Sunday, December 21, 2014

Police officers, "untruthfulness" and public policy

A police officer's claimed "untruthfulness" and the dictates of public policy have been the subject of previous posts here and here. (Discipline for untruthfulness generally is discussed here, here and here.)

The Supreme Court of Connecticut has now addressed this issue. In Town of Stratford v AFSCME Council 15, Local 407 the Court reversed the decision of the Appellate Court and essentially confirmed an arbitration award reinstating a police officer found to have been deceptive during an independent medical exam concerning his fitness to work.

Grievant had been employed by the City for several years. When he was initially hired the City was aware that he had latent epilepsy. It required him to complete a probationary period free from seizures, which he did successfully. In June of 2009 grievant suffered a seizure while driving a police vehicle, striking two parked cars. His personal physician cleared him to return to work, but the City sent him to an independent neurologist for an independent medical evaluation. That ime cleared him to return to work, but in reviewing the records, the City became aware that grievant had failed to inform the examiner that he had suffered two seizures, in 2005 and 2008, and further failed to disclose that he had been abusing alcohol. Presented with this information, the independent examiner concluded that, while he was unsure if grievant could be trusted to avoid activities (primarily alcohol) that might increase his susceptibility to seizures, he presented no greater risk than he had at the time of his initial hire. The City however charged grievant with lying during the ime, and terminated his employment.

An arbitration panel overturned the termination. It concluded that termination was excessive, but did find grievant's misconduct serious and denied any back pay. The City sought to set aside the award as contrary to public policy, but the trial court refused to do so. On appeal, the Appellate Court reversed (in an opinion discussed here) finding:

    the union concedes that [grievant] intentionally lied during a medical examination into the conditions that would allow him safely to return to work and to perform his duties as a police officer. The arbitration panel’s determination to reinstate [grievant] in spite of this conduct runs contrary to the well-defined public policy against intentional dishonesty by police officers in connection with their employment. ... Accordingly, the award cannot stand.

The Union appealed, and the Supreme Court reversed. Initially, it concluded that there was a public policy "against the employment of law enforcement personnel who have engaged in intentional dishonesty that directly pertains to their qualification and ability to perform official duties." It noted, however, that the next question was whether public policy required termination of grievant's employment. Concluding that it did not, the Court observed:

[Grievant] 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.

The Court concluded that requiring termination under the facts of this 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.

The dissent would have upheld the decision vacating the award, observing:

[Grievant's] violation of that trust and confidence, by lying in connection with the independent medical examination, was indeed ‘‘very serious,’’ as the panel observed, because those lies bore directly on his ability to return to work and to safely  perform his duties as a police officer. Short of a violation of the criminal law, it is hard to conceive of misconduct by a police officer that is more serious. Simply stated, when {Grievant] placed his own perceived self-interest over the safety of the community by lying about his fitness to serve, he demonstrated that he is not fit to serve.

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