Stratford v. AFSCME, Council 15, Local 407

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       TOWN OF STRATFORD v. AMERICAN
        FEDERATION OF STATE, COUNTY
         AND MUNICIPAL EMPLOYEES,
            COUNCIL 15, LOCAL 407
                 (SC 19130)
    Rogers, C. J., and Palmer, Zarella, Eveleigh and Espinosa, Js.
      Argued March 25—officially released December 23, 2014

  Eric R. Brown, for the appellant (defendant).
 Christopher J. Smedick, with whom, on the brief,
was James Cresswell, for the appellee (plaintiff).
                          Opinion

   ROGERS, C. J. The dispositive issue in this certified
appeal is whether an arbitration award reinstating a
police officer, as opposed to the mandated dismissal
of the officer, violated a clearly discernible public policy
against intentional dishonesty by police officers in con-
nection with their employment. The plaintiff, the town
of Stratford, filed an application to vacate an award
from an arbitration proceeding initiated by the defen-
dant, American Federation of State, County and Munici-
pal Employees, Council 15, Local 407, that reinstated
the grievant, Justin Loschiavo, to his employment as a
police officer with the Stratford Police Department after
he was terminated for lying in connection with his
employment. The trial court rendered judgment denying
the plaintiff’s application and, on appeal, the Appellate
Court reversed that judgment and concluded that the
arbitration award violated a clear public policy against
intentional dishonesty by police officers in connection
with their employment. Stratford v. AFSCME, Council
15, Local 407, 

, 

(2013). This court granted the defendant’s petition for
certification to appeal on the following issue: ‘‘Did the
Appellate Court properly determine that the arbitration
award in this matter reinstating [Loschiavo] violated
a clearly discernible public policy against intentional
dishonesty by police officers in connection with their
employment which mandated dismissal of [Loschi-
avo]?’’ Stratford v. AFSCME, Council 15, Local 407,

, 923, 

 (2013). We conclude
that while there is a public policy against intentional
dishonesty by police officers in connection with their
employment, the arbitration award in the present case
did not violate public policy. Accordingly, we reverse
the judgment of the Appellate Court.
   The arbitration decision sets forth the following
undisputed facts relevant to our resolution of this
appeal. Loschiavo started working as a probationary
police officer for the plaintiff in 2006. He suffers from
latent epilepsy, and the plaintiff required that as a condi-
tion to his hiring, Loschiavo must remain seizure free
throughout his probationary period. He satisfied this
requirement and was apparently seizure free until June
6, 2009, when he suffered a seizure while operating a
police car and consequently struck two parked cars.
Loschiavo’s physician, Philip Micalizzi, cleared him to
return to light duty in August, 2009, at which point the
plaintiff referred Loschiavo to a neurologist, Samuel L.
Bridgers, for an independent medical examination to
determine ‘‘what conditions might allow [Loschiavo] to
return to employment while eliminating or minimizing
any potential risks with potentially fatal consequences.’’
Although Bridgers determined that Loschiavo was capa-
ble to return to work full-time, he restricted this clear-
ance to require Loschiavo to call out sick whenever he
felt symptoms of an oncoming seizure.
    Upon reviewing Bridgers’ report, the plaintiff’s
human resources director found two discrepancies
between that report and the medical report from
Micalizzi, Loschiavo’s physician. Specifically, Loschi-
avo failed to inform Bridgers about two seizures he
suffered in 2005 and 2008; he further failed to disclose
that he had been using or abusing alcohol. Bridgers
thereafter reviewed Loschiavo’s full medical record and
determined that the seizures had been related to alcohol
use. He reported that he was unsure whether Loschiavo
‘‘ ‘can be trusted to avoid activities that might increase
his susceptibility to having seizures, particularly alcohol
use.’ ’’ Bridgers determined, however, that Loschiavo
presented no greater risk after these seizures than he
did at the time of his initial hiring, and again cleared
him to return to duty.
   In light of Bridgers’ second report, the plaintiff
charged Loschiavo with violating police department
policy by lying during the independent medical exami-
nation. On March 30, 2010, the plaintiff held a hearing
at which Loschiavo was represented by the defendant
and counsel. Following the hearing, the plaintiff termi-
nated Loschiavo’s employment on the ground that he
violated police department policy by lying during the
independent medical examination. Following Loschi-
avo’s termination, the defendant filed a grievance on
his behalf alleging that his termination was without
just cause and in violation of the parties’ collective
bargaining agreement.
   A three member arbitration panel conducted a hear-
ing and thereafter determined that Loschiavo’s termina-
tion was ‘‘excessive’’ for two reasons. First, Micalizzi
and Bridgers both returned Loschiavo to his full duties
without restrictions and, second, the plaintiff knew of
Loschiavo’s condition when he was hired and did not
raise any issue of Loschiavo’s work performance. The
arbitration panel concluded that ‘‘[a] police officer’s
lying about his physical and mental condition to doctors
that could return . . . [him] to work is [a very serious
violation, but] understandable because [he] wants [his]
job back.’’ On December 8, 2010, the panel ordered that
the plaintiff reinstate Loschiavo ‘‘without [back pay]
but no loss [of] seniority.’’ The panel also ‘‘recognize[d]
that the [plaintiff] is well within its rights to have [Losch-
iavo] examined by a medical doctor, from time to time,
to make sure that his condition is stable and that he is
not using alcohol.’’ Thus, Loschiavo’s total reprimand
for the violation was a suspension of nine months with-
out back pay, from his March, 2010 termination to the
December, 2010 reinstatement, and his possible subjec-
tion to future medical examinations.
   The plaintiff filed an application to vacate the arbitra-
tion award on the ground that the award encouraged
police officer dishonesty and thereby violated Connecti-
cut’s clear public policy against lying by law enforce-
ment personnel. The trial court rejected the plaintiff’s
argument based on the court’s limited standard of
review over arbitration decisions and the lack of clear
authority requiring a police officer to be terminated for
this type of misconduct.
   The plaintiff appealed from the judgment of the trial
court to the Appellate Court. The Appellate Court con-
cluded that the arbitration award violated a well-defined
public policy against the intentional dishonesty of a
police officer in the course of his or her duties and,
accordingly, reversed the trial court’s judgment and
remanded the case to that court with direction to grant
the plaintiff’s application to vacate the award. Stratford
v. AFSCME, Council 15, Local 

 140 Conn.
App. 596–97. This certified appeal followed.
  On appeal, the defendant argues that there is no domi-
nant, well-defined public policy against police officer
dishonesty during an independent medical exam. The
defendant claims that termination is required only when
the specific type of a police officer’s misconduct or
dishonesty is prohibited by statute, and that mandating
termination for all degrees of dishonesty would be
unnecessary, costly, and a threat to public safety. Given
the absence of an articulated public policy prohibiting
this type of police officer dishonesty, the defendant
argues that the arbitration panel’s decision should be
upheld.
   In response, the plaintiff argues that case law estab-
lishes a clear, well-defined, and dominant public policy
against police officer dishonesty in connection with
official duties. The plaintiff concedes that not every lie
told by a police officer that related to his job would
require termination. Rather, it argues that ‘‘a police
officer who intentionally lies regarding the status [of]
his condition to return to work, despite the risk that
his condition could pose to the public, violates . . .
public policy, and that an arbitral award mandating the
reinstatement of a police officer who has lied in such
a fashion violates the concomitant policy that an
employer should not be required to retain that police
officer.’’1
  We conclude that there is a public policy against
intentional police officer dishonesty in connection with
official duties because integrity and trustworthiness are
integral to performing these duties. We also conclude,
however, that under the facts in the present case, the
arbitration panel’s decision to punish Loschiavo with
a nine month suspension without back pay and with
the possibility of being subjected to future medical
examinations did not violate this public policy.
  We begin our analysis with the applicable standard
of review. ‘‘[W]e favor arbitration as a means of settling
private disputes, [thus] we undertake judicial review of
arbitration awards in a manner designed to minimize
interference with an efficient and economical system
of alternative dispute resolution.’’ (Internal quotation
marks omitted.) State v. AFSCME, Council 4, Local
391, 

, 526, 

 (2013). We will,
however, submit to higher scrutiny an arbitration award
that ‘‘is claimed to be in contravention of public policy.’’
(Internal quotation marks omitted.) Id.; see General
Statutes § 52-418 (a) (‘‘any judge . . . shall make an
order vacating the award if it finds . . . [4] . . . the
arbitrators have exceeded their powers’’). ‘‘[P]arties
cannot expect an arbitration award approving conduct
which is . . . contrary to public policy to receive judi-
cial endorsement any more than parties can expect a
court to enforce such a contract between them. . . .
When a challenge to the arbitrator’s authority is made
on public policy grounds, however, the court is not
concerned with the correctness of the arbitrator’s deci-
sion but with the lawfulness of enforcing the award.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. AFSCME, Council 4, Local 391, supra, 527.
   Thus, when ‘‘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.’’ (Internal quotation marks omitted.) Id. As this
court maintained in AFSCME, Council 4, Local 391,
‘‘we defer to the arbitrator’s interpretation of the
agreements regarding the scope of the [contract] provi-
sion . . . . We conclude only that as a reviewing court,
we must determine, pursuant to our plenary authority
and giving appropriate deference to the arbitrator’s fac-
tual conclusions, whether the contract provision in
question violates those policies.’’ (Emphasis omitted.)
Id., 528. Accordingly, the sole issue before the court is
whether the arbitration award of nine months without
back pay and subjection to possible future medical
examinations violates public policy.
  This court employs a two-pronged analysis to deter-
mine whether an arbitration award should be vacated
for violating public policy. First, the court must deter-
mine ‘‘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.’’ (Internal quotation marks omitted.) Id., 529.
  Thus, under the first prong, we begin by determining
whether there is an explicit, well-defined and dominant
public policy against intentional dishonesty of police
officers in connection with their employment. We look
to statutes, administrative decisions, and case law to
determine the existence of public policy. MedValUSA
Health Programs, Inc. v. MemberWorks, Inc., 

, 

, cert. denied sub nom. Vertrue,
Inc. v. MedValUSA Health Programs, Inc., 

,


, 

 (2005). Although we
determine that our statutes contain no explicit, well-
defined public policy against intentional police officer
dishonesty,2 we conclude that there is undisputedly a
common public interest in the integrity and trustworthi-
ness of local police forces.3 The public expects police
officers to be credible and honest in their law enforce-
ment duties. Accordingly, we conclude that there is a
public policy against the employment of law enforce-
ment personnel who have engaged in intentional dis-
honesty that directly pertains to their qualification and
ability to perform official duties.
   Having concluded that there is a public policy against
intentional police officer dishonesty in connection with
his or her employment, we must consider the specific
facts and circumstances of the present case in order
to determine whether the arbitration award reinstating
Loschiavo’s employment violated that public policy. ‘‘In
other words, we must determine whether [the] public
policy required the grievant’s dismissal.’’ (Emphasis
added.) State v. AFSCME, Council 4, Local 391, supra,

. In making this determination, ‘‘we are
mindful that the fact that an employee’s misconduct
implicates public policy does not require the arbitrator
to defer to the employer’s chosen form of discipline
for such misconduct.’’ Id., 532. Indeed, ‘‘an arbitrator
reasonably may consider circumstances such as the
length of employment, previous instances of [miscon-
duct] by the employee, and the circumstances and
severity of the misconduct under review in determining
the likelihood of future misconduct and whether disci-
pline less severe than termination would constitute a
sufficient punishment and deterrent.’’ State v. New
England Health Care Employees Union, District 1199,
AFL-CIO, 

, 138–39, 

 (2004).
Finally, this court has recognized that, although ‘‘the
arbitrator’s decision must draw its essence from the
agreement, he is to bring his informed judgment to bear
in order to reach a fair solution of a problem. This is
especially true when it comes to formulating reme-
dies.’’ (Emphasis altered; internal quotation marks
omitted.) State v. AFSCME, Council 4, Local 391, supra,

, quoting United Paperworkers Interna-
tional Union, AFL-CIO v. Misco, Inc., 

,

, 

 (1987).
   Thus, we must consider whether Loschiavo’s dishon-
esty was ‘‘so egregious that it requires nothing less than
the termination of [his] employment so as not to violate
public policy . . . .’’ (Internal quotation marks omit-
ted.) State v. AFSCME, Council 4, Local 391, supra,

. We conclude that it was not. Loschiavo’s
conduct, although serious, did not compromise his qual-
ifications or ability to perform his official duties as
a police officer, because Micalizzi, his physician, and
Bridgers, his neurologist, were both aware of his dishon-
esty and yet still cleared him to return to duty. Indeed,
Bridgers ultimately determined that, even with knowl-
edge of the information that Loschiavo withheld, Losch-
iavo ‘‘ ‘presents no more of a risk now than he did since
the time of his initial hiring.’ ’’ Loschiavo did not lie
under oath and his dishonesty was not disruptive or
repeated; he was not dishonest before his fellow police
officers or while performing his official duties. He was
not warned about the repercussions of his misconduct
so he was not incorrigible, and the punishment that he
received was severe.4
   By way of comparison, we look to our recent decision
in State v. AFSCME, Council 4, Local 391, supra, 309
Conn. 541–42, where we determined that an award of
anything short of termination did violate public policy.
There, the grievant, who was a correction officer
employed by the Department of Correction, knowingly
and repeatedly violated the ‘‘well-defined and dominant
public policy against workplace sexual harassment as
established by General Statutes § 46a-60 (a),’’ despite
recurring complaints. Id., 525. The grievant engaged in
a pattern of behavior that occurred in the presence of
other employees and inmates, which ‘‘perpetuate[d] a
hostile, intimidating and offensive work environment
. . . .’’ (Internal quotation marks omitted.) Id., 541.
Thus, in that case, this court concluded that the griev-
ant’s termination was required because his behavior,
unlike Loschiavo’s behavior in the present case, was
‘‘knowing, egregious, incorrigible and disruptive
. . . .’’ Id., 542.
  Moreover, although Loschiavo was allowed to return
to work, it was only after a period of nine months
without back pay and with the condition that he could
be subject to future medical examinations. When the
plaintiff and the collective bargaining agreement do not
proscribe the specific disciplinary action for a grievous
misconduct,5 it is certainly within the arbitration panel’s
discretion to consider the fact that termination is not
always required. In addition, the parties collectively
bargained to submit the question of just cause for termi-
nation to arbitration, and thus expected the arbitration
panel to consider the grievant’s overall record in fash-
ioning its award.
   For the foregoing reasons, we conclude that, although
there is a public policy against intentional police officer
dishonesty in connection with the officer’s employ-
ment, Loschiavo’s lies were not so egregious that the
arbitration panel’s award of nine months suspension
without back pay and with the possibility of being sub-
jected to future medical examinations violated that pub-
lic policy.6 Requiring termination under the facts of the
present case would unnecessarily expand the ‘‘stringent
and narrow confines of [the] exception’’ to confirming
an arbitration award and ‘‘swallow the rule’’ granting
deference to arbitration awards.7 (Internal quotation
marks omitted.) State v. New England Health Care
Employees Union, District 1199, AFL-CIO, supra, 

.
   The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
  In this opinion ZARELLA and EVELEIGH, Js., con-
curred.
   1
     The plaintiff specified that although the intentional lie in the present
case mandated termination, other intentional lies about the status of a police
officer’s condition to return to work would not. For example, the plaintiff
acknowledged that a police officer’s intentional lie that he was very sick,
told so that he would be excused from work, would not be so egregious as
to require termination, even though the officer would be lying about his
ability to perform on that day.
   2
     We discern from our statutes no public policy against intentional police
officer dishonesty unless the dishonesty constitutes a crime, either by a
false written statement under oath or a statement pursuant to a form bearing
notice that contains punishable false statements. The plaintiff claims that
one statute, General Statutes § 54-86c, reflects our legislature’s intent to
require police officers to be honest. Section 54-86c (a) provides in relevant
part that ‘‘the [state] . . . shall disclose any exculpatory information or
material which [it] may have with respect to the defendant whether or not
a request has been made therefor. . . .’’ See also Brady v. Maryland, 

, 87–88, 

, 

 (1963); Practice Book § 40-11.
   The defendant contends that the only Connecticut statute governing police
officer dishonesty is General Statutes § 7-294d, which targets specific lies
that, unlike Loschiavo’s, rise to the level of criminal conduct or fraud. Under
§ 7-294d, the Police Officer Standards and Training Council (council) may
refuse to renew, cancel or revoke a police officer’s certification. The grounds
for revoking certification do not explicitly include dishonesty, but are limited
to false statements under General Statutes § 53a-157b (a), which provides
that ‘‘[a] person is guilty of false statement in the second degree when he
intentionally makes a false written statement under oath or pursuant to a
form bearing notice, authorized by law, to the effect that false statements
made therein are punishable, which he does not believe to be true and
which statement is intended to mislead a public servant in the performance
of his official function.’’ See General Statutes § 7-294d (c) (2) (I) (referencing
§ 53a-157b). As the dishonesty in the present case did not rise to the level
of a false statement under § 53a-157b, § 7-294d does not apply here.
   3
     At least one Superior Court decision has concluded that there is a clear
public policy against intentional police dishonesty that directly pertains to
police officers’ official duties. In Bloomfield v. United Electrical Radio &
Machine Workers of America/Connecticut Independent Police Union, Local

, 

 (2006), rev’d on other grounds,

, 

 (2008), the trial court vacated an arbitration
award that reinstated a police officer after he was dishonest in a police
report and during an internal affairs investigation. The trial court determined
that ‘‘there is a clear public policy in Connecticut, based upon [General
Statutes] § 54-86c and the common law . . . that it is against public policy
for a police officer to lie.’’ Id., 188.
   A second case, International Brotherhood of Police Officers, Local No.
328 v. Windsor, 

, 

 (1984), discussed a
public policy supporting police officer truthfulness. There, the trial court
considered an arbitration award that upheld a police officer’s suspension
for insubordination after he was ordered to lie about his involvement in an
arrest warrant but insisted on being truthful. 

. The trial court reasoned
that ‘‘[t]he honesty of police officers is central to our criminal justice system.’’

. It found that the arbitration award violated clear public policy
because it contradicted General Statutes § 53a-157b and because ‘‘[i]n signing
search and arrest warrants, judges depend completely on the truthfulness
of the police officers’ affidavits supporting them . . . [and] fundamental
rights rest on the accuracy of police records and a falsehood in the arrest
record could imperil the prosecutor’s case.’’ Id.
   4
     We note that the record does not reflect whether Loschiavo’s reinstate-
ment as a police officer could include responsibilities other than those in
which he would be expected to testify as a witness in a criminal trial. We
believe, however, that the dissent overstates the ramifications that might
occur should Loschiavo be called to testify. Although the state must disclose
evidence affecting a witness’ credibility; see footnote 2 of this opinion; this
type of incriminating information can be introduced only for impeachment
purposes as to witness credibility on cross-examination. ‘‘[T]he only way
to prove misconduct of a witness for impeachment purposes is through
examination of the witness. . . . The party examining the witness must
accept the witness’ answers about a particular act of misconduct and may
not use extrinsic evidence to contradict the witness’ answers.’’ (Citation
omitted.) Weaver v. McKnight, 

, 427, 

 (2014).
   5
     Section 2.1 of the plaintiff’s police department policy, as set forth in the
arbitration award, provides in relevant part that ‘‘[a]n officer must avoid
any conduct which might compromise the integrity of the [d]epartment or
fellow officers, or him/herself.’’ See Stratford v. AFSCME, Council 15, Local

.
   6
     While we agree with the dissent that the first prong of our two-prong
test is met insofar as there is a public policy against police officer dishonesty,
we disagree with the dissent’s analysis of the second prong because it does
not seem to take into account the policy of deference to arbitration awards
in reaching its conclusion. Given that we also consider the strong policy of
deference to arbitration; see State v. AFSCME, Council 4, Local 391, supra,

; we conclude in the present case that deference to the decision
of the three member arbitration panel is appropriate because the sanction
of nine months without pay and future medical examinations is a sufficiently
severe penalty that it does not violate public policy.
   7
     Courts in other states have similarly declined to vacate arbitration awards
that reinstated police officers for dishonesty. See, e.g., State v. Public Safety
Employees Assn., 

 (Alaska 2011) (arbitration award
reinstating police officer who lied about violating motorcycle safety class
rule against ‘‘horseplay’’ was not contrary to explicit, well-defined public
policy); Washington County Police Officers’ Assn. v. Washington County,

, 

 (2003) (arbitration award reinstating police
officer who lied about using illegal narcotic was not contrary to explicit,
well-defined public policy); Kitsap County Deputy Sheriff’s Guild v. Kitsap
County, 

, 432–33, 440, 

 (2009) (arbitration decision
to reinstate deputy sheriff who was terminated for twenty-nine documented
incidents of misconduct, including untruthfulness, did not violate explicit,
well-defined, and dominant public policy).