Norwalk Police Union, Local 1727, Council 15, AFSCME, AFL-CIO v. Norwalk ( 2017 )

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NORWALK POLICE UNION, LOCAL 1727,
COUNCIL 15, AFSCME, AFL-CIO, ET AL.
v. CITY OF NORWALK ET AL.
(SC 19667)
Rogers, C. J., and Palmer, Eveleigh, Espinosa, Robinson and Vertefeuille, Js.*
Argued December 8, 2016—officially released February 14, 2017
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).
Opinion
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 (depart-
ment). The plaintiff,1 Norwalk Police Union, Local 1727,
Council 15, AFSCME, AFL-CIO, and the city are parties
to a collective bargaining agreement (agreement) gov-
erning 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, reas-
signed Couture to the department’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 allega-
tions of misconduct were litigated in a public trial
before the Board of Police Commissioners (board of
commissioners). The board of commissioners con-
cluded that Couture had violated a number of depart-
mental rules and that his employment should be
terminated. Couture disputed the board of commissi-
soners’ decision through the grievance procedures set
forth in the agreement and ultimately initiated an arbi-
tration proceeding with the defendant State Board of
Mediation and Arbitration (arbitration board). A major-
ity 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 General Statutes § 52-418. After conducting an evi-
dentiary hearing, the trial court, Hon. Kevin Tierney,
judge trial referee, vacated the arbitration award on the
ground that the city had disciplined Couture twice for
the same misconduct in manifest disregard of the law.
The city then filed this appeal.2 We conclude that the
decision of the arbitration board was not in manifest
disregard of the law and, therefore, that the trial court
improperly vacated the arbitration award.
The record reveals the following procedural history
and facts that were found by the arbitration board or
are undisputed. Couture started working at the depart-
ment 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
in the development of team approaches to interviewing
child sexual assault victims and Internet sting oper-
ations.
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 detective with the Westport Police Department. Rug-
giero informed Perez that there was an ongoing sexual
assault investigation that was possibly going to be trans-
ferred 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 Rug-
giero that she should speak 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 approxi-
mately 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 Rug-
giero stated that they would report the situation to their
respective chiefs of police.
Minutes 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
make the situation ‘‘any bigger than it already was’’ and
not to pursue the matter.
On the morning of Monday, October 29, 2007, Colan-
gelo went to the department to meet with Rilling. When
Colangelo told Rilling about the investigation of Cum-
mings, 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 per-
mission.
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 Cum-
mings 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, Cou-
ture 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 criminal 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 depart-
ment’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 commis-
sioners.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 coun-
sel. 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 foot-
note 4 of this opinion; and concluded that Couture
should be discharged from employment. The city termi-
nated 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-
tending that the city had terminated Couture without
just cause, in violation of the agreement, and seeking
his reinstatement. After exhausting internal grievance
procedures, the plaintiff invoked its right to submit the
matter to arbitration. The issues to be determined by
the arbitration board were: ‘‘Was the discharge of . . .
Couture for just cause?’’; and ‘‘If not, what should be the
remedy consistent with the [agreement]?’’ The plaintiff
contended that Couture’s termination violated double
jeopardy principles because he previously had been
subject to discipline for the same misconduct, namely,
Rilling’s reassignment of Couture to the patrol division.6
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 concluded that Couture’s discharge was for
just cause.
Thereafter, the plaintiff filed an application to vacate
the arbitration award pursuant to § 52-418.8 The plaintiff
claimed that the arbitration board’s decision was in
‘‘manifest disregard of the law’’ because it ignored the
long-standing principle that due process violations,
including double jeopardy violations, are part of a just
cause analysis.9
During a subsequent hearing on the plaintiff’s applica-
tion 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 arbitra-
tion . . . .’’
In its memorandum of decision, the trial court con-
cluded that Rilling’s reassignment of Couture to the
patrol division constituted discipline and that the plain-
tiff properly had raised the issue of double jeopardy
before the arbitration board.10 The court further con-
cluded 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 vacate 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 reassign-
ment to the patrol division and found that the reassign-
ment constituted discipline for the incident involving
Cummings despite the arbitration board’s finding to the
contrary. The city further contends that, even if the
reassignment did constitute discipline, there is no
‘‘ ‘[well-defined], explicit, and clearly applicable’ ’’ law
providing that double jeopardy principles apply to dis-
putes involving employee discipline.11 See Saturn Con-
struction Co. v. Premier Roofing Co., 238 Conn. 293,
305, 680 A.2d 1274 (1996). Because we agree with the
city’s first claim, we need not address its second claim.
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 effi-
cient and economical system of alternative dispute reso-
lution.’’ (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
to 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 submis-
sion, 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 § 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.’ ’’
Garrity v. McCaskey, supra, 223 Conn. 10. We have
emphasized, 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.’’ Id.‘‘[T]hree elements . . . 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 arbi-
tration panel is [well-defined], explicit, and clearly
applicable.’’ Saturn Construction Co. v. Premier Roof-
ing Co., supra, 238 Conn. 305.
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 plaintiff 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 reassign-
ment of Couture constituted discipline is a question of
fact to be decided by the arbitration board. Accordingly,
the arbitration board’s finding on this issue is not
reviewable by the courts. See Harty v. Cantor Fitzger-
ald & 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 testi-
mony on the issue and substituted its finding that Rill-
ing’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 predi-
cated 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 remanded
to the trial court with direction to deny the plaintiff’s
application to vacate the arbitration award.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Eveleigh,
Espinosa, Robinson and Vertefeuille. Although Justice Palmer was not pres-
ent when the case was argued before the court, he has read the briefs
and appendices, and listened to a recording of the oral argument prior to
participating in this decision.
1
Couture also was originally named as a plaintiff in this action, however,
the trial court, Hon. William J. Wenzel, judge trial referee, granted the city’s
motion to strike Couture as an improper party.
2
The city appealed from the judgment of the trial court to the Appellate
Court and this court transferred the appeal to itself pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
The record does not reflect the reasons for Rilling’s suspicion that Cum-
mings had been notified.
4
Specifically, Rilling concluded that Couture may have violated various
rules of conduct that are set forth in the department’s police manual, includ-
ing § 4.1, which prohibits police officers from engaging in acts that constitute
a violation of the rules, § 4.16, which prohibits police officers from engaging
in unbecoming conduct that brings that department into disrepute, reflects
discredit upon the officer or impairs the operation or efficiency of the
department or officer, § 4.21, which prohibits police officers from disclosing
confidential departmental business to unauthorized persons, and § 4.23,
which prohibits police officers from withholding information relating to
police business from superior officers for an improper purpose. In addition,
Rilling concluded that Couture may have violated directive 2.8.12 of the
department’s police manual, which requires police officers to notify the
chief of police of all complaints against the department or its employees.
5
Article 19, § 1 (b), of the agreement provides in relevant part: ‘‘If, in the
opinion of the [c]hief of [p]olice, disciplinary action of more than twenty
. . . days suspension is warranted, then the employee will be advised by
the [c]hief [of police] and be given the option of either having a disciplinary
hearing before the [c]hief [of police], or before the [board of commission-
ers] . . . .’’
6
Article 19, § 1 (b), of the agreement provides in relevant part: ‘‘In no
event can a member of the bargaining unit be disciplined by both the [c]hief
[of police] and the [board of commissioners] concerning the same incident
or complaint.’’
7
The plaintiff had previously brought an arbitration proceeding on behalf
of Couture in which one of the questions submitted to the arbitrator was
whether the double jeopardy claim was arbitrable. The arbitrator concluded
that it was not because, at the time that the plaintiff brought the arbitration
proceeding, Couture had not yet been terminated.
8
After the plaintiff filed its application to vacate in the Superior Court
for the judicial district of Danbury, the city filed a motion to dismiss the
action on the ground that it was brought in an improper venue because
neither party was located in that judicial district. The city also filed a motion
to strike Couture as an improper party because he was neither a party to
the agreement nor a party to the arbitration proceeding. The trial court,
Hon. William J. Wenzel, judge trial referee, granted the city’s motion to
strike; see footnote 1 of this opinion; and ordered that the case be transferred
to the judicial district of Stamford-Norwalk.
9
The plaintiff also claimed that a member of the arbitration panel had
engaged in misconduct by participating in ex parte communications with a
witness without the knowledge or consent of the parties. The trial court
rejected this claim and the plaintiff has not challenged that ruling on appeal.
10
The city has not challenged the trial court’s finding that the plaintiff had
raised the issue of double jeopardy before the arbitration board on appeal.
11
We note that the arbitration board did not reach the double jeopardy
issue because it concluded both that the issue was not before it and that
Couture’s reassignment did not constitute discipline. Accordingly, it would
appear that, upon finding that the issue was before the arbitration board
and Couture’s reassignment constituted discipline, the trial court should
not have decided the issue in the first instance, but should have remanded
the case to the arbitration board. See Board of Education v. East Haven
Education Assn., 66 Conn. App. 202, 218–19, 784 A.2d 958 (2001) (court
may remand case to arbitrator for new hearing). Because we conclude that
the trial court improperly substituted its findings for the findings of the
arbitration board, however, we need not address the question of whether
the case should be remanded.
12
In support of its finding on this issue, the trial court cited the holding
of the Commonwealth Court of Pennsylvania in Pennsylvania State Police
v. Pennsylvania State Troopers Assn., 840 A.2d 1059, 1063 (Pa. Commw.),
appeal denied, 578 Pa. 711, 853 A.2d 363 (2004), that the plaintiff employer’s
reassignment of its employee constituted discipline. The court in Pennsylva-
nia State Police merely held, however, that whether a transfer constitutes
discipline is a factual question to be decided by the arbitrator. See id. (when
arbitrator found as matter of fact that transfer of employee was disciplinary
measure, reviewing court was required to defer to that factual finding). The
other cases cited by the trial court also do not support the proposition that
a reassignment constitutes discipline. Rather, the cases merely support the
proposition that a reassignment is the proper subject of a grievance. See
Duluth Police Union v. Duluth, 360 N.W.2d 367, 370 (Minn. App. 1985)
(defendant city had right to transfer and reassign personnel, but right was
limited by seniority clause of collective bargaining agreement, police manual
and past practice); Minneapolis Federation of Teachers, Local 59 v. Minne-
apolis Special School District No. 1, 258 N.W.2d 802, 806 (Minn. 1977)
(decision to transfer teachers is managerial and not subject to negotiation,
but criteria by which teachers are identified for transfer is negotiable and
individual transfer is proper subject of grievance arbitration). Even if we
were to assume that a reassignment is the proper subject of a grievance
under the agreement at issue in the present case, that would not necessarily
mean that it constitutes discipline.