Opinion
16-P-891
04-26-2017
CITY OF NEWTON v. Matthew A. CUMMINGS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The city appeals from an order denying its motion for judgment on the pleadings seeking to vacate an arbitration award, and allowing the defendant's cross motion to confirm that award. The city argues that it was entitled to judgment on its amended complaint which sought, pursuant to G. L. c. 251, § 12(a )(2), to vacate the arbitration award on the ground that the arbitrator was partial. Our review is de novo, see Massachusetts Hwy. Dept. v. Perini Corp., 79 Mass. App. Ct. 430, 436 (2011) (de novo review applies to orders confirming arbitration); Martinez v. Waldstein, 89 Mass. App. Ct. 341, 345 (2016) (de novo review applies to motions for judgment on the pleadings), and we affirm.
The amended complaint alleged a number of additional bases for vacating the arbitration award. However, most (if not all) of them are not recognized bases, under G. L. c. 251, § 12(a ), for vacating an arbitration award. For example, the city's claim that the arbitrator was required to accept the negative inference drawn by the hearing officer is not within the scope of review permitted by G. L. c. 251, § 12(a ), nor does the city even attempt to explain how it is.
The case arises from the city's termination of the defendant for conduct unbecoming a police chief. The parties' relationship was subject to an employment agreement, which specified that any dispute concerning the defendant's "termination of employment ... shall be resolved exclusively by arbitration under the Voluntary Labor Arbitration Rules of the American Arbitration Association." The agreement also specified that "[t]he arbitrator's decision, if in accordance with law, shall be final and binding upon the parties."
The defendant invoked arbitration after his termination. After a five-day arbitration proceeding during which both sides presented and cross-examined witnesses, the arbitrator ruled that the city had not met its burden of showing conduct unbecoming a chief, awarded damages, and ordered reinstatement. The city filed a complaint in Superior Court seeking to vacate the arbitrator's award, arguing in essence that the arbitrator had exceeded his authority. A judge of the Superior Court agreed with the city, vacated the arbitration award, and remanded the matter for reconsideration by the arbitrator limited to the evidentiary record that had been before the hearing examiner.
On remand, the arbitrator followed the judge's instructions, limited himself to the pretermination evidentiary record, and again found in favor of the chief. He also again awarded damages, but—because the city now had the option (which it had exercised) to terminate the chief for any reason during the fifth year of the contract—did not order reinstatement. The city then filed the amended complaint which underlies this appeal and moved, as we noted at the outset, for judgment on the pleadings on the ground that the arbitrator was evidently partial. G. L. c. 251, § 12(a )(2).
The arbitrator stated that he "disregarded the entire five-day trial" that he performed prior to making his first award and "limit[ed] [his] consideration to the evidence submitted at the disciplinary hearing." We are unpersuaded by the city's argument that we should disbelieve the arbitrator's representations in this regard. Nothing in the record (whether intrinsic or extrinsic to the arbitrator's decision) suggests that the arbitrator did not follow the judge's order.
On appeal, the city wisely does not renew its claim that the arbitrator "grant[ed] relief beyond the scope of the arbitration agreement, [awarded] relief beyond that to which the parties bound themselves, or [awarded] relief prohibited by law." Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990).
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Courts "shall" confirm arbitration awards unless a party shows that the award falls within one of the five limited exceptions specified in G. L. c. 251, § 12(a ). G. L. c. 251, § 11. The exception at issue here is when "there was evident partiality by an arbitrator appointed as a neutral." G. L. c. 251, § 12(a )(2). Partiality in this context does not mean that the arbitrator favored one side over the other, or had a predisposition, was biased, or was "partial" in a colloquial sense. "Evident partiality is more than just the appearance of possible bias. Rather evident partiality means a situation in which ‘a reasonable person would have to conclude that an arbitrator was partial to one party to an arbitration.’ " JCI Communications, Inc. v. International Bhd. of Elec. Workers, Local 103, 324 F.3d 42, 51 (1st Cir. 2003), quoting from Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 626 (6th Cir. 2002) (construing similar language in the Federal Arbitration Act). Such a situation exists where there is an undisclosed preexisting "toxic relationship between an arbitrator and a party or counsel," Bernstein v. Grammercy Mills, Inc., 16 Mass. App. Ct. 403, 411-412 (1983), such as where "the arbitrator had a financial or personal interest in the result of the arbitration or [ ] had [a] past or present relationship with [a party]." Turner Fisheries, Inc. v. Seafood Workers Union I.L.A., 19 Mass. App. Ct. 925, 928 (1984) (construing similar language in G. L. c. 150C, § 11(a )(2) ). For example, evident partiality may exist where an arbitrator has received consulting fees from a party for a lengthy period, or where he repeatedly represented a party in legal matters, or where he had a long and established business relationship with a party. See Bernstein v. Gramercy Mills Inc., supra at 413-414 (collecting cases).
The city has made no showing here of evident partiality as our cases have construed the term. There is nothing to suggest that the arbitrator had any preexisting relationship with the defendant or his counsel, let alone a relationship that was undisclosed. Instead, the city's claim of partiality rests entirely upon its assertion that the arbitrator was "dissatisfied" or "frustrated" with the remand order. Even were we to assume that the arbitrator expressed frustration in his decision (a matter we stress we assume only for the purpose of argument) we "do not see how the comment of the arbitrator ... evinced a bias against" the city. Turner Fisheries, Inc. v. Seafood Workers Union I.L.A., supra.
Concluding as we do with respect to the city's claim of "evident partiality," we need not consider the defendant's argument that the initial order of remand was incorrect. Simply put, even if the defendant is correct, he would be entitled to no additional relief.
Judgment affirmed.