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April 04, 2005
Reinstatement violated public policy
An arbitrator ordered reinstatement of a police officer whom the City discharged for egregious and outrageous misconduct toward a civilian followed by filing a knowingly untrue statement and providing a distorted version during an internal investigation. Oh, and let's add that the officer gave phony testimony at the arbitration hearing.
The arbitrator reduced the penalty to a one year suspension on the time-honored ground that the City had meted out penalties short of discharge for similar or more serious conduct.
The trial court and Court of Appeals were satisfied that the arbitrator's award should be confirmed, "albeit with a lack of enthusiasm."
The Massachusetts Supreme Judicial Court vacated the arbitrator's award on the ground that it violated public policy. City of Boston v. Boston Police Assn (Massachusetts 04/04/2005).
The court reasoned that an arbitrator cannot "order a party to engage in an action that offends strong public policy." Sounds like a high threshold, but later the court put it this way: The City must demonstrate that the officer's conduct was such that a penalty less than discharge "would frustrate public policy."
A statute prohibits appointing to a police officer position anyone "convicted of any felony." The fact that the officer was not convicted of a felony was "beside the point" because it is the conduct rather than the conviction that is determinative.
My view: I won't beat up on the arbitrator or the Massachusetts court. It's enough to point out that the parties picked arbitration and picked the arbitrator, and there was no showing that the arbitrator's award required the City to perform any unlawful act.
Posted by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
