Opinion
No. CV08-4027237 S
October 29, 2009
MEMORANDUM OF DECISION
This action is an application by the plaintiff, city of Bridgeport (city), to vacate an arbitration award (#101) rendered in favor of the defendant, Bridgeport Police Union Local #1159, Council 15, AFSCME, AFL-CIO (union). The union has also filed a counter application to confirm the arbitration award (#103). Following a review of the city's application, the arbitrator's decision, the memoranda of law written by both parties, the transcripts of hearings before the Bridgeport police commissioners as well as all of the other submitted documentation, the court gleans the following facts.
On November 3, 2006, Bridgeport police officer Douglas Bepko was arrested as a result of his conduct during an off-duty domestic violence incident involving his girlfriend. At the time of his arrest, Bepko has been employed as a Bridgeport police office for thirteen years. Bepko was charged with assault in the third degree pursuant to General Statutes § 53a-61, unlawful restraint in the second degree pursuant to General Statutes § 53a-96 and threatening in the second degree pursuant to General Statutes § 53a-62. As a result of these charges, a protective order was issued against Bepko. This protective order required Bepko to surrender all of his firearms by November 8, 2006. While Bepko turned over seven firearms to the police, the Connecticut Department of Public Safety Firearm and Permit Information Investigation System had ten firearms registered in Bepko's name. Although Bepko contended that he had forgotten about the additional weapons or did not think he was required to turn them over under the terms of the protective order, he was charged with violation of a protective order pursuant to General Statutes § 53-223 on November 30, 2006. Furthermore, on December 19, 2006, Bepko was subsequently charged with unlawful possession of an assault weapon pursuant to General Statutes § 53-202c because of his failure to obtain the correct permit for one of his guns.
Following these arrests, the Bridgeport police commissioners instituted administrative disciplinary proceedings against Bepko. By memorandum of decision dated March 16, 2007, the police commission suspended Bepko for nine months without pay. At the end of its decision, the police commission added the following sentence: "In the event that Officer Bepko is found guilty or pleads guilty to any of the pending criminal charges he shall be immediately terminated and this action shall not be stayed by any appeal that may be filed." The union grieved this decision to the appropriate arbitration organization, which reduced the suspension to five months.
On May 15, 2007, the state entered a nolle prosequi on the charge of unlawful possession of an assault weapon. Bepko then appeared in court on August 6, 2007, before Judge Brian Fischer as part of a settlement agreement with the state. Pursuant to the terms of the agreement, the state reduced the November 3, 2006 charges (assault, unlawful restraint, threatening) to breach of the peace in the second degree, a violation of General Statutes § 53a-181. Bepko pleaded guilty to that charge, as well as violation of the protective order. The prosecutor agreed that if Bepko completed a twenty-six-week program for substance abuse, had no contact with the victim and was not arrested for ten months, then the protective order conviction would be vacated, and Bepko would subsequently plead guilty to General Statutes § 53a-222, violation of condition of release. The following day, August 7, 2007, the Bridgeport police department terminated Bepko's employment. The stated reason for this decision was Bepko's "guilty plea to a Violation of a Protective Order in Criminal Court on August 6, 2007, a criminal charge that was pending at the time of [the March 16, 2007 decision of the board of police commissioners]." On July 2, 2008, Bepko reappeared before Judge Brian Fischer. As Bepko had successfully complied with the terms of his plea bargain, the prosecutor requested that the court vacate Bepko's guilty plea for violation of a protective order and that Bepko be allowed to plead guilty to violation of a condition of release. The court accepted this recommendation and accordingly entered judgment.
As part of a collective bargaining agreement that was in place between the city and the union from July 1, 2004 to June 30, 2008, both parties agreed that disputes regarding the discipline of police officers would be referred to an arbitrator. Specifically, the American Arbitration Association was assigned to hear all disputes involving employment termination. Accordingly, the union appealed the Bridgeport police commissioners' decision to terminate Bepko's appointment to the American Arbitration Association. On December 3, 2007 and January 11, 2008, the city and the union appeared before arbitrator J. Larry Foy (the arbitrator), who issued a decision on November 24, 2008. In his memorandum of decision, the arbitrator noted that while it was true that Bepko pleaded guilty to violation of a protective order, it was understood by all of the parties that this was a conditional plea that would be vacated so long as Bepko met the conditions of the plea bargain. After Bepko satisfied the plea bargain, he pleaded guilty to the misdemeanor crime of violation of a condition of release, which "clearly was not a charge that was pending against the grievant at the time of the March 16, 2007 `Decision of the Board of Police Commissioners.'" As such, the arbitrator determined that Bepko did not violate the terms of the board of police commissioners' decision. The arbitrator also rejected the city's argument that Bepko's guilty plea would make him an unreliable witness in court because he did not plead guilty to either a felony or a crime involving dishonesty. Specifically, the arbitrator stated that there was insufficient evidence to determine that Bepko acted dishonestly when he failed to turn over all of his firearms. Since the city presented no other evidence showing that Bepko had a history of dishonesty or chronic misbehavior, the arbitrator determined there was an insufficient basis to terminate his employment, and, therefore, reversed the decision of the Bridgeport board of police commissioners and reinstated Bepko as a police officer.
On December 24, 2008, the city filed an application to vacate this arbitration award, and the union filed an application to confirm the award on January 1, 2009. The city contends that the arbitrator's award must be vacated pursuant to General Statutes § 52-418(a)(4), which provides: "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 if it finds any of the following defects . . . (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."
In its memorandum of law, the city argues that the arbitrator exceeded his powers or imperfectly executed them because the award violates public policy in that it requires the reinstatement of a police officer who has violated the laws of the state of Connecticut and has demonstrated that he cannot keep an oath to enforce the law. Specifically, the city argues that the arbitrator violated both state and city public policy because: (1) the court is solely responsible for determining whether Bepko pleaded guilty to a felony, and, as a result, the arbitrator was incorrect when he held that Bepko's August 6, 2007 guilty plea was not final, (2) the arbitrator substituted his intent for that of the Bridgeport board of police commissioners and (3) the arbitrator's decision undermines the policy that police officers should exhibit good behavior. The union responds by arguing that the arbitrator's construction of the plea agreement did not violate public policy and the award was consistent with public policy regrading police commissions and police officer behavior. Accordingly, the union urges this court to grant its application to confirm the arbitration award pursuant to General Statutes § 52-417.
General Statutes § 52-417 provides: "At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to 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, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419."
Both parties agree that the submission to the arbitrator was unrestricted. As such, the standard for judicial review is well established. "Judicial review of arbitral decisions is narrowly confined . . . 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 . . .
"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 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 questions involved . . . In other words, [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.) Alexson v. Foss, 276 Conn. 599, 611, 887 A.2d 872 (2006).
Nevertheless, "[e]ven in the case of an unrestricted submission, we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute . . . (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of § 52-418 . . . [Section] 52-418(a)(4) provides that an arbitration award shall be vacated 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." (Internal quotation marks omitted.) Id., 612.
"[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418(a)(4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. We emphasize, however, that the manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator's extraordinary lack of fidelity to established legal principles . . .
"In Garrity [v. McCaskey, 223 Conn. 1, 612 A.2d 742 (1992)], we adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418(a)(4) . . . The test consists of the following three elements, all of which 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 panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable." (Internal quotation marks omitted.) Id., 613-14.
"The public policy exception applies only when the award is clearly illegal or clearly violative of a 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 . . .
"A two-step analysis . . . [is] often employed [in] deciding cases such as this. First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator's award violated the public policy." (Internal quotation marks omitted.) State v. Connecticut State Employees Assn., SEIU Local 2001, 287 Conn. 258, 272-73, 947 A.2d 928 (2008).
The city's first argument is that the arbitrator's decision violates public policies of the state of Connecticut and city of Bridgeport because the arbitrator viewed Bepko's guilty plea for violation of a protective order as a conditional plea and not a final conviction. In its memorandum of law, the city cites various state statutes for its position that only the court can determine if Bepko pleaded guilty to a felony and that Bepko's plea resulted in a final order of conviction. The city's memorandum of law argues that "the Arbitral Award rewrites the rulings of the Criminal Court by ignoring the facts as they existed at the time [Bepko] was terminated by the City in August 2007, stating that when [Bepko] pled guilty to criminal charges on August 6, 2007, his conviction was not final."
Although this argument is couched in terms of public policy, in reality the city is arguing that the arbitrator incorrectly applied Connecticut law. Indeed, on page thirteen of its memorandum of law, the city clearly states that arbitrator's "[a]ward ignores the law on this point and makes its decision on the future act of the Criminal Court in 2008 stating that it should be the basis for determining if [Bepko] plead guilty to criminal charges in 2007 that were pending at the time of the Administrative Decision of the Board was rendered." (Emphasis in original.) As stated by the union in its memorandum of law, the city makes no actual public policy based argument as to why the arbitrator's interpretation of the plea agreement is incorrect; the city only argues that the arbitrator ignored the law of this state. Accordingly, in order to prevail with this argument, the city would need to show that the arbitrator's interpretation clearly violated a well defined law.
While General Statutes § 53a-28(d) does establish that probation or revocable dispositions are final for the purposes of appeal, this statute also demonstrates that Connecticut law recognizes conditional sentences that are "tentative" and can be vacated. According to the transcript of the sentencing before Judge Brian Fischer on August 6, 2007, all of the parties knew that Bepko's conviction for violation of a protective order could be vacated if he complied with all of the terms of the plea bargain. Once this conviction was vacated on July 2, 2008, Bepko was no longer convicted of a criminal charge that was pending at the time of the March 16, 2007 decision of the Bridgeport board of police commissioners. The arbitrator's decision correctly summarizes this chain of events, and, therefore, the city has not met its burden to show that the arbitrator's decision manifestly disregarded the law. Moreover, the city fails to identity any true public policy that would indicate that the arbitrator's decision must be overturned. For these reasons, the city's first argument fails.
Next, the city argues that the arbitrator's award violates state and city public policy because the arbitrator "substituted the intent of the Police Board of Commissioners with his own intentions, and accepted the argument of the Union that the Police Board of Commissioners did not intend to terminate [Bepko] if he plead guilty to any of the felony convictions pending in Criminal Court, there by implying that the award was in keeping with the public policy of this Municipality . . . The Award cannot presume the intention of the Board outside its written decisions. To do so is a violation against the public policy of this state and Municipality." Later in its memorandum of law, the city clearly states its position when it writes that: "To reinstate a police officer who is unfit to serve the community as determined by the Police Board of Commissioners is a violation of a clear public policy." In support of its argument, the city cites certain sections of the Bridgeport city charter that give the city's board of police commissioners the authority to review decisions of the chief of police regarding the character and fitness of police officers.
As noted by the union in its argument in opposition, the essence of the city's position is that the determination of the board of police commissioners should trump the arbitrator's. While the cited provisions of the municipal charter of the city of Bridgeport do establish that the board of police commissioners and chief of police have an interest in regulating the behavior of the city's police officers, the charter does not provide any authority for the city's contention that a decision of an arbitrator has to comply with the determination of the board of police commissioners. Indeed, such a position is contrary to the rationale behind a contract that explicitly allows for a police officer to appeal a labor dispute to an arbitrator. The city and the union entered into a collective bargaining agreement that allowed for Bepko to appeal his termination to the American Arbitration Association. Surely the city and the union contemplated that there could be instances where an arbitrator would overturn the decision of the board of police commissioners. As such, the city's argument that such a result is a violation of public policy is without merit.
Furthermore, General Statutes § 7-474(f) provides in relevant part that: "Where there is a conflict between any agreement reached by a municipal employer and an employee organization and approved in accordance with the provisions of sections 7-467 to 7-477, inclusive, on matters appropriate to collective bargaining, as defined in said sections, and any charter, special act, ordinance, rules or regulations adopted by the municipal employer or its agents such as a personnel board or civil service commission . . . the terms of such agreement shall prevail; provided, if participation of any employees in said system or said fund is effected by such agreement, the effective date of participation in said system or said fund, notwithstanding any contrary provision in such agreement, shall be the first day of the third month following the month in which a certified copy of such agreement is received by the Retirement Commission, or such later date as may be specified in the agreement." (Emphasis added.) Given this statutory language, it becomes apparent that under Connecticut law, when there is perceived conflict between a municipal collective bargaining agreement and a city charter, the terms of the collective bargaining agreement shall prevail. In the present case, the labor agreement between the city and the union expressly provided that disputes regarding the termination of police officers could be appealed to an arbitrator. The union brought Bepko's case before the arbitrator who reversed the decision of the board of police commissioners. This result could not be wholly unexpected, and, therefore, the city has failed to establish that the arbitrator's decision violates public policy simply because it was contrary to the board of police commissioners.
The city's final argument is that the arbitrator's decision violates public policy because Connecticut law provides that police officers should exhibit good behavior. In support of this position, the city cites four cases for the proposition that an arbitration award can be vacated if it is contrary to this good behavior policy. The union responds by arguing that these cases only establish a general policy consideration that police officers should display good behavior, which is not specific enough for the city to prevail on its motion to vacate the arbitration.
In order to evaluate the city's argument, it is first necessary to determine precisely what the arbitrator held in his decision. The arbitrator determined that although Bepko had pleaded guilty to the misdemeanor of violation of a condition of release based on his failure to turn over all of his guns, this crime did not involve dishonesty. According to the arbitrator, the board of police commissioners recognized that while Bepko displayed "poor judgment in not being fully cognizant of the number and whereabouts of all firearms in his possession," there was no implication that he had committed dishonest behavior. As Bepko only pleaded guilty to a misdemeanor as opposed to a felony, and there was no allegation that he had engaged in dishonest behavior during the subject incident or at any other time, the arbitrator determined that there was insufficient evidence to support the termination of his employment.
None of the cases cited by the city mandate that the arbitrator's decision was unreasonable or otherwise contrary to law. In South Windsor v. South Windsor Police Union, 41 Conn.App. 649, 677 A.2d 464, cert. denied, 239 Conn. 926, 683 A.2d 21 (1996), the Appellate Court affirmed the trial court's decision to vacate an arbitration award that reinstated a police officer who intentionally revealed the identity of a confidential informant. The basis for this ruling was that statutory and case law provided a strong public policy in favor of keeping the identity of confidential informants secret. This case is factually distinguishable from the present matter because the public policy of protecting the identity of confidential informants is established by statute and the officer intentionally revealed the informant's name. The city also relies on South Windsor v. South Windsor Police Union Local 1480, Council 15, 57 Conn.App. 490, 750 A.2d 465 (1999), rev'd, 255 Conn. 800, 770 A.2d 14 (2001). Our Supreme Court, however, has reversed this decision, and it is no longer good law. Indeed, in its opinion reversing the Appellate Court, the Supreme Court held that the general consideration of "a town's control over the fitness for duty of its police force" was insufficient to establish a clearly defined public policy that would support vacating an arbitrator's decision to reinstate a police officer. South Windsor v. South Windsor Police Union Local 1480, Council 15, 255 Conn. 800, 802-03, 770 A.2d 14 (2001). The policy interest that the Supreme Court rejected in the second South Windsor case, supra, 255 Conn. 800, is similar to that which the city is asserting in the present matter.
Furthermore, the other two cases cited by the city do not stand for the proposition that police officer good behavior is a sufficient policy interest such that the arbitrator's decision must be reversed in the present case. For instance, in Jones v. Frost, 41 Conn.App. 341, 675 A.2d 922 (1996), the plaintiff state trooper did not appeal the decision of the arbitrator who terminated his employment. In Jones, the Appellate Court held that a state trooper claiming wrongful termination had failed to establish a prima facie case of race discrimination. As such, Jones is factually inapposite to the present case. Judge Rittenband's opinion in Bloomfield v. United Electrical Radio Machine Workers of America/Connecticut Independent Police Union Local No. 14, 50 Conn.Sup. 180, 916 A.2d 882 (2007), rev'd on other grounds, 285 Conn.278, 939 A.2d 561 (2008), is similarly unhelpful for the city's cause. In Bloomfield, the court vacated the decision of an arbitration panel to reinstate a police officer who had lied to his superiors. While making this decision, the court held that it was against public policy for a police officer to intentionally decide to not tell the truth. As discussed previously, however, the arbitrator in the present case determined that Bepko did not engage in any conduct that demonstrated dishonesty. This court is not allowed to revisit this factual determination. Accordingly, Bloomfield likewise does not establish that Connecticut law recognizes a general public policy that police officers should exhibit good behavior. Since the city has not provided the court with any case or statutory law establishing that police officer good behavior is a specific, well-defined public policy, the court finds that the city has not met its burden to mandate reversal of the arbitrator's award.
Accordingly, this court denies the plaintiff's application to vacate the arbitration award. As the court has denied the plaintiff's application, pursuant to General Statutes § 52-4 17, the court grants the union's counter-application to confirm the arbitration award.