the conclusion that he illegally had procured the West Side School contract very likely. At the very least, his testimony very “[likely] would [have] affectfed] the result” of the arbitration had it been introduced. (Internal quotation marks omitted.) Daley v. McClintock, supra,
We recognize that, if the arbitrator had admitted Pinto’s testimony, the arbitrator would have been required to allow the defendant additional time to examine and respond to this new evidence,
The judgment is affirmed.
In this opinion SULLIVAN, C. J., and BORDEN and PALMER, Js., concurred.
Notes
General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award ... (3) if 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 . . . .”
Thе arbitrator broke down the award as follows: $60,535.72 in contract damages; $53,512.79 in employee carrying costs; $37,500 in attorney’s fees; and $3958.85 in collection costs.
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
The defendant also claims that the trial court improperly vacated the award because the arbitrator properly could have resolved the dispute in its favor without referring to Pinto’s testimony based on its counts of either breach of an implied in fact contract or unjust enrichment. It is well established, however, that “an express contract between the parties precludes recognition of an implied-in-law contract governing the same subject matter”; (internal quotation marks omitted) Meaney v. Connecticut Hospital Assn.,
We note that the plaintiff contends that the arbitrator’s denials of its motion tо stay the proceedings and its motion to admit additional evidence were each separate acts of misconduct requiring the vacation of the award. The plaintiff does not contend, however, that it was prejudiced in any way by the arbitrator’s denial of its motion to stay other than by the arbitrator’s refusal to consider Pinto’s testimony. We, therefore, need not address separately the claim that the arbitrator’s denial of the plaintiffs motion to stay was misconduct because the purpose of the stay was to provide the plaintiff with time to obtain Pinto’s testimony from the Ganim trial for inclusion in the arbitration record, but in fact, the plaintiff was able to do so prior to the close of the hearings.
In response to these claims, the defendant asserts that, even if we conclude that the arbitrator committed misconduct or that the award violated public policy, the trial court nevertheless improperly vacated the arbitrator’s award with respect to attorney’s fees, arbitration fees, and costs of collection. We disagree, in the absence of anything in the trial court’s decision that would suggest that these fees and costs were anything other than damages flowing from the contract award, which we conclude properly was vacated. With respect to the plaintiffs public policy claims, because we conclude that the trial court properly granted the plaintiffs application to vacate the arbitration award, we need not address the alternate grounds for affirmance.
Under 9 U.S.C. § 10 (a) (3), a District Court “may make an order vacating the award upon the application of any party to the arbitration . . . [wjhere the arbitrators were 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 misbehavior by which the rights of any party have been prejudiced.” This court previously has recognized that federal case law applying this statute is instructive because of the substantial similarity between the language of this statute and § 52-418 (a) (3). O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra,
In February 1999, prior to the award of the West Side School contract, Pinto became a 99 percent shareholder of the defendant. In September, 1999, the plaintiff invited the defendant to make a presentation regarding the school and, in October, 1999, selected the defendant as the design firm for the West Side School project. In 2001, Pinto sold his interest in the defendant, but remained an employee.
As we have noted previously herein, the plaintiff argues, alternatively, that Pinto’s testimony was relevant to counter the defendant’s argument that a prior course of dealing, namely, a history of legally obtained contracts, had been established between the parties. Specifically, the plaintiff observes that the defendant relies on its prior contract to build an arena in Bridgeport as establishing part of that prior course of dealing, but that Pinto’s testimony identified that arena contract as having been awarded in exchange for bribes. Pinto’s testimony, however, was not the only evidence that the arena contract had been procured through illegal means. In his plea agreement that the arbitrator did consider, Pinto admitted to having engaged in the conduct alleged in the information, which included the payment of bribes and kickbacks specifically in connection with the award of'the arena contract. Accordingly, Pinto’s testimony regarding the illegal means by which the arena contract had been procured was cumulative of previously received evidence. We, therefore, conclude that the arbitrator did not deprive the plaintiff of a fair hearing by refusing to сonsider the testimony on that issue.
Patrick M. Rose, the defendant’s senior vice president, testified during the arbitration hearing that, in addition to the West Side School, the defendant had worked on both the Marin School and the Madison School in Bridgeport as well as a regional vocational agricultural school.
The adverse inference that the arbitrator permissibly could have drawn from Pinto’s refusal to testify in this case does not undermine our conclusion and, indeed, adds very little to the picture when compared with his trial testimony. Because Pinto had not yet either been sentenced pursuant to his guilty plea or testified in Ganim’s trial, he had every incentive not to testify in this case and thereby potentially risk jeopardizing his plea deal. Nor does the absence of any evidence of Ganim’s involvement in the selection of the defendant for the West Side School project eliminate the likelihood that Pinto’s testimony would have altered the outcome, or undermine our determination that the exclusion of Pinto’s testimony was “seriously harmful in the light of the other evidence in the case.” Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., supra,
Arbitration is a creature of contract and in that contract the parties can agree to the rules under which an arbitrator will decide the dispute. See Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998,
We question, however, in light of Pinto’s refusal to testily in the first instance, the extent, if at all, to which he would have responded to that evidence.
Dissenting Opinion
dissenting. I agree with the majority that the testimony of Paul Pinto was both relevant and not cumulative. I disagree, however, with the majority’s conclusion that the arbitrator’s exclusion of Pinto’s testimony substantially prejudiced the defendant, The Kasper Group, Inc. In my view, the exclusion of Pinto’s testimony, in light of the other evidence, did not substantially prejudice the plaintiff, the city of Bridgeport, and, accordingly, I conclude that the arbitrator’s decision to exclude this evidence was not misconduct. Because I conclude that the arbitrator did not commit misconduct, I, unlike the majority, would reach the plaintiffs argument that the trial court’s judgment should be affirmed on the alternate grounds that the enforcement of the arbitration award would violate public policy. Nevertheless, I conclude that both of the plaintiffs alternate grounds to affirm the trial court’s judgment lack merit. I therefore respectfully dissent and would reverse the judgment of the trial court and remand the case to that court with direction to grant the defendant’s application to confirm the arbitration award and to deny the plaintiffs application to vacate the arbitration award.
I
At the outset, I note my agreement with the majority’s determination that substantial prejudice arises if the excluded evidence would have been likely to alter the outcome if it had been introduced. See Daley v. McClintock,
First, there was no evidence at all offered during the arbitration showing that Ganim was involved in any way with the award of the West Side School contract to the defendant.
Second, Pinto testified that Ganim, in return for bribes and kickbacks, would bypass the proper selection procedures to award projects to the defendant. In particular, Pinto detailed how Ganim directed the contracts for the construction of a ballpark for a minor league baseball team and an indoor hockey arena to the defendant outside of the normal bidding and selection process. Yet, no evidence was presented to the arbitrator demonstrating that the proper selection process had not been followed for the West Side School contract. Indeed, it appears that the proper selection process was followed. John Marsilio, the plaintiffs director of facilities, described, in his testimony during the arbitration, the proper selection procedure for a design professional firm as including advertisement, review of submittals from firms, and selection. Further, he testified that as part of the selection process a “short list” of firms may be asked to make presentations. There was undisputed testimony that, in the selection of the design professional for the West Side School, the plaintiff advertised for bids, the defendant submitted a proposal and its qualifications, the plaintiff placed the defendant on a short list to present its proposal, the defendant presented its proposal, and subsequently the school building committee (committee) selected the defendant for the project.
Third, the majority suggests that Pinto may have been motivated not to testify during the arbitration in order not to jeopardize his plea bargain deal. See footnote 11 of the majority opinion. Pinto may also have been similarly motivated to be a strong witness for the government in order to not risk his plea deal. This motivation could have led the arbitrator reasonably to discount some of Pinto’s sweeping statements that “there was not a contract that we wanted or actively sought that we did not get,” and that he got “any job contract or outcome that I needed to get and I was successful in all of them.”
Fourth, despite Pinto’s testimony that he illegally obtained “some school jobs,” the United States Attorney did not pursue additional criminal charges against Ganim or Pinto with regard to any school contracts. Although prosecution of such criminal charges would have required a higher burden of proof than in a civil proceeding, the failure to pursue additional criminal charges for any school contracts undercuts Pinto’s claim to have obtained them through bribery. Thus, the arbitrator also reasonably could have discounted Pinto’s testimony that he illegally obtained “some school jobs” as the result of either an imprecise memory or Pinto’s desire to embellish the scope of the bribery scheme to increase his value as a government witness.
Fifth, Pinto’s broad statements that he got every contract he wanted do not necessarily mean that the defendant obtained all of its contracts through bribery. For example, Patrick M. Rose, the senior vice president of the defendant, testified during the arbitration that he “has a contract in hand . . . for the [plaintiff].” This contract was not mentioned in Pinto’s testimony or implicated in Pinto’s information or Ganim’s criminal indictment. In addition, Pinto admits in his testimony that when he went to work for the defendant, the plaintiff was already the defendant’s largest client. Thus, Pinto’s testimony would not necessarily establish that the defendant could have been selected for a municipal contract only through bribeiy, as opposed to on the merits of its bid.
I therefore conclude that, even if Pinto’s testimony had been admitted into evidence, the arbitrator nevеrtheless could have concluded that the defendant failed to meet its burden of proving its defense that the contract was illegally procured. The defendant therefore was not substantially prejudiced by the exclusion of that testimony.
I also disagree with the majority’s conclusion that the arbitrator’s exclusion of Pinto’s testimony does not find support in the rules under which the arbitration was conducted. Arbitration is a creature of contract and in that contract the parties can agree to the rules under which an arbitrator will decide the dispute. See Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998,
The majority expresses doubt about the extent of any delay that admitting Pinto’s testimony would have caused in bringing the arbitration proceedings to a conclusion. Specifically, in footnote 13 of its opinion, the majority “question[s] ... in light of Pinto’s refusal to testily in the first instance, the extent, if at all, to which he would have responded to that evidence.” If the majority is suggesting that the defendant would not have responded if Pinto’s testimony was admitted into evidence, I disagree. First, Pinto would have played no role in the defendant’s decision to respond to Pinto’s testimony because, by the time of the arbitration, Pinto was no longer a shareholder of the defendant. Thus, Pinto’s potential criminal liability likely would not have been a concern to the defendant in its decision to respond to his testimony. Second, the parties zealously contested this dispute throughout the arbitration proceedings as evidenced by the fact that it lasted nearly nineteen months and generated more than 2100 transcript pages and more than 100 exhibits. Third, the defendant was pursuing a claim for substantial damages that resulted in an award of $155,507.36. These factors lead to the conclusion that the defendant would have continued to pursue this claim as vigorously as it had throughout the prior proceedings.
Alternatively, if the majority is suggesting in the previously set forth quoted statement that the delay would have been minimal because Pinto likely would have refused to testify for the defendant in its response to the submission of his testimony from the Ganim trial, I also disagree. I believe that admitting Pinto’s testimony would have delayed further the conclusion of the arbitration proceedings even if Pinto had again refused to testify because the arbitrator would have been required to, at the very least, give the defendant time to review the entire transcript of Pinto’s testimony and any other relevant evidence from the Ganim trial, and to submit pertinent exceipts to the arbitrator. Further, the defendant may also have decided to call witnesses or adduce other evidence to attack Pinto’s credibility and undermine the allegations he made in his testimony.
II
Because I conclude that the arbitrator did not commit misconduct, I reach the plaintiffs alternate grounds to affirm the judgment of the trial court. Specifically, the plaintiff argues that the arbitrator’s award should be vacated because its enforcement would violate two public policies. First, the plaintiff claims that enforcement of the award would violate the public policy against binding a municipality to an agreement entered into by its unauthorized agent. Second, the plaintiff argues that enforcement of the award would violate the public policy against enforcing a contract that was illegally procured. I conclude that both of the plaintiffs alternate grounds for affirmance lack merit.
This court will vacate an arbitrator’s award if the award violates a clear public policy. Garrity v. McCaskey,
On the basis of the foregoing, this court’s analysis proceeds in two steps: First, it must be determined “whether an explicit, well-defined and dominant public policy can be identified. ... If so, [we] then [decide] if the award violated the public policy.” (Citation omitted; internal quotation marks omitted.) MedValUSA Health Programs, Inc. v. MemberWorks, Inc.,
A
Turning to the plaintiffs first alternate ground for affirmance, I conclude that it lacks merit because, even if I were to assume, arguendo, that this state has an explicit, well-defined, and dominant public policy against enforcing contracts entered into by a municipality’s agent who lacked the authority to bind the municipality, the plaintiffs clаim seeks to disturb the arbitrator’s factual findings in violation of this court’s traditional deference to the arbitrator’s factual findings. Although this court reviews de novo whether an arbitrator’s award is clearly violative of public policy; State v. AFSCME, Council 4, Local 387, AFL-CIO, supra,
“Whether a particular act . . . was authorized by the city, by any previous delegation of power ... is a question of fact . . . .” (Internal quotation marks omitted.) Oklahoma City v. Tuttle,
B
Turning to the plaintiffs second alternate ground for affirmance, I conclude that this claim also lacks merit because, even if I again were to assume, arguendo, that there exists an explicit, well-defined, and dominant public policy against enforcing illegally procured contracts, I would defer to the arbitrator’s factual findings under this court’s standard of review of the narrow public policy exception. See part II A of this opinion. Thus, I would not review the correctness of the finding, implicit in the arbitrator’s award, that the contract was not illegally procured. See Connecticut Importing Co. v. Janowitz,
I therefore respectfully dissent.
Unlike the cases the majority discusses in which the arbitration award was vacated because of the arbitrator’s decision to exclude certain evidence, Pinto’s testimony was not the only possible source of evidence that the West Side School contract was procured illegally. For example, in Tempo Shain Corp. v. Bertek, Inc.,
In the present case, the plaintiffs claim that the contract was void ab initio was based on the theory that, as part of a bribery and kickback scheme, Ganim directed the school building committee (committee) to select the defendant for the West Side School contract. Accordingly, someone either on or affiliated with the committee had to have knowledge of Ganim’s involvement in the decision to select the defendant. Yet, the plaintiff, despite opportunities to do so, never attempted to elicit any testimony from members of the committee about Ganim’s involvement in the award of this contract. In particular, the plaintiff examined John Marsilio, who was a member of the committee and who sent the letter to the defendant requesting that it malee a presentation for the West Side School project, but failed to ask if Ganim was involved in any way with the selection of the defendant for this project. The plaintiff also examined Ronald Pacacha, an associate attorney for the plaintiff municipality, regarding the bidding process for the West Side School contract, but did not inquire if Ganim was involved in awarding the contract to the defendant. Finally, the record reveals that besides Marsilio there were at least six other members of the committee, as it originally was comprised, and that only one of the six members would have been unavailable to testify during the arbitration. Therefore, I conclude that the circumstances surrounding the arbitrator’s decision to exclude Pinto’s testimony are not nearly as compelling as the circumstances that existed in Tempo Shain Corp. and Hoteles Condado Beach, in which the parties challenging the arbitrators’ awards were deprived of producing then only evidence on the disputed claims.
Failure to abide by rule R-32 of the arbitration rules would have exposed any subsequent award to the risk of being vacated on these very same grounds. See Manitowoc v. Manitowoc Police Dept.,
The submission to arbitration was dated March 23, 2001, and the plaintiffs motion to admit Pinto’s testimony to the arbitrator was dated March 10, 2003.
Indeed, in an earlier part of its brief to this court, the plaintiff argues that the arbitrator’s use of the phrase “contract damages” in the award indicates that he found there to be an operative contract between the parties.