Fraternal Order of Police v. Columbus , 2022 Ohio 4102 ( 2022 )

[Cite as Fraternal Order of Police v. Columbus, 2022-Ohio-4102.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Fraternal Order of Police, :
Capital City Lodge #9,
:
Petitioner-Appellee, No. 22AP-130
: (C.P.C. No. 21CV-7069)
v.
: (REGULAR CALENDAR)
City of Columbus,
:
Respondent-Appellant.
:
D E C I S I O N
Rendered on November 17, 2022
On brief: Harshman & Wannemacher, Nicole Rager
Wannemacher and Lathan J. Lipperman, for appellee.
Argued: Lathan J. Lipperman.
On brief: Zach Klein, City Attorney, Paul M. Berhnart and
Susan E. Williams, for appellant. Argued: Paul M. Bernhart.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Respondent-appellant, City of Columbus ("City"), appeals the January 25,
2022 decision of the Franklin County Court of Common Pleas granting the motion filed by
Petitioner-appellee, Fraternal Order of Police, Capital City Lodge #9 ("FOP"), to confirm
an arbitration award and denying respondent's motion to vacate that same arbitration
award.
{¶ 2} This case concerns the decision by the City's Department of Public Safety to
contract with the law firm of BakerHostetler and authorize the firm to conduct
administrative investigations into over one thousand citizen complaints filed against the
Columbus Division of Police for excessive force during the protests that occurred in
No. 22AP-130 2
Columbus between May 28 and June 3, 2020. The FOP filed labor contract grievances on
June 7, 2020 and July 23, 2020 regarding the City's decision to employ BakerHostetler for
this purpose, arguing that it violated Article 2.7, 8, 9, and 19.4 of the FOP's Collective
Bargaining Agreement ("the CBA") with the City.
{¶ 3} The case proceeded through arbitration, and on November 3, 2021, the
arbitrator issued an award ruling that the CBA "specifies the entities that may investigate
'allegations that could result in disciplinary action against a member,' " and that the use of
"an Independent Contractor to perform investigative duties assigned to the Internal Affairs
Bureau violates Article 8" of the CBA, and that further "Article 19 [of the CBA] precludes
the subcontracting of law enforcement duties," including internal investigations. The
arbitrator sustained the grievances and directed the City to "cease and desist from using an
Independent Contractor to perform internal investigations." (Opinion & Award, Grievance
Nos. 23-2020 & 26-2020, filed as Ex. C to Petitioner's Mot. to Confirm Arbitration Award.)
On November 8, 2021, the FOP filed its motion to confirm the arbitration award, and
November 22, 2021, the City filed a memo responding and a motion to vacate the
arbitration award. On January 25, 2022, the Common Pleas Court overruled the motion to
vacate and granted the motion to confirm, concluding that it "does not find that the
Arbitrator exceeded her authority nor that the Award violates public policy," that there was
nothing in the record "demonstrating the Arbitrator exceeded her powers or so imperfectly
executed them that a mutual, final, and definite award upon the subject matter submitted
was not made," and that the City "does not point to any specific instances of public policy
violations or specific public policies at issue." (Jan 25, 2022 Decision & Entry at 4.) This
appeal followed, and the City asserts two assignments of error with the trial court's
judgment:
[I.] The Trial Court Erred by Granting Appellee's Motion to
Confirm Arbitration Award.
[II.] The Trial Court Erred by Denying Appellant's Motion to
Vacate Arbitration Award.
These two assignments of error present two sides of the same question, and we will address
them together.
{¶ 4} Ohio law favors arbitration and reviewing courts only have limited authority
to vacate an arbitrator's award. Under R.C. 2711.10, a court may vacate an arbitration
No. 22AP-130 3
award only on the grounds of fraud, corruption, misconduct, an imperfect award, or that
the arbitrator exceeded his or her authority. The language of the parties' contract
determines the parameters of an arbitrator's authority, and an arbitrator exceeds his or her
authority in rendering an award if the award does not draw its essence from the collective
bargaining agreement. Such an award departs from the essence of the collective bargaining
agreement when it conflicts with the express terms of the agreement or is without rational
support or cannot be rationally derived from the terms of the agreement. See State v. FOP
of Ohio, Inc., 10th Dist. No. 16AP-457, 2017-Ohio-1382, ¶ 17-19; Franklin Cty. Sheriff v.
Teamsters Local No. 413, 10th Dist. No. 17AP-717, 2018-Ohio-3684, ¶ 17-19. See generally
Ohio Patrolmen's Benevolent Assn. v. Findlay, 149 Ohio St.3d 718, 2017-Ohio-2804, ¶ 16,
quoting Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-3943, ¶ 7 ("Arbitrators
act within their authority to craft an award so long as the award 'draws its essence' from the
contract—that is, 'when there is a rational nexus between the agreement and the award, and
where the award is not arbitrary, capricious or unlawful.' ").
{¶ 5} But despite this limit on the parameters of the court's review, we apply mixed
standards when analyzing an arbitration. "When reviewing a trial court's decision to
confirm, modify, vacate, or correct an arbitration award, an appellate court should accept
findings of fact that are not clearly erroneous but should review questions of law de novo."
(Emphasis added.) Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators' Assn.
for Dev. Disabilities, 153 Ohio St.3d 219, 220, 2018-Ohio-1590. And "[t]he question
whether an arbitrator has exceeded his authority is a question of law." Id. at ¶ 25, quoting
Green v. Ameritech Corp., 200 F.3d 967, 974 (6th Cir.2000). The Portage standards of
review apply to law enforcement labor disputes. See Brook Park v. FOP, 8th Dist. No.
108879, 2020-Ohio-3035, ¶ 13. Accordingly, the limited question that can be reviewed in
this appeal is whether the arbitrator's decision draws its essence from the contract—but
that limited question is reviewed de novo.
{¶ 6} To analyze this question, we have thoroughly reviewed the arbitrator's
decision and the record, and have identified two provisions of the collective bargaining
agreement between the parties that are particularly relevant:
No. 22AP-130 4
ARTICLE 8 – INTERNAL INVESTIGATIONS PROCEDURES
8.1 Scope
This Article is designed to address the procedures used for
internal investigations of members. This Article shall applyto
the investigation of allegations that could result in disciplinary
action against a member. Internal investigations shall be
conducted by the chain of command, by the Equal Employment
Opportunity Office (EEO), and/or by personnel assigned to the
Internal Affairs Bureau. Should the Office of the Public Safety
Director conduct an investigation, members shall be afforded
the rights applicable in an Internal Affairs Bureau
investigation. The term investigator refers to the individual(s)
conducting the investigation. The term "Lodge Representative"
refers to a Lodge officer, Lodge Grievance Chairperson or
Lodge Representative, or Lodge-designated attorney.
***
ARTICLE 19 – MISCELLANEOUS
19.4 Contracting Out/Civilia[n]ization
The City agrees not to hire any additional Public Safety Officers
and further agrees not to contract out or civilianize any law
enforcement duties performed by members of the bargaining
unit(s) unless such matters are first discussed in good faith
with the Lodge at a Labor Relations Committee meeting; If,
after the Labor Relations Meeting, the City decides to proceed
with the contracting out or civilianization of any law
enforcement duties, the Lodge may utilize the arbitration
procedure and any other relevant provisions of this Contract to
contest the propriety of the decision to contract out.
{¶ 7} We express no opinion as to the policy merits of the arbitrator's decision, but
reading Article 8.1 and 19.4 together, we hold that the arbitrator could rationally conclude
that under those provisions, the Department of Public Safety is authorized to conduct
investigations but that the Department of Public Safety must obtain the prior agreement of
the FOP before using outside contractors for law-enforcement purposes. In response, the
City argues that it is at best unlikely that internal affairs officers could have completed any
serious investigations of the one thousand misconduct complaints within the required time
frames, even if there were no conflicts of interest or other issues that would delay those
investigations. But the record demonstrates that BakerHostetler itself only used two
No. 22AP-130 5
attorneys in evaluating and investigating the complaints, seriously undermining the City's
contention. Without specifically arguing such, the City seems to be asserting an
impossibility of performance defense to the contract's terms; but of course, the limited
resources allocated to the project by BakerHostetler demonstrate the weakness of that
argument.
{¶ 8} The City next contends that "administrative investigations" of the complaints
do not constitute "law enforcement duties" under Article 19.4 of the collective bargaining
agreement, and therefore that the Department of Public Safety was not precluded from
hiring an outside contractor to conduct these investigations. The City asserts that the
arbitrator "failed to distinguish between criminal investigations and administrative
investigations when she determined that the investigations of citizen complaints were law
enforcement duties." (Reply Brief of Appellant at 9.) But of course, since that distinction
is not present in the contract and was established by the course of dealing between the
parties, it was not incumbent on the arbitrator to create it.
{¶ 9} In sum, our review of the record—specifically including the trial court's
decision to confirm the arbitrator's award, the award itself, the CBA, and the supporting
materials and arguments submitted by the parties—we cannot say that the arbitrator
exceeded her authority by concluding that the agreement precluded the City from using an
outside contractor to conduct investigations into the complaints, as her decision is rooted
squarely in the language of the CBA. For that reason, the trial court's decisions to grant the
FOP's motion to confirm the arbitration award and deny the City's motion to vacate the
award were not erroneous.
{¶ 10} Accordingly, we overrule the City's two assignments of error and affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
MENTEL and MCGRATH, JJ., concur.