Hartford v. Local 760, Iaf, No. Cv 02-0818282 (Mar. 12, 2003) , 34 Conn. L. Rptr. 327 ( 2003 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION Docket Nos. 810463 and 818282 arise as applications to vacate and/or modify arbitration awards. In both cases, a grievance arbitration proceeding was held before a three-member panel of the Connecticut State Board of Mediation and Arbitration between the City of Hartford (hereinafter, the city) and the Local #760, International Association of Firefighters (hereinafter, the union). A majority of each panel issued an award favoring the union and the city has applied to the Superior Court to vacate/modify these awards pursuant to § 52-418.

The following facts were deemed undisputed by the arbitration panels. The agreement in effect at the time of the grievance between the City and the Union has, since July 1, 1978, contained a clause entitled "College Incentive Pay."¹ In Docket No. 810463, the grievant submitted copies of transcripts from Western States University to the Fire Chief and the Personnel Department and based on those transcripts requested payment of 5% college incentive payment as permitted by the contract, Article III, Section 3.15. The grievant was subsequently informed by the Personnel Department that the incentive payment was denied on the basis that Western States University was not accredited² in accordance with Article III, Section 3.15 of the contract.

In Docket No. 818282 each grievant submitted diplomas from Western States University as basis for receiving college incentive pay. Both of the grievants were granted college incentive pay, but this payment was stopped upon discovery that Western States University is not an accredited university. The City, at the hearing, stated for the record that for 20 years prior to 1998, credits were accepted from Western States University to fulfill the requirements of the college incentive program. A new Collective Bargaining agreement was reached in June of 2000 between the City and the Union requiring that only colleges and universities that are accredited by regional accrediting associations will qualify for college incentive pay. CT Page 3435

The union claimed that the grievants were entitled to an increase in pay based on the college incentive pay program since the continuous practice over 20 years in interpreting Article III. Section 3.15 was to provide college incentive pay for graduates of Western States University. The city based its denial on the contention that Western States University is not an accredited institution under the terms of Section 3.15, because its accreditation was not by a "recognized" accreditation agency.

The records³ in each grievance further show that the issue of accreditation began in 1998 when it was brought to the attention of Ms. Dunn, personnel administrator for the City of Hartford, that a firefighter received his bachelor's degree from Western States University and two months later received his master's degree from the same institution. Ms. Dunn was confused by the transcripts, since he was employed full time as a firefighter during the two months between the two degrees. Ms. Dunn decided to investigate the situation by conducting research into the accreditation process and Western States University.

According to Ms. Dunn's research there are three levels to the accrediting process. The first level is the immediate accreditor, which in this case is the Accrediting Commission International. The second level is an institution which recognizes the accreditor as a bona fide accreditor. The final level is the agency, most often a governmental agency, i.e. the U.S. Department of Education, which approves the recognizer. Ms. Dunn discovered that Western States University is not accredited by any of the six regional accrediting agencies or by any agency recognized by the United States Department of Education.

Western States University claimed to be accredited by the Accrediting Commission International for Schools, Colleges and Theological Seminaries (ACI). According to the United States Department of Education, ACI is not a nationally recognized accrediting agency. In other words, the United States Secretary of Education has not determined ACI to be a "reliable authority as to the quality of education or training provided by the institutions it accredits."⁴ The Missouri Higher Education office also wrote to Dunn on November 6, 1998, stating that a prior accrediting group for Western States University, called the International Association of Schools, Colleges and Theological Seminaries, had been enjoined by the Missouri Attorney General in 1989 for selling accreditation. ACI had then taken over as accreditor, but again was "unrecognized" in Missouri.⁵ The Arkansas Department of Higher education informed Dunn that ACI, located in Beebe, Arkansas, was not a recognized accreditor for those institutions located in Arkansas. The ACI website states that the average cost of accreditation is $2000, including a necessary one-time "on-site" CT Page 3436 visit. In response to a rhetorical question of whether "the benefits of membership justify the cost," ACI replies: "Yes. Absolutely! One of the first questions a prospective student asks a college or school is, `Are your [sic] Accredited?' . . . Schools use our name as a referral . . . Hundreds of students are gained by our membership each year based on the fact that the school is accredited."

Western States University does not require "students" to attend classes, complete course work, or take examinations. Western States University awards degrees based on life experience and requires a payment based on the degree sought, i.e. $1,900 for a Bachelor Degree and $2,400 for a Master Degree.⁶ In its student catalog, WSU states, "We are not a teaching or instructional university at the present time."

The Western States University catalog in the record answers "how it is done." The student assembles a portfolio of experiences, courses, and learning activities. The student is urged to include everything, no matter how small, for the review of Western States. The "registrar" at Western States then "matches" this material to regular courses at traditional universities. A "pass" grade is then awarded to the student for each course.

The transcript in Docket No. 810463 indicating the grievant's receipt of a bachelor's degree in business administration was generated by Western States University on September 2, 1998. It shows that the grievant was given twelve credits for English courses, taken at Connecticut colleges, a list of which he had placed in his portfolio (Grade "pass," attempted 12, earned 12). He also received like credit for other academic, real estate, and business courses previously taken. For letters written about his various civic and union activities, the grievant received a "pass" and four credits for a course entitled "Creative Leadership."

Despite the fact that Western States University has no recognized accreditation, the city had been granting college incentive pay based on credits received through Western States University.⁷ At the time of the grievances fifteen firefighters were receiving college incentive pay based on WSU credits.

In both cases the arbitration panels concluded that based on past practice and custom over the course of the past 20 years, the grievants were entitled to their college incentive pay. The majority found that the prior conduct of accepting credits from WSU over the past 20 years created an obligation outside of Section 3.15 to continue to accept credits from WSU for college incentive pay. In essence, the past conduct of the City CT Page 3437 established an understanding that WSU fit the requirements of accreditation under Section 3.15. The City argues that they were under the mistaken belief that WSU was accredited and changed their policy accordingly when it was discovered that WSU was not accredited.

Long-standing principles of arbitration law favor the union on the first issue raised by the city in its application to vacate. The city claims that § 52-418 was violated in that the arbitrators' award did not conform to its submission. In Docket No. 818282 as indicated, the college, incentive pay was halted after being initially allowed. The submission to the arbitration panel was as follows: "Did the City violate its Collective Bargaining Agreement with Local 760 when it denied the grievants college incentive pay? If so, what shall the remedy be?" The award was as follows: "The grievances are sustained. Each grievant shall be made whole for all losses sustained as a result of the City's elimination of the college incentive payment."

The city's argument fails because "[w]hen the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of [the court's] 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." Town of Middlebury v. Teamsters Local UnionNo. 677, 57 Conn. App. 223, 226 (2000), quoting Garrity v. McCaskey,223 Conn. 1, 4 (1992). As to this docket, the city has failed to show that the submission was restricted, see U.S. Fidelity and Guar. Co. v.Hutchinson, 244 Conn. 513, 516 (1998), or that the award does not conform to the submission.

In Docket No. 810463, where the college incentive pay was never allowed, the question posed to the arbitration panel was as follows: "Did [the city] violate its Collective Bargaining Agreement (Article 3, Section 3.15) with Local 760 when it denied the grievant college incentive pay? If so, what shall the remedy be?" The award was as follows: "The [city] violated its Collective Bargaining agreement (Article 3, Section 3.15) with local 760 when it denied the grievant college incentive pay . . ." This submission was also unrestricted. SeeState v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 86 (2001).

The city argues that the arbitrators exceeded the submission in making use of the past practice of granting the college incentive pay to interpret the term "accredited" in § 3.15. A similar case to consider this issue is Duxbury v. Duxbury Permanent Firefighters Association,CT Page 3438Local 2167, 737 N.E.2d 1271 (Mass.App. 2000). There the city denied that a firefighter could earn vacation or sick time while on injured-on-duty ["IOD"] leave. At a resulting arbitration, the arbitrator held that there was a "clear past practice of crediting similarly situated individuals on IOD leave with vacation and sick time." Id. at 1275. The appeals court "deferred" to this interpretation by the arbitrator, even though Duxbury argued that there was no ambiguity in the contract. The parties had bargained for the arbitrator's interpretation and they got what they bargained for. Id.

The court therefore rejects the first contention raised by the city.International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145,147 (1984): "Normally, the court examines the award in light of the submission and if it finds conformity, the award stands. If that were the sole standard, the award in this case should be confirmed." (Citation omitted.)

The second issue raised by the city — that the award violates public policy⁸ — is more troubling. It was not fully considered by the arbitration panel in either grievance.⁹ Our Supreme Court has held that "the judicial review of whether an arbitral award implicates and violates public policy is necessarily de novo review . . . Where there is no clearly established public policy against which to measure the propriety of the arbitrator's award, there is no public policy for vacatur. If, on the other hand, it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy . . . [Where] a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy." State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467,475 (2000), quoting in part Schoonmaker v. Cummings Lockwood ofConnecticut, P.C., 252 Conn. 416, 429 (2000). This law is based upon the leading Supreme Court case of W.R. Grace and Co. v. Local Union 759,461 U.S. 757, 766 (1983): "If the contract interpreted by [the arbitrator] violates some explicit public policy, we are obliged to refrain from enforcing it . . . Such a public policy, however, must be 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.'" (Citations omitted.)

Thus the court must first determine whether such a public policy can be identified in this application to vacate the award and then decide if the arbitrators' award violated this policy. State v. AFSCME, Council 4,CT Page 3439supra, at 476. In this analysis, "the court is not concerned with the correctness of the arbitrator's decision but with the lawfulness of enforcing the award." South Windsor v. South Windsor Police Union Local1480, Council 15, 255 Conn. 800, 815 (2001). "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 the parties can expect a court to enforce such a contract between them." Id.

According to the precedent stated above, the court first addresses whether a public policy has been identified in the city's application to vacate the arbitration award. The applicable public policy must be "explicit," not merely drawn from considerations of "supposed public interest." Groton v. United Steelworkers of America, 254 Conn. 35, 46 (2000). In South Windsor v. South Windsor Police Union, supra, the Supreme Court ruled that an arbitration award should not have been vacated where a police officer had misused his weapon in an arrest and was restored to service by an arbitration panel. The town's valid public policy of requiring a police officer to be fit for duty had been satisfied under the facts as found by the arbitrators. In addition town's claimed goal of providing its citizenry with a competent police force was just a "general consideration" and could not be called a "public policy." Id. at 824. See also Ohio Council 8, AFSCME v. Trumbull Memorial Hospital,124 F. Sup. 482, 486 (N.D.Ohio., 2000) (a public policy recognizing a surgeon's judgment in supplying appropriate patient care was amorphous, not "explicit and specific").

On the other hand, in State v. AFSCME, Council 4, the Supreme Court held that public policy required the vacation of an arbitration award reinstating a corrections officer instead of terminating his employment for making a profane and racist telephone call to a state senator. There was an "explicit, well-defined and dominant" public policy against anonymous racist telephone calls made by an employee while on duty and made from a state-owned telephone where there was also a state statute prohibiting harassing telephone calls. Id. at 476-77.

The city claims that the award in this case violates the established public policy of disallowing fraudulent or false claims from being presented by employees to the city for payment. There is clearly a public policy against public employees abusing their position. See Department ofAuditor General v. Council 13, 582 A.2d 98, 101 (Pa. Commonwealth Court, 1990) (office selling scheme by public employees). There is a further public policy of honesty by a public officer in submitting official documents. International Brotherhood of Police Officers v. Windsor, CT Page 344040 Conn. Sup. 145, 148 (1984). See also Stamford v. Stamford PoliceAssn., 14 Conn. App. 257, 260 (1988), approving of the public policy of honesty as identified in International Brotherhood.

The case of Duxbury v. Duxbury Permanent Firefighters, supra, at 1275, discusses town employees filing for sick leave credit while on injury leave and finds "a well-defined and dominant public policy against `windfall' payments to individuals, as a result of erroneous actions by municipal officials in making the payments in the first instances . . . The policy arises from a need to protect the public treasury from unwarranted money payments."¹⁰ (Citations omitted.)

Also closely related to submitting a less than honest report to a municipality is the situation where a teacher seeks a position without possessing the proper academic credentials. See Meehan v. Nassau CommunityCollege, 676 N.Y.S.2d 178 (A.D. 1998) (public policy of not permitting employees to teach history courses when not accredited in that subject matter).

The public policy of allowing a public employee to obtain only those benefits to which he or she is honestly entitled has been established by the state legislature in its enactment of § 53a-119. Subsection 6(C) declares that "[a] person is guilty of defrauding a public community who as an officer . . . of any public community, with intent to prejudice it . . . presents . . . any fraudulent claim against such community." This statute, which was enacted almost in this same form in 1874, was from the first directed against employees who further fraudulent claims while "acting for the public weal . . . assisting the town in the discharge of its public duty." State v. Clerkin, 58 Conn. 98, 102 (1889).

A more recent opinion by the Appellate Court declares: "this state's compelling public policy of not tolerating the knowing misappropriation of state funds by state officials or employees cannot be disputed. General Statutes § 53a-119 (6), which explicitly proscribes such conduct, represents an unequivocal legislative articulation of this policy. The public policy of discouraging fraud generally is firmly rooted in our common law as well." State v. Council 4, AFSCME, 27 Conn. App. 635,641 (1992). In Kutas v. State, 517 N.Y.S.2d 857 (Court of Claims, 1987), affirmed, 537 N.Y.S.2d 30, vacated as moot, 538 N.Y.S.2d 983 (App.Div. 1989), an employee of the state motor vehicle department misstated his age to become eligible for employment, claiming to be 57 when he was in fact 71. When he retired ten years later, his application for a pension was rejected. The court approved of this denial in part as follows: "Public employment is involved in this case and considerations of public policy would seem to add to the impropriety of paying benefits in the face CT Page 3441 of admitted fraud of the System." Id. at 861. In addition, numerous professionals have been disciplined for misrepresenting their academic credentials to prospective employers. See In re Hadzi-Antich, 497 A.2d 1062 (D.C.App. 1985), where an attorney's wife erroneously prepared a list of his law school honors and this was submitted to his employer.¹¹ Based on the foregoing, the court concludes that there is an explicit public policy against public employees submitting wholly unsubstantiated claims of educational achievement to their employer municipality to obtain a benefit or an advantage.

The court now "proceed[s] to the second prong of the analysis: whether the arbitrator[s'] award violated this clear public policy." State v.AFSCME, Council 4, supra, at 477. The arbitrators in each grievance approved the granting of the college incentive pay allowed under the collective bargaining agreement. The records before the court show that the grievants received their degrees from an institution that was not "a teaching or instructional university," according to its own student handbook. It merely took the grievants' list of life's experiences and created a transcript for each "student." In addition Western States University has never been accredited by a recognized accreditor, only by one institution that was closed down by the Missouri attorney general, and another unrecognized either in Missouri or Arkansas.

The "resume review" degree program of Western States University may be contrasted with Connecticut's Charter Oak College, established by the state Board for Academic Awards under § 10a-143. Charter Oak College allows for "portfolio assessment." Information published by Charter Oak shows that the school accepts experiences that show prior learning, even if not in an academic setting, but will not award credits for experience alone or for internships or field schools. After consulting an academic counselor, the student constructs a narrative of experiences to support a claim of knowledge in a subject matter. The portfolio is "independently reviewed by two higher education faculty who are experts in the area they are reviewing. Faculty reviewers give written comments on the strengths and weaknesses of your portfolio." Specifically in contrast with Western States University, "[r]eviewers may award credits requested, deny credits, or ask . . . for clarification. This provides for a collaborative process, with opportunity for faculty to request further information in cases where they suspect that [the students] have knowledge but . . . have not described it sufficiently. In the event that faculty disagree in their assessments, [the] portfolio will be submitted to a third faculty evaluator whose decision is final."

Moreover, the court is not merely engaging in a quibble over the meaning of the word "accredited." For example in Goddard v. South BayCT Page 3442Union High School District, 144 Cal.Rptr. 701 (Cal.App. 1978), a history teacher was denied an "advancement on the salary schedule" because the school district refused to accept courses he had taken at Southwestern University School of Law, a school not accredited by the standard regional accreditor. The law school was, however, approved by the American Bar Association and the California State Committee of Bar Examiners. The court concluded that while the school district could properly restrict salary credits, the teacher had met the requirement of receiving credits from an "accredited institution" as properly defined. The school district had been too narrow in its interpretation of the term "accredited." Here, by contrast, the grievants tendered their transcripts from a school that taught nothing, that did nothing but assemble a transcript,¹² and that has no accreditation whatsoever. To allow such awards to stand would offend public policy by rewarding employees for nonexistent educational achievements.

The union argues that the grievants were not arrested or censured for their conduct. But the court, in reviewing whether to vacate an arbitration award on public policy grounds, does not scrutinize the conduct of the individual, but the lawfulness of enforcing the award.Town of Groton v. United Steelworkers Of America, 254 Conn. 35 (plea of nolo contendere to embezzlement). The union further argues that the grievants were unaware, because of the city's past attitude, that what they were doing could constitute the submission of a fraudulent transcript. The grievants' actions were, however, sufficiently volitional enough to raise a public policy ground to off-set the usual deference given to an arbitration award. State v. Council 4, AFSCME,27 Conn. App. 642.

For the foregoing reasons, the court finds that the arbitration awards in both dockets violate public policy. Therefore, the city's application to vacate each award is granted, and the union's application to confirm the award is denied.¹³

BY THE COURT HENRY S. COHN, J.