NORWALK POLICE UNION, LOCAL 1727, COUNCIL 15, AFSCME, AFL-CIO, ET AL. v. CITY OF NORWALK ET AL.
(SC 19667)
Supreme Court of Connecticut
Argued December 8, 2016-officially released February 14, 2017
Rogers, C. J., and Palmer, Eveleigh, Espinosa, Robinson and Vertefeuille, Js.*
Jarad M. Lucan, with whom, on the brief, was Saranne P. Murray, for the appellant (named defendant). J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellee (named plaintiff).
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J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellee (named plaintiff).
ROGERS, C. J. The issue that we must resolve in this appeal is whether the trial court properly vacated an arbitration award that had found that the defendant city of Norwalk (city) had just cause to terminate the employment of Stephen E. Couture, a police sergeant employed by the Norwalk Police Department (department). The plaintiff,1 Norwalk Police Union, Local 1727, Council 15, AFSCME, AFL-CIO, and the city are parties to a collective bargaining agreement (agreement) governing the terms and conditions of employment for certain police officers employed by the city. The agreement provides that disputes over its interpretation will be resolved through arbitration.
After Couture notified a fellow police officer, Thomas Cummings, of a pending criminal investigation against him, Harry W. Rilling, the chief of the department, reassigned Couture to the deрartment‘s patrol division. Thereafter, Rilling determined that Couture may have violated a number of department rules and regulations by telling Cummings about the investigation. The allegations of misconduct were litigated in a public trial before the Board of Police Commissioners (board of commissioners). The board of commissioners concluded that Couture had violated a number of departmental rules and that his employment should be terminated. Couture disputed the board of commissiоners’ decision through the grievance procedures set forth in the agreement and ultimately initiated an arbitration proceeding with the defendant State Board of Mediation and Arbitration (arbitration board). A majority of the arbitration board found that Couture had been terminated for just cause. Thereafter, the plaintiff filed an application to vacate the arbitration award pursuant to
The record reveals the following procedural history and facts that were found by the arbitration board or are undisputed. Couture started working at the department in 1984. He was promoted to the rank of detective in approximately 1987 and to the rank of sergeant in 1991. In 2001, Rilling appointed Couture as commander of the department‘s youth bureau.
During his tenure at the youth bureau, Couture became an experienced investigator of crimes involving persons under the age of majority. Couture‘s supervisor, Captain Rosemary Arway, considered him to be a leader
Cummings was a lieutenant in the department and the commander of the detective division. Couture and Cummings had worked together for many years and were on friendly terms, although they were not social friends.
On Friday, October 26, 2007, Couture‘s subordinate, Detective Charles Perez, returned a telephone call that he had received earlier in the week from Jill Ruggiero, a dеtective with the Westport Police Department. Ruggiero informed Perez that there was an ongoing sexual assault investigation that was possibly going to be transferred to the department. Perez told Couture about his conversation with Ruggiero, and Couture instructed Perez to get further information. When Perez spoke again with Ruggiero that same day, the information that she provided led Perez to believe that the suspect in the investigation might be Cummings. Perez told Ruggiero that she should speаk directly to Couture about the matter. Perez also called Richard Colangelo, an assistant state‘s attorney, and told him that the sexual assault suspect possibly was Cummings. At approximately 2:43 p.m., Ruggiero called Couture and gave him information about the investigation, and Couture confirmed that the suspect indeed was Cummings. At the end of that telephone call, both Couture and Ruggiero stated that they would report the situation to their respective chiefs of police.
Minutеs after speaking to Ruggiero, Couture called Cummings’ cell phone and made arrangements to meet him in a parking lot across the street from Norwalk High School. Couture spoke to Perez by cell phone while he was driving to the parking lot, but he did not inform him that he was on his way to meet Cummings. During the meeting in the parking lot, Couture told Cummings that he was a suspect in a sexual assault case that the Westport Police Department had been investigating. While Couture and Cummings were still together, Couture received a call on his cell phone from Colangelo. Couture spoke to Colangelo by cell phone again after he left the meeting with Cummings. Couture did not tell Colangelo during either conversation that he had met with Cummings and informed him that he was the suspect in the sexual assault investigation.
That same day, October 26, 2007, at 5:34 p.m., Couture telephoned Ruggiero from his extension at the police station. Couture told Ruggiero that the sexual assault investigation of Cummings was a “really big deal” and that, if word of it became public, it would likely draw the attention of the national news media. Couture further stated that if that occurred, it would be a very bad development for the department. Ruggiero had the impression that Couture was trying to tell her not to
On the morning of Monday, October 29, 2007, Colangelo went to the department to meet with Rilling. When Colangelo told Rilling about the investigation of Cummings, Rilling indicated that he was concerned that Cummings might have been notified about it.3 Colangelo assured Rilling that that was not the case. Rilling then called Couture into his office, and Couture confirmed that he had told Cummings about the investigation on the previous Friday. Rilling was angry and upset that Couture had done this without his knowledge or permission.
Later that day, Couture went to Colangelo‘s office and gave a sworn statement regarding the events of October 26, 2007. Couture stated that Ruggiero had advised him that the criminal investigation would be closed if the alleged victims did not come forward. Couture also stated that, while he was speaking to Cummings in the parking lot, Colangelo had called Couture and informed him that the matter would be investigated by the Westport Police Department. At that point, Couture knew that the investigation against Cummings was ongoing.
On February 12, 2008, Rilling reassigned Couture to the department‘s patrol division. On March 11, 2008, after being informed by Colangelo that Couture would not be the subject of any criminаl charges, Rilling ordered an internal investigation to determine whether Couture had violated any of the department‘s policies or procedures when he informed Cummings about the sexual assault investigation. Captain Ernest Vitarbo conducted the investigation and provided a report to Rilling and, after reviewing the report, Rilling concluded that Couture may have violated several of the department‘s rules and directives.4 Pursuant to the agreement, Rilling notified Couture that, because the discipline for a violation of those rules and regulations would exceed Rilling‘s authority under the agreement, Couture had the option either to have a disciplinary hearing before Rilling or to have a hearing before the board of commissioners.5 Couture elected to have a hearing before the board of commissioners.
The board of commissioners conducted a hearing over four days, at which Couture was represented by both counsel for the plaintiff and his own private counsel. The board of commissioners found that Couture had violated §§ 4.1, 4.16 and 4.21 of the rules of conduct set forth in the department‘s police manual; see footnote 4 of this opinion; and concluded that Couture should be discharged from employment. The city terminated Couture on September 23, 2008, the same day the board of commissioners issued its decision.
On the same date, the plaintiff filed a grievance con-
A majority of the arbitration board concluded that “[t]he question of double jeopardy is easily disposed of for two reasons, as follows: (1) [t]here was no grievance filed for this question and if there was, it is not before this panel of arbitrators;7 and (2) [t]he [c]hief [of police] has the right to reassign officers in his command to any division in the department. The reassignment is not considered discipline.” (Footnote added.) The majority further сoncluded that Couture‘s discharge was for just cause.
Thereafter, the plaintiff filed an application to vacate the arbitration award pursuant to
During a subsequent hearing on the plaintiff‘s application to vacate, the trial court permitted the plaintiff to elicit testimony from Couture about the circumstances surrounding his transfer to the patrol division. The city objected to the admission of this testimony on the ground that the reason for the transfer was not an issue to be decided by the trial court. The trial court overruled the city‘s objection on the ground that it was unclear whether “this issue was fully covered by the arbitration . . . .”
In its memorandum of decision, the trial court concluded that Rilling‘s reassignment of Couture to the patrol division constituted discipline and that the plaintiff properly had raised the issue of double jeopardy before the arbitration board.10 The court further concluded that, because the city had no right under the agreement to discipline Couture twice for the same incident, the arbitration board‘s decision that Couture‘s termination was for just cause was in manifest disregard of the law. Accordingly, the court granted the plaintiff‘s application to vаcate the arbitration award.
The city then filed this appeal in which it claims that the trial court improperly allowed Couture to testify regarding the circumstances surrounding his reassignment to the patrol division and found that the reassign-
At the outset, we set forth the standard of review. “When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our 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, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Citations omitted.) Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992). Accordingly, “the factual findings of the arbitrator . . . are not subject tо judicial review.” Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 316 Conn. 618, 638, 114 A.3d 144 (2015); see also Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80, 881 A.2d 139 (2005) (“[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]).
Nevertheless, this court previously has recognized that “an award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to
“[T]hree elеments . . . must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration
With these principles in mind, we address the city‘s claim that the trial court improperly found that Rilling had disciplined Couture when he reassigned Couture to the patrol division despite the arbitration board‘s finding to the contrary. We agree that the question of whether the reassignment was disciplinary is purely a question of fact. Our research has not revealed, and neither the plаintiff nor the trial court has cited, any authority for the proposition that the reassignment of an employee constitutes discipline as a matter of law, much less any such authority that is “[well-defined], explicit, and clearly applicable.”12 Id. In the absence of any such clear and explicit legal authority or contractual provision, the question of whether Rilling‘s reassignment of Couture constituted discipline is a question of fact to be decided by the arbitration boаrd. Accordingly, the arbitration board‘s finding on this issue is not reviewable by the courts. See Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 80 (when submission to arbitrator is unrestricted, “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]). We conclude, therefore, that the trial court improperly allowed Couture to give testimony on the issue and substituted its finding that Rilling‘s reassignment of Couture to the patrol division constituted discipline for the arbitration board‘s finding to the contrary. Because the trial court‘s conclusion that Couture was subject to double jeopardy was predicated on this finding, and because this conclusion, in turn, provided the basis for the court‘s determination that the arbitration award was in manifest disregard of the law, that determination cannot stand. Accordingly, we conclude that the trial court improperly vacated the award of the arbitration board.
The judgment is reversed and the case is remаnded to the trial court with direction to deny the plaintiff‘s application to vacate the arbitration award.
In this opinion the other justices concurred.
ROGERS, C. J.