Opinion
C.A. PM-2011-7050
07-05-2018
STATE OF RHODE ISLAND, DEPARTMENT OF CORRECTIONS v. RHODE ISLAND BROTHERHOOD OF CORRECTIONAL OFFICERS
For Plaintiff: Michael B. Grant, Esq. For Defendant: Gerard B. Cobleigh, Esq.; Carly B. Iafrate, Esq.
Superior Court Providence County
For Plaintiff: Michael B. Grant, Esq.
For Defendant: Gerard B. Cobleigh, Esq.; Carly B. Iafrate, Esq.
DECISION
McGUIRL, J.
This case is before the Court on the State of Rhode Island Department of Corrections' (DOC) Motion to Vacate the October 27, 2011 Arbitration Award (the Award). The Rhode Island Brotherhood of Correctional Officers (RIBCO) simultaneously moves to confirm. The Award sustained a grievance by RIBCO on the grounds that the DOC violated the just cause provision of the parties' collective bargaining agreement (the CBA) when it terminated the employment of a correctional officer, Anthony Marshall. Jurisdiction is pursuant to G.L. 1956 § 28-9-18.
I
Facts and Travel
Prior to March 9, 2011, Mr. Marshall served twenty years as a correctional officer at the Adult Correctional Institution (ACI) (Award 12). On April 23, 2010, East Providence police officers arrested and criminally charged Mr. Marshall with domestic simple assault and battery (the East Providence charge) following an altercation with his estranged wife that occurred on January 31, 2010. Id. at 7. After his arrest and having agreed to conditions for Mr. Marshall's release on bail, the court released Mr. Marshall on his own recognizance. Id.
Thereafter, on September 14, 2010, West Warwick police officers arrested Mr. Marshall and charged him with domestic simple assault and battery and domestic disorderly conduct (the West Warwick charges) following a separate incident involving his girlfriend. Id. at 7. As a result of the West Warwick charges, Mr. Marshall was presented as a bail violator on the East Providence charge. Id. On September 28, 2010, the East Greenwich police arrested Mr. Marshall based on a complaint made by his girlfriend for a third domestic altercation that occurred on August 24, 2010 (the East Greenwich charge). Id. That same day, Mr. Marshall appeared in Superior Court and admitted to violating the conditions of bail with respect to the East Providence charge. Mr. Marshall also pled guilty to the West Warwick charge of domestic disorderly conduct. In light of Mr. Marshall's admissions, the District Court modified his bail on the East Providence charge from personal recognizance to $5000 bail with surety. However, Mr. Marshall was ultimately remanded to the ACI pending a bail violation hearing when the East Greenwich charge was filed.
The East Greenwich charge was originally filed as a felony domestic assault but was subsequently dismissed and refiled as a domestic simple assault and battery charge. (Award 6.)
On October 14, 2010, after spending sixteen days in the ACI, Mr. Marshall returned to court for his bail violation hearing on the East Providence charge. Id. at 7-8. Mr. Marshall admitted to violating the conditions of his bail and the hearing judge sentenced him to serve thirty days at the ACI, retroactive to the day he was taken into custody, September 28, 2010. Id. at 8. Mr. Marshall spent the duration of his sentence in isolation at the ACI's Intake Center as a preventative measure taken to reduce his exposure to the general population. Id.at 8. He was subsequently released on October 28, 2010, after serving the thirty day sentence. Id.
On December 1, 2010, Mr. Marshall was found not guilty of the West Warwick domestic assault charge but guilty of the domestic disorderly conduct charge. Id. He was later found not guilty of both the East Providence charge and the East Greenwich charge. Id. at 8. Shortly after Mr. Marshall resolved his criminal matters, the DOC terminated him from his position as a correctional officer, effective March 9, 2011. Id. at 6. RIBCO then filed a grievance against the DOC on Mr. Marshall's behalf, which led the parties to arbitration. Id.
As a result of pleading guilty to the domestic disorderly conduct charge, Mr. Marshall was sentenced to six months of probation, ordered to attend domestic abuse counseling, and to have no contact with the victim.
After a hearing on August 24, 2011, the Arbitrator found that the DOC did not have just cause to terminate Mr. Marshall's employment based on the terms of the CBA. Id. at 6, 9. Ultimately, the Arbitrator concluded that Mr. Marshall should be "reinstated . . . and made whole for any losses of compensation or benefits." Id. at 19. The DOC subsequently filed the present Motion to Vacate the Arbitration Award. In response, RIBCO moved to confirm the Award.
II
Standard of Review
It is well settled that "the authority of the judiciary to 'review . . . the merits of an arbitration award is extremely limited.'" Town of N. Providence v. Local 2334 Int'l Ass'n of Fire Fighters, AFL-CIO, 763 A.2d 604, 605 (R.I. 2000) (quoting State Dep't of Mental Health, Retardation, and Hospitals v. R.I. Council 94, 692 A.2d 318, 322 (R.I. 1997)). Nonetheless,
"[u]nder § 28-9-18(a), an arbitration award must be vacated if (1) it was procured by fraud; (2) the arbitrator exceeded his or her powers or failed to make a mutual, final, and definite award upon the subject matter submitted; or (3) there was no valid submission or contract and the objection has been raised under certain conditions." State, Dep't of Corr. v. R.I. Bhd. of Corr. Officers, 64 A.3d 734, 739 (R.I. 2013).
Moreover, "[a]n arbitrator exceeds his or her powers 'by resolving a non-arbitrable dispute or if the award fails to 'draw its essence' form the agreement, if it was not based upon a 'passably plausible' interpretation thereof, if it manifestly disregarded a contractual provision, or if it reached an irrational result.'" City of E. Providence v. United Steelworkers of Am., Local 15509, 925 A.2d 246, 252 (R.I. 2007) (quoting Woonsocket Teachers' Guild, Local 951, AFT v. Woonsocket Sch. Comm., 770 A.2d 834, 837 (R.I. 2001)).
III
Analysis
The issue before this Court is whether the Arbitrator exceeded his power by issuing the Award. The DOC argues that this Court must vacate the Award, because the Arbitrator impermissibly exceeded his powers and substituted his judgment for that of the Director of the DOC in rendering his decision. Specifically, the Arbitrator infringed on the Director's non-delegable statutory authority to "[m]aintain security, safety, and order at all state correctional facilities," under G.L. 1956 § 42-56-10. Id. at 19-20.
In pertinent part, § 42-56-10 further provides that the Director of the DOC shall:
"(5) Manage, direct, and supervise the operations of the department;
"(6) Direct employees in the performance of their official duties; "(7) Hire, promote, transfer, assign, and retain employees and suspend, demote, discharge, or take other necessary disciplinary action;
"(8) Maintain the efficiency of the operations of the department; "(9) Determine the methods, means, and personnel by which those operations of the department are to be conducted;
"(10) Relieve employees from duties because of lack of work or for other legitimate reasons;
"(22) Make and promulgate necessary rules and regulations incident to the exercise of his or her powers and the performance of his or her duties, including, but not limited to, rules and regulations regarding nutrition, sanitation, safety, discipline, recreation, religious services, communication, and visiting privileges, classification, education, training, employment, care, and custody for all persons committed to correctional facilities."
Alternatively, RIBCO contends that the General Assembly's 2007 amendment of § 42-56-10 prohibits arbitration awards-including awards involving the director's employee disciplinary decisions-from being vacated, remanded, or set aside. More specifically, RIBCO asserts that the 2007 amendment grants an arbitrator the authority to review the Director's decision to terminate employees.
The DOC counters this assertion with its argument that such an interpretation of § 42-56-10 would result in an unconstitutional delegation of legislative authority. Further, the DOC proffers that if the Court accepts RIBCO's interpretation, § 42-56-10 would prevent the DOC from challenging the legality of any arbitration award and forbid courts from setting such awards aside.
Section 42-56-10 governs the powers granted to the Director of the DOC. See § 42-56-10. In 2007, the General Assembly amended § 42-56-10 to provide, in relevant part:
"Notwithstanding the enumeration of the powers of the director as set forth in this section, and notwithstanding any other provision of the general laws, the validity and enforceability of the provisions of a collective bargaining agreement shall not be contested, affected, or diminished, nor shall any arbitration award be vacated, remanded or set aside on the basis of an alleged conflict with this section or with any other provision of the general laws." Sec. 42-56-10(24) (emphasis added).
However, in State Dep't of Corr. v. R.I. Bhd. of Corr. Officers, 725 A.2d 296, 299 (R.I. 1999) (Riel), the Rhode Island Supreme Court determined that "[t]he Legislature could not have intended to make the paramount disciplinary function of the director subject to the caprice of an arbitrator." In that case, Jeanne Riel began working as a correctional officer in 1990. Riel, 725 A.2d at 297. In 1994, Ms. Riel was arrested, charged with, and convicted of driving under the influence for which she served a six month sentence at a treatment center. Id. The DOC terminated Ms. Riel's employment because she failed to report her 1994 arrest until after her conviction. Id. Thereafter, an arbitrator determined that "off-duty criminal activity, standing alone, was not connected sufficiently to Riel's ability to control the inmate population or to work with her fellow prison guards." Id. Based on that determination, the arbitrator concluded that the DOC lacked just cause for Ms. Riel's termination, reasoning that a thirty day suspension was a sufficient penalty. Id. at 297-98.
On appeal, the Rhode Island Supreme Court recognized that § 28-29-1
"empowers an arbitrator to modify a penalty imposed by an employer . . . must be harmonized with those provisions set forth in § 42-56-10, which outlines the powers of the director of the Department of Corrections, in light of the director's nondelegable authority to maintain security, safety, and order at all state correctional facilities." Id. at 298.
Accordingly, the court held that "the director alone must decide whether or not convicted criminals, who have been incarcerated for their crimes, can serve as correctional officers." Id. at 298-99.
Similarly, in State Dep't of Corr. v. R.I. Bhd. of Corr. Officers, 867 A.2d 823, 835 (R.I. 2005) (Algasso), the DOC terminated Anthony Algasso's employment when he was criminally charged with larceny and possession of illegal narcotics. RIBCO filed a grievance with the DOC on behalf of Mr. Algasso. Id. at 833. When the matter presented for arbitration, an arbitrator determined that there was no just cause for Mr. Algasso's termination as the DOC had not proven the truth of the allegations. Id. at 833-34. Ultimately, the arbitrator asserted that off-duty criminal activity "did not constitute a direct nexus to [Mr. Algasso's] employment." Id. at 827.
Our Supreme Court vacated the arbitration award in that case. Id. at 829. The court determined that the arbitrator "reached an irrational result, and impermissibly substituted his judgment for that of the director." Id. Citing its decision in Riel, the Rhode Island Supreme Court reasoned that "the Legislature has delegated the determination of the extent and severity of discipline to the DOC director and that determination is not subject to review by an arbitrator." Id. at 830. Ultimately, the Court held:
"The determination of whether a sufficient relationship exists between the employee misconduct and performance on the job [] has been statutorily delegated to the director under the provisions of § 42-56-10(7), which empowers the director to '[h]ire, promote, transfer, assign, and retain employees and suspend, demote, discharge, or take other necessary disciplinary action.'" Id. at 832.
In the instant matter, the Court need not consider the constitutional issues raised by the parties-regardless of whether the Rhode Island Supreme Court's decisions in Riel and Algasso were abrogated by the 2007 amendment of § 42-56-10-as this Court finds the Award to be irrational. See State Dep't of Corr. v. Rhode Island Bhd. of Corr. Officers, 115 A.3d 924, 933 (R.I. 2015) (Maddalena) ("[B]ecause we agree with the trial justice that the arbitration award was irrational, we need not venture in the area of nondelegation and separation of powers, nor reach a determination on the constitutionality of the amendment") (footnote omitted).
This Court notes, however, that in Maddalena, the Rhode Island Supreme Court, in dicta, rejected RIBCO's position:
"[W]e pause to acknowledge, as stated in Riel, that we remain steadfast in our judgment that [t]he Legislature could not have intended to make the paramount disciplinary function of the director subject to the caprice of an arbitrator. Further, we are of the opinion that, if the Legislature intended to alter or diminish the director's authority to suspend, demote, discharge, or take other necessary disciplinary action in order to secure prison safety and security, it would have done so in a clearer and more explicit manner." 115 A.3d at 933 (internal citations and quotation marks omitted).
In Maddalena, our Supreme Court stated that "[a]n arbitration award will be vacated if an arbitrator 'exceed[ed] his or her powers by interpreting a CBA in such a way that it contravenes state law or other public policies that are not subject to alteration by arbitration.'" Maddalena, 115 A.3d at 931 (citing Algasso, 867 A.2d at 835). In that case, the DOC terminated correctional officer James Maddalena's employment for failing to report a co-worker for smoking marijuana while on-duty, and for his dishonesty with the Rhode Island State Police and the DOC's Office of Inspections during an interview regarding the investigation. Id. at 926. After his termination, RIBCO filed a grievance with the DOC on Mr. Maddalena's behalf, claiming that the DOC did not have just cause to terminate his employment. Id. at 926-27. The matter proceeded to arbitration which resulted in the arbitrator finding that the DOC lacked just cause to terminate Mr. Maddalena's employment, and that Mr. Maddalena should instead be suspended without pay for sixty days. Id. at 927. The DOC filed a motion to vacate the arbitration award, which was subsequently granted. Id. at 928.
On appeal, our Supreme Court stated that the arbitrator erroneously determined that "the CBA did not list offenses and corresponding penalties," therefore, "[the arbitrator] would not rely on the CBA in making his decision and instead would 'look elsewhere for guidance on this question' to reach a just result." Id. at 931. Ultimately, the court held that "the arbitrator [] abused his power in determining that the DOC director lacked just cause without taking into consideration relevant portions of the CBA[, ]" and that he exceeded his authority by "manifestly disregard[ing] the contract language of the management-rights section of the CBA." Id. 928-31.
Similarly, the Arbitrator in the present matter disregarded the language found in the. Management Rights section of the CBA. See id. at 931; see also State, Dep't of Corr., 64 A.3d at 740. Even though the Arbitrator cited to the Management Rights section of the CBA in the "Relevant Contract Provisions" section of his Award, the Arbitrator failed to adequately address or consider the portion of the CBA that grants the DOC the "exclusive right . . . to hire, promote, transfer, assign, and retain employees in positions within the bargaining unit, and to suspend, demote, discharge or take other disciplinary action against such employees . . . ." (Award 3.) In failing to properly consider relevant portions of the CBA, the Arbitrator exceeded his powers by granting an award that "fails to draw its essence from the agreement." Woonsocket Sch. Comm., 770 A.2d at 837; see also Maddalena, 115 A.3d at 933 (citing Algasso, 867 A.2d at 835).
The Management Rights section of the CBA reads, in pertinent part:
"[T]he employer shall have the exclusive right, subject to the provisions of this [CBA] and consistent with applicable laws and regulations: . . . To hire, promote, transfer, assign, and retain employees in positions within the bargaining unit, and to suspend, demote, discharge or take other disciplinary action against such employees . . . ."
Furthermore, the Arbitrator's rationale supporting the 2011 Award is irrational. For instance, in his Award, the Arbitrator found that there was "no firm connection between the knowledge of [Mr. Marshall's] prison term and any compromise of his ability to maintain credibility and respect." (Award 17.) However, the Arbitrator noted the testimony of the DOC's Assistant Director, which advanced the proposition that "an officer who has been incarcerated has lost his ability to command the respect and credibility of inmates cannot be ignored." Id. at 16. The Arbitrator also acknowledged the likelihood that the general population of inmates would be aware of Mr. Marshall's incarceration since, in his work environment, "secrecy would be virtually impossible to maintain." Id. at 17.
Moreover, the Arbitrator's conclusion that the DOC has no explicit policy specifying that incarceration constitutes an automatic disqualification from service is belied by his own findings and contradictory to State law. See Algasso, 867 A.2d at 830-31; see also State, Dep't of Corr., 64 A.3d at 740 ("[A] manifest disregard of the law occurs when an arbitrator understands and correctly articulates the law, but then proceeds to disregard it.") The Arbitrator remarked that the DOC's discharge of Mr. Marshall was "understandable," in light of a provision contained within the DOC's Code of Ethics:
"6. Examples of Misconduct Subject to Disciplinary Action This section describes specific instances of misconduct which may subject an employee to disciplinary measures, up to and including termination. However, nothing in this section precludes the Department from taking full range of disciplinary measure against an employee who violates the other sections of this policy. "a. Conduct Unbecoming a Correctional Employee "(1) Misconduct, on or off duty, which violates federal, state, or local criminal codes.
"(2) Any activity which undermines the work or authority of the staff member or other staff members, brings discredit on the Department, compromises the Department's mission or operations, or adversely affects the public trust.
"(3) Abuse of position for personal gain or benefit." (Award 15-16.)
After mentioning the provision, the Arbitrator went on to state that "[t]he State's interest in maintaining public confidences in the integrity of its workforce, particularly its Correctional Officers, would justify a decision to terminate an officer who appeared to have violated this provision." Id. at 16. Significantly, the Arbitrator found that Mr. Marshall's sentence "meets the requirements of the Code of Ethics and Conduct provision" violation. Id. at 17-18. Still, the Arbitrator ultimately concluded that Mr. Marshall should be reinstated, because "there is no explicit policy statement in the Code of Ethics or any other Department of Corrections policy or rule that specifies [] an automatic disqualification for service as a Correctional Officer" after being incarcerated. Id. at 16. This finding contradicts the Rhode Island Supreme Court's holding in Algasso:
"A violation of the DOC Code of Ethics and Conduct having been established, the appropriateness of the disciplinary measures to be invoked lies within the discretionary authority of the director. The arbitrator lacked the authority to alter or determine the discipline imposed. Thus, the arbitrator's decision to reverse the director's termination of Mr. Algasso was irrational and the arbitrator exceeded his powers by substituting his judgment for that of the director concerning the choice of discipline." 867 A.2d at 830-31.
The Arbitrator also erroneously relied on the finding that "[o]ther officers have been jailed or incarcerated, then restored to duty." (Award 17.) During arbitration, RIBCO offered a list of officers who continued as correctional officers after pleading guilty to similar misdemeanor charges. Id. at 9. One of the listed officers spent sixteen days at the ACI pending a bail violation hearing. Id. However, the DOC and RIBCO agreed that the case "shall not be precedent for any pending and/or future cases;" therefore, the parties did not rely on that case as precedent. (DOC's Mem., Ex. B. at 3.) Another named officer remained at the ACI for one night after being arrested. (Award 9.)
The list was not made part of the record presented to this Court. (DOC's Mem. 11-12.)
Nevertheless, Mr. Marshall's case is distinguishable from the other cases involving correctional officers who were terminated for criminally related conduct due to the fact that Mr. Marshall was the only correctional officer that was sentenced to the ACI after admitting guilt. For instance, in Riel, the correctional officer was not incarcerated but sentenced to spend six months in a treatment center. 725 A.2d at 297. In Algasso, the DOC terminated the correctional officer, because he had been charged with larceny and possession of illegal narcotics, although he was never convicted. 867 A.2d at 835. Additionally, one correctional officer named on RIBCO's list spent one night at the ACI after being arrested; the other correctional officer remained at the ACI for sixteen days pending a bail violation hearing. In both instances, the correctional officers were at the ACI awaiting their next court appearances; whereas, Mr. Marshall was serving his sentence at the ACI after his case had been fully adjudicated. Mr. Marshall had admitted to a bail violation and was sentenced to serve thirty days at the ACI. (Award 17.) The egregiousness of Mr. Marshall's conduct further supports the DOC's decision to terminate his employment. See Riel, 725 A.2d at 298-99 ("The director alone must decide whether or not convicted criminals, who have been incarcerated for their crimes, can serve as correctional officers.")
Therefore, this Court finds that the Arbitrator exceeded his power by issuing the 2011 Award as relevant portions of the CBA were not considered and the Award was irrational. See id.; Maddalena, 115 A.3d at 933 ("An arbitration award will be vacated if an arbitrator 'exceed[ed] his or her powers by interpreting a CBA in such a way that it contravenes state law or other public policies that are not subject to alteration by arbitration.'") (citing Algasso, 867 A.2d at 835.) The Arbitrator's decision failed to consider relevant portions of the CBA; instead, the Arbitrator issued the Award based on erroneous findings that rendered the Award so irrational that it compromised the integrity of the process. See Prudential Prop. & Cas. Ins. Co. v. Joyce M. Flynn, 687 A.2d 440, 441 (R.I. 1996) (stating that courts should intervene "in cases in which an award is so tainted by impropriety or irrationality that the integrity of the process is compromised . . ."). Due to this Court's findings, the Award must be vacated.
IV
Conclusion
For the aforementioned reasons, the DOC's Motion to Vacate the Arbitration Award is granted, and RIBCO's Motion to Confirm the Arbitration Award is denied. Prevailing counsel shall prepare the appropriate order for entry.