*1 At the petitioner time the was sentenced Judge Kel- ler, he addressed the court, “I stating: admit that I sold I did. I drugs, day And admit they raided— they when came to Belden Street, the drugs were mine .... I let a friend of mine go jail for some drugs that he didn’t have to do with . . . nothing Bemie, that day we got July, arrested in my that was all drugs . ...” In light of the full case, record this for all stated, reasons injustice we conclude that no has occurred.
The judgment is affirmed. opinion this the other judges concurred. TOWN OF MARLBOROUGH v. AFSCME, COUNCIL
LOCAL 818-052 (AC 31468) Gruendel, Robinson, Beach and Js. *2 officially released 9, January August Argued Houlding, L. with whom was Andrew Prolog Das, K. appellant (plaintiff). for the Jr., brief, was Gagne,
J. William whom, with on the Kimberly Cuneo, A. appellee (defendant). for the
Opinion Marlborough, town of ROBINSON, plaintiff, J. The denying trial court judgment appeals from award (applica- vacate an arbitration application in favor of panel found in which an arbitration tion) 818-052, and AFSCME, 4, Council Local defendant, a collective plaintiff had violated concluded that the grievant, it terminated the when bargaining agreement of assessor without Emily position from the Chaponis, the court claims that appeal, cause. On just the award application (1) improperly denied its that “elected clearly public policy defined violates and the responsibility right have the leaders executive appoint public officers” and constitutes a mani- fest of the law. We affirm the disregard judgment trial court.
The record reveals the following relevant facts and procedural history. The charter for (char- ter) provides that the board of selectmen (board) shall appoint officers, various including assessor, “to serve at the direction of the . . . and [selectmen powers whose prescribed by duties shall be as or in the Pursuant [ordinance [General Statutes].”1 the charter, appointed the board the grievant to the office of assessor, January effective 2002. In Novem- *3 ber, 2003, the term of the board that appointed had the ended. The grievant incoming board elected to accept appointments the previous made the and board, the grievant occupy continued to the office of assessor. the
During grievant’s assessor, plaintiff tenure as the and the defendant entered into a collective bargaining agreement that (agreement) July became effective on 1,2007. The agreement provided that the defendant was the representative exclusive for a unit bargaining that included the office of assessor.2 The agreement further provided “[a]ny that disciplinary action shall applied be just for cause” and that disciplinary may action “[a]ll appealed be . . through procedure” the . grievance set forth in the agreement.
In November, 2007, newly a elected board met to make the appointments provided for the charter. The first selectman asked for a motion reappoint the grievant to the office of assessor but no motion was explicitly appointment The charter does not set forth the duration of the position. for the assessor agreement provides part: [plaintiff] Section 2.1 of the in relevant “The hereby recognizes representative the as the sole and exclusive [defendant] bargaining respect wages, hours, for collective with and other conditions employment employees unit, twenty- bargaining working for all in the more, job following five hours or in the classifications: Assessor . . . .” On Novem- reappointed. not was the made, grievant reappoint failure to board’s 2007, because ber her. discharged plaintiff the grievant, the defendant, the through a grievance filed grievant The agreement violated the had plaintiff the that alleging just cause. based on was not discharge her resolution without advanced grievance After the in the set forth procedure grievance the through board to the state referred dispute was agreement, The issue submitted and arbitration.3 mediation [plaintiff] “Did was as follows: the arbitration it dis- when bargaining agreement the collective violate just 14,2007 without November grievant charged remedy be?” so, If what shall cause? first argued hearing,
At the the board officer because appointed discharging term of her expiration her after reappoint did There- disciplinary action. did not constitute in office disciplinary was not a a discharge such fore, because have to com- it did not claimed action, provision agreement. just cause ply with the interpreting argued also *4 require it to demon- would in a manner that agreement appointed discharge it could just cause before strate step procedure of a for resolution agreement forth a three sets grievance in step one, grievant union submits a or the grievance. In the n writingto the by designated the supervisor grievant’s or the individual Afterwards, grievance. meeting discuss the plaintiff, is held to and then a responds by in designated the supervisor or the individual the grievance. writing to the disposition of with the grievant is not satisfied or the defendant If the may provides grievance be one, step step that the grievance two in meets with the then appealed The first selectman the first selectman. grievance. regarding representative the defendant grievant and a grievance. response writing in Afterwards, issues the first selectman response provided the first with the is not satisfied If the defendant “may grievance to arbitra- step provides submit the selectman, that it three . . . .” tion
officer after the expiration of her term in office would in result a conflict between the agreement and General Statutes 9-187 § Without (a).4 citing any supporting legal authority, further argued that when such a results, conflict “the trumps statute the conflict- provisions ing of the . . . agreement.” On the basis of these arguments, claimed that it could discharge grievant “as a result of her non-reap- pointment, notwithstanding any ‘just provi- cause’ sions . . . .”
The defendant countered arguing that, prior to the agreement, a term of may office have existed and reappointment by may the board have necessary been in order for the grievant to serve in the office of asses- sor. The defendant further argued subsequent the agreement, however, a term of office for the office of assessor “no longer exists because it directly contra- dicts specific terms of the [agreement].” Thus, defendant claimed that the mere failure of the board to reappoint the grievant to the office of assessor did just not constitute summary cause for discharge. A hearing was held before the arbitration panel March 2008. On August 6, 2008, the issued a fourteen page decision in which it found favor of the defendant. In its discussion, the arbitration panel rejected plaintiffs argument it had a statutory right to discharge grievant because “the grievant is not an ‘elected official’ and the statute is silent as to the definition of a Having [t]own [o]fficial.” rejected plaintiffs statutory argument, the arbitra- (a) provides: General Statutes “The terms of office of elective municipal officers, prescribed by law, when not otherwise shall be for two years begin from the date on which such terms as set forth in section 9- 187a and until qualified. their successors are elected and have When not *5 prescribed by law, otherwise appointed by the terms of those town officers expire the board of selectmen shall on the termination date of the term of appointing the board of selectmen such officers.” applied the agreement panel tion concluded to required plaintiff the was and that office of assessor by accept” it to by agreed all the conditions “abide panel The arbitration the agreement. into entering requirement a included found that these conditions “ specifically when enumerated ‘just must be cause’ employment.” of Because involuntary the loss there is by cited as mandated just was no cause reason “there panel concluded . the arbitration agreement,” the . . it when plaintiff agreement had violated the that the panel directed arbitration discharged grievant. the position grievant the the the to reinstate any and wages her whole for lost assessor and to make any period discharge, the less outside during benefits may received. she have earning applica- filed its September 4, 2008, the On court. General Statutes 52-418.5 tion in the trial See plaintiff claimed that the arbitration application, its the in the award panel authority issuing had exceeded its explicit, well-defined award violate[d] “[t]he . . .” In public policy dominant . its memorandum application, plaintiff specifi- in support of law . . award . vio- cally claimed that “[t]he parties’ public policy protecting the strong late [of] [d] in its freedom of contract.” The also claimed application the arbitration had exceeded part: provides “Upon applica § 52-418 in relevant General Statutes any party arbitration, superior judicial court for the district tion of to an parties vacating . . in one of the . shall make an order which resides any following (1) award if it defects: If the has been award finds means; procured corruption, (2) undue if there has been evident fraud or arbitrator; any partiality corruption part (3) if the arbitrators or upon refusing postpone hearing guilty have been of misconduct refusing pertinent cause or in to hear evidence and material sufficient shown any any party controversy rights of or of action which the other powers prejudiced; their or if the arbitrators have exceeded have been mutual, imperfectly final and definite award executed them that so upon subject was made.” matter submitted
562 authority egre- “[t]he manifest[ed] award an gious patently application irrational law.”6 of the hearing application
The court on conducted the on August August On 25, 2009, 2009. the court issued application. denying a memorandum of decision the policy court The concluded that well “[n]o defined has by retaining been cited which would be violated an position, job performance assessor her whose application brooked no criticism. No irrational of the by [p]anel proven.” appeal law the has been This fol- necessary. facts will lowed. Additional be set forth as addressing plaintiffs Before the we claims, first set legal principles guide forth the our review of an arbitration award based on an unrestricted submission.7 narrowly “Judicial review of arbitral decisions is con- parties agree . . fined. . When the to arbitration and authority through establish the of the arbitrator the judicial terms of submission, their the extent of our scope review the award is delineated the of the parties’ agreement. scope . . . When the of the submis- resulting subject is unrestricted, sion the award is not long novo de review even for errors law so as the award the conforms to submission. . . . Because we private settling disputes, favor arbitration aas means of judicial we undertake review of arbitration awards in designed a manner to minimize interference with an system dispute efficient and economical of alternative . . resolution. .
“Where the submission does not
state,
otherwise
empowered
legal
arbitrators are
to decide factual and
application,
ground
vacating
also claimed as a
for
panel
authority
award
lacked
consider
the matter or to issue
agreement
award because
was no
there
between the
and the
presented
panel.
defendant
arbitrate
issue
The trial court did
claim,
not address this
and the
has not raised it before this court
appeal.
court
that the
determined
submission to the arbitration
was
unrestricted,
party
challenged
appeal.
and neither
has
this determination on
on the
cannot be vacated
an award
questions interpretation
agreement
. .
.
grounds
review
will not
erroneous. Courts
was
arbitrators
unrestricted,
the submission
nor, where
the evidence
legal
decision
they review the arbitrators’
will
*7
an
words,
In
involved.
...
other
questions
[u]nder
decision is
submission,
the arbitrators’
unrestricted
will not
the courts
binding;
final and
thus
considered
nor
by the arbitrators
the evidence considered
review
. .
fact.
.
for
of law or
the award
errors
they
will
review
consensual
principles governing
“The long-standing
subject
exceptions.
however,
to certain
are,
considerable
traditionally
have
afforded
we
Although
have
arbitrators,
we
also
deference to
decisions
awards
searching review of arbitral
a more
conducted
McCaskey,
v.
Garrity
in certain circumstances.
[223
Supreme
(1992)],
I improperly that the court first claims violates the application because the award denied its 564
clearly public policy defined executive “elected responsibility appoint leaders have the and the right to public support officers.” In of its claim, relies on (a). pre- Because the did not theory support application sent this of its to the trial court, we on appeal. decline consider it
“The theory upon which a
case
tried in the trial
court cannot
changed
review,
be
and an issue not
presented
to or considered
trial
court cannot be
raised for the first time on
Moreover,
appel-
review.
court
late
should not consider different theories or new
questions
proof
if
might have been
offered
refute
they
presented
or overcome them had
been
at trial.”
Childers,
Ritcher
v.
Conn. App. 315,
A.2d
(1984).
After reviewing
record,
we conclude
the plaintiff
present
did not
court
trial
*8
public policy theory it now
appeal.
raises on
Nowhere
in
application,
the
its memorandum of law or the trial
transcript
plaintiff
does the
or
claim
suggest
the
award should be vacated because it violated the claimed
public policy that “elected executive leaders have the
responsibility and the right
appoint public
officers.”
plaintiff, instead,
public
The
policy
based its
claim for
solely
vacatur
the theory
on
that the award violated
well
the
public policy
defined
of freedom of contract.
Although
plaintiff
the
did mention
support
§ 9-187 in
of its
disregard
manifest
of
law
it did
claim,
indicate that
any
it was
relying
this statute to
extent
support
in
of
public policy
claim. Therefore, because
this theory
raises
for the first time on
Forest Walk,
appeal,
it is unreviewable.
LLC v.
See
Water
Authority,
Pollution Control
291
271,
Conn.
290
n.15, 968 A.2d
Curry
Goodman,
Allan S.
(2009);
345
v.
Inc.,
390,
286
Reichen-
425,
Conn.
944 A.2d 925
(2008);
bach Kraska Enterprises, LLC,
v.
App.
105 Conn.
473,
565
II
improperly
court
next claims that the
a
the award constitutes
application denied its
the plaintiff
law. Specifically,
of the
manifest disregard
disre-
improperly
the arbitration
argues
issuing
of
§
applicability
garded
are not persuaded.
award. We
analysis
setting forth
standard
begin
We
our
manifest
applicable
disregard
to claims of
of review
of manifest
have held that claims
law. “Our courts
statutory proscrip
fall within the
of the law
disregard
award that manifests
(4).
of 52-418 (a)
tion
[A]n
law
patently
application
or
irrational
egregious
pursuant
52-
be set aside
to §
is an award that should
has
panel]
exceeded
because the
(a) (4)
[arbitration
them that
powers
imperfectly
so
executed
[its]
subject
matter
mutual,
upon
final and definite award
. . .
manifest disregard
made.
submitted was not
[T]he
law
for
an arbitration award
ground
vacating
be reserved for circumstances
narrow
should
[a
fidelity to
extraordinary lack of
established
panel’s]
quotation
omitted.)
marks
principles.”
legal
(Internal
Inc.,
Builders,
Zelvin v. JEM
App. 401, 413,
Conn.
A.2d 455 (2008).
an award
delimited,
principle
vacating
“So
*9
of the law is an
disregard
because of a manifest
dispute
of
important
of
alternate
safeguard
integrity
of
approval
resolution mechanisms. Judicial
arbitration
from
depart
established
egregiously
decisions that so
they
would
law that
border on
irrational
undermine
society’s
legitimacy
in the
of
arbitration
confidence
Therefore,
plain
support
we
review
of its claim.
decline to undertake
error
Bourguignon,
See,
State
plaintiffs alleged
e.g.,
v.
of error.
of the
claim
App. 798, 801,
(“[w]e
engage
(2004)
will not
in . . .
supra,
“Under this standard, deferential the defen proving dant has the burden of three all elements, which must be in order for a court to vacate satisfied ground an arbitration award on the that the arbitration panel manifestly disregarded (1) the law: the error was capable being readily instantly per obvious and and person average qualified ceived to serve as an (2) panel appreciated arbitrator; the arbitration the exis clearly governing legal principle tence aof but decided ignore governing alleged it; and law to have ignored by been the arbitration is well defined, explicit, clearly applicable.” (Emphasis added; quotation omitted.) internal marks v. Zelvin JEMBuild supra, App. ers, Inc., 106 Conn. 413; see Saturn Con Roofing struction v. Co. Premier Co., 238 Conn. (1996). 305, 680 A.2d 1274 applying principles present After these case, panel’s we conclude that the decision does disregard not constitute a manifest of the law. Section provides (a) part in relevant that “[w]hen not prescribed by otherwise law, the terms of those town appointed by the board of selectmen shall officers expire on the termination date of the term of the board appointing (Emphasis selectmen such officers.” added.) deciding, Even if we were to assume, without applicable, is correct that the statute is explicit. we cannot conclude that it is well defined and provision First, its apply terms, the relevant of 9-187 explicitly; applies does not to assessors instead, it
567 not set however, does statute, officers.” to “town indicate or otherwise officers of town a definition forth purposes for an officer such constitutes who never statute of this parameters Second, statute. Supreme our court or by this addressed have been judicial a deter- been never has Therefore, there Court. officer,” or, a “town as qualifies who mination as to for officer” is a “town an assessor conversely, whether Liljedahl v. See Economos this statute. purposes of (2006) A.2d 1198 300, 311, 901 Bros., Inc., 279 Conn. panel by the arbitration allegedly ignored law (“[t]he clearly and explicit, defined, well be considered cannot [appli- the . . . parameters ... applicable [if] court by this been addressed have never cable statute] marks quotation Court” Appellate or [internal omitted]). that the to conclude even if we were
Furthermore, explicit well-defined, (a) of 9-187 provision § relevant conclude that we cannot clearly applicable, and clearly a governing existence of appreciated the panel it. A review of the to ignore but decided principle legal it “knew that not reveal that decision does panel’s [its] Lathuras Shoreline v. contrary law”; to the award was 515, 83, 783 A.2d Care, LLC, 65 Conn. App. 509, Dental (2001); A.2d 231 936, Conn. denied, 258 cert. law but correctly stated the it “understood omit quotation marks it.” proceeded ignore (Internal indi of the decision Instead, our review Id., 514. ted.) consideration due panel gave cates appli reject but decided of 9-187 applicability reasonably conclude that it could cability because Therefore, at best case. the facts of the applied it under misapplied or misconstrued plaintiff, for suffi of which is neither statutory requirements, of the law claim. manifest disregard support cient to Assn., SEIU Employees State See State Connecticut v. A.2d 928 281-82, 2001, Conn. Local *11 that, note even if (“[w]e the arbitrator’s decision consti- tutes a misapplication of the relevant law, we are not liberty at to set aside an award because [arbitrator’s] of an arguable difference regarding meaning or of . . . applicability laws and such a misconstruction of the law does not demonstrate the arbitrator’s egre- gious patently rejection irrational clearly control- principles” ling legal omitted; emphasis in [citation quotation internal original; marks Accord- omitted]). ingly, we conclude that properly the court denied the plaintiffs application.
The judgment is affirmed.
In this opinion GRUENDEL, J., concurred. BEACH, J., dissenting. respectfully I my dissent. In opinion, the proposition that the terms of the collective may bargaining agreement trump well statutory defined provisions appointment regarding public officials startling unsettling. I Accordingly, believe that panel acted with manifest disregard of the law. position
The of the plaintiff, the town of Marlborough, was adequately, though perhaps not optimally, pre- sented to the arbitration panel. panel The specifically recognized its award the town’s reliance on General Statutes 9-187 (a) § and the argument that the statute provided for terms of office correlative to those of the selectmen. Specifically, acknowledged the conflict, town’s argument that where “a between a col- lective bargaining agreement and a statute exists, the trumps statute provisions conflicting of the collec- tive bargaining agreement. case, this this means that would have permitted been to terminate [t]own as a result of her non-reappointment, [assessor any ‘just notwithstanding provisions cause’ of Article the collective bargaining agreement].” panel, The [of expressly position, the town’s nonetheless, rejected “the official and was an elected the grievant [ojfficial.1 to the definition of is silent as statute [t]own court; trial it position in the town adhered vacated virtue should be the award urged (a) argued 52-418 It (4). Statutes § General in manifest dis- powers, their arbitrators had exceeded law, by not recognizing regard *12 term of officers and that town patently described in term “town officers” were included assessors (Rev. 2007) § to 9-1852 virtue of General Statutes after court, recogniz- trial 5.2 of town charter. § authority town, that position stated ing “[n]o case, a in the situation of this state cited, has been specific provision or would override statute charter More- bargaining agreement. of language a collective statute charter over, specific no the state language appears overriding.” to be so statutory is clear. Section
I believe that the scheme not provides part in relevant (a) 9-187 “[w]hen by law, terms of those town prescribed otherwise appointed by the board of selectmen shall officers board date of the term the expire the termination General Statutes appointing selectmen officers.” all at relevant times referred (Rev. 2007) § to be elected officers who were assessors as town act or provided by special charter unless “otherwise 5.2, which stated . .” The charter included § . . town persons to appoint qualified “the shall [selectmen at the direction of the offices serve following .... 5.2.1 Assessor.” [selectmen provi- specific statutory law effect that Case may of a collective bar- indeed override terms sions 1 any to town “officials” in § 9-187 does not refer General Statutes but, rather, to town “officers.” event to delete reference to 9-185 was amended in 2010 § General Statutes 10-84, 2010, § Public No. 3. assessors. Acts opinion. dissenting See footnote 2 of this
gaining agreement
similarly is clear. For example,
Board
Trustees v. Federation
Technical College
Teachers,
184,
179 Conn.
196-98,
The means which citizens select their public offi- cers is a matter of policy as determined law. Even if the town, intentionally not, submitted the issue to arbitration, acted in manifest disregard of the law in reaching its conclusion.4 Accord- I ingly, would remand the case to the trial court with
direction to vacate the award.
I respectfully dissent. 4 reaching conclusion, I, course, express opinion this policy no on the question political appointee whether an assessor should be a or should protected by provisions. be Assembly civil service The General has amended 9-185, apparently such that an longer assessor is no state law a town subject officer and to the terms of (a). office set forth in § 9-187 See footnote opinion. dissenting reason, this argument For public that clear policy prevents judicial award, enforcement of novo, assessed de has appeal. Nonetheless, lost its clearly provided I believe that the law at the time of was, by the award law, clearly that an assessor state a town officer subject provided (a). terms in § 9-187