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TOWN OF STRATFORD v. AMERICAN

FEDERATION OF STATE, COUNTY

AND MUNICIPAL EMPLOYEES,

COUNCIL 15, LOCAL 407

(SC 19130)

Rogers, C. J., and Palmer, Zarella, Eveleigh and Espinosa, Js.

Argued March 25—officially released December 23, 2014

Eric R. Brown, for the appellant (defendant).

Christopher J. Smedick, with whom, on the brief,

was James Cresswell, for the appellee (plaintiff).
Opinion

ROGERS, C. J. The dispositive issue in this certified

appeal is whether an arbitration award reinstating a

police officer, as opposed to the mandated dismissal

of the officer, violated a clearly discernible public policy

against intentional dishonesty by police officers in connection with their employment. The plaintiff, the town

of Stratford, filed an application to vacate an award

from an arbitration proceeding initiated by the defendant, American Federation of State, County and Municipal Employees, Council 15, Local 407, that reinstated

the grievant, Justin Loschiavo, to his employment as a

police officer with the Stratford Police Department after

he was terminated for lying in connection with his

employment. The trial courtrendered judgment denying

the plaintiff’s application and, on appeal, the Appellate

Court reversed that judgment and concluded that the

arbitration award violated a clear public policy against

intentional dishonesty by police officers in connection

with their employment. Stratford v. AFSCME, Council

15, Local 407, 140 Conn. App. 587, 597, 60 A.3d 288

(2013). This court granted the defendant’s petition for

certification to appeal on the following issue: ‘‘Did the

Appellate Court properly determine that the arbitration

award in this matter reinstating [Loschiavo] violated

a clearly discernible public policy against intentional

dishonesty by police officers in connection with their

employment which mandated dismissal of [Loschiavo]?’’ Stratford v. AFSCME, Council 15, Local 407,

308 Conn. 922, 923, 94 A.3d 639 (2013). We conclude

that while there is a public policy against intentional

dishonesty by police officers in connection with their

employment, the arbitration award in the present case

did not violate public policy. Accordingly, we reverse

the judgment of the Appellate Court.

The arbitration decision sets forth the following

undisputed facts relevant to our resolution of this

appeal. Loschiavo started working as a probationary

police officer for the plaintiff in 2006. He suffers from

latent epilepsy, and the plaintiffrequired that as a condition to his hiring, Loschiavo must remain seizure free

throughout his probationary period. He satisfied this

requirement and was apparently seizure free until June

6, 2009, when he suffered a seizure while operating a

police car and consequently struck two parked cars.

Loschiavo’s physician, Philip Micalizzi, cleared him to

return to light duty in August, 2009, at which point the

plaintiff referred Loschiavo to a neurologist, Samuel L.

Bridgers, for an independent medical examination to

determine ‘‘what conditions might allow [Loschiavo] to

return to employment while eliminating or minimizing

any potentialrisks with potentially fatal consequences.’’

Although Bridgers determined that Loschiavo was capable to return to work full-time, he restricted this clearance to require Loschiavo to call out sick whenever he
felt symptoms of an oncoming seizure.

Upon reviewing Bridgers’ report, the plaintiff’s

human resources director found two discrepancies

between that report and the medical report from

Micalizzi, Loschiavo’s physician. Specifically, Loschiavo failed to inform Bridgers about two seizures he

suffered in 2005 and 2008; he further failed to disclose

that he had been using or abusing alcohol. Bridgers

thereafterreviewed Loschiavo’s full medical record and

determined that the seizures had been related to alcohol

use. He reported that he was unsure whether Loschiavo

‘‘ ‘can be trusted to avoid activities that might increase

his susceptibility to having seizures, particularly alcohol

use.’ ’’ Bridgers determined, however, that Loschiavo

presented no greater risk after these seizures than he

did at the time of his initial hiring, and again cleared

him to return to duty.

In light of Bridgers’ second report, the plaintiff

charged Loschiavo with violating police department

policy by lying during the independent medical examination. On March 30, 2010, the plaintiff held a hearing

at which Loschiavo was represented by the defendant

and counsel. Following the hearing, the plaintiff terminated Loschiavo’s employment on the ground that he

violated police department policy by lying during the

independent medical examination. Following Loschiavo’s termination, the defendant filed a grievance on

his behalf alleging that his termination was without

just cause and in violation of the parties’ collective

bargaining agreement.

A three member arbitration panel conducted a hearing and thereafter determined that Loschiavo’s termination was ‘‘excessive’’ for two reasons. First, Micalizzi

and Bridgers both returned Loschiavo to his full duties

without restrictions and, second, the plaintiff knew of

Loschiavo’s condition when he was hired and did not

raise any issue of Loschiavo’s work performance. The

arbitration panel concluded that ‘‘[a] police officer’s

lying about his physical and mental condition to doctors

that could return . . . [him] to work is [a very serious

violation, but] understandable because [he] wants [his]

job back.’’ On December 8, 2010, the panel ordered that

the plaintiff reinstate Loschiavo ‘‘without [back pay]

but no loss [of] seniority.’’ The panel also ‘‘recognize[d]

that the [plaintiff] is well within its rights to have [Loschiavo] examined by a medical doctor, from time to time,

to make sure that his condition is stable and that he is

not using alcohol.’’ Thus, Loschiavo’s total reprimand

for the violation was a suspension of nine months without back pay, from his March, 2010 termination to the

December, 2010 reinstatement, and his possible subjection to future medical examinations.

The plaintiff filed an application to vacate the arbitration award on the ground that the award encouraged

police officer dishonesty and thereby violated Connecti-
cut’s clear public policy against lying by law enforcement personnel. The trial court rejected the plaintiff’s

argument based on the court’s limited standard of

review over arbitration decisions and the lack of clear

authority requiring a police officer to be terminated for

this type of misconduct.

The plaintiff appealed from the judgment of the trial

court to the Appellate Court. The Appellate Court concluded thatthe arbitration award violated a well-defined

public policy against the intentional dishonesty of a

police officer in the course of his or her duties and,

accordingly, reversed the trial court’s judgment and

remanded the case to that court with direction to grant

the plaintiff’s application to vacate the award. Stratford

v. AFSCME, Council 15, Local 407, supra, 140 Conn.

App. 596–97. This certified appeal followed.

On appeal, the defendant argues that there is no dominant, well-defined public policy against police officer

dishonesty during an independent medical exam. The

defendant claims that termination is required only when

the specific type of a police officer’s misconduct or

dishonesty is prohibited by statute, and that mandating

termination for all degrees of dishonesty would be

unnecessary, costly, and a threat to public safety. Given

the absence of an articulated public policy prohibiting

this type of police officer dishonesty, the defendant

argues that the arbitration panel’s decision should be

upheld.

In response, the plaintiff argues that case law establishes a clear, well-defined, and dominant public policy

against police officer dishonesty in connection with

official duties. The plaintiff concedes that not every lie

told by a police officer that related to his job would

require termination. Rather, it argues that ‘‘a police

officer who intentionally lies regarding the status [of]

his condition to return to work, despite the risk that

his condition could pose to the public, violates . . .

public policy, and that an arbitral award mandating the

reinstatement of a police officer who has lied in such

a fashion violates the concomitant policy that an

employer should not be required to retain that police

officer.’’1

We conclude that there is a public policy against

intentional police officer dishonesty in connection with

official duties because integrity and trustworthiness are

integral to performing these duties. We also conclude,

however, that under the facts in the present case, the

arbitration panel’s decision to punish Loschiavo with

a nine month suspension without back pay and with

the possibility of being subjected to future medical

examinations did not violate this public policy.

We begin our analysis with the applicable standard

of review. ‘‘[W]e favor arbitration as a means of settling

private disputes, [thus] we undertake judicial review of
arbitration awards in a manner designed to minimize

interference with an efficient and economical system

of alternative dispute resolution.’’ (Internal quotation

marks omitted.) State v. AFSCME, Council 4, Local

391, 309 Conn. 519, 526, 69 A.3d 927 (2013). We will,

however, submit to higher scrutiny an arbitration award

that ‘‘is claimed to be in contravention of public policy.’’

(Internal quotation marks omitted.) Id.; see General

Statutes § 52-418 (a) (‘‘any judge . . . shall make an

order vacating the award if it finds . . . [4] . . . the

arbitrators have exceeded their powers’’). ‘‘[P]arties

cannot expect an arbitration award approving conduct

which is . . . contrary to public policy to receive judicial endorsement any more than parties can expect a

court to enforce such a contract between them. . . .

When a challenge to the arbitrator’s authority is made

on public policy grounds, however, the court is not

concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award.’’

(Emphasis in original; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 391, supra, 527.

Thus, when ‘‘a party challenges a consensual arbitral

award on the ground that it violates public policy, and

where that challenge has a legitimate, colorable basis,

de novo review of the award is appropriate in order to

determine whether the award does in fact violate public

policy.’’ (Internal quotation marks omitted.) Id. As this

court maintained in AFSCME, Council 4, Local 391,

‘‘we defer to the arbitrator’s interpretation of the

agreements regarding the scope of the [contract] provision . . . . We conclude only that as a reviewing court,

we must determine, pursuant to our plenary authority

and giving appropriate deference to the arbitrator’s factual conclusions, whether the contract provision in

question violates those policies.’’ (Emphasis omitted.)

Id., 528. Accordingly, the sole issue before the court is

whether the arbitration award of nine months without

back pay and subjection to possible future medical

examinations violates public policy.

This court employs a two-pronged analysis to determine whether an arbitration award should be vacated

for violating public policy. First, the court must determine ‘‘whether an explicit, well-defined and dominant

public policy can be identified. If so, the court then

decides if the arbitrator’s award violated the public

policy.’’ (Internal quotation marks omitted.) Id., 529.

Thus, under the first prong, we begin by determining

whether there is an explicit, well-defined and dominant

public policy against intentional dishonesty of police

officers in connection with their employment. We look

to statutes, administrative decisions, and case law to

determine the existence of public policy. MedValUSA

Health Programs,Inc. v. MemberWorks,Inc., 273 Conn.

634, 657, 872 A.2d 423, cert. denied sub nom. Vertrue,

Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960,
126 S. Ct. 479, 163 L. Ed. 2d 363 (2005). Although we

determine that our statutes contain no explicit, welldefined public policy against intentional police officer

dishonesty,2 we conclude that there is undisputedly a

common public interest in the integrity and trustworthiness of local police forces.3 The public expects police

officers to be credible and honest in their law enforcement duties. Accordingly, we conclude that there is 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.

Having concluded that there is a public policy against

intentional police officer dishonesty in connection with

his or her employment, we must consider the specific

facts and circumstances of the present case in order

to determine whether the arbitration award reinstating

Loschiavo’s employment violated that public policy. ‘‘In

other words, we must determine whether [the] public

policy required the grievant’s dismissal.’’ (Emphasis

added.) State v. AFSCME, Council 4, Local 391, supra,

309 Conn. 531. In making this determination, ‘‘we are

mindful that the fact that an employee’s misconduct

implicates public policy does not require the arbitrator

to defer to the employer’s chosen form of discipline

for such misconduct.’’ Id., 532. Indeed, ‘‘an arbitrator

reasonably may consider circumstances such as the

length of employment, previous instances of [misconduct] by the employee, and the circumstances and

severity of the misconduct under review in determining

the likelihood of future misconduct and whether discipline less severe than termination would constitute a

sufficient punishment and deterrent.’’ State v. New

England Health Care Employees Union, District 1199,

AFL-CIO, 271 Conn. 127, 138–39, 855 A.2d 964 (2004).

Finally, this court has recognized that, although ‘‘the

arbitrator’s decision must draw its essence from the

agreement, he is to bring his informed judgment to bear

in order to reach a fair solution of a problem. This is

especially true when it comes to formulating remedies.’’ (Emphasis altered; internal quotation marks

omitted.) State v. AFSCME, Council 4, Local 391, supra,

309 Conn. 532, quoting United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 41,

108 S. Ct. 364, 98 L. Ed. 2d 286 (1987).

Thus, we must consider whether Loschiavo’s dishonesty was ‘‘so egregious that it requires nothing less than

the termination of [his] employment so as not to violate

public policy . . . .’’ (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 391, supra,

309 Conn. 531. We conclude that it was not. Loschiavo’s

conduct, although serious, did not compromise his qualifications or ability to perform his official duties as

a police officer, because Micalizzi, his physician, and

Bridgers, his neurologist, were both aware of his dishonesty and yet still cleared him to return to duty. Indeed,
Bridgers ultimately determined that, even with knowledge of the information that Loschiavo withheld, Loschiavo ‘‘ ‘presents no more of a risk now than he did since

the time of his initial hiring.’ ’’ Loschiavo 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.4

By way of comparison, we look to ourrecent decision

in State v. AFSCME, Council 4, Local 391, supra, 309

Conn. 541–42, where we determined that an award of

anything short of termination did violate public policy.

There, the grievant, who was a correction officer

employed by the Department of Correction, knowingly

and repeatedly violated the ‘‘well-defined and dominant

public policy against workplace sexual harassment as

established by General Statutes § 46a-60 (a),’’ despite

recurring complaints. Id., 525. The grievant engaged in

a pattern of behavior that occurred in the presence of

other employees and inmates, which ‘‘perpetuate[d] a

hostile, intimidating and offensive work environment

. . . .’’ (Internal quotation marks omitted.) Id., 541.

Thus, in that case, this court concluded that the grievant’s termination was required because his behavior,

unlike Loschiavo’s behavior in the present case, was

‘‘knowing, egregious, incorrigible and disruptive

. . . .’’ Id., 542.

Moreover, although Loschiavo was allowed to return

to work, it was only after a period of nine months

without back pay and with the condition that he could

be subject to future medical examinations. When the

plaintiff and the collective bargaining agreement do not

proscribe the specific disciplinary action for a grievous

misconduct,5

it is certainly within the arbitration panel’s

discretion to consider the fact that termination is not

always required. In addition, the parties collectively

bargained to submit the question of just cause fortermination to arbitration, and thus expected the arbitration

panel to consider the grievant’s overall record in fashioning its award.

Forthe foregoing reasons, we conclude that, although

there is a public policy against intentional police officer

dishonesty in connection with the officer’s employment, Loschiavo’s lies were not so egregious that the

arbitration panel’s award of nine months suspension

without back pay and with the possibility of being subjected to future medical examinations violated that public policy.6 Requiring termination under the facts of the

present 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.7(Internal quotation

marks omitted.) State v. New England Health Care
Employees Union, District 1199, AFL-CIO, supra, 271

Conn. 136.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

affirm the judgment of the trial court.

In this opinion ZARELLA and EVELEIGH, Js., concurred.

1 The plaintiff specified that although the intentional lie in the present

case mandated termination, other intentional lies about the status of a police

officer’s condition to return to work would not. For example, the plaintiff

acknowledged that a police officer’s intentional lie that he was very sick,

told so that he would be excused from work, would not be so egregious as

to require termination, even though the officer would be lying about his

ability to perform on that day.

2 We discern from our statutes no public policy against intentional police

officer dishonesty unless the dishonesty constitutes a crime, either by a

false written statement under oath or a statement pursuant to a form bearing

notice that contains punishable false statements. The plaintiff claims that

one statute, General Statutes § 54-86c, reflects our legislature’s intent to

require police officers to be honest. Section 54-86c (a) provides in relevant

part that ‘‘the [state] . . . shall disclose any exculpatory information or

material which [it] may have with respect to the defendant whether or not

a request has been made therefor. . . .’’ See also Brady v. Maryland, 373

U.S. 83, 87–88, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Practice Book § 40-11.

The defendant contends that the only Connecticut statute governing police

officer dishonesty is General Statutes § 7-294d, which targets specific lies

that, unlike Loschiavo’s, rise to the level of criminal conduct or fraud. Under

§ 7-294d, the Police Officer Standards and Training Council (council) may

refuse to renew, cancel orrevoke a police officer’s certification. The grounds

forrevoking certification do not explicitly include dishonesty, but are limited

to false statements under General Statutes § 53a-157b (a), which provides

that ‘‘[a] person is guilty of false statement in the second degree when he

intentionally makes a false written statement under oath or pursuant to a

form bearing notice, authorized by law, to the effect that false statements

made therein are punishable, which he does not believe to be true and

which statement is intended to mislead a public servant in the performance

of his official function.’’ See General Statutes § 7-294d (c) (2) (I) (referencing

§ 53a-157b). As the dishonesty in the present case did not rise to the level

of a false statement under § 53a-157b, § 7-294d does not apply here.

3 At least one Superior Court decision has concluded that there is a clear

public policy against intentional police dishonesty that directly pertains to

police officers’ official duties. In Bloomfield v. United Electrical Radio &

Machine Workers of America/Connecticut Independent Police Union, Local

No. 14, 50 Conn. Supp. 180, 189, 916 A.2d 882 (2006), rev’d on other grounds,

285 Conn. 278, 939 A.2d 561 (2008), the trial court vacated an arbitration

award that reinstated a police officer after he was dishonest in a police

report and during an internal affairs investigation. The trial court determined

that ‘‘there is a clear public policy in Connecticut, based upon [General

Statutes] § 54-86c and the common law . . . that it is against public policy

for a police officer to lie.’’ Id., 188.

A second case, International Brotherhood of Police Officers, Local No.

328 v. Windsor, 40 Conn. Supp. 145, 483 A.2d 626 (1984), discussed a

public policy supporting police officer truthfulness. There, the trial court

considered an arbitration award that upheld a police officer’s suspension

for insubordination after he was ordered to lie about his involvement in an

arrest warrant but insisted on being truthful. Id., 146. The trial courtreasoned

that ‘‘[t]he honesty of police officers is centralto our criminal justice system.’’

Id., 148. It found that the arbitration award violated clear public policy

because it contradicted General Statutes § 53a-157b and because ‘‘[i]n signing

search and arrest warrants, judges depend completely on the truthfulness

of the police officers’ affidavits supporting them . . . [and] fundamental

rights rest on the accuracy of police records and a falsehood in the arrest

record could imperil the prosecutor’s case.’’ Id.

4 We note that the record does not reflect whether Loschiavo’s reinstatement as a police officer could include responsibilities other than those in

which he would be expected to testify as a witness in a criminal trial. We

believe, however, that the dissent overstates the ramifications that might

occur should Loschiavo be called to testify. Although the state must disclose

evidence affecting a witness’ credibility; see footnote 2 of this opinion; this
type of incriminating information can be introduced only for impeachment

purposes as to witness credibility on cross-examination. ‘‘[T]he only way

to prove misconduct of a witness for impeachment purposes is through

examination of the witness. . . . The party examining the witness must

accept the witness’ answers about a particular act of misconduct and may

not use extrinsic evidence to contradict the witness’ answers.’’ (Citation

omitted.) Weaver v. McKnight, 313 Conn. 393, 427, 97 A.3d 920 (2014).

5 Section 2.1 of the plaintiff’s police department policy, as set forth in the

arbitration award, provides in relevant part that ‘‘[a]n officer must avoid

any conduct which might compromise the integrity of the [d]epartment or

fellow officers, or him/herself.’’ See Stratford v. AFSCME, Council 15, Local

407, supra, 140 Conn. App. 589 n.2.

6 While we agree with the dissent that the first prong of our two-prong

test is met insofar as there is a public policy against police officer dishonesty,

we disagree with the dissent’s analysis of the second prong because it does

not seem to take into account the policy of deference to arbitration awards

in reaching its conclusion. Given that we also consider the strong policy of

deference to arbitration; see State v. AFSCME, Council 4, Local 391, supra,

309 Conn. 526; we conclude in the present case that deference to the decision

of the three member arbitration panel is appropriate because the sanction

of nine months without pay and future medical examinations is a sufficiently

severe penalty that it does not violate public policy.

7 Courts in other states have similarly declined to vacate arbitration awards

that reinstated police officers for dishonesty. See, e.g., State v. Public Safety

Employees Assn., 257 P.3d 151, 153, 166 (Alaska 2011) (arbitration award

reinstating police officer who lied about violating motorcycle safety class

rule against ‘‘horseplay’’ was not contrary to explicit, well-defined public

policy); Washington County Police Officers’ Assn. v. Washington County,

335 Or. 198, 200, 63 P.3d 1167 (2003) (arbitration award reinstating police

officer who lied about using illegal narcotic was not contrary to explicit,

well-defined public policy); Kitsap County Deputy Sheriff’s Guild v. Kitsap

County, 167 Wn. 2d 428, 432–33, 440, 219 P.3d 675 (2009)(arbitration decision

to reinstate deputy sheriff who was terminated for twenty-nine documented

incidents of misconduct, including untruthfulness, did not violate explicit,

well-defined, and dominant public policy).