## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Dec atur Poli ce Benevolent & Protective Ass’n Labor Com m ittee v. City of De catur , 2012 IL App (4th) 110764

Appellate Court Caption D E C A T U R P O L I C E B E N E V O L E N T A N D P R O T E C T I V E ASSOCI ATI ON L AB OR COMMI TTEE, Plaintiff-Appellant, v. THE CI TY OF DECATUR, Def endant- Appellee

.

District & N o. Four th District
Docke t No. 4-11-0764

Arg ued
Filed Marc h 20, 2012 April 20, 2012

Held (Note : Thi s s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court’s vacation of an arbitration awa rd finding no just cause to discharg e a police office r based on alleg ati o n s of domestic battery and untruthfulness and deter

mining that the office r should be reinstated upon

s e r v in g a 4 5

- d a

y s u s p e nsion was aff

irmed, notwithstanding the argu me n ts of the office r’s union t h at t h e trial court ignor ed rele vant, predominant statutory law and t h at i n t h e absenc e of a finding that the office r committed domestic violence, public policy considerations would be further ed by the arbitrator’s decision, since statutory law was not ignor ed, the trial court was fully awa re o f t h e public policy favor ing the enfor ceme nt of collective- barg aining ag ree ments, and there was no err or in the trial court’ s interpre tation of lang uag e used in the a war d.

Dec ision Under Review Appea l from the Circuit Court of Macon County
, No. 11-MR-63 ; the Hon. Robert C. Bolling er, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Shane M. Voles (ar g ued) and Daniel Dy kstra, both of Police Be nevolent L abor Committee, of Spring field, for appellant.

J ohn T. Robinson (arg

ued), Assistant Corporation C ounsel, of De catur , for a ppellee.

Panel J USTI CE KNECHT deliver ed the judg ment of the c ourt, with opinion.
J ustices Steigma

nn and Cook conc urre d in the judgme nt and opinion.

OP INION

¶ 1 I n J uly 2010, plaintiff, Dec atur Police Be nevolent and Protective Associa t i o n L ab o r Commi ttee (the Union), filed a g rieva nce o n behalf of its member, police office r J ere my W el ker, contesting his discharg e from the police depar tment afte r alleg ations of do m es t i c battery and untruthfulness. Pursuant to a collective- barg aining ag ree ment under the I llinois Pub l ic L abor Relations Act (L abor Act) (5 I L CS 315/1 to 27 (West 2008)), the Union and defe ndant, t he C ity of Decatur (the City), ag ree d to resolve the issue of whether jus t cause exis ted to discharg e Offic er Welker. After a hear ing, the arbitrator, in a 9 9 -pag e decision, found no just cause and deter mined Offic er Welker should be reinstated upon serving a 45- d ay suspension. City of Dec atur v. Policeman’ s Bene volent & Protective As s ’n L a b o r Committee , FMCS No. 10-55173-A ( 2011) (Done g an, Ar b.). ¶ 2 The Union applied to the circ uit court to confirm t h e ar b i t ra t i on awa rd and the City
soug ht a decla

ration the awa

rd was void as ag ainst public policy

. I n a 14-pag e judgme nt, the
court ag ree d the arbitration awa rd violated public policy and vacated the arbitrator’s awa rd. The Union appea ls, arg

uing (1) the c ourt ig nored r eleva nt, predominant st atutory law; and (2) beca use the arbitrator did not find Offic er Welker committed domestic violence, publicpolicy considera

tions are f urthere d by

the ar bitrator’s de cision. We affirm.

¶ 3 I . BA CKGROUND ¶ 4 At arbitra

tion, both sides prese nted extensive evidenc e. In summary , the U n ion presente d evidenc e showing Offic er Welker had worke d in the juvenile investigations division at the Dec atur police depar

tment since J uly 1994. Offic er Welker rec ei v ed awa rds and commendations for his police work. For example, in J uly 1995, Offic er Welker rec eived the “key drug awa

rd” beca use of his work that resulted in the arr ests of drug deale rs. He rec eived
two more key drug awa

rds in 1998. I n addition, the City ’s police depar tment, betwee n 1997 and 2005, commended Offic er Welker for his work preve nting a possible suicide, arr esting felons, helping diffuse a

hostag e situation, and helping solve a sexual assault and r obbery

. ¶ 5 The City produce d, among other items o f ev i d en ce , a written statement by Offic er Welker’s wife Michelle. Acc ording to Michelle’s statement, on J anuar y 17, 2010, Michelle and Offic er Welker argued in their kit ch en. Michelle, not wanting to argue, went to the

-2-bedroom. I n the bedroom, Offic er Welker pushed h er o nto the bed. After Michelle stood,

Offic er Welker “g ot in her fac e.” Michelle, afr aid Offic er Welker would attack her, attempted to push him awa y

. After she did so, Offic er Welker “hea d-butted” her in the fac e above he r nose. ¶ 6 The City also submitt ed into evidenc e a repor t by S er gea n t S t ev en C ar ro l l
, wh o investigated the incide nt. Acc ording to that repor t, when Serg eant Carroll arr ived at the scene that night, he asked Office r W elker wha t o ccurred. Office r W elker stated he and Mi chelle had argued and she left the house. Offic er Welker stated there had been an argument but no battery or phy sical contac t. Serg eant Carroll then interviewe d Michelle and returne d to their residenc e to ar

rest Of fice r Welker. ¶ 7 T h e City further produce d evidenc e showing in the ear ly morning hours following the event, Offic er Welker went to the police headqua rters, wher e he was interviewe d by Serg eant Carroll. Offic er Welker admitted the phy sical alterc ation, but stated if Michelle had an injury it was from her striking him. Offic er Welker stated Michelle hit him in the fore head with her fac e and nose

. ¶ 8 The arbitrator also considere d evidenc e Offic er Welker previously had been disc iplined for domestic battery involving Michelle. I n September 2009, Michelle notified the police of the incident. The police depar tment disciplined Offic er Welker for this conduct by instit uting a 30-da y suspension and orde ring him to participate in an e mploy ee- assistance prog ram. ¶ 9 Upon considering the evidenc e fr o m b o t h s i d es , t h e ar b itrator conclude d Offic er Welker’s termination for the cri minal offe nse of domestic battery and untruthfully responding to direc t questions about the incident was not for just cause

. Whil e the arbitrator

on at least t h re e o cc as i o ns stated the City proved by a preponde ranc e of the evidenc e the domestic-violence incident occur red, he found the City had not proved domestic violence by clea r and c onvincing evidenc e: “Lik e in most arbitrations, there was considera ble conflicting evidenc e in the instant

ca s e

. T h e p r e p o n d era

nce of the cre dible, pertinent evidenc e was prese nted by the Ag ency

.

* * * Fifth, the Arbitrator finds that the Ag ency h as p ro v en by a preponde ranc e of the evidenc e that the char g ed conduct occurre d

. Howeve r, the Arbitrator require s that an Employ er must prove domestic battery and untruthfully responding to direc t questions

re g arding the i ncident by clea r and convincing evidenc e in order to justify terminatio n of an e mploy ee. T he standa rd of pr oof wa s not met in the instant case. ***
Six th, the Arbitrator finds that the Ag ency proved the char g es of domestic battery and lack of tru t h fulness in answe ring direc t questions conce rning the incident by [Officer Welker] by a preponde ranc e o f t h e evidenc e. I t did not prove the char g es by clea r and convincing evidenc e which w ould be re quired to terminate the Grie vant. The Grieva nt denied the c harg es. Howe ver, the [C ity ’s] witnesses were somewhat more cre dible.” ¶ 10 Whil e the arbitrator found a n exus exis ted betwee n Offic er Welker’s conduct and the reputation and eff

iciency of the service and deter mined Of fi ce r W elker’s misconduct was “somewhat detrimental,” the arbitrator deter mine d Of

fi cer Welker’s “conduc t can be

co rrected with prog ressive discipline instead of termination.” The arbitrator noted Offic er

-3-Welker’s conduct did not occur in a public place
, meaning the alleg ed conduct would have

a limit ed eff

ect on the depar

tment’s reputation as the alleg ed incident occur red in the privac y of Offic er Welker’s home. The arbitra tor conclude d Offic er Welker “did not bring discredit or emba rra ssment on himself or the police de partment.” ¶ 11 The arbitrator further conclude d the depar tment did not apply prog ressive discipline and the termi nation of Offic er Welker was unfair and unrea sonable. The arbitrator found “[a] lesser penalty should bring about corr ective behavior on the part of the Grieva nt. Discipline should b e corr ective not punitive.” Apply ing the “Doug las fac tors” ( Douglas v. Veterans Administra t i o n , 5 M.S.P .B. 313, 331-32 (1981)), t he arbitrator noted Offic er W elker “had

a very g ood rec o rd wi t h infreque nt discipline” and over 14 y ear s of “g ood to excellent service .” The arbitrator deter mined the proper penalty was a 45-day suspension. The arbit ra t o r further observe d “the Ag ency has prese nted no judicial finding or order that the Grieva nt has committed the crime of domestic battery .” ¶ 12 T h e ar b i t ra t o r d et er mined Offic er Welker had been disciplined more sever ely fo r untruthfulness than other incidents committed by the City ’s police office rs. One office r was suspended for 30 day s for filing a false police repor t. Another office r was suspended 15 day s for untruthfulne ss in departmenta l matters and two other violations. ¶ 13 The arbitra t o r d et er m i n ed Offic er Welker, in arbitration, reta ined a presumption of innocenc e and was entitled to the benef it of substantial doubt. The arbitrator conclude d “there are definitely substantial doubts in the [a] rbitrator’ s mind that a domestic b at t er y

occur red.” “The re may have been some phy sical contac t bu t n o cl ear and convincing evidenc e that there was a battery .” The arbitrator appar ently b el i eved there was some require ment the domestic batter y be prove d by

clea r and c onvincingevidenc e. ¶ 14 The arbitrator also found Offic er Welker admitted makinguntruthful statements to the depar tment but deter

mined those provided an insufficient basis for the termination of his employ ment. The arbitrator deter mined a 45-day suspension was sufficie nt punishment for Offic er Welker ’s admitted untruthfulness. ¶ 15 I n Aug ust 2011, the trial court enter ed an orde r setting aside the a rbitrator’ s awa

rd and denying the Union’s application to confirm it. The court noted the arbitrator conclude d there

wa s j u s t cause to discipline Offic er Welker for committing a domestic battery and being untruthful in responding to questions reg arding the incident. Thus, the arbitrator deter mined “t h e l ev el o f proof require d to establish just cause to discipline [O] ffice r Welker for the char g ed violations of depar tmental policy was by a preponde ranc e of the evide nce.” (Emphasis adde d.) ¶ 16 The trial court conclude d “ther e is without question a well-de fined and dominant public policy in numerous laws of the State of I llinois ag ainst acts of domestic violence,” including laws cl ar i fy ing the responsibilities of law-e nforc ement office rs to investiga te incidents of domestic violence and protec t victims of domestic violence. The court also noted the strong public policy for law-e nforc ement office rs to be truthful during police investiga tions. The
court c oncluded the f

ollowing: “The arbitrator’s award doe s not in any way promote t he welfare and protection of victims of domestic violence. I t sends a messag e that police depar tments must continue

-4-to employ an office r found to be abusive and untrut h fu l
, even afte r employ ing
prog ressive discipline in an eff ort to corr ect this behavi o r. I t undermines the public confide nce in police depar tments by requiring the continued employ ment of office rs who fail to tell the truth during investigations surrounding the ir own conduc t, y et expecting that others fa cingsuch investig ation will be truthful.” ¶ 17 The Union’s a ppeal f ollowed.

¶ 18 I I . ANAL YSI S ¶ 19 A. J udicial Review of Arbitration Awa

rds ¶ 20 The Uniform Arbitration Ac t (A rb i t ra t i o n Ac t ) (7 1 0 I L CS 5/1 to 23 (West 2010)) “provide s for very limit ed judicial revie w of an arbitrator’s awa rd.” Hawrel a k v. Marine Bank, Springf

i eld
, 316 I ll. App. 3d 175, 178, 735 N.E.2d 1066, 1068-69 (2000). An arbitrator’s aw ard ma

y be vac ated only (1) if the aw ard w as proc ured by fra ud, corr uption,

or other undue means, (2) when partiality or misconduct by the arbitrator is evident, (3) when
t h e ar b i t rator exceeded his or her power s, or (4) when the arbitrator improperly ref used t o postpone a hear ing or hear materia l evidenc e to a party ’s prejudice

. Hawrelak
, 316 I ll. App. 3d at 179, 735 N.E.2d at 1069. ¶ 21 On j u d i ci al re v i ew , t here is a presumption the arbitrator did not exceed his or he r authority

. Hawrelak
, 316 I ll. App. 3d at 179, 735 N.E.2d at 1069. We are to construe the

awa rd, when possible, to uphold its validity

. Hawrelak
, 316 I ll. App. 3d at 179, 735 N.E.2d
at 1069. “Such defe renc e is a ccor ded beca use the parties have chosen in their contra ct how their dispute is to be decide d, and judicial modification of an arbitrator’s decision deprive s the parties of that choice .” Hawrelak
, 316 I ll. App. 3d at 179, 735 N.E.2d at 1069. We may

n o t s et as i d e an arbitration awa rd beca use of judgme nt err ors or mistakes of law or fac t. Hawrelak , 316 I ll. App. 3d at 179, 735 N.E.2d at 1069. ¶ 22 Howeve r, “[c]ourts have cr af t ed a public[-] policy exception to vacate arbitra l awar ds which otherw i s e d erive their essenc e from a collective- barg aining ag ree ment.” American Fede ration of

State, County & Municipal Employe es v. Departme nt of Central Managem ent S ervic es ( AFSCME ), 173 I ll. 2d 299, 306, 671 N.E.2d 668, 673 (1996). Acc ordi n g t o t h i s exception, this court should not enf o rc e a collective- barg aining ag ree ment when its enfor ceme nt “is repug nant to established norms of public policy .” AFSCME
, 173 I ll. 2d at 307, 671 N.E.2d at 673. ¶ 23 The public-policy exception is a narr ow one–one that is to be invoked only when a par ty clea rly shows enfor ceme nt of the contra ct, as interpre ted by the arbitra tor, contravenes some expli cit public policy

. AFSCME
, 173 I ll. 2d at 307, 671 N.E.2d at 673. The p u b l i c policy
must be well define d and dominant and deter mined “ ‘by ref

ere nce t o t h e l aw s and leg al
prec edents and not from g ener al considerations of supposed public interests.’ ” W .R. Grace & Co. v. L ocal Union 759
, 461 U.S. 757, 766 (1983) (quoting Muschany v. United States
, 324 U.S. 49, 66 (1945))

. To asce rtain public policy
, this court looks first to our constitution and statut es an d
, when those are silent, to judicial decisions. Departme nt of Central Managem ent Servic es v. A me r i can Fede ration of State, County & Municipal Employe es ( AFSCME) , 197 I ll. App. 3d 503, 512, 554 N.E.2d 759, 765 (1990).

-5-¶ 24 A t wo -s t ep an aly sis is to be employ ed when considering whether the public-policy

exception applies. The first question “is whether a well-de fined and dominant public policy

can b e i d en t i fied.” AFSCME
, 173 I ll. 2d at 307, 671 N.E.2d at 674. I f one can, then the second question is whether the awa rd of the arbitrator, resulting from his or her interpre tation of the ag ree ment, violates public policy

. AFSCME
, 173 I ll. 2d at 307-08, 671 N.E.2d at 674.

¶ 25 B. The Trial Court Did Not I g nore or Violate Predominant Statutory L aw ¶ 26 The Union first argues the trial court err oneously ignor ed section 15 of the L abor Act (5 I L CS 315/ 15(a) (West 2008)) and violate d section 2-103 of the I llinois Human Rig hts Act (Human Rights Act) (775 I L CS 5/2-103 (West 2010)). The Union contends h ad the court considere d section 15 of the L abor Act, it would have known that law takes prec edenc e over other laws. Reg arding the Human Rights Act, the Union contends the court violated Offic er Welker’s rights whe n it considered the domestic-violence arr est when O ffice r Welker wa s not convicted.

¶ 27 1. Section 15 of the Labor Act ¶ 28 Section 15(a) of the L abor A ct provides, in re levant par t, the following : “In case of any conflict betwee n the provisions of this Act and any other law (other than Section 5 of the State Employ ees Group Insuranc e Act of 1971), ex ec u t i v e o rder or ad minist rative regulation relating to wag es, hours and conditions of employ ment and employ ment relations, the provisions of this Act or any collective barg aining ag ree ment neg otiated there under sha ll prevail and c ontrol.” 5 I L CS 315/ 15(a) (West 2008). ¶ 29 The Union relies on section 15 as e stablishing “[t]he domestic[ -]violence laws and the public policies in favor of ‘ef fec tive l aw en forc ement’ have no place in this matter unless they relate to the conditions of employ ment for Offic er Welker.” The Union maintains if the criminal law relates to Offic er Welker’s conditions of employ ment, th e criminal laws are statutorily inferior to the L abor Act. The Union further maintains the court did not consider other office rs had not been discharg ed for being untruthful and, wi t h o u t citation to a particula r subsection or case in support, an em p l o y er may not terminate an employ ee for committing an of

fense the employ er de termined wa s not a terminable of fense

. ¶ 30 The Union’s argument is unconvincing

. We disag ree the t ri al co u rt erred by not citing secti o n 1 5 an d / o r by ignor ing the public policy behind it. The court did not need to specific ally discuss section 15

. T h e Un i o n ’s interpre tation of section 15 is too broad. The wording of section 15 is that when the L abor Act is in conflict with a specific statute or rule

re garding conditions of employ ment, the L abor Act’s provisions control. See 5 I L C S 315/15(a) (West 2008). Section 15 does not say the L abor Act controls when in conflict with the public policy of the state. I f applied as the Union argues, section 15 would swallow the public-policy exception, beca use, no matter how offen s i v e t o public policy an arbitrator’s decision is, the arbitrator’s decision would stand. We will not rea d it so broadly
, particula rly when the public-policy exception has been considere d and applied by I llinois courts since the L abor Act’s inception. See, e.g. , Chicago Transit Authority v. Amalgamat ed T r a nsit Union , 399 I ll. App. 3d 689, 697-98, 926 N.E.2d 919, 926-27 ( 2010).

-6-¶ 31 Second, it is clea r the trial court was awa

re of the public policy underly ing section 15 and the L abor Act. The public policy in favor of collective- barg aining ag ree ments and the rig hts of employ ees thereunde r i s ref lected in the law that g rants “ve ry limit ed judi cial review of

an arbitrator’s aw ar d

. ” Hawrelak
, 316 I ll. App. 3d at 178, 735 N.E.2d at 1068-69. We
presume the arbitrator did not exceed his or her authority and we construe the awa rd, when possible, so as to a ffirm its va lidity
, “bec ause the parties have chosen in the ir contra ct how their dispute is to be decide d, and judicial modification of an arbitrator’s decision deprive s the parties of that choice .” Hawrelak
, 316 I ll. App. 3d at 179, 735 N.E.2d at 1069. I llinois
courts caution ag ain s t applying the public-policy exception. I t is a very narr ow exception ( AFSCME
, 173 I ll. 2d at 307, 671 N.E.2d at 673) to be applied only when a well-de fined and dominant public policy may be asce rtained ( W .R. Grace & C o

. , 461 U.S. at 766 (quoting Muschany
, 324 U.S. at 66)). The court, in rende ring its d ec i s i o n , proper ly cited these principles and r

ules and wa s fully

awa re of I llinois public policy favor ing the enfor ceme nt of collec tive-bar g aining ag ree ments and ar bitrator aw ards. ¶ 32 I n making its argument reg arding section 15, the Union further contends the City could
not terminate Offic er Welker for untruthfulness beca use it had not terminated others for untruthfulness befor e. The Union maintains such an act is an unfair prac tice. This argument is misleading

. The iss ue is not simply whether the C ity had jus t cause to terminate Office r Welk er fo r unt ruthfulness, but whether the C ity had jus t cause due to a domesti c-violenc e incident shortly

following a pre vious suspension for a se parate domestic-violenc e incident in addition to untruthfulness. The Union’s argument here is no t o n point, and we will not consider it fur

ther.

¶ 33 2. Human Rights Act ¶ 34 The Union contends the trial court violated section 2-103 of the Human Rights Act (775 I L CS 5/2-103 (West 2010)). Section 2-103(A) states an entity commits a civi l-rig hts violation when it uses “the f act of an arr est *** as a ba sis to refuse to hire , to seg reg ate, or to act with respe ct to rec ruitment, hiring
, promotio n , *** discharg e, [or] discipline.” 775 I L CS 5/ 2-103(A) (West 2010). ¶ 35 W e find no err or. W hile section 2-103(A) prohibit s using “the fact of an arrest” as t h e basis for discharg e (775 I L CS 5/2-103(A) (West 2010)), it does not prohibit mentioning the

arr est when summarizing the evidenc e, which is what occur red here

. I n its opinion, the court simply stated an arr est was made: “Of fice r Welker was suspended for 30 day s for committing

an act of domestic violence involving his then wife, Michelle Welker. Shortly there afte r, Offic er Welker was arrested conce rning a further al l ege d incident of domestic violence involving Michelle Welker.” (Emphasis added.) The court then noted the alleg ed fac ts behind the arr est, as well as the arbitrator’s decision finding
, by a preponde ranc e of the evidenc e, this event occur red. The court’s approa ch is not i nconsistent with the Human Rights Act, which allows the entity to investigate whether the person committed the conduct that led to the arr est: “The prohibition ag ainst the use of the fac t of an arr est contained in this Section shall not be construed to prohibi t an em p loy er, employ ment ag ency , or labor
org anization from obtaining or using other information which indicates that a person actua lly

-7-eng ag ed in the conduct for which he or she was arr ested.” 775 I L CS 5/2-103(B ) (West 2010).

¶ 36 C. The Trial Court Did Not Rewr ite the Arbitrator’s De cision ¶ 37 The Union next maintains the arbitrator’s awa rd is not repu gn an t t o p u b l i c poli cy , beca use the City failed to prove its alleg ations of domestic violence, leaving only the finding Offic er Welker was u n t ru t h fu l

. The Union contends the trial court ignor ed the multipl e fi n dings by the arbitrator showing the act was not proved, but seized on lang uag e in t h e arbitrator’s decision to o v e r tu rn that decision as violating public policy

. The Union maintains “[t] he court’s exercise in linguistics reve al s its mission to repla ce the arbitrator’s finding s with its own” and violates the r equire ment to construe the a war d as valid whe n possible. ¶ 38 I n support of its argument, the Union pro v i d es t h e fo l l o wi n g ex ce rp t s from the arbitrator’s decision as show i n g t he arbitrator found the domestic-violence act was not proved: (1) “[T] he Arbitrator finds that [t he City ] has prese nted no judicial finding or order that the Grie vant has c ommitt ed the c rime of domestic battery ”; (2) “I n the instant case [,] there are definitely substantial doubts in the Ar bitrator’s mind that a domestic battery occur red. There may have been some phy sical contac t but no clea r and c onvincing evidenc e that ther e wa s a batter y ”; (3) “As ind i ca t ed p reviously the video testimony of Michelle Welker *** left substantial doubts in the Arbitrator ’s mind that a domestic battery had occur red. *** I n fac t[ ,] t he video testimony of Michelle Welker

*** was not per suasive”; a nd (4) “[T] he Arbitrator finds t hat [the Cit y ] failed to prove the Grieva nt committed a domestic battery

. *** All lawy ers should know that a battery require s intent to strike or hit. The evidenc e does not show that the Grieva nt intended to hit his wife. I t is also very signific ant that his wife’ s appea ranc e was normal within hours. The Arbitrator does not find that the Grieva

nt head- butted his ex-wife. A person trained in mix ed martial arts would cause g reat damag e with a he ad-butt.” ¶ 39 These statements cannot be considere d in a vacuum, nor did the court conduct an exerc ise in linguistics. There are at least three instances wher e the arbitrator expli citly found the City proved its alleg ations by a prepondera n ce of the evidenc e. J ust five para g raphs into the arbitrator’s di scussion, the arbitrator wrote the following : “L ike in most arbitrations, there

was considera

ble conflicting evidenc e in the instant case

. The preponde ranc e of the cre dible, pertinent e vidence was pre sented by [t he City ].” A s its fif th point, the arbitrator conclude d the City “has proven by a preponde ranc e of the evidenc e that the char g ed conduct occur red.” The arbitrator, at the end of that para g raph wrote the City ’s evidenc e, howeve r, “is not sufficie nt to meet the clea r and convincing standard nece ssary to terminate an employ ee for domestic battery .” I n the following para g raph, as its six th point, the arbitrator wrote it “finds that [t he City ] proved the char g es of domestic battery and lack of truthfulness in answe ring direc t questions conce rning the incident by the Grieva nt by a p r e p o n d era

nce of the evidenc e.” ¶ 40 Whil e this court must construe a n awa rd as va lid, it m ust only do so if that is possible. See American Fede ration of State, County & Municipal Employe es v. State
, 124 I ll. 2d 246,

-8-2 5 4
, 529 N.E.2d 534, 537 (1988). I n this case , the arbitrator did find the alleg ati o n s o f

domestic violence proved by a preponde ranc e of the evidenc e. The first three holdings on the
matter expli citly so state. The other statements occur ring in the arbitra

tor’s analy sis must be

rea d consistent with how the arbitrator analy zed the evidenc e, requiring proof “by clea r and convincing evidenc e.” We f ind no err or in the trial court’ s interpre tation of the arbitrator’s lang uag e. I n closing
, we find the trial court’s 1 4 -page single -spac ed judgme nt to be most helpful.

¶ 41 D. New Arg uments Raised in Reply Br ief Ar e F orfe ited ¶ 42 I n its opening bri ef
, t h e Un i o n ra i sed only the above challeng es to the trial court’ s decision. I n its reply brief, t he Union raised additional arg uments, such as arguing the arbitrator’s awa

rd requiring the criminal alleg ations be proved by more than a preponde ranc e

o f t h e evidenc e was consistent with public policy and the arbitrator mere ly followed the City ’s lead by suspending Offic er Welker for alleg ed domestic violence, as the City had done befor e. ¶ 43 I llinois Supreme Court Rule 341(h)( 7) (ef f. J uly 1, 2008) require s an appellant to inc lude in his opening brief all of its arguments reg arding trial court err or. New arguments “shall not be raised in the reply brief.” I ll. S. Ct. R. 341(h)( 7) (ef f. J uly 1, 2008). The Union forf eited these arg uments. I ll. S. Ct. R. 341(h)( 7) (ef f. J uly 1, 2008) (“Points not argued are waived and shall not be ra ised in the reply brief, in or al ar g ument, or on petition for re hear ing.” ). ¶ 44 We elec t to consider these argu m ents briefly

. We are awa re of no case , and no st atute, that require s an alleg ation of misconduct in this c ontext be proved by clea r and convincing evidenc e beca

use the misconduct may also be criminal and beca use the City seeks to discharg e the office r. We ag ree with the trial court–ther e is well-de fined and dominant public policy ag ainst acts of domestic violence. Acts of domestic violence are even more disturbing when committed by a police office r–whe ther on or off duty

. I t is a violation of public policy
to require the continued employ ment of an office r wh o has been found to be abusive and untruthful. We find the standard of pro of is preponde ranc e of the evidenc e. The arbitrator conclude d the act was proved by a preponde ranc e and the lie was proved by a preponde ranc e. I t would b e repug nant to public policy to reta in Welker as a police office r in these circ umstances. ¶ 45 The trial court car efully considere d the case and prepa red a thoroug h written order

. We found the orde r helpful in re solving the issues.

¶ 46 I I I . CONCL USI ON ¶ 47 For

the stated re asons, we a ffirm the tria l court’s judg ment.

¶ 48 Affir

med.

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