Common Police Procedure?
Police Misconduct is all too common in Connecticut. The below was cut and pasted here from this pdf.
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BOARD OF POLICE COMMISSIONERS OF THE CITY
OF ANSONIA v. EARL STANLEY
(AC 25578)
Dranginis, Gruendel and Hennessy, Js.
Argued September 16—officially released December 27, 2005
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Cremins, J.)
William T. Blake, Jr., for the appellant (defendant).
Francis A. Teodosio, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendant, Earl Stanley, appeals
from the judgment of the trial court vacating on public
policy grounds the arbitration award (award) reinstating
his employment with the Ansonia police department
(department).
1 On appeal, the defendant claims that the
court improperly (1) vacated the award of reinstatement
and (2) denied his motion to confirm the award.
We affirm the judgment of the trial court.
At the time of this dispute, the city of Ansonia (city)
and the Connecticut Independent Police Union, Local
13 (union), of which the defendant was a member, were
parties to a written collective bargaining agreement
(agreement) effective from July 1, 2000, to June 30, 2003.
The agreement provided that when a nondepartmental
written complaint is filed against an employee, the
employee must be provided notice of such complaint
within seven days of its being filed and that the complaint
must be dismissed if not acted on by the plaintiff,
the board of police commissioners (board), within five
months of the date the complaint was filed.
2 The
agreement further provided for review of an employee’s
discharge, termination of employment or demotion by
a panel of arbitrators.
The defendant was employed as a police officer with
the department until his employment was terminated
on August 6, 2002, following complaints of harassment,
intimidation and false statements to the department.
Specifically, four women complained of inappropriate
language and conduct by the defendant, including the
use of sexual language, grabbing of their buttocks,
harassment with a police car’s flashing lights and observation
by the defendant of one of the women while she
was getting out of a shower.3 During the department’s
internal affairs investigation of the complaints, the
defendant made false and misleading statements about
his conduct.4 On August 6, 2002, the board heard argument,
received evidence and concluded by a unanimous
vote of the participating commissioners that the evidence
substantiated a finding that the defendant
had
violated seven sections of the rules and regulations of
the Ansonia police department (duty manual), and,
thus, the board terminated the defendant’s employment.
5 Pursuant to the agreement between the city and
the union, the defendant grieved the termination, and
both parties agreed to submit the grievance to arbitration
for a determination of whether the defendant’s
employment was terminated for just cause and the
appropriate remedy if it was not. The arbitration panel
(arbitrators) held hearings and received evidence on
the merits of the unrestricted submission on March 19
and April 11, 2003.
In their written award, the arbitrators concluded that
the board had violated the defendant’s procedural rights
under the agreement and thus did not have just cause
to terminate his employment. They concluded that the
complaints used by the board in terminating the defendant’s
employment were of the sort covered by the
agreement and were not excluded because of an ongoing
criminal investigation involving the defendant or
by past practice. They further concluded that because
three of the complaints were not acted on within five
months, which may have curtailed the defendant’s ability
to defend against those complaints, the board
improperly had relied on them in reaching its decision.
6
The arbitrators ordered that the defendant be reinstated,
but declined to include back pay as part of the
remedy. Examining the record as a whole, the arbitrators
found that there was ‘‘ample evidence of some on
duty misconduct’’ and determined:
‘‘While we believe
that the [defendant’s] rights were violated, we do not
feel that an award of back pay is warranted. Our conclusion
is based on an examination of the record as a
whole. Said evidence clearly establishes that the [defendant]
was not exonerated of the charges brought by
the state. Neither did he rebut the allegations made
against him at the August 6 hearing. A preponderance
of the evidence also establishes that a significant part
of [the defendant’s] misconduct occurred while on duty,
a factor not considered during his court proceeding. It
is clear to [the arbitrators] from Judge Sequino’s comments,
however, that she would have considered this
type of misconduct to be serious if the case before her
(the [S] complaint) had involved the same.
‘‘Based on a preponderance of the evidence, the [arbitrators]
also conclude that [the defendant] used his
position of authority to influence and intimidate the
victims. He also violated the trust placed on him by the
public since he preyed on their fear of his position as
a police officer. The evidence also establishes that [the
defendant’s] statements were inconsistent, if not outright
contradictory, at various stages of the internal
affairs investigation, which made it look as if he was less
than candid with the investigators and had something
to hide. Besides that, [the defendant] did not express
remorse, though he admitted through counsel in court
that he engaged in lewd and sexually charged conversations
which were inappropriate, especially for an individual
who is a police officer. Also of concern to the
[arbitrators] is the disturbing nature of [the defendant’s]
physical touching, which by credible accounts, was
unsolicited, unwanted and rebuked and which, by his
account, was intended to facilitate having sexual relations
with the victims.’’
The city filed an application to vacate the award on
December 9, 2003, pursuant to General Statutes § 52-418
on the grounds that the award (1) violated established
public policy against harassment, particularly of a sexual
nature; (2) usurped the authority of the board as
set forth in the city charter, the agreement, the department’s
duty manual and General Statutes §§ 7-274 and
7-276; (3) conflicted with established and acceptable
standard criminal investigation policy; and (4) forced
the department to notify any officer suspected of criminal
misconduct within seven days of a complaint regardless
of the investigation.
The defendant filed an answer
to the plaintiff’s application and a motion to confirm
the award. The court found that the award violated the
clearly defined public policies against harassment and
sexual misconduct, as well as the public policy requiring
good conduct on the part of police officers, and vacated
the arbitration panel’s award of reinstatement. This
appeal followed.
On appeal, the defendant claims that the court
improperly vacated the award because the court (1)
did not rely on the findings of fact and conclusions of
law in the award, (2) relied on dicta in the award in
reaching its decision, (3) did not identify a clearly
defined public policy that had application to the facts
found by the arbitrators and (4) improperly found that
his reinstatement violated public policy. The defendant
further claims that the court improperly denied his
motion to confirm the arbitration award as (1) there
was no basis for overturning the award and (2) the
award conformed to the submission.
7
I
The defendant’s first two arguments question the
scope of the court’s review of the arbitrators’ award
reinstating the defendant, specifically that the court did
not rely on the panel’s findings in rendering its decision.
We begin by stating the standard of review for arbitration
awards. ‘‘Because [courts] favor arbitration as a
means of settling private disputes, [courts] undertake
judicial review of arbitration awards in a manner
designed to minimize interference with an efficient and
economical system of alternative dispute resolution.’’
(Internal quotation marks omitted.) State v. AFSCME,
Council 4, Local 387, AFL-CIO, 252 Conn. 467, 474,
747 A.2d 480 (2000). ‘‘The standard of review relative
to arbitration awards depends on the nature of the
challenge. With a voluntary, unrestricted submission
to an arbitrator . . . the court may only examine the
submission and the award to determine whether the
award conforms to the submission. . . . In making
such a comparison when the submission is unrestricted,
the court will not review the evidence or legal questions
involved, but is bound by the arbitrator’s legal and factual
determinations. . . .
‘‘Certain conditions do exist, however, under which
[courts] conduct a more searching review of arbitral
awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612
A.2d 742 (1992), our Supreme Court reiterated that there
are three grounds for vacating an award when the submission
is unrestricted. These grounds arise when the
award (1) rules on the constitutionality of a statute, (2)
violates clear public policy or (3) contravenes one or
more of the statutory proscriptions of General Statutes
§ 52-418.’’ (Internal quotation marks omitted.) Metropolitan
District Commission v. Local 184, 77 Conn.
App. 832, 838, 825 A.2d 218 (2003). In the present case,
the defendant’s challenge implicates only the second
exception; accordingly, it will be the focus of our discussion.
‘‘[W]hen a challenge to a voluntary arbitration
award rendered pursuant to an unrestricted submission
raises a legitimate and colorable claim of violation of
public policy, the question of whether the award violates
public policy requires de novo judicial review.’’
(Internal quotation marks omitted.) Metropolitan District
Commission v. AFSCME, Council 4, Local 184,
89 Conn. App. 680, 683, 874 A.2d 839, cert. denied, 275
Conn. 912, 882 A.2d 673 (2005).
‘‘Our Supreme Court has determined that in reviewing
questions of fact in arbitration proceedings, a reviewing
court must determine whether there is substantial evidence
in the record to support the arbitrators’ findings
of fact and whether the conclusions drawn from those
facts are reasonable.’’ (Internal quotation marks omitted.)
Id., 686. The limited scrutiny with which we review
an arbitration panel’s findings of fact dictates that ‘‘it
is neither the function of the trial court nor of this court
to retry the case or to substitute its judgment for that
of the [arbitration panel.]’’ (Internal quotation marks
omitted.) Burns v. General Motors Corp., 80 Conn. App.
146, 152, 833 A.2d 934, cert. denied, 267 Conn. 909, 840
A.2d 1170 (2003).
A
We first examine the defendant’s argument that the
court did not rely on the factual findings and legal
conclusions of the arbitrators in making the public policy
determination. Our review of the record reveals that
there was substantial evidence in the record to support
the arbitrators’ factual findings that the defendant committed
some on duty misconduct, behaved inappropriately,
used his position of authority to influence and to
intimidate the victims, and made misleading statements
during the internal affairs investigation. The record
includes not only evidence on which the arbitrators
determined the board could rely in its actions against
the defendant, but also evidence that the arbitrators
found was used by the board in violation of the defendant’s
contractual rights under the agreement. The arbitrators’
finding disallowing the use of certain
complaints in the board’s decision to terminate the
defendant’s employment stands alone as a matter of
contract interpretation, limiting the conduct of the parties
bound by that contract. Accordingly, although the
arbitrators’ interpretation of the contract prohibited the
board from using certain evidence of the defendant’s
misconduct, the arbitrators made findings as to that
evidence. Those factual findings are a part of the record
from which the arbitrators may fashion a remedy for
the procedural violation.
8
The arbitrators heard testimony and made credibility
determinations on the basis of the evidence before
them. We are required to give deference to arbitrators’
factual determinations, including questions of credibility.
See Metropolitan District Commission v. AFSCME,
Council 4, Local 184, supra, 89 Conn. App. 686. The
full record considered by the arbitrators includes the
complaints by several women about inappropriate conduct
by the defendant, the misdemeanor charge of sexual
assault in the fourth degree9 and the inconsistent
statements that the defendant made to the internal
affairs investigators. Collectively, those facts provide
substantial evidence for the arbitrators’ factual findings
of the defendant’s misconduct warranting denial of
back pay and, thus, are entitled to the deference ordinarily
given to arbitrators’ factual findings.
See Groton
v. United Steelworkers of America, 254 Conn. 35, 51–52,
757 A.2d 501 (2000) (even when review of arbitrator’s
decision is de novo, reviewing court gives deference
to arbitrator’s factual determinations). Having found
substantial evidence on the record to support the arbitrators’
findings of fact, a reviewing court may apply
all of those findings as the basis for the public policy
inquiry. See Schoonmaker v. Cummings & Lockwood
of Connecticut, P.C., 252 Conn. 416, 429–32, 747 A.2d
1017 (2000).
B
The defendant next argues that the court relied on
dicta in the award in reaching its decision. ‘‘Dictum
includes those discussions that are merely passing commentary
. . . those that go beyond the facts at issue
. . . and those that are unnecessary to the holding in
the case. . . . As we have previously recognized, however,
it is not dictum when a court . . . intentionally
takes up, discusses, and decides a question germane
to, though not necessarily decisive of, the controversy
. . . . Rather, such action constitutes an act of the
court which it will thereafter recognize as a binding
decision.’’ (Citations omitted; internal quotation marks
omitted.) Middletown Commercial Associates Ltd.
Partnership v. Middletown, 53 Conn. App. 432, 435, 730
A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657
(1999). Here, the defendant characterizes as dicta the
arbitrators’ factual findings regarding back pay. We do
not find his argument persuasive. The submission to
the arbitration panel was twofold, first to determine
whether the termination of the defendant’s employment
was for just cause and, second, to determine the appropriate
remedy if the defendant’s employment was terminated
improperly. The arbitrators’ findings as to the
defendant’s conduct were directly related to their decision
to deny the defendant back pay. Accordingly, the
findings were not mere dicta, but findings of fact necessary
to the arbitrators’ conclusion.
II
The defendant’s remaining arguments challenge the
court’s finding that stalking, harassment and intimidation
by a police officer, and making material falsehoods
during an internal police investigation constitute a public
policy violation. We continue to review the defendant’s
claims de novo, giving deference to the
arbitrators’ factual findings. See Metropolitan District
Commission v. AFSCME, Council 4, Local 184, supra,
89 Conn. App. 683.
Our review of a public policy challenge to an arbitral
award is limited in scope. ‘‘This court’s role in
addressing a public policy challenge has been confined
largely to determining whether, as gleaned from a statute,
administrative decision or case law, there exists a
public policy mandate with which an arbitral award
must conform.’’ (Internal quotation marks omitted.)
Metropolitan District Commission v. Local 184, supra,
77 Conn. App. 842.
Our Supreme Court has set forth a
rubric for resolving public policy challenges. ‘‘Schoonmaker
require[s] a two-step analysis in cases such as
this one in which a party raises the issue of a violation
of public policy in an arbitral award. First, we must
determine whether a clear public policy can be identified.
Second, if a clear public policy can be identified,
we must then address the ultimate question of whether
the award itself conforms with that policy.’’ (Internal
quotation marks omitted.) Id., 839. The public policy
which would be violated by enforcement of the arbitral
award must be ‘‘well defined and dominant, as is to be
ascertained by reference to the laws and legal precedents
and not from general considerations of supposed
public interests. . . .
The party challenging the award
bears the burden of proving that illegality or conflict
with public policy is clearly demonstrated.’’ (Internal
quotation marks omitted.) State v. AFSCME, Council
4, Local 387, AFL-CIO, supra, 252 Conn. 475. Therefore,
given the narrow scope of the public policy limitation
on arbitral authority, the plaintiff can prevail in the
present case only if it demonstrates that the board’s
award clearly violates an established public policy mandate.
See id.
A
Under the foregoing standard, we begin by examining
the relevant public policies. The issue is whether reinstatement
of the defendant violates a well defined public
policy. The city contends that there is a clear public
policy against stalking and harassment, particularly of
a sexual nature.10 We agree that such policy is well
defined and dominant, as determined by reference to
the laws of this state. General Statutes §§ 53a-181d11
and 53a-181e12 each express the legislature’s condemnation
of stalking and conduct that elicits fear in its victims.
The public policies of this state also clearly
prohibit disorderly behavior, including offensive conduct
toward others and invasions of privacy. See General
Statutes § 53a-182 (a).13 This state also has a public
policy against sexual assault of varying degrees, including
the conduct the defendant was charged with and
for which he received accelerated rehabilitation.
See
General Statutes § 53a-73a.14
In addition, under federal law there is a clearly
defined public policy against civil rights violations by
municipalities and their agents. Federal law imposes
liability on ‘‘[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws . . . .’’
42 U.S.C. § 1983.
The United
States Supreme Court has extended that liability to
include deprivations of civil rights in which the violation
is the result of municipal policy or custom. See Monell
v. New York City Dept. of Social Services, 436 U.S. 658,
690–91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The
touchstone of establishing municipal liability for civil
rights deprivations by municipal employees is that the
municipality itself cause or is implicated in the constitutional
violation. Amnesty America v. West Hartford,
361 F.3d 113, 125 (2d Cir. 2004). Although actual action
by the municipality meets that standard, the definition
is not so limited. A custom of conduct by the municipality
that allows an employee’s inappropriate behavior to
continue may expose it to liability as well. See id., 126
(‘‘[t]hus, where a policymaking official exhibits deliberate
indifference to constitutional deprivations caused
by subordinates, such that the official’s inaction constitutes
a deliberate choice, that acquiescence may be
properly thought of as a city policy or custom that
is actionable under § 1983’’ [internal quotation marks
omitted]); Love v. Granby, United States District Court,
Docket No. 3:02CV1960 (D. Conn. July 12, 2004)
(‘‘[p]laintiff must provide evidence from which a reasonable
juror could conclude that municipal inaction such
as the persistent failure to discipline subordinates who
violated civil rights could give rise to an inference of
an unlawful municipal policy of ratification of unconstitutional
conduct within the meaning of Monell’’ [internal
quotation marks omitted]). Those well defined statutes
and case law demonstrate that there is a clear public
policy against municipal endorsement or acquiescence
in employee civil rights violations.
B
Having concluded that the court properly based its
decision on a well defined public policy against inappropriate
behavior by a police officer on and off duty,
and against implied municipal endorsement of such
conduct, our analysis shifts to whether enforcing the
award reinstating the defendant to the police force violates
those public policies.15 ‘‘[A public policy] challenge
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 . . . .’’ (Internal quotation marks
omitted. State v. AFSCME, Council 4, Local 387, AFLCIO,
supra, 252 Conn. 474–75.
When a municipal employee violates the public policies
enumerated in state statutes and employment regulations,
a reviewing court cannot enforce an arbitral
award reinstating him to employment as a police officer.
See, e.g., Groton v. United Steelworkers of America,
supra, 254 Conn. 35 (trial court properly determined
that arbitrator’s award reinstating employee who
embezzled from former employer violated public policy);
State v. AFSCME, Council 4, Local 387, AFL-CIO,
supra, 252 Conn. 478 (finding against public policy an
award reinstating correction officer who made harassing,
racist telephone calls to state legislator while on
duty because conduct violated criminal statute and
employment regulations of department of correction);
South Windsor v. South Windsor Police Union, 41
Conn. App. 649, 654, 677 A.2d 464 (finding against public
policy reinstatement of police officer who deliberately
revealed identity of confidential informant), cert.
denied, 239 Conn. 926, 683 A.2d 22 (1996); State v.
Council 4, AFSCME, 27 Conn. App. 635, 641, 608 A.2d
718 (1992) (trial court properly determined that arbitrator’s
award reinstating employee who misappropriated
state funds violated public policy).16
Here, the arbitrators made factual findings that the
defendant engaged in inappropriate behavior, used his
position of authority to influence and to intimidate the
victims, and made misleading statements during the
internal affairs investigation. The defendant’s lewd
comments and unwanted touching to facilitate sexual
interaction with the victims and the sexual assault
charge brought by the state regarding one of the victims
fit squarely within the behavior proscribed by the legislature.
Moreover, the defendant’s use of a police cruiser
to intimidate and to watch the victims and offers to use
his position to influence a prosecutor are directly at
odds with the public policy of this state. Accordingly,
it is against well defined public policy for a court to
enforce an award reinstating the defendant.
Reinstatement of the defendant to the police force
is also at odds with well established federal law. Claims
of sexual assault by a police officer fall under the purview
of the fourteenth amendment; see Poe v. Leonard,
282 F.3d 123, 136–37 (2d Cir. 2002); and, thus, the city
is potentially liable under Monell for the defendant’s
actions and its failure to take remedial steps to prevent
a police officer from engaging in harassment and misconduct,
particularly when there is a pattern of such
inappropriate behavior. ‘‘[A]rbitrators exceed their
authority if their award orders a party to engage in
conduct that is patently illegal or in clear violation of
public policy.’’ (Internal quotation marks omitted.)
Hartford v. International Assn. of Firefighters, Local
760, 49 Conn. App. 805, 813, 717 A.2d 258, cert. denied,
247 Conn. 920, 722 A.2d 809 (1998). For a court to
enforce the award reinstating the defendant would violate
federal policies encouraging municipalities to remedy
and to prevent constitutional violations by their
employees.
The judgment is affirmed.
In this opinion the other judges concurred.
1 The collective bargaining agreement in place between the city of Ansonia
and the defendant’s union provides: ‘‘No grievance addressing a non probationary
employee’s discharge, termination or demotion, including severity
of punishment, can be submitted directly to the Connecticut Board of Mediation
and Arbitration without the approval of the union.’’ On August 5, 2002,
the defendant waived representation by the Connecticut Independent Police
Union, Local 13. The union did not participate in the initial hearing or the
arbitration and agreed to be bound by the decision. The defendant retained
private counsel and now appeals individually.
2 Article 14, § G, of the agreement states: ‘‘Whenever a nondepartmental
complaint is made against an employee or group of employees, such complaint
shall be submitted in writing under oath. . . . Any employee against
whom a written complaint has been filed, must be provided a copy of such
complaint within seven (7) days of its being filed. Such complaint shall be
dismissed if not acted on by the Board of Police Commissioners within five
(5) months of the date the complaint being filed.’’
3 In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whomthe victim’s identity may be ascertained. See General Statutes § 54-86e.
4 The following additional facts, set forth by the arbitrators in their statement
of the case, describe the nature of the complaints against the defendant.
They are set forth in a footnote for brevity and clarity in the opinion, and
not to diminish their importance.
‘‘During the hearing, many issues came to the attention of the [board]. The
first issue was sexual misconduct. This was first discussed with reference to
a nineteen year old resident, [S]. Those allegations first surfaced on January
15, 2001. [S] gave two written statements under oath to the [department]
whereby she alleged that [the defendant] had used ‘unwelcome and unsolicited
sexual and vulgar language’ and had ‘grabbed her buttocks.’ . . . [S]
was at the August 6, 2002 hearing, testified credibly and her testimony was
not rebutted by the [defendant], who elected not to testify.
‘‘On January 19, 2001, the [department] turned the matter over to the
state police and decided not to conduct an internal investigation. Because
of the ongoing criminal investigation, the city felt justified in withholding
the [S] complaint from [the defendant] until May 6, 2002. . . .
‘‘The [S] allegations resulted in a criminal investigation by the state police.
On January 29, 2001, the state police interviewed [S], who gave them a
sworn statement. On February 16, 2001, the state police also received a
sworn statement from [B], who alleged that she had been subjected to lewd,
obscene and sexually harassing conduct. . . . In her statement, [B] alleged
being subjected to ‘obscene gestures’ and being touched on ‘her ass’ on
several occasions. She also recounted being offered liquor at a wedding
reception by [the defendant] when she was seventeen in the midst of his
making ‘lewd and obscene comments’ to her. Furthermore, [B] insisted that
[the defendant] was ‘doing everything possible to have sex’ with her. She
indicated that [the defendant] ‘illuminated [her] car with his spotlight’ and
followed her on numerous occasions in his cruiser.
‘‘[B], who was a coworker of [S] and introduced her to [the defendant],
indicated that the [defendant] had ‘blown kisses’ and ‘licked his lips in a
sexual way in front of [S].’ Both women claimed in their statements to be
afraid of the [defendant] and feared that he would hurt them, and alleged
that the [defendant’s] advances were resisted and rejected. It is not clear,
however, what role, if any, the [B] statement played in the action which
was to come next. It does appear that the [S] complaint was the main
reason why the state police brought criminal charges against [the defendant].
Obviously, the [B] complaint had corroborative value and was very significant.
However, the same contained details of behavior that involved [B] and
went beyond corroboration.
‘‘As revealed at the time of the hearings on this matter, the charges
by the state police also prompted the [department] to begin an internal
investigation. The officer assigned to do the investigation was Lieutenant
Michael Abbels. It is not clear from the record when the [department] got
a copy of the [B] statement. It is clear, however, that the [defendant] did
not receive a copy of the same until around May 6, 2002.
‘‘[The defendant] was arrested on April 6, 2001, and charged with sexual
assault in the fourth degree. . . . On August 30, 2001, a third complaint
surfaced from a twenty-two year old female, [M], who had had similar
problems with the [defendant]. . . .
‘‘Like [B], [M] complained that [the defendant] frequently stopped her by
flashing a ‘spotlight into her car’ and asked her ‘to come to his house.’ [M]
also complained that she was watched by the [defendant] while she was
getting out of the shower and while he ‘was in an Ansonia police car,’ and
‘flashed the blue and red lights on the roof of his car and drove away.’ This
type of on duty conduct was also complained of by [B]. Given other acts
complained of by [M], the latter conduct appeared calculated to be a use
of [the defendant’s] police authority inappropriately. Similar conduct
included [the defendant] assuring [M] that he would try and help her out
‘with the prosecutor of the Derby court’ when she got arrested because she
had caused a fight. At that time, [the defendant] ‘leaned towards [the victim’s]
face with his face’ as if to kiss her. . . .
‘‘[The defendant’s] case came before the court on December 14, 2001,
at which time the [defendant] applied for accelerated rehabilitation after
undergoing a ‘psychosexual evaluation and risk assessment.’ . . . Neither
the [M] nor [B] matters were addressed at that proceeding. [The defendant]
did not receive a copy of the [M] complaint until May 6, 2002. Neither were
these matters discussed during the risk assessment conducted prior to [the
defendant’s] court appearance. . . . [The defendant] did admit ‘having sexually
charged conversations with the victim and her friend,’ touching of [S]
and seemed ‘to recognize that they were inappropriate.’ . . .
‘‘During his court appearance, [the defendant’s] attorney indicated that
his client recognized that ‘whatever behavior he engaged in that day (with
[S]) wasn’t appropriate.’ . . . In granting the accelerated rehabilitation, the
court noted that the victim did not object and that ‘this was not an on duty
misuse of authority.’ It did find that [the defendant’s] conduct was ‘sufficient
to warrant an arrest,’ and that the age difference between the victim and [the
defendant] made the ‘limited touching’ which occurred ‘inappropriate.’ . . .
‘‘While the court did not make a determination of guilt, it did not exonerate
the [defendant]. As a result of the proceedings, [the defendant] was placed
on a two year probation and admonished not to have contact with [S]. He
was further required to continue in counseling, make restitution to the victim
for lost wages, pay up to $1000 for her counseling and to perform 100 hours
of community service. . . . The court’s determination on [the defendant’s]
application did not involve consideration of the on duty conduct alleged by
[B] and [M] and the [K] statement, which will be discussed below.
‘‘During the spring of 2002, with the criminal charges being disposed of,
the internal affairs investigation intensified. As a result, [the defendant] was
questioned on May 6, 2002, and he was advised of the identity of the women
who had accused him and the nature of the accusations. He was told of the
alleged ‘unsolicited sexual vulgarity and sexual contact’ and ‘inappropriate
use of a police cruiser and lights.’ According to . . . Abbels, the interrogator,
[the defendant] denied the allegations made by the complainants.
[Abbels] also stated that, in his opinion, the [defendant] ‘intentionally lied
to him’ and ‘tried to mislead him.’ . . .
‘‘To buttress his conclusion, Abbels pointed out that [the defendant]
‘denied trying to have a relationship with [S] or [B],’ but ‘finally admitted
that he was trying to have a sexual relationship with them.’ [Abbels] also
pointed out that the [defendant] denied shining or flashing his lights at
females in cars. However, Abbels indicated that [another officer], who had
been in [the defendant’s] patrol car ‘many times,’ indicated to him that [the
defendant] did so on many occasions while [that officer] was present. Based
on the above circumstances, Abbels concluded that he needed to conduct
another meeting with [the defendant] to clear the ‘many inconsistencies.’
He scheduled and held said meeting on June 14, 2002. . . .
‘‘On July 10, 2002, a fourth statement was given to the [department]. The
same related to conduct which occurred two years prior. The statement
had a familiar tone to it as the forty-one year old female, [K], discussed
‘being flagged down by [the defendant].’ [K] knew [the defendant] well
because he had dated her daughter. According to the statement, on one
occasion the [defendant] encountered her and told her that she ‘looked
nice.’ He subsequently told her, ‘Why don’t you pull up your shirt and show
me your breasts?’ [K] stated that ‘in the past, an Ansonia police car would
park next to [her] house and shine the spotlight into [her] bedroom window.’
While [K] admitted not being able to discern who the officer was, she
said that ‘after I confronted [the defendant] about it, it never happened
again.’ . . .
‘‘On the above date . . . Abbels presented his internal affairs investigation
report. On July 23, 2002, the [defendant] was given a copy of the same
and notice that the report was being presented to the board . . . on July
30, 2002. He was told that on July 30, 2002, the [board] ‘will convene a
hearing to consider whether any disciplinary action should be taken against
you.’ That hearing was postponed and reconvened on August 6, 2002.’’
(Citations omitted.)
5 The board found that violations of the following sections of the duty
manual were substantiated:
‘‘2.1.6 Truthfulness—Speak the truth at all times and under all circumstances.
In cases in which [a sworn member] is not allowed by the regulations
of the Department to divulge facts within its knowledge, he will decline to
speak on the subject.’’
‘‘2.1.10 Respect—extend the proper courtesy and respect toward all members
of the Department and others at all times.’’
‘‘2.1.11 Civility—be civil, orderly, diligent, discreet, courteous and patient
as a reasonable person is expected to be in all situations and shall not
engage in any altercation, physical or otherwise whether on duty or not,
with any other member or employee of the Department.’’
‘‘2.1.13 Oath of Office, Code of Ethics—carry out their oath of office and
the code of police ethics to the best of the member’s ability.’’
‘‘2.3.3 Neglect of Duty—conducting or omitting the performance of one’s
duty such that performance is not in accordance with established and ordinary
duties or procedures, or which constitutes use of unreasonable judgment
in the exercising of any discretion granted to a police officer.’’
‘‘2.3.22 Duty Time Limited to Police Work—conducting personal business
while on duty or devoting any of his ‘on duty’ time to any activity other
than that which relates to police work or performing any police duty in
uniform for the purposes of private gain, unless properly authorized.’’
‘‘[4.4.3 D.] Neglect of Duty or Disobedience of [O]rders—police officers
while on duty shall devote their time and energies to the duties and responsibilities
of rank, grade, or position to which they are assigned. In carrying
out those duties, officers shall direct and coordinate their efforts in such a
manner as will tend to establish and maintain the highest standard of efficiency.
Any conduct or omission which is not in accordance with one’s
established and ordinary duties and procedures, or which constitutes use
of unreasonable judgment in the exercise of the discretion granted to an
individual officer, shall be considered neglect of duty.’’
6 It was unclear to the arbitrators whether the defendant was given notice
of an additional complaint within seven days of its receipt on July 10, 2002,
but it was clear that the city acted on the complaint within the five month
limitation period.
7 Because we affirm the court’s action vacating the award, we need not
separately address the merits of the defendant’s claim that the award be confirmed.
8 We leave undisturbed the arbitrators’ finding of a procedural violation.
9 After his arrest, the defendant signed a written waiver regarding the
disciplinary policies in the agreement. As a result, as noted by the arbitrators
in their award, a disciplinary hearing was not required until the ‘‘outcome
of the criminal charge . . . or independent verification of alleged misconduct.’’
The defendant applied for accelerated rehabilitation and was placed
on probation for two years for his actions. The granting of a motion for
accelerated rehabilitation does not terminate the underlying criminal
charges. Final judgment does not occur until the completion of the terms
of accelerated rehabilitation, including probation, and an order by the court
dismissing the charges. See State v. Angelo, 25 Conn. App. 235, 239–40, 594
A.2d 24 (finding that motion to grant accelerated rehabilitation is not final
judgment for purposes of appeal and that right of appeal does not ripen
until charges dismissed), cert. denied, 220 Conn. 911, 597 A.2d 335 (1991);
see also State v. Trahan, 45 Conn. App. 722, 732, 697 A.2d 1153 (‘‘only right
that the defendant may earn under the accelerated rehabilitation statute is
the right to a dismissal of the charges against him, a right that is expressly
conditioned on satisfactory completion of the period of probation’’ [internal
quotation marks omitted]), cert. denied, 243 Conn. 924, 701 A.2d 660 (1997).
The outcome of the criminal charge for purposes of this action also does
not occur until that time. Accordingly, the misdemeanor charge of sexual
assault in the fourth degree was properly before the board at the August
6, 2002 hearing and was an appropriate subject for factual findings by
the arbitrators.
10 The court framed its public policy conclusion, in part, in terms of the
well recognized state and federal policies against sexual harassment in the
workplace. Because we conclude that the award was in violation of other
public policies, we need not reach the question of on duty sexual harassment.
11 General Statutes § 53a-181d (a) provides: ‘‘A person is guilty of stalking
in the second degree when, with intent to cause another person to fear for
his physical safety, he wilfully and repeatedly follows or lies in wait for
such other person and causes such other person to reasonably fear for his
physical safety.’’
12 General Statutes § 53a-181e (a) provides: ‘‘A person is guilty of stalking
in the third degree when he recklessly causes another person to reasonably
fear for his physical safety by wilfully and repeatedly following or lying in
wait for such other person.’’
13 General Statutes § 53a-182 (a) provides in relevant part: ‘‘A person is
guilty of disorderly conduct when, with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, such person . . .
(2) by offensive or disorderly conduct, annoys or interferes with another
person . . . or (7) commits simple trespass, as provided in section 53a-
110a, and observes, in other than a casual or cursory manner, another person
(A) without the knowledge or consent of such person, (B) while such other
person is inside a dwelling, as defined in section 53a-100, and not in plain
view, and (C) under circumstances where such other person has a reasonable
expectation of privacy.’’
14 General Statutes § 53a-73a (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the fourth degree when . . . (2) such person
subjects another person to sexual contact without such other person’s consent
. . . .’’
15 The court also identified a public policy mandating good behavior for
police officers and requiring police officers to be honest and law-abiding,
emanating from General Statutes § 7-276 and the duty manual of the department.
We agree that there is a need for public confidence in the police
force and that there is a general consideration that ‘‘[g]ood behavior is a
requirement for police officers.’’ South Windsor v. South Windsor Police
Union, 41 Conn. App. 649, 659, 677 A.2d 464, cert. denied, 239 Conn. 926,
683 A.2d 22 (1996). Our Supreme Court, however, in South Windsor v. South
Windsor Police Union, Local 1480, 255 Conn. 800, 823–24, 770 A.2d 14
(2001), found that this general notion of the public interest fails to meet
the test for the public policy exception to arbitral authority. Having found
other well defined public policies on which to ground our decision, we
decline to rely on that general consideration.
16 We do not hold that the violation of a criminal statute is a per se public
policy violation sufficient to justify vacating an arbitrator’s decision. Instead,
we conclude that this case poses a narrow, blatant example of the board’s
proper exercise of its power to dismiss. See State v. AFSCME, Council 4,
Local 387, AFL-CIO, supra, 252 Conn. 477–78.
* * * *
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BOARD OF POLICE COMMISSIONERS OF THE CITY
OF ANSONIA v. EARL STANLEY
(AC 25578)
Dranginis, Gruendel and Hennessy, Js.
Argued September 16—officially released December 27, 2005
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Cremins, J.)
William T. Blake, Jr., for the appellant (defendant).
Francis A. Teodosio, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendant, Earl Stanley, appeals
from the judgment of the trial court vacating on public
policy grounds the arbitration award (award) reinstating
his employment with the Ansonia police department
(department).
1 On appeal, the defendant claims that the
court improperly (1) vacated the award of reinstatement
and (2) denied his motion to confirm the award.
We affirm the judgment of the trial court.
At the time of this dispute, the city of Ansonia (city)
and the Connecticut Independent Police Union, Local
13 (union), of which the defendant was a member, were
parties to a written collective bargaining agreement
(agreement) effective from July 1, 2000, to June 30, 2003.
The agreement provided that when a nondepartmental
written complaint is filed against an employee, the
employee must be provided notice of such complaint
within seven days of its being filed and that the complaint
must be dismissed if not acted on by the plaintiff,
the board of police commissioners (board), within five
months of the date the complaint was filed.
2 The
agreement further provided for review of an employee’s
discharge, termination of employment or demotion by
a panel of arbitrators.
The defendant was employed as a police officer with
the department until his employment was terminated
on August 6, 2002, following complaints of harassment,
intimidation and false statements to the department.
Specifically, four women complained of inappropriate
language and conduct by the defendant, including the
use of sexual language, grabbing of their buttocks,
harassment with a police car’s flashing lights and observation
by the defendant of one of the women while she
was getting out of a shower.3 During the department’s
internal affairs investigation of the complaints, the
defendant made false and misleading statements about
his conduct.4 On August 6, 2002, the board heard argument,
received evidence and concluded by a unanimous
vote of the participating commissioners that the evidence
substantiated a finding that the defendant
had
violated seven sections of the rules and regulations of
the Ansonia police department (duty manual), and,
thus, the board terminated the defendant’s employment.
5 Pursuant to the agreement between the city and
the union, the defendant grieved the termination, and
both parties agreed to submit the grievance to arbitration
for a determination of whether the defendant’s
employment was terminated for just cause and the
appropriate remedy if it was not. The arbitration panel
(arbitrators) held hearings and received evidence on
the merits of the unrestricted submission on March 19
and April 11, 2003.
In their written award, the arbitrators concluded that
the board had violated the defendant’s procedural rights
under the agreement and thus did not have just cause
to terminate his employment. They concluded that the
complaints used by the board in terminating the defendant’s
employment were of the sort covered by the
agreement and were not excluded because of an ongoing
criminal investigation involving the defendant or
by past practice. They further concluded that because
three of the complaints were not acted on within five
months, which may have curtailed the defendant’s ability
to defend against those complaints, the board
improperly had relied on them in reaching its decision.
6
The arbitrators ordered that the defendant be reinstated,
but declined to include back pay as part of the
remedy. Examining the record as a whole, the arbitrators
found that there was ‘‘ample evidence of some on
duty misconduct’’ and determined:
‘‘While we believe
that the [defendant’s] rights were violated, we do not
feel that an award of back pay is warranted. Our conclusion
is based on an examination of the record as a
whole. Said evidence clearly establishes that the [defendant]
was not exonerated of the charges brought by
the state. Neither did he rebut the allegations made
against him at the August 6 hearing. A preponderance
of the evidence also establishes that a significant part
of [the defendant’s] misconduct occurred while on duty,
a factor not considered during his court proceeding. It
is clear to [the arbitrators] from Judge Sequino’s comments,
however, that she would have considered this
type of misconduct to be serious if the case before her
(the [S] complaint) had involved the same.
‘‘Based on a preponderance of the evidence, the [arbitrators]
also conclude that [the defendant] used his
position of authority to influence and intimidate the
victims. He also violated the trust placed on him by the
public since he preyed on their fear of his position as
a police officer. The evidence also establishes that [the
defendant’s] statements were inconsistent, if not outright
contradictory, at various stages of the internal
affairs investigation, which made it look as if he was less
than candid with the investigators and had something
to hide. Besides that, [the defendant] did not express
remorse, though he admitted through counsel in court
that he engaged in lewd and sexually charged conversations
which were inappropriate, especially for an individual
who is a police officer. Also of concern to the
[arbitrators] is the disturbing nature of [the defendant’s]
physical touching, which by credible accounts, was
unsolicited, unwanted and rebuked and which, by his
account, was intended to facilitate having sexual relations
with the victims.’’
The city filed an application to vacate the award on
December 9, 2003, pursuant to General Statutes § 52-418
on the grounds that the award (1) violated established
public policy against harassment, particularly of a sexual
nature; (2) usurped the authority of the board as
set forth in the city charter, the agreement, the department’s
duty manual and General Statutes §§ 7-274 and
7-276; (3) conflicted with established and acceptable
standard criminal investigation policy; and (4) forced
the department to notify any officer suspected of criminal
misconduct within seven days of a complaint regardless
of the investigation.
The defendant filed an answer
to the plaintiff’s application and a motion to confirm
the award. The court found that the award violated the
clearly defined public policies against harassment and
sexual misconduct, as well as the public policy requiring
good conduct on the part of police officers, and vacated
the arbitration panel’s award of reinstatement. This
appeal followed.
On appeal, the defendant claims that the court
improperly vacated the award because the court (1)
did not rely on the findings of fact and conclusions of
law in the award, (2) relied on dicta in the award in
reaching its decision, (3) did not identify a clearly
defined public policy that had application to the facts
found by the arbitrators and (4) improperly found that
his reinstatement violated public policy. The defendant
further claims that the court improperly denied his
motion to confirm the arbitration award as (1) there
was no basis for overturning the award and (2) the
award conformed to the submission.
7
I
The defendant’s first two arguments question the
scope of the court’s review of the arbitrators’ award
reinstating the defendant, specifically that the court did
not rely on the panel’s findings in rendering its decision.
We begin by stating the standard of review for arbitration
awards. ‘‘Because [courts] favor arbitration as a
means of settling private disputes, [courts] undertake
judicial review of arbitration awards in a manner
designed to minimize interference with an efficient and
economical system of alternative dispute resolution.’’
(Internal quotation marks omitted.) State v. AFSCME,
Council 4, Local 387, AFL-CIO, 252 Conn. 467, 474,
747 A.2d 480 (2000). ‘‘The standard of review relative
to arbitration awards depends on the nature of the
challenge. With a voluntary, unrestricted submission
to an arbitrator . . . the court may only examine the
submission and the award to determine whether the
award conforms to the submission. . . . In making
such a comparison when the submission is unrestricted,
the court will not review the evidence or legal questions
involved, but is bound by the arbitrator’s legal and factual
determinations. . . .
‘‘Certain conditions do exist, however, under which
[courts] conduct a more searching review of arbitral
awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612
A.2d 742 (1992), our Supreme Court reiterated that there
are three grounds for vacating an award when the submission
is unrestricted. These grounds arise when the
award (1) rules on the constitutionality of a statute, (2)
violates clear public policy or (3) contravenes one or
more of the statutory proscriptions of General Statutes
§ 52-418.’’ (Internal quotation marks omitted.) Metropolitan
District Commission v. Local 184, 77 Conn.
App. 832, 838, 825 A.2d 218 (2003). In the present case,
the defendant’s challenge implicates only the second
exception; accordingly, it will be the focus of our discussion.
‘‘[W]hen a challenge to a voluntary arbitration
award rendered pursuant to an unrestricted submission
raises a legitimate and colorable claim of violation of
public policy, the question of whether the award violates
public policy requires de novo judicial review.’’
(Internal quotation marks omitted.) Metropolitan District
Commission v. AFSCME, Council 4, Local 184,
89 Conn. App. 680, 683, 874 A.2d 839, cert. denied, 275
Conn. 912, 882 A.2d 673 (2005).
‘‘Our Supreme Court has determined that in reviewing
questions of fact in arbitration proceedings, a reviewing
court must determine whether there is substantial evidence
in the record to support the arbitrators’ findings
of fact and whether the conclusions drawn from those
facts are reasonable.’’ (Internal quotation marks omitted.)
Id., 686. The limited scrutiny with which we review
an arbitration panel’s findings of fact dictates that ‘‘it
is neither the function of the trial court nor of this court
to retry the case or to substitute its judgment for that
of the [arbitration panel.]’’ (Internal quotation marks
omitted.) Burns v. General Motors Corp., 80 Conn. App.
146, 152, 833 A.2d 934, cert. denied, 267 Conn. 909, 840
A.2d 1170 (2003).
A
We first examine the defendant’s argument that the
court did not rely on the factual findings and legal
conclusions of the arbitrators in making the public policy
determination. Our review of the record reveals that
there was substantial evidence in the record to support
the arbitrators’ factual findings that the defendant committed
some on duty misconduct, behaved inappropriately,
used his position of authority to influence and to
intimidate the victims, and made misleading statements
during the internal affairs investigation. The record
includes not only evidence on which the arbitrators
determined the board could rely in its actions against
the defendant, but also evidence that the arbitrators
found was used by the board in violation of the defendant’s
contractual rights under the agreement. The arbitrators’
finding disallowing the use of certain
complaints in the board’s decision to terminate the
defendant’s employment stands alone as a matter of
contract interpretation, limiting the conduct of the parties
bound by that contract. Accordingly, although the
arbitrators’ interpretation of the contract prohibited the
board from using certain evidence of the defendant’s
misconduct, the arbitrators made findings as to that
evidence. Those factual findings are a part of the record
from which the arbitrators may fashion a remedy for
the procedural violation.
8
The arbitrators heard testimony and made credibility
determinations on the basis of the evidence before
them. We are required to give deference to arbitrators’
factual determinations, including questions of credibility.
See Metropolitan District Commission v. AFSCME,
Council 4, Local 184, supra, 89 Conn. App. 686. The
full record considered by the arbitrators includes the
complaints by several women about inappropriate conduct
by the defendant, the misdemeanor charge of sexual
assault in the fourth degree9 and the inconsistent
statements that the defendant made to the internal
affairs investigators. Collectively, those facts provide
substantial evidence for the arbitrators’ factual findings
of the defendant’s misconduct warranting denial of
back pay and, thus, are entitled to the deference ordinarily
given to arbitrators’ factual findings.
See Groton
v. United Steelworkers of America, 254 Conn. 35, 51–52,
757 A.2d 501 (2000) (even when review of arbitrator’s
decision is de novo, reviewing court gives deference
to arbitrator’s factual determinations). Having found
substantial evidence on the record to support the arbitrators’
findings of fact, a reviewing court may apply
all of those findings as the basis for the public policy
inquiry. See Schoonmaker v. Cummings & Lockwood
of Connecticut, P.C., 252 Conn. 416, 429–32, 747 A.2d
1017 (2000).
B
The defendant next argues that the court relied on
dicta in the award in reaching its decision. ‘‘Dictum
includes those discussions that are merely passing commentary
. . . those that go beyond the facts at issue
. . . and those that are unnecessary to the holding in
the case. . . . As we have previously recognized, however,
it is not dictum when a court . . . intentionally
takes up, discusses, and decides a question germane
to, though not necessarily decisive of, the controversy
. . . . Rather, such action constitutes an act of the
court which it will thereafter recognize as a binding
decision.’’ (Citations omitted; internal quotation marks
omitted.) Middletown Commercial Associates Ltd.
Partnership v. Middletown, 53 Conn. App. 432, 435, 730
A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657
(1999). Here, the defendant characterizes as dicta the
arbitrators’ factual findings regarding back pay. We do
not find his argument persuasive. The submission to
the arbitration panel was twofold, first to determine
whether the termination of the defendant’s employment
was for just cause and, second, to determine the appropriate
remedy if the defendant’s employment was terminated
improperly. The arbitrators’ findings as to the
defendant’s conduct were directly related to their decision
to deny the defendant back pay. Accordingly, the
findings were not mere dicta, but findings of fact necessary
to the arbitrators’ conclusion.
II
The defendant’s remaining arguments challenge the
court’s finding that stalking, harassment and intimidation
by a police officer, and making material falsehoods
during an internal police investigation constitute a public
policy violation. We continue to review the defendant’s
claims de novo, giving deference to the
arbitrators’ factual findings. See Metropolitan District
Commission v. AFSCME, Council 4, Local 184, supra,
89 Conn. App. 683.
Our review of a public policy challenge to an arbitral
award is limited in scope. ‘‘This court’s role in
addressing a public policy challenge has been confined
largely to determining whether, as gleaned from a statute,
administrative decision or case law, there exists a
public policy mandate with which an arbitral award
must conform.’’ (Internal quotation marks omitted.)
Metropolitan District Commission v. Local 184, supra,
77 Conn. App. 842.
Our Supreme Court has set forth a
rubric for resolving public policy challenges. ‘‘Schoonmaker
require[s] a two-step analysis in cases such as
this one in which a party raises the issue of a violation
of public policy in an arbitral award. First, we must
determine whether a clear public policy can be identified.
Second, if a clear public policy can be identified,
we must then address the ultimate question of whether
the award itself conforms with that policy.’’ (Internal
quotation marks omitted.) Id., 839. The public policy
which would be violated by enforcement of the arbitral
award must be ‘‘well defined and dominant, as is to be
ascertained by reference to the laws and legal precedents
and not from general considerations of supposed
public interests. . . .
The party challenging the award
bears the burden of proving that illegality or conflict
with public policy is clearly demonstrated.’’ (Internal
quotation marks omitted.) State v. AFSCME, Council
4, Local 387, AFL-CIO, supra, 252 Conn. 475. Therefore,
given the narrow scope of the public policy limitation
on arbitral authority, the plaintiff can prevail in the
present case only if it demonstrates that the board’s
award clearly violates an established public policy mandate.
See id.
A
Under the foregoing standard, we begin by examining
the relevant public policies. The issue is whether reinstatement
of the defendant violates a well defined public
policy. The city contends that there is a clear public
policy against stalking and harassment, particularly of
a sexual nature.10 We agree that such policy is well
defined and dominant, as determined by reference to
the laws of this state. General Statutes §§ 53a-181d11
and 53a-181e12 each express the legislature’s condemnation
of stalking and conduct that elicits fear in its victims.
The public policies of this state also clearly
prohibit disorderly behavior, including offensive conduct
toward others and invasions of privacy. See General
Statutes § 53a-182 (a).13 This state also has a public
policy against sexual assault of varying degrees, including
the conduct the defendant was charged with and
for which he received accelerated rehabilitation.
See
General Statutes § 53a-73a.14
In addition, under federal law there is a clearly
defined public policy against civil rights violations by
municipalities and their agents. Federal law imposes
liability on ‘‘[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws . . . .’’
42 U.S.C. § 1983.
The United
States Supreme Court has extended that liability to
include deprivations of civil rights in which the violation
is the result of municipal policy or custom. See Monell
v. New York City Dept. of Social Services, 436 U.S. 658,
690–91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The
touchstone of establishing municipal liability for civil
rights deprivations by municipal employees is that the
municipality itself cause or is implicated in the constitutional
violation. Amnesty America v. West Hartford,
361 F.3d 113, 125 (2d Cir. 2004). Although actual action
by the municipality meets that standard, the definition
is not so limited. A custom of conduct by the municipality
that allows an employee’s inappropriate behavior to
continue may expose it to liability as well. See id., 126
(‘‘[t]hus, where a policymaking official exhibits deliberate
indifference to constitutional deprivations caused
by subordinates, such that the official’s inaction constitutes
a deliberate choice, that acquiescence may be
properly thought of as a city policy or custom that
is actionable under § 1983’’ [internal quotation marks
omitted]); Love v. Granby, United States District Court,
Docket No. 3:02CV1960 (D. Conn. July 12, 2004)
(‘‘[p]laintiff must provide evidence from which a reasonable
juror could conclude that municipal inaction such
as the persistent failure to discipline subordinates who
violated civil rights could give rise to an inference of
an unlawful municipal policy of ratification of unconstitutional
conduct within the meaning of Monell’’ [internal
quotation marks omitted]). Those well defined statutes
and case law demonstrate that there is a clear public
policy against municipal endorsement or acquiescence
in employee civil rights violations.
B
Having concluded that the court properly based its
decision on a well defined public policy against inappropriate
behavior by a police officer on and off duty,
and against implied municipal endorsement of such
conduct, our analysis shifts to whether enforcing the
award reinstating the defendant to the police force violates
those public policies.15 ‘‘[A public policy] challenge
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 . . . .’’ (Internal quotation marks
omitted. State v. AFSCME, Council 4, Local 387, AFLCIO,
supra, 252 Conn. 474–75.
When a municipal employee violates the public policies
enumerated in state statutes and employment regulations,
a reviewing court cannot enforce an arbitral
award reinstating him to employment as a police officer.
See, e.g., Groton v. United Steelworkers of America,
supra, 254 Conn. 35 (trial court properly determined
that arbitrator’s award reinstating employee who
embezzled from former employer violated public policy);
State v. AFSCME, Council 4, Local 387, AFL-CIO,
supra, 252 Conn. 478 (finding against public policy an
award reinstating correction officer who made harassing,
racist telephone calls to state legislator while on
duty because conduct violated criminal statute and
employment regulations of department of correction);
South Windsor v. South Windsor Police Union, 41
Conn. App. 649, 654, 677 A.2d 464 (finding against public
policy reinstatement of police officer who deliberately
revealed identity of confidential informant), cert.
denied, 239 Conn. 926, 683 A.2d 22 (1996); State v.
Council 4, AFSCME, 27 Conn. App. 635, 641, 608 A.2d
718 (1992) (trial court properly determined that arbitrator’s
award reinstating employee who misappropriated
state funds violated public policy).16
Here, the arbitrators made factual findings that the
defendant engaged in inappropriate behavior, used his
position of authority to influence and to intimidate the
victims, and made misleading statements during the
internal affairs investigation. The defendant’s lewd
comments and unwanted touching to facilitate sexual
interaction with the victims and the sexual assault
charge brought by the state regarding one of the victims
fit squarely within the behavior proscribed by the legislature.
Moreover, the defendant’s use of a police cruiser
to intimidate and to watch the victims and offers to use
his position to influence a prosecutor are directly at
odds with the public policy of this state. Accordingly,
it is against well defined public policy for a court to
enforce an award reinstating the defendant.
Reinstatement of the defendant to the police force
is also at odds with well established federal law. Claims
of sexual assault by a police officer fall under the purview
of the fourteenth amendment; see Poe v. Leonard,
282 F.3d 123, 136–37 (2d Cir. 2002); and, thus, the city
is potentially liable under Monell for the defendant’s
actions and its failure to take remedial steps to prevent
a police officer from engaging in harassment and misconduct,
particularly when there is a pattern of such
inappropriate behavior. ‘‘[A]rbitrators exceed their
authority if their award orders a party to engage in
conduct that is patently illegal or in clear violation of
public policy.’’ (Internal quotation marks omitted.)
Hartford v. International Assn. of Firefighters, Local
760, 49 Conn. App. 805, 813, 717 A.2d 258, cert. denied,
247 Conn. 920, 722 A.2d 809 (1998). For a court to
enforce the award reinstating the defendant would violate
federal policies encouraging municipalities to remedy
and to prevent constitutional violations by their
employees.
The judgment is affirmed.
In this opinion the other judges concurred.
1 The collective bargaining agreement in place between the city of Ansonia
and the defendant’s union provides: ‘‘No grievance addressing a non probationary
employee’s discharge, termination or demotion, including severity
of punishment, can be submitted directly to the Connecticut Board of Mediation
and Arbitration without the approval of the union.’’ On August 5, 2002,
the defendant waived representation by the Connecticut Independent Police
Union, Local 13. The union did not participate in the initial hearing or the
arbitration and agreed to be bound by the decision. The defendant retained
private counsel and now appeals individually.
2 Article 14, § G, of the agreement states: ‘‘Whenever a nondepartmental
complaint is made against an employee or group of employees, such complaint
shall be submitted in writing under oath. . . . Any employee against
whom a written complaint has been filed, must be provided a copy of such
complaint within seven (7) days of its being filed. Such complaint shall be
dismissed if not acted on by the Board of Police Commissioners within five
(5) months of the date the complaint being filed.’’
3 In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to identify the victim or others through
whomthe victim’s identity may be ascertained. See General Statutes § 54-86e.
4 The following additional facts, set forth by the arbitrators in their statement
of the case, describe the nature of the complaints against the defendant.
They are set forth in a footnote for brevity and clarity in the opinion, and
not to diminish their importance.
‘‘During the hearing, many issues came to the attention of the [board]. The
first issue was sexual misconduct. This was first discussed with reference to
a nineteen year old resident, [S]. Those allegations first surfaced on January
15, 2001. [S] gave two written statements under oath to the [department]
whereby she alleged that [the defendant] had used ‘unwelcome and unsolicited
sexual and vulgar language’ and had ‘grabbed her buttocks.’ . . . [S]
was at the August 6, 2002 hearing, testified credibly and her testimony was
not rebutted by the [defendant], who elected not to testify.
‘‘On January 19, 2001, the [department] turned the matter over to the
state police and decided not to conduct an internal investigation. Because
of the ongoing criminal investigation, the city felt justified in withholding
the [S] complaint from [the defendant] until May 6, 2002. . . .
‘‘The [S] allegations resulted in a criminal investigation by the state police.
On January 29, 2001, the state police interviewed [S], who gave them a
sworn statement. On February 16, 2001, the state police also received a
sworn statement from [B], who alleged that she had been subjected to lewd,
obscene and sexually harassing conduct. . . . In her statement, [B] alleged
being subjected to ‘obscene gestures’ and being touched on ‘her ass’ on
several occasions. She also recounted being offered liquor at a wedding
reception by [the defendant] when she was seventeen in the midst of his
making ‘lewd and obscene comments’ to her. Furthermore, [B] insisted that
[the defendant] was ‘doing everything possible to have sex’ with her. She
indicated that [the defendant] ‘illuminated [her] car with his spotlight’ and
followed her on numerous occasions in his cruiser.
‘‘[B], who was a coworker of [S] and introduced her to [the defendant],
indicated that the [defendant] had ‘blown kisses’ and ‘licked his lips in a
sexual way in front of [S].’ Both women claimed in their statements to be
afraid of the [defendant] and feared that he would hurt them, and alleged
that the [defendant’s] advances were resisted and rejected. It is not clear,
however, what role, if any, the [B] statement played in the action which
was to come next. It does appear that the [S] complaint was the main
reason why the state police brought criminal charges against [the defendant].
Obviously, the [B] complaint had corroborative value and was very significant.
However, the same contained details of behavior that involved [B] and
went beyond corroboration.
‘‘As revealed at the time of the hearings on this matter, the charges
by the state police also prompted the [department] to begin an internal
investigation. The officer assigned to do the investigation was Lieutenant
Michael Abbels. It is not clear from the record when the [department] got
a copy of the [B] statement. It is clear, however, that the [defendant] did
not receive a copy of the same until around May 6, 2002.
‘‘[The defendant] was arrested on April 6, 2001, and charged with sexual
assault in the fourth degree. . . . On August 30, 2001, a third complaint
surfaced from a twenty-two year old female, [M], who had had similar
problems with the [defendant]. . . .
‘‘Like [B], [M] complained that [the defendant] frequently stopped her by
flashing a ‘spotlight into her car’ and asked her ‘to come to his house.’ [M]
also complained that she was watched by the [defendant] while she was
getting out of the shower and while he ‘was in an Ansonia police car,’ and
‘flashed the blue and red lights on the roof of his car and drove away.’ This
type of on duty conduct was also complained of by [B]. Given other acts
complained of by [M], the latter conduct appeared calculated to be a use
of [the defendant’s] police authority inappropriately. Similar conduct
included [the defendant] assuring [M] that he would try and help her out
‘with the prosecutor of the Derby court’ when she got arrested because she
had caused a fight. At that time, [the defendant] ‘leaned towards [the victim’s]
face with his face’ as if to kiss her. . . .
‘‘[The defendant’s] case came before the court on December 14, 2001,
at which time the [defendant] applied for accelerated rehabilitation after
undergoing a ‘psychosexual evaluation and risk assessment.’ . . . Neither
the [M] nor [B] matters were addressed at that proceeding. [The defendant]
did not receive a copy of the [M] complaint until May 6, 2002. Neither were
these matters discussed during the risk assessment conducted prior to [the
defendant’s] court appearance. . . . [The defendant] did admit ‘having sexually
charged conversations with the victim and her friend,’ touching of [S]
and seemed ‘to recognize that they were inappropriate.’ . . .
‘‘During his court appearance, [the defendant’s] attorney indicated that
his client recognized that ‘whatever behavior he engaged in that day (with
[S]) wasn’t appropriate.’ . . . In granting the accelerated rehabilitation, the
court noted that the victim did not object and that ‘this was not an on duty
misuse of authority.’ It did find that [the defendant’s] conduct was ‘sufficient
to warrant an arrest,’ and that the age difference between the victim and [the
defendant] made the ‘limited touching’ which occurred ‘inappropriate.’ . . .
‘‘While the court did not make a determination of guilt, it did not exonerate
the [defendant]. As a result of the proceedings, [the defendant] was placed
on a two year probation and admonished not to have contact with [S]. He
was further required to continue in counseling, make restitution to the victim
for lost wages, pay up to $1000 for her counseling and to perform 100 hours
of community service. . . . The court’s determination on [the defendant’s]
application did not involve consideration of the on duty conduct alleged by
[B] and [M] and the [K] statement, which will be discussed below.
‘‘During the spring of 2002, with the criminal charges being disposed of,
the internal affairs investigation intensified. As a result, [the defendant] was
questioned on May 6, 2002, and he was advised of the identity of the women
who had accused him and the nature of the accusations. He was told of the
alleged ‘unsolicited sexual vulgarity and sexual contact’ and ‘inappropriate
use of a police cruiser and lights.’ According to . . . Abbels, the interrogator,
[the defendant] denied the allegations made by the complainants.
[Abbels] also stated that, in his opinion, the [defendant] ‘intentionally lied
to him’ and ‘tried to mislead him.’ . . .
‘‘To buttress his conclusion, Abbels pointed out that [the defendant]
‘denied trying to have a relationship with [S] or [B],’ but ‘finally admitted
that he was trying to have a sexual relationship with them.’ [Abbels] also
pointed out that the [defendant] denied shining or flashing his lights at
females in cars. However, Abbels indicated that [another officer], who had
been in [the defendant’s] patrol car ‘many times,’ indicated to him that [the
defendant] did so on many occasions while [that officer] was present. Based
on the above circumstances, Abbels concluded that he needed to conduct
another meeting with [the defendant] to clear the ‘many inconsistencies.’
He scheduled and held said meeting on June 14, 2002. . . .
‘‘On July 10, 2002, a fourth statement was given to the [department]. The
same related to conduct which occurred two years prior. The statement
had a familiar tone to it as the forty-one year old female, [K], discussed
‘being flagged down by [the defendant].’ [K] knew [the defendant] well
because he had dated her daughter. According to the statement, on one
occasion the [defendant] encountered her and told her that she ‘looked
nice.’ He subsequently told her, ‘Why don’t you pull up your shirt and show
me your breasts?’ [K] stated that ‘in the past, an Ansonia police car would
park next to [her] house and shine the spotlight into [her] bedroom window.’
While [K] admitted not being able to discern who the officer was, she
said that ‘after I confronted [the defendant] about it, it never happened
again.’ . . .
‘‘On the above date . . . Abbels presented his internal affairs investigation
report. On July 23, 2002, the [defendant] was given a copy of the same
and notice that the report was being presented to the board . . . on July
30, 2002. He was told that on July 30, 2002, the [board] ‘will convene a
hearing to consider whether any disciplinary action should be taken against
you.’ That hearing was postponed and reconvened on August 6, 2002.’’
(Citations omitted.)
5 The board found that violations of the following sections of the duty
manual were substantiated:
‘‘2.1.6 Truthfulness—Speak the truth at all times and under all circumstances.
In cases in which [a sworn member] is not allowed by the regulations
of the Department to divulge facts within its knowledge, he will decline to
speak on the subject.’’
‘‘2.1.10 Respect—extend the proper courtesy and respect toward all members
of the Department and others at all times.’’
‘‘2.1.11 Civility—be civil, orderly, diligent, discreet, courteous and patient
as a reasonable person is expected to be in all situations and shall not
engage in any altercation, physical or otherwise whether on duty or not,
with any other member or employee of the Department.’’
‘‘2.1.13 Oath of Office, Code of Ethics—carry out their oath of office and
the code of police ethics to the best of the member’s ability.’’
‘‘2.3.3 Neglect of Duty—conducting or omitting the performance of one’s
duty such that performance is not in accordance with established and ordinary
duties or procedures, or which constitutes use of unreasonable judgment
in the exercising of any discretion granted to a police officer.’’
‘‘2.3.22 Duty Time Limited to Police Work—conducting personal business
while on duty or devoting any of his ‘on duty’ time to any activity other
than that which relates to police work or performing any police duty in
uniform for the purposes of private gain, unless properly authorized.’’
‘‘[4.4.3 D.] Neglect of Duty or Disobedience of [O]rders—police officers
while on duty shall devote their time and energies to the duties and responsibilities
of rank, grade, or position to which they are assigned. In carrying
out those duties, officers shall direct and coordinate their efforts in such a
manner as will tend to establish and maintain the highest standard of efficiency.
Any conduct or omission which is not in accordance with one’s
established and ordinary duties and procedures, or which constitutes use
of unreasonable judgment in the exercise of the discretion granted to an
individual officer, shall be considered neglect of duty.’’
6 It was unclear to the arbitrators whether the defendant was given notice
of an additional complaint within seven days of its receipt on July 10, 2002,
but it was clear that the city acted on the complaint within the five month
limitation period.
7 Because we affirm the court’s action vacating the award, we need not
separately address the merits of the defendant’s claim that the award be confirmed.
8 We leave undisturbed the arbitrators’ finding of a procedural violation.
9 After his arrest, the defendant signed a written waiver regarding the
disciplinary policies in the agreement. As a result, as noted by the arbitrators
in their award, a disciplinary hearing was not required until the ‘‘outcome
of the criminal charge . . . or independent verification of alleged misconduct.’’
The defendant applied for accelerated rehabilitation and was placed
on probation for two years for his actions. The granting of a motion for
accelerated rehabilitation does not terminate the underlying criminal
charges. Final judgment does not occur until the completion of the terms
of accelerated rehabilitation, including probation, and an order by the court
dismissing the charges. See State v. Angelo, 25 Conn. App. 235, 239–40, 594
A.2d 24 (finding that motion to grant accelerated rehabilitation is not final
judgment for purposes of appeal and that right of appeal does not ripen
until charges dismissed), cert. denied, 220 Conn. 911, 597 A.2d 335 (1991);
see also State v. Trahan, 45 Conn. App. 722, 732, 697 A.2d 1153 (‘‘only right
that the defendant may earn under the accelerated rehabilitation statute is
the right to a dismissal of the charges against him, a right that is expressly
conditioned on satisfactory completion of the period of probation’’ [internal
quotation marks omitted]), cert. denied, 243 Conn. 924, 701 A.2d 660 (1997).
The outcome of the criminal charge for purposes of this action also does
not occur until that time. Accordingly, the misdemeanor charge of sexual
assault in the fourth degree was properly before the board at the August
6, 2002 hearing and was an appropriate subject for factual findings by
the arbitrators.
10 The court framed its public policy conclusion, in part, in terms of the
well recognized state and federal policies against sexual harassment in the
workplace. Because we conclude that the award was in violation of other
public policies, we need not reach the question of on duty sexual harassment.
11 General Statutes § 53a-181d (a) provides: ‘‘A person is guilty of stalking
in the second degree when, with intent to cause another person to fear for
his physical safety, he wilfully and repeatedly follows or lies in wait for
such other person and causes such other person to reasonably fear for his
physical safety.’’
12 General Statutes § 53a-181e (a) provides: ‘‘A person is guilty of stalking
in the third degree when he recklessly causes another person to reasonably
fear for his physical safety by wilfully and repeatedly following or lying in
wait for such other person.’’
13 General Statutes § 53a-182 (a) provides in relevant part: ‘‘A person is
guilty of disorderly conduct when, with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, such person . . .
(2) by offensive or disorderly conduct, annoys or interferes with another
person . . . or (7) commits simple trespass, as provided in section 53a-
110a, and observes, in other than a casual or cursory manner, another person
(A) without the knowledge or consent of such person, (B) while such other
person is inside a dwelling, as defined in section 53a-100, and not in plain
view, and (C) under circumstances where such other person has a reasonable
expectation of privacy.’’
14 General Statutes § 53a-73a (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the fourth degree when . . . (2) such person
subjects another person to sexual contact without such other person’s consent
. . . .’’
15 The court also identified a public policy mandating good behavior for
police officers and requiring police officers to be honest and law-abiding,
emanating from General Statutes § 7-276 and the duty manual of the department.
We agree that there is a need for public confidence in the police
force and that there is a general consideration that ‘‘[g]ood behavior is a
requirement for police officers.’’ South Windsor v. South Windsor Police
Union, 41 Conn. App. 649, 659, 677 A.2d 464, cert. denied, 239 Conn. 926,
683 A.2d 22 (1996). Our Supreme Court, however, in South Windsor v. South
Windsor Police Union, Local 1480, 255 Conn. 800, 823–24, 770 A.2d 14
(2001), found that this general notion of the public interest fails to meet
the test for the public policy exception to arbitral authority. Having found
other well defined public policies on which to ground our decision, we
decline to rely on that general consideration.
16 We do not hold that the violation of a criminal statute is a per se public
policy violation sufficient to justify vacating an arbitrator’s decision. Instead,
we conclude that this case poses a narrow, blatant example of the board’s
proper exercise of its power to dismiss. See State v. AFSCME, Council 4,
Local 387, AFL-CIO, supra, 252 Conn. 477–78.
* * * *
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