Opinion
No. CV 06-4023667
April 8, 2008
MEMORANDUM OF DECISION
Plaintiff, East Hartford Police Officers Association moves to vacate an arbitration award dated May 12, 2006, affirming the decision of the defendant, Town of East Hartford to terminate the employment of Lieutenant Robert C. Sandberg (hereinafter "Sandberg") from the East Hartford Police Department. Defendant Town of East Hartford opposes plaintiff's motion and moves itself to confirm the arbitration award.
The underlying facts are as follows:
Sandberg was a sixteen year veteran of the East Hartford Police Department. In October of 2001 he was the coordinator of the Quality of Life program in East Hartford. This program involved the assignment of East Hartford police officers as extra foot patrols and to target neighborhoods on a part-time/overtime basis. Quality of Life (QOL) overtime was funded in part by the Federal Caring Grant issued by the U.S. Department of Housing and Urban Development to the East Hartford Housing Authority. The latter then allocated the grant funds to the police department for crime prevention services.
Whenever an officer worked QOL overtime he/she was required to submit a Request for Activity (RFA form) designating the date, time, location and description of the activity to be performed and indicating approval by his/her supervisor. An overtime memo stating the number of hours worked for a specific activity would also be submitted. An officer of the East Hartford Police Department, as the grants coordinator, would receive the RFA forms and overtime forms, compile this information and submit quarterly reports to the East Hartford Housing Authority along with the completed RFA forms. Once the authority approved the documentation, the department would be reimbursed with money from the Caring Grant funds.
When working QOL overtime, officers were required to record the actual hours worked on their overtime slips to satisfy the federal government's grant requirement. Between December 20 and 28, 2002, Sandberg submitted six overtime memos reflecting a total of 64.5 hours of QOL overtime, amounting to $3,086.55. The grants coordinator for the police department reviewed the overtime records and noticed that they were inconsistent with past records. The officer went to her supervisor, told him about Sandberg's QOL overtime hours, and expressed concern that the Authority's board of directors might deny payment. The supervisor took the overtime memos to Chief of Police Sirois. The chief, through a commander, contacted Sandberg and requested he obtain documentation and submit reports for his overtime. Subsequently, the chief received the RFA form, which was submitted weeks after the overtime had been worked. The chief was dissatisfied with Sandberg's activity report and ordered an official internal affairs investigation into the matter.
On January 16, 2003, the office of the mayor received an anonymous letter complaining about Federal Caring Grant money being paid to Sandberg. On January 24, 2005, the chief initiated the internal affairs investigation, putting Sergeant Timothy Juergens in charge of the investigation.
Sergeant Juergens interviewed Sandberg regarding his specific overtime activities and also examined Sandberg's Nextel phone records. Those records reveal the date, time and duration of each cell phone call made. The records can also identify the location of each cell phone call registered on a particular site. These records reveal that Sandberg placed a number of calls on his cell phone outside of East Hartford at the time he was billing the town for QOL overtime.
Juergens also reviewed tapes from the East Hartford Police Department Communications Center (the dispatch center) because he had received information that Sandberg had spent time at the dispatch center when his overtime slips revealed he was on QOL overtime. The QOL overtime grant does not cover dispatch operations.
The transcript of Sandberg's interview conducted by Juergens reveals that Sandberg claimed that during his overtime work he conducted surveillance in uniform in the grant area.
On June 19, 2003, Juergens issued a report charging Sandberg with eleven separate counts of violating the Rules and Regulations of the East Hartford Police Department.
Some time before the conclusion of the internal affairs investigation Sergeant Juergens and Commander Vibertz informed Chief Sirois that Sandberg may have engaged in criminal conduct. At the direction of the State's Attorneys Office, the chief withheld the internal affairs report while the criminal allegations were investigated. Sandberg remained on paid administrative leave throughout the summer and fall of 2003.
On November 17, 2003, the chief sent to plaintiff's president, Sandberg and his private counsel copies of the internal affairs report. The chief and the union president agreed to a hearing on November 24, 2003.
On November 19, 2003, union attorney Stephen McEleney requested a postponement of the November 24 pre-disciplinary hearing. The chief offered to postpone the hearing for a couple of days but Attorney McEleney refused, saying he needed about two weeks to adequately prepare for the hearing. Sandberg and Attorney McEleney attended the pre-disciplinary hearing on November 24, 2003, but refused to address any of the specific charges against Sandberg.
On November 25th the Town notified Sandberg of its decision to demote him to the rank of officer for the first nine counts and dismiss him from town service for the last two counts. Those two counts were:
(1) Sandberg was outside the area where his work assignment was taking place and so was absent without an official leave from his assignment;
(2) Sandberg signed QOL Caring Grant overtime memos for overtime hours when, in fact, he did not work those hours.
The plaintiff filed three grievances, all of which sought Sandberg's reinstatement to the rank of lieutenant with back pay and benefits. The first grievance alleged that Sandberg was demoted and terminated without just cause. The second alleged that the town violated the collective bargaining agreement by refusing to grant a postponement of the November 24, 2003 pre-disciplinary hearing. The third alleged that the town violated the collective bargaining agreement by failing to provide Sandberg with a copy of the initial complaint that triggered the town's internal investigation.
The three grievances were consolidated by the State Board of Mediation and Arbitration and heard in nine sessions between June 22, 2004 and June 3, 2005. The town dropped the first nine charges during the proceedings after presenting evidence relating to those charges. The parties submitted three issues to the arbitration panel:
(1) "Did the town violate Lieutenant Sandberg's due process rights by refusing to postpone the Loudermill [pre-disciplinary] hearing scheduled by the town for November 24, 2003? If so, what shall a remedy be."
(2) "Did the town violate Article XXIV of the Collective Bargaining Agreement by providing the union and the grievant with only the interdepartmental complaint referral form when the department initiated internal affairs investigation no. 03-03? If so, what shall be the remedy?"
(3) Did the Town of East Hartford have just cause, pursuant to Article XXIV, Section 6 of the Collective Bargaining Agreement, when it terminated and/or demoted the grievant, Robert C. Sandberg on November 25, 2003? If so, what shall be the remedy.
As to the first issue, the panel determined that due process only required the employer in a pre-disciplinary hearing to provide notice to the employee of the charges against him and an opportunity to respond so long as there exists a post-termination procedure subject to judicial review. It interpreted the United States Supreme Court holding in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), to mean that a denial of a request by counsel for a postponement does not violate due process. In fact, the panel pointed out "Due process under Loudermill does hot require the presence of counsel."
The award as to the first issue was: "The town did not violate Lieutenant Sandberg's due process rights by refusing to postpone the Loudermill hearing scheduled by the town for November 24, 2003."
As to the second issue, the panel interpreted it to be whether the town violated the Collective Bargaining Agreement by failing to give Sandberg a copy of the anonymous letter sent to the mayor on January 16 and forwarded to the chief some days later. The panel concluded that the letter had nothing to do with the chief initiating the internal affairs investigation. That was precipitated by the unusually high amount of overtime by Sandberg in a short period of time.
The award as to the second issue was: "The town did not violate Article XXIV of the Collective Bargaining Agreement by providing the union and the grievant with only the `interdepartmental complaint referral form' when the department initiated the internal affairs investigation."
As to the third issue, the panel found that Sandberg was absent without permission on two days in December 2002. The panel found that phone records indicated he could not have been in East Hartford at the time he claimed to be performing overtime work. The panel also found that Sandberg falsified his overtime memos claiming to have worked in East Hartford when the cell phone calls established that he was not in East Hartford at that time. The award was "The Town of East Hartford did have just cause pursuant to Article XXIV, Section 6 of the Collective Bargaining Agreement when it terminated and/or demoted the grievant, Robert C. Sandberg, on November 25, 2003."
The panel issued the arbitration award on May 12, 2006, more than nine months after the date of the final brief submitted to the panel.
The plaintiff concedes that the award conforms to the submission. In such an event a court will not review the evidence considered by the arbitrators, nor review the award for errors of law or fact. Harty v. Fitzgerald, 275 Conn. 72, 80 (2005). However, the plaintiff asserts three grounds upon which the award should be vacated: (1) it was unreasonably delayed, (2) the arbitrator committed misconduct, and (3) the award violates public policy. Each of these grounds will be considered seriatim:
1. Unreasonable Delay
Although Conn. Gen. Stat. § 31-98 provides that an arbitration panel shall render its award within fifteen days of the conclusion of the arbitration proceeding, courts have recognized that provision is directory rather than mandatory. AFSCME v. New Britain, 206 465, 468 (1988). In Danbury Rubber Co. Local 402, 145 Conn. 53, 59 (1958), the court held "an award of arbitrators may be made within a reasonable time . . . What is a reasonable time is a question of fact upon the circumstances of a particular case." Id.
In AFSCME v. New Britain, supra, the court also noted that "the plaintiffs' failure to raise the issue of timeliness prior to the issuance of the arbitration award operates as a waiver of their right to assert the lack of timeliness in the board's decision." at Id., 468. Here plaintiff did not raise the issue of unreasonable delay until after the award was issued.
In the instant case, the arbitration required twelve months, nine substantive hearings, fifteen witnesses, sixty-nine exhibits and produced over fifteen hundred pages of testimony for the panel to study. Moreover, the panel was required to digest and analyze technical evidence presented by the town's Nextel witnesses which were essential to its decision on the termination charges. At the close of the final hearing, the panel chair characterized this case as "particularly complicated."
In Hartford v. Local 1716, AFSCME Council 4, 44 Conn.Sup. 312, 320 (1996), the court found that a seventeen-month delay in issuing the award was unreasonable, noting that the hearing lasted only three days and there were only eighteen exhibits.
The instant case was far more complicated, took far more time for the hearing to be concluded and involved many more exhibits. As a consequence, the court finds the period between the filing of the last brief and the decision of the arbitration award not to be unreasonable.
Moreover, Danbury Rubber Co. v. Local 402, supra, indicates that a claim of unreasonable delay must be based upon some prejudice to the plaintiff. Here, the plaintiff has proven no prejudice resulting from the delay in the arbitrators rendering their award.
2. Misconduct by the Panel
Conn. Gen. Stat. § 52-418 provides that a court may vacate an award if it finds "the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced." Plaintiff asserts the arbitrators were guilty of misconduct, within the meaning of § 52-418(a) on two grounds: (1) when it overruled the union's objection to the Town calling Sandberg as its first witness, when the Town had filed an application for Sandberg's arrest and it knew Sandberg would invoke his Fifth Amendment privilege, and (2) when the Town adduced evidence against Sandberg as to nine charges that were ultimately withdrawn.
As to the latter grounds, at the time the town withdrew the nine demotion charges and agreed to focus on the two dismissal charges, it clearly indicated that the evidence as to the demotion charges were in the records and "we believe that because the evidence is in there, whatever is relevant to the termination charges — and so much of this case overlaps on itself — is still relevant to be utilized for the termination-related charges where applicable, . . ." At no time during the remainder of the arbitration did the panel prevent the union from presenting evidence or responding to evidence already in the record. As a consequence, this ground has no merit.
As to the first claim of misconduct, Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 474 (2006), makes it clear that arbitrators are accorded substantial discretion in determining the admissibility of evidence. A party challenging an arbitration award on the ground that the arbitrator made an erroneous evidentiary ruling must prove that, by virtue of that ruling, he was in fact, deprived of a full and a fair hearing before the arbitration panel. The standard applied is whether or not the arbitrators gave to each of the parties an adequate opportunity to present its evidence and make its arguments. The case goes on to say that "To vacate an arbitrator's award on the ground of misconduct under Section 52-418(a)(3) the moving party must establish that it was substantially prejudiced by the improper ruling." Id. at 476. The plaintiff claims it was substantially prejudiced by the arbitrator's refusal to bar the Town from calling Sandberg as its first witness in its case in chief because of the inevitable consequence that the panel would draw an adverse inference against Sandberg.
Although the arbitration panel had the right to draw such inference in a civil case, there is no evidence in the panel's decision that, in fact, it did so. Moreover, the plaintiff cannot prove that the inference, even if it was drawn, was decisive and would have altered the outcome of this case. The panel had ample evidence from the phone records and from Sandberg's subsequent testimony, that in fact, Sandberg was not in East Hartford when the disputed calls were made and so Sandberg was both absent without leave and filed false overtime records. As a consequence, the panel created no misconduct which justifies vacating this award.
3. Violation of Public Policy
The plaintiff asserts the award violates clear public policy requirements that a public employee be afforded due process. Deprivation of due process, plaintiff asserts, included: (1) failure to grant him a postponement to prepare for the pre-disciplinary proceeding; (2) forced Sandberg to invoke his right against self-incrimination; (3) not allowing Sandberg to respond to evidence regarding the nine counts for demotion which were withdrawn by the Town, and which evidence was prejudicial to Sandberg; and (4) the Town, using incorrect and knowingly false information to apply for a second arrest warrant which prejudiced Sandberg before the panel. None of the specified grounds constituted a denial of due process in this case.
As for the requested denial of postponement of the pre-disciplinary hearing, Cleveland Board of Education v. Loudermill, supra, states that that hearing "need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." At 545-46. The court further pointed out that in such a hearing the essential requirements of due process are notice and the opportunity to respond. The court said "the tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence and an opportunity to present his side of the story."
In this case Sandberg was given notice of the charges and the opportunity to tell his story. Sandberg received the statement of charges against him five days in advance of the November 24, 2003 pre-termination hearing. He further acknowledged he had at least fifty hours to review the report. As stated in Panel v. Mikulecky, 891 P.2d 1454 (1456) 10th Cir. (1989), " Loudermill does not imply that, in conducting a pre-termination hearing, there must be a delay between the `notice' and the `opportunity' to respond accorded to the public employee." There is no substance to Sandberg's claim of denial of due process on this issue.
As for plaintiff's assertion that the town violated Sandberg's rights by causing him to revoke his right against self-incrimination, the town had every right to call Sandberg as its witness even if it knew that he intended to invoke the Fifth Amendment. Brinks, Inc. v. City of New York, 717 F.2d 700, 708-10 (2d Cir. 1983). Moreover, plaintiff was not prejudiced because there was no indication whatsoever in the arbitration panel's decision that it made such an inference. Rather, the panel's decision revealed that Sandberg's testimony, attempting to explain away the phone records which indicated he was not in East Hartford at the time he claimed overtime pay, was not believable.
As for plaintiff's claim that the arbitration hearing was unfair because the town adduced evidence as to nine charges which were later withdrawn, the record is clear that the town reserved the right to use that evidence as to the termination charges. Sandberg had every opportunity to rebut that evidence.
As to plaintiff's claim that the town used false information in an arrest warrant application which prejudiced Sandberg before the panel, the record clearly reveals that the plaintiff itself introduced that warrant application while cross-examining Chief Sirois. The panel would never have known of the application without the plaintiff having proffered it. Consequently, plaintiff cannot claim prejudice on this score.
As a consequence, the court concludes that the plaintiff has failed to establish that the award violated public policy.
Even assuming that plaintiff's public policy challenge has "a legitimate colorable basis," Schoonmaker v. Cummings Lockwood of Connecticut, P.C., 252 Conn. 416, 429 (2000), de novo review of the award shows that the factual findings of the arbitrators are supported by substantial evidence in the record and substantial rights of Sandberg has not been prejudiced. Metropolitan District Commission v. AFSCME Council 4, Local 184, 189 Conn.App. 680, 686 (2005). Substantial evidence in the arbitration record supports the panel's factual finding that Sandberg was absent without permission on December 22 and 26, 2002 and intentionally submitted false overtime memos. The record included the cell phone records establishing that Sandberg was not in East Hartford when billing for overtime on these dates and Sandberg's own testimony which the panel did not believe. Moreover, the court concludes that substantial rights of Sandberg were not prejudiced.
Based on the foregoing, plaintiff's motion to vacate the arbitration award is denied, and defendant's application to confirm the arbitration award is granted.