TOWN OF KINGSTON v. KINGSTON POLICE SUPERIOR OFFICERS UNION MCOP LOCAL 386 (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Town of Kingston (town), appeals from a Superior Court judgment denying its motion to vacate an arbitration award reinstating a terminated police officer and allowing a cross motion by the defendant, Kingston Police Superior Officers Union, MCOP, Local 386 (union), to confirm the award. We affirm.

“We review the trial judge's decision to uphold the arbitration award de novo, but our examination of the underlying award is informed by the strong public policy favoring arbitration” (quotation omitted). Pittsfield v. Local 447 Int'l Bhd. of Police Officers, 480 Mass. 634, 637 (2018). Where, as here, the arbitration is part of the parties' collective bargaining agreement, “we defer to that election and are ‘strictly bound by an arbitrator's findings and legal conclusions, even if they appear erroneous, inconsistent, or unsupported by the record.’ ” Boston v. Boston Police Patrolmen's Ass'n, 477 Mass. 434, 439-440 (2017), quoting Lynn v. Thompson, 435 Mass. 54, 61 (2001), cert. denied, 534 U.S. 1131 (2002).

Despite our deference to the arbitrator's decision, however, we will vacate an award that violates “well-defined public policy.” Boston Police Patrolmen's Ass'n, 477 Mass. at 442. See G. L. c. 150C, § 11 (a) (3). This narrow public policy exception requires a “stringent, three-part analysis”: (1) is the policy at issue “well defined and dominant, [which] is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests;” (2) does the policy address disfavored conduct that is “integral to the performance of employment duties;” and (3) does “the arbitrator's award reinstating the employee violate[ ] public policy to such an extent that the employee's conduct would have required dismissal” (quotations and citations omitted). Boston Police Patrolmen's Ass'n, supra.

Here, only the third prong of the public policy test is contested.² “The question in the third prong is not whether the employee's behavior violates public policy, but whether an award reinstating him or her does so.” Boston Police Patrolmen's Ass'n, 442 Mass. at 442-443, citing Eastern Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62-63 (2000). “To prevail, the [town] must therefore demonstrate that public policy requires that [the officer's] conduct, as found by the arbitrator, is grounds for dismissal, and that a lesser sanction would frustrate public policy” (citation omitted). Id. at 443. The arbitrator found that the officer, among other failures, mishandled evidence, neglected to write reports in a manner that in at least one instance “constitute[d] valid grounds for serious discipline,” and failed to conduct follow-up investigations on serious cases. The officer's deficient conduct was “longstanding” and the arbitrator reasoned that it was implicitly condoned by the town for years because a cursory system review would have “revealed her continuing negligence.” The arbitrator also noted that the officer had a record of service that “was apparently unblemished for twenty-four of her twenty-five years.” Ultimately, the arbitrator determined that, while there was just cause for dismissal, the appropriate award was reinstatement of the officer without back pay, subject to a fitness clearance.

The town argues that the arbitrator's award must be vacated because reinstatement of the officer constituted an immediate threat to the general public. See Massachusetts Highway Dep't v. American Fed'n of State, County, & Mun. Employees, Council 93, 420 Mass. 13, 18 (1995), and cases cited.³ We disagree. The town's assertions regarding the imminence of the danger to public safety posed by the officer are belied by the fact that her misconduct spanned nearly a decade without being addressed beyond a single verbal reprimand in 2008. Compare id. at 18-19. Nor was there any indication that her misfeasance impeded any prosecution, beyond causing delay and requiring supplementary witness interviews. In any event, although the officer's behavior may have been “egregiously neglectful,” the question is “not whether [her] conduct justified termination, but whether it required termination, such that any lesser sanction would violate public policy.” Boston Police Patrolmen's Ass'n, 477 Mass. at 445. See Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 603 (2000), quoting Massachusetts Highway Dep't, 420 Mass. at 21 (“The applicable collective bargaining agreement gave the arbitrator the authority to impose a less severe sanction than termination”). On this record, we conclude that the officer's conduct did not require termination and therefore the arbitrator's award did not violate public policy. Because we do not “substitute our judgment for that of the arbitrator's in determining the appropriate discipline,” Pittsfield, 480 Mass. at 641, the award reinstating the officer must be upheld.

Judgment affirmed.

FOOTNOTES

2.   At oral argument, the union conceded that the first two prongs are satisfied.

3.   The town's “imminent threat” argument is based on dicta in Massachusetts Highway Dep't, supra; the union nevertheless addressed the issue in detail. We consider this argument because we conclude that, as a general matter, the potential for immediate danger to the public from reinstatement of an officer undoubtedly raises public policy concerns.