Monday, April 30, 2012

Arbitration award reinstating police officer found to have engaged in domestic violence deemed contrary to public policy

An appellate court in Illinois has affirmed the lower court’s decision to set aside, on public policy grounds, an award reinstating a police officer terminated for acts of domestic violence and untruthfully responding to questions about the incident. Decatur Police Benevolent And Protective Association Labor Committee v. The City of Decatur The officer had been employed by the City of Decatur since July of 1994. During his employment he had received a number of awards and commendations for his work.
In September, 2009 he received a thirty day suspension for domestic battery. In January, 2010, grievant was again investigated for domestic violence. He was ultimately terminated for the alleged domestic violence and for allegedly making untruthful statements to the department during the investigation.
The arbitrator concluded that, while the City had proved by a preponderance of the evidence that grievant had engaged in this conduct, the appropriate standard of proof to uphold a termination was proof by clear and convincing evidence, which he concluded the City had not met. The arbitrator noted also that there was no evidence of a judicial finding that the officer “has committed the crime of domestic battery”. He converted the termination to a 45 day suspension.
On the City’s action to set aside the award, the lower court concluded that the award “does not in any way promote the welfare and protection of victims of domestic violence. It sends a message that police departments must continue to employ an officer found to be abusive and untruthful, even after employing progressive discipline in an effort to correct this behavior.”
On appeal, the Appellate Court affirmed. It determined that the arbitrator had found (albeit by a preponderance of the evidence) that the officer had engaged in the misconduct alleged, and that it was contrary to public policy to overturn the termination. It concluded:
We are aware of no case, and no statute, that requires an allegation of misconduct in this context be proved by clear and convincing evidence because the misconduct may also be criminal and because the City seeks to discharge the officer. We agree with the trial court – there is well-defined and dominant public policy against acts of domestic violence. Acts of domestic violence are even more disturbing when committed by a police officer-whether on or off duty. It is a violation of public policy to require the continued employment of an officer who has been found to be abusive and untruthful. We find the standard of proof is preponderance of the evidence. The arbitrator concluded the act was proved by preponderance and the lie was proved by preponderance. It would be repugnant to public policy to retain [Grievant] as a police officer in these circumstances.

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