Opinion
13-P-1980
12-05-2014
TOWN OF SWANSEA v. SWANSEA COALITION OF POLICE LOCAL 220, MCOP, AFL-CIO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Swansea Coalition of Police Local 220 (union) appeals from the allowance of summary judgment in favor of the town of Swansea (town), reversing an arbitrator's order that reinstated patrolman Marc Soares after his termination by the town. The union asserts that the judge usurped the arbitrator's role and incorrectly applied the public policy exception to the deference given to arbitral awards. We affirm.
Procedural Background. Soares's employment with the Swansea Police Department was terminated in August, 2010, after a disciplinary hearing before a hearing officer chosen by the town who recommended termination. The union filed a demand for arbitration and the arbitrator ordered reinstatement, reducing the penalty to a ninety-day suspension. The town appealed the arbitrator's decision and the Superior Court reversed, finding that the reinstatement decision violated public policy. The union appeals. We therefore address whether the public policy exception supports the Superior Court's reversal of the reinstatement.
Factual background. We recite the facts as found by the arbitrator with respect to three incidents involving Soares that formed the basis of the disciplinary action:
The first incident. On May 6, 2008, Soares was stopped by Rhode Island State Police after they received a report of erratic driving from a motorist on route 95. A Rhode Island State trooper who personally observed Soares weaving from "side to side" on the interstate stopped him. The trooper observed Soares' eyes to be "heavy," his demeanor to be "lethargic," and that he was "unaware of his surroundings." Soares told the R.I. State trooper that he was a Swansea police officer. A search of Soares vehicle uncovered certain drug paraphernalia and two CVS prescriptions, one for oxycodone and a second for alprazolam. When asked by the troopers if he had taken any "alcohol or drugs that day," Soares lied and said "no." The troopers determined that Soares was "unfit to operate a motor vehicle," took him into custody, transported him to the State police barracks and had his motor vehicle towed.
After his arrest, Soares admitted that he had lied to the State police and that in fact he had taken xanax which made him "drowsy." Alerted by telephone of Soares' arrest for erratic operation by the R.I. State Police, Swansea Deputy Chief Furtado confirmed to the trooper that Soares was an active Swansea policeman. Speaking with Soares on the telephone, the deputy chief found his speech "slow, slurred and agitated." Soares told the deputy chief, that he was "stopped for no reason," that he "was not on drugs and had only one beer a day or two before."
The second incident. The arbitrator found that in the early hours of the morning on May 11, 2008, Soares was involved in two hit and run accidents, one in Rehoboth and one in Swansea. In the town of Rehoboth, Soares struck a utility pole causing extensive damage to his vehicle. He failed to stop after that accident and continued into the town of Swansea where he struck another pole causing further damage. Soares fled the scene to avoid detection and drove to his house, a distance of 8.7 miles passing right by the Swansea Police Station. The arbitrator found that Soares tried to "conceal the fact of the accident" and reiterated the findings of the hearing officer.
While the record is unclear whether the arbitrator adopted this portion of the hearing officer's findings or merely noted them, it is clear that the arbitrator made an independent finding that Soares concealed the accident.
The third incident. This incident involved a shooting in Easton, Connecticut, at a house in which Soares's girlfriend had been hired to perform "bachelorette services." A review of the girlfriend's phone records revealed that 112 messages had been exchanged between Soares and his girlfriend within a five hour period after the shooting.
When he was questioned about what his girlfriend may have told him about the perpetrators or crime during those 112 communications, Soares told an Easton police officer that his girlfriend had no "exigency" in her voice, and that he could not remember what they spoke about. Although the arbitrator found that Soares might not have recalled some of the conversations, neither did he explicitly find Soares truthful on the matter.
Discussion. The arbitrator's findings. In our review, we are bound by the facts as found by the arbitrator. Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass. App. Ct. 702, 705 (2006). Falmouth Police Superior Officers Assn. v. Town of Falmouth, 80 Mass. App. Ct. 833, 837 (2011). We consider the following findings to be material to our review. The arbitrator found that Soares was under the influence of drugs when Rhode Island police stopped him on May 6, 2008. Second, the arbitrator found that Soares was not truthful with the Rhode Island State troopers and his superiors at the time of the motor vehicle stop and during the subsequent investigation. Regarding the incidents on May 11, 2008, in Swansea and Rehoboth, the arbitrator found that "[Soares] made a decision to continue driving to his home and to try to conceal the fact of the accident." The arbitrator determined, and Soares admitted, his actions that night violated the law. Finally, the arbitrator made no clear finding regarding Soares' involvement with the investigation of the shooting in Easton, Connecticut, but seemed to credit Soares's testimony that he could not recall his conversations that evening.
In the "Opinion" section of the his report, the arbitrator made factual findings that Soares initially told Rhode Island State troopers that he had not taken any alcohol or drugs that day, but "later admitted that he may have been a little 'foggy' from the medication that he had taken." The arbitrator also found that Soares told the Swansea police chief that he "was not on any drugs." Later, during the internal affairs hearing on June 11, 2008, Soares "admitted that he had taken at least two Xanax [sic] that same day and may have taken a Percocet the evening before." Urine tests administered on May 7, 2008, showed the presence of both xanax and percocet.
Public policy considerations. An arbitrator's decision may be reversed when it violates public policy that is "well defined and dominant," that involves conduct that is more than "disfavored . . . in the abstract," and that, here pertinent, reinstates an employee "whose conduct would have required dismissal." Boston v. Boston Police Patrolman's Assn., 74 Mass. App. Ct. 379, 381 (2009) (citations omitted) (Boston).
The union asserts that the result in Boston, supra, is inapposite here because, unlike the conduct of the police officer in that case (assault by means of a dangerous weapon), Soares did not engage in felonious conduct, and that the judge therefore erred as a matter of law. We need not address that issue; Soares' conduct, as found by the arbitrator, constituted obstruction of justice, which is a felony. See G. L. c. 268, § 13B(1)(c)(iii).
While Boston and other cases involve felonious conduct, we aware of no authority holding that the public policy exception hinges exclusively on the commission of a felony. Boston itself states only that "felonious misconduct sufficiently meets the standard." Ibid. (emphasis added).
Specifically, Soares lied to police investigators concerning his use of drugs and on a second occasion, left the scene of two accidents and attempted to hide his damaged vehicle from police. His conduct in connection with the Connecticut shooting investigation is less clear, and less easily defined.
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We consider as well the relationship between the charges brought against Soares and his position as a police officer. The case of Bureau of Special Investigations v. Coalition of Public Safety, 430 Mass. 601 (2000), is instructive. Two employees who were discharged by the bureau for their unauthorized examination of confidential tax records of celebrities, were later reinstated by an arbitrator. The Supreme Judicial Court declined to overturn the arbitrator's award notwithstanding the employer's argument that the confidentiality of tax records represented an important public policy. While the employees were expected to examine tax records only in an authorized manner, they were not charged with safeguarding tax record confidentiality as a basic function of their jobs. As the court also pointed out, the arbitrator found that the employees "did not disclose any confidential information, did not gain anything from their unauthorized access to the files, and readily admitted culpability and responsibility for their actions." Id. at 602. By contrast, Soares was charged with enforcement of the law and was seeking a personal advantage through his attempts to undermine the enforcement thereof.
We conclude that the judge did not err in his determination that the violation of public policy meets the standard required to reverse the arbitrator's award. See Boston, supra at 381. Obstruction of justice is directly opposed to the basic function of law enforcement. Soares impeded the performance by other police officers of the very duties that were central to his own job responsibilities; the public policy underlying his dismissal is intended not only to safeguard the performance of law enforcement by the police department, but also to preserve public confidence in the integrity of the police department.
Judgment affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Clerk Entered: December 5, 2014.