The Illinois Appellate Court recently affirmed an arbitrator’s decision to fully reinstate a police officer terminated for cashing workers’ compensation checks while also receiving full disability pay during recovery from an on-the-job injury. The decision serves as a reminder of just how difficult it is to successfully challenge an arbitrator’s decision in court. Failed attempts to do so can quickly become an exercise in adding insult to injury. This alert will explain the missteps, and suggest ways municipal employers can avoid rulings like this one in the future.
After Village of Posen Police Officer Kevin Hammond slipped on ice and injured his knee, and during his eight month leave period, Hammond received full disability pay from the Village. Due to a clerical mistake, Hammond also received regular workers’ compensation benefits for a portion of his salary. When Hammond’s superior officers learned of this situation, they never approached him to discuss the double-payments. One sergeant refused to speak to Hammond because the sergeant was waiting for Hammond to “man up and do the credible thing.” The Chief of Police assumed from Hammond’s silence that Hammond “just didn’t care.” The Village terminated Hammond on June 13, 2011, without notice or a hearing.
When the Union that represented the police officers—including Hammond—grieved the termination, an arbitrator issued an award finding the Village did not have just cause to terminate him. Rather than require the Village to prove its charge by a preponderance of the evidence, the arbitrator applied a “clear and convincing” standard, because the Village alleged that Hammond engaged in criminal activity. Ultimately, the arbitrator accepted Hammond’s innocent explanation of the events, faulted the Village for making no effort to determine his state of mind pre-termination, and ordered immediate reinstatement and back pay.
The Village filed a complaint to vacate the arbitrator’s award. First, the Village alleged that Hammond had not been properly hired under the Illinois Municipal Code, as he had been laterally transferred to his full-time position without taking the proper examinations. Therefore, according to the Village, Hammond was not covered by the collective bargaining agreement, and the arbitrator did not have jurisdiction to hear the grievance—or stated another way, that the grievance was not arbitrable. Second, the Village argued that the arbitrator had used an improper quantum of proof, inappropriately requiring the Village to prove its case with clear and convincing evidence.
The Appellate Court initially held that the Village had waived any objections to the arbitrability of the dispute. The court found that by failing to object on this basis during the arbitration hearing, and by actually agreeing on the record that the arbitrator had jurisdiction to resolve the dispute, the Village had waived this argument. The court explained the well-established principle that judicial review of an arbitration award is “extremely limited:” absent corruption, fraud, blatant partiality by the arbitrator, or other misconduct, a court simply will not vacate an arbitrator’s decision. Instead, courts must enforce an arbitration award as long as the arbitrator acts within the scope of his or her authority, and the award draws its essence from the parties’ collective bargaining agreement.
After explaining the Village’s heavy burden, the court found the Village’s arguments were flawed in several respects. With respect to the quantum of proof necessary to prove the Village’s case, the Court ruled that the standard of proof is a legal issue subject to the arbitrator’s broad discretion, and that even gross errors of law will not justify vacating a decision unless those errors are apparent on the face of the award. Additionally, the court found it did not matter what quantum of proof the arbitrator applied, because the arbitrator actually ruled the Village failed to satisfy its burden under any quantum of proof.
The court also refused to disturb the arbitrator’s factual findings. The Village had argued that Officer Hammond’s concealment of the payments indicated untrustworthiness, and therefore, the arbitrator’s reinstatement violated a strong public policy in favor of honest police officers demonstrating high integrity. While acknowledging there may be such a policy, the court noted the arbitrator rejected the Village’s presumption that Hammond was a thief, and the court refused to reweigh the evidence before the arbitrator. Instead, it stated clearly that it “has no business weighing the merits of a grievance” or second-guessing the arbitrator’s conclusions regarding the facts. Accordingly, the court affirmed the circuit court’s refusal to vacate the arbitration decision.
Justice Delort issued a separate concurring opinion, which only added insult to injury. According to Delort, “local government officials who throw out the rule book and appoint themselves to be judge, jury and executioner run the risk of ending up with a costly and unfavorable result.” Delort strongly disagreed with the Village’s position that the arbitrator improperly ruled a pre-termination hearing was necessary. Delort found the Village’s position “absurd,” and chastised the Village for the “rather astonishing act” of firing a police officer without notice or a pre-termination hearing of any kind. Finally, Delort took the Village to task for arguing that its own violation of Illinois law—the failure to hire Hammond pursuant to the Municipal Code—should result in a favorable judgment.
The decision and Justice Delort’s sharp concurrence serve as a cautionary tale for public employers. A public employer faces a herculean task when it attempts to vacate an arbitration award in circuit court.