710 So. 2d 214 | Fla. Dist. Ct. App. | 1998
Lead Opinion
The City of Tallahassee seeks review of a final order confirming the report of an arbitrator in a grievance proceeding pursuant to the collective bargaining agreement between the City’s police department and The Big Bend Police Benevolent Association, an ap-pellee. The City argues that the trial court failed to comply with the essential requirements of law in refusing to vacate the arbitrator’s decision, contending that the arbitrator had exceeded his authority or power and the arbitrator’s decision had violated public policy. Because the City failed to show that the award of the arbitrator was violative of any of the provisions of section 682.13(1), Florida Statutes (1995), we affirm.
The City terminated the employment of appellee Thomas Maureau, a lieutenant in the Tallahassee Police Department, following an internal investigation which the City believed demonstrated that Maureau was guilty
The City argues here, as below, that the arbitrator exceeded his authority by using the clear and convincing standard of proof, rather than the preponderance of the evidence standard. Assuming, without deciding, that the application of the preponderance of evidence standard was required, the arbitrator’s use of the stricter standard is not a basis for vacating the arbitrator’s decision under section 682.13(1), Florida Statutes (1995). Cochran v. Broward County Police Benevolent Ass’n, Inc., 693 So.2d 134 (Fla. 4th DCA 1997). The grounds listed in section 682.13(1) are the only basis on which an arbitrator’s award may be vacated. See Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (Fla.1989). In Cochran, a sheriff appealed an order which refused to vacate the arbitrator’s decision which resulted in reinstatement of a law enforcement officer. Cochran, 693 So.2d at 134. The sheriff argued in Cochran, as appellant does in the instant case, that the arbitrator erroneously employed the clear and convincing standard. The Cochran court held that application of the wrong evidentiary standard was not a basis for vacating the award. Id. We find Cochran persuasive.
We also find without merit appellant’s argument that the arbitrator’s decision to reinstate a police officer following a four month suspension without pay constitutes a violation of Florida public policy that police officers have good moral character. The City’s argument that the arbitrator’s award violates public policy presumes that the sexual misconduct charges made against Maureau were sustained. The arbitrator found, however, that the appellant had proved only that Lieutenant Maureau had lied to his chief regarding the existence of a romantic relationship with another police officer. The other charges against Maureau were not sustained.
We are not able to disturb the arbitrator’s findings of fact. City of West Palm Beach v. Palm Beach County Police Benevolent Ass’n, 387 So.2d 533 (Fla. 4th DCA 1980)(an arbitrator is the sole and final judge of the evidence and the weight to be given it). The arbitrator’s lengthy written decision indicates that both the current and past chief of the police department testified that they would not have terminated Maureau for making false statement alone and appellant has cited no case to us suggesting that public policy mandates the termination of a police officer for an incident of untruthfulness to a superior.
We find the remaining issue raised in this appeal also to be without merit.
The order under review is AFFIRMED.
. Section 682.13(1) provides that:
Upon application of a party, a court shall vacate an arbitrator's ward when:
(a) The award was procured by corruption, fraud or other undue means;
(b) There was evident partiality....;
(c) The arbitrators or umpires in the course of his jurisdiction exceeded their powers;
(d) The arbitrators ... in the course of his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party; and
(e)There was no agreement or provision for arbitration subject to this law....
Concurrence Opinion
specially concurring.
I must concur in the majority opinion since, from the record before us, it appears that the issue of the proper burden of proof was not preserved below. While we have not been furnished with a transcript, we do have the following statements in the arbitrator’s order:
[T]he Union also presented argument in its post hearing brief that the City has the burden of proving it had just cause to terminate Maureau. It argues that, because of the nature of the charges leading to his termination, the standard of proof to be applied in this case is at least proof by clear and convincing evidence and not the preponderance of the evidence used in some eases.
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Though the City did not discuss the standard of proof issue, there is reason to believe that it does not disagree with the position of the Union inasmuch as it stated in its post hearing brief that it had proved just cause for termination by clear and convincing evidence. [Emphasis supplied]
On appeal, the City does not challenge the arbitrator’s statement.
If the issue were squarely presented here, I would hold that the arbitrator is not entitled to impose a higher burden of proof relative to the firing of a public employee without express authorization by statute or by agreement of the parties to the arbitration. I also agree with Appellant that in this case the imposition of the higher burden on the City violates the arbitration agreement, which provides in part as follows:
The arbitrator ... shall be without power or authority to make any decisions:
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b. Limiting or interfering in any way with the powers, duties and responsibilities of the City under applicable law and the City Charter.
The case of Cochran v. Broward County Police Benevolent Ass’n, Inc., 693 So.2d 134 (Fla. 4th DCA 1997), relied on by Appellee, is distinguishable because no similar agreement is referred to there.
