Opinion
No. HHD CV10 6010997S
April 7, 2011
MEMORANDUM OF DECISION ON APPLICATION TO VACATE
Introduction
The State of Connecticut (State), acting through the Department of Correction (DOC) and the Office of Labor Relations of the Office of Policy Management has filed an application to vacate an arbitration award which seeks to reinstate a correctional officer fired for illegal drug use, drug trafficking and lying to internal affairs investigators. The State claims the award violates Conn. Gen. Stat. 52-418(a)(4), DOC rules and regulations and public policy by reinstating the grievant to his position as a correctional officer. The Union, AFSCME, Council 4, Local 391, maintains the award conforms to the submission, and thus deferential judicial review must be applied. The Union argues that neither the award nor the enforcement of the award implicates any explicit, well-defined and dominant public policy, and even if the Court found a legitimate public policy to exist, the Court is not necessarily required to vacate the award.
Factual Background
The grievant, Duane Desilets, is a correctional officer and a member of the aforementioned local 391 who was fired from state service on August 14, 2009 for engaging in off duty misconduct, the purchase, use and trafficking of drugs (controlled drugs and heroin), and lying to investigators in knowing violation of DOC AD 2.17.
An investigation began when correctional administrators learned, through inmate telephone conversations, that a correctional officer was implicated by inmates with "conveying heroin and oxycontin pills into the facility." Captain Lindsey H. Tremblay of the State of Connecticut, Department of Correction Security Division's Investigation Unit, was appointed to conduct the investigation. Inmate interviews led to C.O. Desilets coming under suspicion as the officer who was bringing drugs into the facility. Desilets was then interviewed by two State Police Detectives, who state he admitted to using oxycontin for a back injury but then became addicted to the pills, and when they were no longer strong enough he began taking heroin. Additionally, while Desilets denied selling drugs at the correctional institution, the detectives report that he admitted to trading and selling prescription drugs for heroin in Springfield, Massachusetts. However, the officers reported that the only evidence of Desilets' use of illegal drugs was his own admission. Further, evidence pertaining to the conveyance of illegal substances into the facility was insufficient to establish the probable cause needed to obtain an arrest warrant. Thus, criminal charges were never brought.
Shortly after the Desilets interviews with State Police, he entered an inpatient treatment facility. Upon his return, he was interviewed by Captain Tremblay and denied everything that the State Police reported he had told them. The only admission Desilets made was regarding his dependency on his opiate-based pain medication and to taking this medication on duty.
Based on the entirety of the investigation, C.O. Desilets was dismissed for engaging in off duty misconduct and for giving a false statement during the course of the departmental investigation. The claim that Desilets had brought drugs into a correctional facility was not substantiated.
The Union grieved the dismissal. The grievance proceeded to arbitration and the issues framed by the parties were whether the dismissal of Desilets was for just cause and, if the dismissal was for not just cause, what was the appropriate remedy consistent with the NP-4 Contract. The arbitrator issued an award on April 22, 2010 reducing the dismissal to a 30-day suspension for the off-duty conduct charge and a 5-day suspension for giving a false statement during the course of the departmental investigation. The State claims the award must be vacated.
Applicable Law
The applicable law regarding judicial review of arbitral awards reflects the familiar principles of the court's traditional deference to arbitral awards. State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473 (2000). The Connecticut Supreme Court has consistently stated that arbitration is the favored means of settling differences. As such, arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418. Id. at 473. Upon challenge, judicial review of arbitration awards is undertaken in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. Id. at 474.
The standard of review relative to an arbitration award depends on the nature of the challenge. State v. AFSCME, Council 4, Local 2663, AFL-CIO, 59 Conn.App. 793 at 796 (2000). A voluntary, unrestricted submission to an arbitrator generally limits any challenge of an arbitrator's authority to a comparison of the award to the submission. Id. "In making such a comparison when the submission is unrestricted, the court will not review the evidence of legal questions involved, but is bound by the arbitrator's legal and factual determinations." Id. at 796. The party challenging the award bears the burden to produce evidence sufficient to show that it does not conform to the submission. Id.
"The long-standing principles governing consensual arbitration are, however, subject to certain exceptions." Schoonmaker v. Cummings Lockwood of Connecticut, 252 Conn. 416 at 427 (2000). Despite the considerable deference traditionally afforded to the decisions of arbitrators, courts have conducted a more searching review of arbitral awards in certain circumstances. Id. In Garrity v. McCaskey, the court listed three recognized grounds for vacating an award: (1) the award rules on the constitutionality of a statute . . . (2) the award violates a clear public policy . . . or (3) the award contravenes one or more of the statutory proscriptions of 52-418(a). 223 Conn. 1 (1992). "The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbitral conclusions, despite the traditional high level of deference afforded to arbitrator's decisions when made in accordance with their authority pursuant to an unrestricted submission." Schoonmaker, 252 Conn. at 428.
The Union argues that since the submission was unrestricted the court must apply a traditional deferential judicial review. The Union further maintains that because the arbitrator's award draws its essence from the collective bargaining agreement and conforms to the submission, which was unrestricted, the award is legitimate and must be confirmed. The State stipulates to the unrestricted nature of the submission. However, the State argues that whether a submission was restricted or unrestricted is irrelevant to a claim for vacatur based on the public policy exception and therefore the traditional judicial review must be replaced with de novo review. This Court agrees.
When a claim for vacatur is based on a violation of public policy, the nature of the submission is irrelevant as the claim is directed as to whether the award may be legally enforced by the court. Garrity, 223 Conn. 1, 6. Thus, the judicial review to be applied is dependent on further analysis of the public policy claim.
Discussion
Public Policy
The Connecticut Supreme Court in Schoonmaker concluded "that where a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy. 252 Conn. at 429. To summarize, the court stated . . . "the court's experience in discerning public policy, the context in which public policy challenges typically arise, and the tradition of undertaking what in practice amounts to de novo review whenever an arbitral award falls outside the conventional rule of deference, requires that this court's admittedly strong commitment to the arbitration process must yield, when a legitimate public policy is involved, to the logic of allowing the reviewing court to ensure that the award comports with that policy." Schoonmaker, 252 Conn. at 431. Allowing vacatur of an arbitral award based on a challenge that the award violates public policy is premised on the idea that "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." State v. AFSCME, Council 4, Local 391, 125 Conn.App. 408 at 415 (2010).
However, the public policy exception must be narrowly construed. It only applies when the award is clearly illegal or clearly violative of a strong public policy. Furthermore, the explicit public policy must be well defined and dominant and "is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests." AFSCME, Council 4, Local 391, 125 Conn.App. at 415. To determine whether an award is in contravention of public policy, courts employ a two-step analysis. "First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator's award violated the public policy." Id. at 416. "If it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy." Schoonmaker, 252 Conn. at 429. That question requires de novo judicial review. However, the analysis of the issue is confined to the facts as found by the arbitrator. AFSCME, Council 4, Local 391, 125 Conn.App. at 419.
The State argues that the award both implicates and violates the explicit, well-defined and dominant public policy interest of prison security. In support, the State notes: (1) that drug possession, drug trafficking and drug use constitutes criminal activity outlawed by Connecticut General Statutes and (2) the legislative mandate of heightened security of correctional facilities entrusted to sworn correctional officers. The State maintains that to reinstate Officer Desilets as a State Correctional Officer after the arbitrator found that he did in fact purchase and use heroin and subsequently lied to DOC investigators regarding such use and purchase, violates the strong public policy surrounding the security of Connecticut prisons. In response, the Union denies the existence of any well defined or dominant public policy upon which the State can base their claim for vacatur upon; furthermore, the Union argues that even if such a policy is identified, the State cannot prove that the arbitrator's award does not conform with such a policy.
The arbitrator's award reinstating the grievant implicates an explicit, well-defined and dominant public policy. The public policy against the use of and trafficking of illicit substances, particularly by correctional officers is clearly set forth in Connecticut General Statutes as well as DOC regulations and reflects the overall public policy of ensuring safety in Connecticut prisons. Lying to agency investigators during the course of an internal investigation as well as the purchase and use of narcotics by a correctional officer are specifically prohibited under DOC Reg. AD 2.17. While DOC directives are not determinative of public policy in and of themselves, such internal regulations, practices and procedures may reflect public policy. DOC Reg. AD 2.17 is not the sole expression of the explicit public policy; such regulations are a further reflection upon the public policy set forth in Conn. Gen. Stat. 21a-277 and 21a-279 which prohibit the sale and possession of narcotics. In addition, the overall policy of prison safety is reflected in Conn. Gen. Stat. 18-81L which requires all applicants for DOC positions involving direct contact with inmates to submit to state and national criminal background checks. In addition to DOC regulations and Connecticut Statutes, Connecticut courts have also identified the importance of prison safety and the role of correctional officers within the criminal justice system. In particular, the court in Washington v. Meachum noted: "It is well settled that the courts afford great deference to prison administrators in their operation and management of correctional facilities . . . Prison administrators are responsible for maintain internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody . . ." 238 Conn. 692, 733-34 (1996).
Because an explicit public policy issue has been identified, de novo review is appropriate in order to determine whether the arbitrator's award does in fact violate public policy. Regardless of the standard of review applied, this court is bound by the findings of the arbitrator. In this case the arbitrator found that the grievant did engage in the purchase and use of illegal narcotics and later, when questioned, lied to DOC investigators. The arbitrator's award reinstated the grievant, a CT DOC employee whose conduct violated both criminal statutes as well as DOC regulations. To enforce this award would be violative of public policy, thus it must be vacated.
The Supreme Court of Connecticut in State v. AFSCME, affirmed the vacatur of an arbitration award reinstating a corrections officer who was dismissed for leaving a profane and racist message on a Senator's voicemail. 252 Conn. 467. The Court held the award reinstating the officer violated public policy based on his conduct violating both a criminal statute and the DOC employment regulations. Id. at 478. While that dismissal resulted from a phone call made while on duty, Connecticut Courts have also recognized dismissal as appropriate for certain off-duty conduct as well. State v. AFSCME, involved the dismissal of a Department of Children and Families (DCF) employee after he was convicted of possession of marijuana and cocaine with intent to sell. 59 Conn.App. 793. The court found "improper conduct in an employee's personal life can have various effects on the employee's workplace. We consider in cases such as these, the nature of the improper act, its severity and the kind of work the employee performs . . ." Id. at 803-04. In considering these three factors, it is clear that the dismissal, based on the grievant's off duty conduct, combined with his on duty conduct of lying during a DOC investigation, was appropriate.
An award reinstating a corrections officer who engaged in a transaction to procure an illegal drug, and who used an illegal drug, and lied during an investigation due to his refusal to acknowledge his use of illegal drugs would undermine the public policy of ensuring safe and secure prisons. As such, the award must be vacated based on the public policy exception.
Manifest Disregard
The State further alleges the arbitrator's manifest disregard of the law as an additional basis for vacating the award. Consistent with the developing jurisprudence in other jurisdictions, Connecticut courts recognize an exception allowing vacatur of an award because of egregious misbehavior. Unlike the public policy exception, an exception based on the arbitrator's manifest disregard of the law is not based on common law and is encompassed by the existing statutory scheme for judicial review in § 52-418. As a result, judicial inquiry under the manifest disregard statute is extremely limited. Garrity, 223 Conn. at 9.
Specifically, only an award which "manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418(a)(4) because the arbitrator has exceeded his powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." Garrity, 223 Conn. at 10.
Connecticut courts have adopted the reasoning of federal courts deciding this issue of manifest disregard and agree that "the error must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. Moreover, the term `disregard' implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it . . . The governing law alleged to have been ignored by the arbitrator must be well defined, explicit, and clearly applicable." Garrity, 223 Conn. at 9. The burden rests on the party challenging the award. Id.
Because the State does not adequately set forth a claim under the statutory provision for vacatur based on manifest disregard of the law, this claim is denied.
Conclusion
For the foregoing reasons, this court finds that enforcement of the arbitration award which reinstates the grievant, Desilets, to his position as a corrections officer is violative of public policy and is thus vacated.