author: Callahan, J. Arthur H. Healey, J.,

text:
    Watertown Police Union Local 541, AFSCME, AFL-CIO v. Town of Watertown et al.
    (13424)
    Healey, Shea, Callahan, Covello and Hull, Js.

      Argued December 8, 1988
    decision released March 14, 1989

      Joseph Lander, with whom, on the brief, was Frank J. Raccio, for the appellant (plaintiff).

      James R. Smith, for the appellee (named defendant).
   Callahan, J.

The plaintiff, the Watertown Police Union Local 541, AFSCME, AFL-CIO, appeals from the judgment of the Superior Court denying its application, brought pursuant to General Statutes § 52-418 (a), to vacate an arbitration award. On appeal the plaintiff claims that the arbitration board exceeded its authority because the award it rendered was in contravention of public policy and the trial court, therefore, erred in refusing to vacate it. We find no error.

The following facts, disclosed by the record, are relevant. The named defendant, the town of Watertown (town), and the plaintiff entered into a labor contract on October 31, 1984, in which they designated the codefendant, the Connecticut board of mediation and arbitration (board), as the arbitrator empowered to resolve disputes between them. The contract also addressed the standards by which the town could discharge union members. Pertinent to our discussion are article VI, § 8 of the contract which applied specifically to probationary employees and stated that such employees “may be terminated by the Town in its sole discretion for any reason whatsoever,” and article XIII, § 1 which was a general provision providing that “fn]o employee covered by this Agreement shall be discharged . . . except for just cause, and the Town shall be required to prove, beyond a reasonable doubt, that just cause exists in those instances.”

In February, 1985, the town discharged Michael Thompson, a probationary police officer. The plaintiff, claiming the discharge was not justified, grieved the town’s action to arbitration. After an arbitration hearing on March 5,1986, the board, in a written decision, cited the following findings of fact concerning Thompson’s discharge: On January 5, 1985, Thompson was assigned to a patrol car with a part-time police officer. Because he was still in training at the police academy and the town did not want him involved in court appearances which would interfere with his training, Thompson’s supervisor, Sergeant James Sheehan, ordered him “not to make any motor vehicle stops.” Contrary to this order, Thompson did make a motor vehicle stop during his tour of duty that night. In addition, when Thompson made the stop, he failed to radio a “signal seventeen” into police headquarters which is a required procedure designed to protect officers by keeping the police department apprised of their whereabouts. Shortly thereafter, Thompson was discharged by the town under the provisions of article VI, § 8 of the contract pertaining to probationary employees. The reasons cited by the town for discharging Thompson were both his failure to follow the orders of a superior and his violation of a routine police procedure.

The plaintiff grieved Thompson’s discharge arguing that article VI, § 8 of the contract must be read in conjunction with article XIII, § 1, thereby requiring the town to show just cause for the discharge of a probationary employee. Based on its reading of the contract, the plaintiff claimed that the town had failed to meet its burden of showing just cause for dismissing Thompson and that his discharge was, therefore, in violation of the contract.

Because the parties disagreed as to the relevant contract provision to be applied, they were unable to reach an agreement on the issue to be submitted to the board. The board decided to reject the plaintiff’s interpretation of the contract, stating that Thompson, a probationary employee, was not entitled to the protection of the “just cause” standard. It then adopted the town’s formulation of the issue and framed the submission as follows: “[Wjhether the discharge of Michael Thompson was consistent or in violation of Article VI, Section 8 [of the labor contract].” Citing Thompson’s failure to follow the orders of his superior, the board rendered an award in favor of the town stating that “there was a reason for [his] termination and that [because he was a probationary employee] the Town did, under Article VI, Section 8 have the right in its sole discretion to terminate [him].”

The plaintiff subsequently applied to the Superior Court to vacate the board’s award. In support of its application to vacate, the plaintiff argued that the board had exceeded or imperfectly executed its powers in violation of § 52-418 (a) (4) both in framing the issue, because it “prejudged the merits of the dispute and precluded, ab initio any possibility of relief to be awarded to the plaintiff,” and in rendering an award that sanctioned the disciplining of an officer who did not follow an order of his superior that is against public policy.

On March 24, 1987, the trial court issued a memorandum of decision in which it rejected both of the plaintiff’s claims. The court concluded that the board’s adoption of the town’s version of the issue, disregarding the “just cause” provision set out in article XIII, § 1 of the contract, was proper because any other formulation of the issue “would render Article VI, Section 8, surplusage.” In rejecting the plaintiff’s second claim that the board’s decision countenanced an order contrary to public policy, the trial court distinguished the facts in this case from those of cases in which awards had been vacated as against public policy because they licensed serious violations of the law, and held that “as a pragmatic matter police departments do, and probably have to, adopt policies of selective enforcement when it comes to relatively minor failures to conform to motor vehicle laws, and I simply cannot buy the view that such a restraint on Thompson rises to the level of a violation of public policy.”

On May 4, 1987, the plaintiff appealed the decision of the trial court to the Appellate Court. The plaintiffs claim on appeal is that the board exceeded its powers in violation of § 52-418 (a) (4) in that its award sanctioned the order of Sheehan “not to make any motor vehicle stops,” and that this order is contrary to public policy. On April 28, 1988, we transferred the case to ourselves pursuant to Practice Book § 4023. Because Sheehan’s order does not violate established public policy, we hold that the trial court did not err in refusing to vacate the board’s award.

“We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418 of the General Statutes.” Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977); International Union v. Fafnir Bearing Co., 151 Conn. 650, 653, 201 A.2d 656 (1964); Board of Education v. Local 818, 5 Conn. App. 636, 639, 502 A.2d 426 (1985). “A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission.” Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981); see also American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 186, 530 A.2d 171 (1987); Board of Education v. AFSCME, supra, 271; Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff’d, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106, 438 A.2d 1171 (1981); Board of Education v. Local 818, supra. An award, therefore, will normally be vacated only if it fails to conform to the submission, and the party challenging it has the burden of producing evidence sufficient to show that it does not conform to the submission. Bic Pen Corporation v. Local No. 134, supra, 585. “ ‘Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 [1977].’ ” Id., 584, quoting Waterbury v. Waterbury Police Union, 176 Conn. 401, 404, 407 A.2d 1013 (1979); Caldor, Inc. v. Thornton, supra, 340-41.

In spite of the general rule that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52-418 (a) (4) when the award rendered is claimed to be in contravention of public policy. New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 416-17, 544 A.2d 186 (1988); Stratford v. Local 134, IFPTE, 201 Conn. 577, 590-91, 519 A.2d 1 (1986); Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); Stamford v. Stamford Police Assn., 14 Conn. App. 257, 259, 540 A.2d 400 (1988); State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 806 (1986); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961). This challenge is premised on the fact that the parties cannot expect an arbitration award “approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.” Stamford v. Stamford Police Assn., supra, 259; Board of Trustees v. Federation of Technical College Teachers, supra, 195. 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.” Board of Trustees v. Federation of Technical College Teachers, supra. Accordingly, the public policy exception to arbitral authority should be narrowly construed and “ ‘[a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate “some explicit public policy” that is “well defined and dominant, and is to be ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” ’[United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 43, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987)]; see W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) . . . . ” New Haven v. AFSCME, Council 15, Local 530, supra, 417. The party challenging the award “bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.” Id. Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the board’s award clearly violates an established public policy mandate.

The plaintiff claims that Sheehan’s order directed Thompson not to enforce the state motor vehicle laws which directly conflicts with the public policy that requires police officers to have unbridled discretion to protect the safety of the citizens of the community for which they work. The public policy mandate on which the plaintiff relies is allegedly expressed in General Statutes § 54-If (a), entitled “Arrest without a warrant. Pursuit outside precincts,” which states in pertinent part that peace officers may act within their jurisdiction and “shall arrest” any person without a warrant who is in the commission of a crime in that jurisdiction. According to the plaintiff, when the history of § 54-If (a) is studied, police officers have a “ ‘duty to arrest for any offense.’ ” Viewed in its historical context, the plaintiff claims § 54-If (a) is a sufficient starting point on which to establish a public policy edict. We disagree.

Section 54-If (a) has no application to the facts in the present case because Sheehan’s order did not prohibit Thompson from making arrests under it. Rather, his order was to make no “motor vehicle stops.” (Emphasis added.) Implicit in that order is that Thompson was to make no routine or investigative stops for minor infractions of the state motor vehicle laws. Section 54-If (a) is not a motor vehicle law, but rather, is a criminal procedure statute that is invoked when police officers arrest, without a warrant, those who have committed the serious crimes set out in the state penal code. Had Thompson seen or been asked to respond to a serious crime, Sheehan’s order would not have prohibited him from making an arrest pursuant to § 54-lf (a).

A perusal of the state motor vehicle laws set out in title 14 of the General Statutes, reveals no statute creating a duty requiring police officers to stop and investigate every person they observe violating the state traffic laws. General Statutes § 14-138 states that the commissioner of motor vehicles may call upon the state police to help aid in enforcing the laws pertaining to motor vehicles and highway use. The statute also states that “[t]he state police shall, upon such request, make arrests in all cases of violations . . . which they witness or upon speedy information thereof.” This section would apparently apply to municipal police officers also. See General Statutes § 7-281. To date, however, there is no evidence of a request by the commissioner requiring police officers to make investigative stops or arrests in every instance where they observe a possible minor violation of the motor vehicle laws. .

In addition to the absence of any statute or administrative ruling establishing a duty requiring police officers to stop every person they see violating traffic laws, there is no case law setting forth such a policy mandate. While the United States Supreme Court and federal court cases cited by the plaintiff do state that police officers have a duty to preserve law and order, those cases are not on point.

Absent a clear contrary policy statement by the legislature or the agencies empowered to enforce the motor vehicle laws in this state, we are inclined to agree with the trial court that as a practical matter, police departments, operating with limited resources, may on occasion adopt policies of selective enforcement in cases involving relatively minor infractions of the motor vehicle laws. Orders, such as the one in the present case, do not hinder an officer in exercising his discretion to carry out his duty to protect the community to the extent that they clearly rise to the status of a violation of established public policy.

Finding that the plaintiff has no explicit public policy on which to rely, we are bound by the decision of the board. New Haven v. AFSCME, Council 15, Local 530, supra. We find, therefore, that the trial court did not err in refusing to vacate the board’s award.

There is no error.

In this opinion Shea, Covello and Hull, Js., concurred.

Arthur H. Healey, J.,

dissenting. I cannot agree with the majority, but would find error and remand this matter with direction to vacate the award of the Connecticut board of mediation and arbitration (board).

Initially, I note that, despite the contentions of the town of Watertown (town), the reason for the board’s decision was: “The majority of the Panel finds that the reason for the discharge of the grievant, Michael Thompson was for his failure to obey the orders of his superior, Sergeant Sheehan.” The board’s finding of facts, by which we are bound, states that the grievant was given orders by his supervisor Sergeant James Sheehan not to make “any motor vehicle stops.” That finding also discloses that “[t]he reason for this order [of Sergeant Sheehan] was that the grievant at the time was involved in receiving training at the Police Academy and the Town did not want the grievant involved in court appearances which would keep him from receiving training at the Academy.”

The majority states that: “Because Sergeant Sheehan’s order does not violate established public policy, we hold that the trial court did not err in refusing to vacate the board’s award.” I cannot agree with this holding that is, in my opinion, based upon several conclusory justifications. The first is that “Sheehan’s order did not prohibit Thompson from making arrests under it. Rather, [Sheehan’s] order was to make no ‘motor vehicle stops.’ ” (Emphasis in original.) Without making any substantive distinctions with any basis in the record, the majority hastens to say: “Implicit in that order is that Thompson was to make no routine or investigative stops for minor infractions of the state motor vehicle laws.” Apart from the fact that there is no basis in the record for this distinction, “no stops” reasonably means “no stops,” regardless of the nature of the law that may have been violated. There was, contrary to the assertions of the majority, nothing implicit in Sheehan’s order to Thompson “not to make any motor vehicle stops.” (Emphasis added.) The majority specifically states that, despite the unequivocal order of Thompson’s superior, “[ojrders, such as the one in the present case, do not hinder an officer in exercising his discretion to carry out his duty to protect the community to the extent that they clearly rise to the status of a violation of established public policy.” This is a troublesome and discomforting resolution of the plaintiff’s complaint of Thompson’s absolute discharge from police duties because he disobeyed his superior’s order not to make “any motor vehicle stops.” This order was given because the town, under the board’s finding, “did not want [Officer Thompson] involved in court appearances which would keep him from receiving training at the [Police] Academy.”

Although I disagree with the result reached by the majority, I agree with the majority that it has been our consistent policy to foster settling differences voluntarily by arbitration. Moreover, arbitration awards are generally upheld unless “an award clearly falls within the proscriptions of § 52-418 of the General Statutes.” Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985). While the general rule is that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, there exists an additional challenge under § 52-418 (a) (4), where the award rendered is alleged to be in contravention of public policy. New Haven v. AFSME, Council 15, Local 530, 208 Conn. 411, 416-17, 544 A.2d 186 (1988); Stratford v. Local 134, IFPTE, 201 Conn. 577, 590-91, 519 A.2d 1 (1986); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961). That challenge allows an exception with respect to matters of public policy generally because arbitrators exceed their authority if their award orders a party to engage in conduct that is patently illegal or in clear violation of public policy. New Haven v. AFSCME, Council 15, Local 530, supra, 416. “In such a case, we are not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award.” Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979). “Awards which contravene the public policy of a state exceed the powers of an arbitrator and are illegal and unenforceable.” Avco Corporation v. Preteska, supra, 480; see International Brotherhood of Police Officers v. Windsor, supra, 147; Black v. Cutter Laboratories, 43 Cal. 2d 788, 278 P.2d 905 (1955), cert. dismissed, 351 U.S. 292, 76 S. Ct. 824, 100 L. Ed. 1188 (1956). There is little question but that “public policy exceptions to arbitral authority should be narrowly construed . . . . ” New Haven v. AFSCME, Council 15, Local 530, supra, 417.

I recognize that each case, especially in this narrow public policy exception area, should be searchingly analyzed on its own facts. This becomes pointedly crucial where here there must be a resolution between two conflicting public policies. On the one hand, there is the public policy of fostering, by limited judicial intrusion, the voluntary system of dispute resolution through arbitration. See, e.g., Naugatuck v. AFSCME, 190 Conn. 323, 326, 460 A.2d 1285 (1983); Middletown v. Police Local, No. 1361, 187 Conn. 228, 230, 445 A.2d 322 (1982). On the other hand, there is the competing public policy that the police have the duty to obey and enforce the law to protect and preserve the public welfare. See, e.g., State v. Donovan, 132 N.J.L. 319, 321, 40 A.2d 546 (1945); State v. Stevens, 203 N.J. Super. 59, 495 A.2d 910 (1984).

It should be made clear that I understand that all too often police personnel and resources available to preserve life and property and to enforce the law as they have undertaken to do are hardly sufficient to perform this task as fully as they desire. The award in this case did not approve or disapprove the allocation of scarce police personnel but has to do solely with the discharge of the grievant Thompson. It should be made clear that it is one thing to order a policeman not to do something that it is his duty to do, but it is quite another matter, not only throughout the arbitration procedure but also thereafter, to invoke judicial approbation of the arbitration award to cashier him for doing what he was hired to do—enforce the law.

In its opinion, the majority extends legality to this award and finds no violation of public policy. With that I cannot agree. To say that all Thompson’s superior ordered was that he not make “routine or investigative” motor vehicle “stops” granitizes form over substance because, despite what the majority says, there is nothing “implicit” in Sheehan’s order that Thompson was to make “no routine or investigative stops for minor infractions of the state motor vehicle laws.” The board did not so find. Moreover, the board’s decision offers absolutely no distinction between different types of motor vehicle stops, a distinction which the majority makes in a conclusory fashion. Insofar as the town was concerned, the board decision does show that Sheehan’s order was given in order to prevent Thompson’s having to go to court. Any stop at all might have resulted in the necessity of Thompson’s appearing in court and, thus, there is no basis for the majority’s distinction among different types of stops.

It is for the legislature to determine public policy. See, e.g., International Business Machines Corporation v. Brown, 167 Conn. 123, 135, 355 A.2d 236 (1974); Consolidated Diesel Electrical Corporation v. Stamford, 156 Conn. 33, 39, 238 A.2d 410 (1968); Old Colony Gardens, Inc. v. Stamford, 147 Conn. 60, 64, 156 A.2d 515 (1959). The legislature spoke on this not only when they enacted statutes concerning arbitration but also in the many statutes on motor vehicle violations. Both classes of these statutes, i.e., arbitration and motor vehicle, are the public policy of this state. The arbitration statutes encourage the voluntary resolution of disputes. The motor vehicle statutes also state public policy because they endeavor to promote the safe and proper use of the highways throughout the state. A court should not lightly interfere with the award of an arbitration panel where there may be conflicts between the two public policies involved. It should, however, not be reluctant to do so where the award, as in this case, derogates the stronger policy of the two. Confirming this award, under the unique facts of this case, judicially affirms the discharge of a police officer for performing the duty that he was hired to do but which he was ordered not to do on the date involved. On this record, I firmly believe that to cashier Officer Thompson by affirming the arbitration award violates public policy and falls squarely within the narrow public policy exception of General Statutes § 52-418 (a) (4).

Therefore, I dissent.

       General Statutes § 52-418 (a) provides in pertinent part: “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       In its brief, the plaintiff recites facts beyond those cited by the board in its written opinion. This court, however, is bound by the board’s findings of fact. Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff’d, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981); Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977) (on appeal courts will not review the evidence presented to an arbitrator). See generally discussion, infra.

       Prior to the court’s ruling, the town filed a motion to strike a portion of the plaintiff’s application and a motion for nonsuit. Because the trial court denied the plaintiff’s motion to vacate, both of the town’s motions were rendered moot. Subsequently, the plaintiff motioned the trial court to open its judgment denying its application to vacate the arbitration award stating that the court prematurely ruled on its motion to vacate and should have ruled only on the town’s motion to strike at that time. The Superior Court denied the plaintiff’s motion to open on November 19, 1987.

       In the few cases where arbitration awards have been vacated on public policy grounds it was because they contravened a well defined public policy mandate. See Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979); State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 806 (1986) (awards were set aside pursuant to General Statutes § 54-418 [a] [4] because they were found to be in direct conflict with the provisions of a state statute); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984) (arbitration award set aside that upheld the disciplining of a police officer for refusing to falsify an arrest warrant); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961) (arbitration board was held to have exceeded its authority when the award rendered was found to contravene public policy because it called for the reinstatement of an employee who had been convicted under a state statute for gambling on his employer’s premises).

       The plaintiff cites three primary cases. In the first case, Cady v. Dombrowski, 413 U.S. 433, 440-42, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), .a search and seizure case, the plaintiff relies on a general discussion by the United States Supreme Court of the “community caretaking functions” state and local police officers perform. While the court’s discussion does indicate that police officers have a great deal of contact with motor vehicles and often make investigative stops, it creates no public policy regarding motor vehicle stops. Also cited by the plaintiff are United States v. Markland, 635 F.2d 174 (2d Cir. 1980), cert. denied, 451 U.S. 991, 101 S. Ct. 2332, 68 L. Ed. 2d 851 (1981), and Thurman v. Torrington, 595 F. Sup. 1521 (D. Conn. 1984), for the proposition that it is a police officer’s duty to preserve law and order. Neither of these cases, however, dealt with the enforcement of traffic laws. In United States v. Markland, supra, the court validated a police officer’s seizure of a container of alcoholic beverages at the scene of an accident based on his duty to protect society. Thurman v. Torrington, supra, involved a civil rights action in which the plaintiff was assaulted by her estranged husband after the defendant police officer failed to respond to her calls.

       The board denied Michael Thompson’s grievance by a vote of two to one with the labor member dissenting.

       The failure to radio a “signal seventeen” to police headquarters, which the majority implies was also a reason for the board’s decision, is clearly not so; the opinion of the board demonstrates that this is not so. The opinion of the board is the following: “In regard to the problem at hand, the Panel finds that the termination of the grievant was proper. The Panel relies on Article VI, Section 8 of the Labor Contract between the parties which states that the Town may terminate a probationary employee at its sole discretion, for any reason whatsoever. This Panel ruled earlier that this matter was arbitrable and that the grievant was entitled to use the grievance procedures set forth in the contract. Although being able to use the grievance procedure, the grievant is not entitled to the protection of just cause as set forth in the grievance procedure. The contract itself must be read as a whole and the grievance procedure as set forth in the contract in relation to probationary officers must be amended and modified by Article VI, Section 8 of the contract. Based on this, the majority of the Panel finds that there was a reason for the grievant’s termination and that the Town did, under Article VI, Section 8 have the right in its sole discretion to terminate the grievant, as he was a probationary officer. The majority of the Panel finds that the reason for the discharge of the grievant, Michael Thompson was for his failure to obey the orders of his superior, Sergeant Sheehan.”

       The board’s finding of facts in full were the following: “Michael Thompson the grievant in this matter was a probationary officer working for the Town of Watertown Police Department. On January 5,1985 the grievant was assigned to patrol with an Auxiliary Officer. The grievant was given orders by his supervisor Sergeant James Sheehan not to make any motor vehicle stops. The reason for this order was that the grievant at the time was involved in receiving training at the Police Academy and the Town did not want the grievant involved in court appearances which would keep him from receiving training at the Academy. The grievant did on January 5, 1985 make a motor vehicle stop and in addition failed to call in a signal seventeen which would indicate to the police department that he was stopping a motor vehicle. The grievant was thereafter terminated by the Water-town Police Department under the provisions of Article VI, Section 8 of the Labor Conract between the parties.”

       Federal and state courts have indicated that labor arbitrators’ awards that contravene public policy may be vacated. See, e.g., Local 453 v. Otis Elevator Co., 314 F.2d 25 (2d Cir.), cert. denied, 373 U.S. 949, 83 S. Ct. 1680, 10 L. Ed. 2d 705 (1963); International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 483 A.2d 626 (1984); Avco Corporation v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961); Black v. Cutter Laboratories, 43 Cal. 2d 788, 278 P.2d 905 (1955), cert. dismissed, 351 U.S. 292, 76 S. Ct. 824, 100 L. Ed. 1188 (1956); Western Union Telegraph Co. v. American Communications Assn., 299 N.Y. 177, 86 N.E.2d 162 (1949).


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Connecticut Light and Power Company v. Department of Public Utility Control et al.
    (13480)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued December 7, 1988
    decision released March 14, 1989

      Allan B. Taylor, with whom was Philip M. Small, senior counsel, for the appellant (plaintiff).

      Phyllis E. Lemell, assistant attorney general, with whom, on the brief, was Joseph I, Lieberman, former attorney general, for the appellee (named defendant).

      Bill Kowalski, with whom, on the brief, was James F. Meehan, for the appellee (defendant division of consumer counsel).

      Robert E. Wright, with whom, on the brief, was Lawrence J. Golden, for the appellee (defendant Southeastern Connecticut Regional Resources Recovery Authority).

      Peter A. Gutermann, with whom, on the brief, was George C. Hastings, for the appellees (intervening defendant town of East Lyme et al.).

      Kathleen Eldergill, for the appellee (intervening defendant town of Preston).
   Covello, J.

This is an appeal from a declaratory ruling of the department of public utility control (DPUC). It comes to us by way of reservation from the Superior Court. The dispositive issue is whether DPUC correctly concluded that General Statutes § 16-243e required the plaintiff, Connecticut Light and Power Company (CL&P), to purchase all of the electrical output of the defendant Southeastern Connecticut Regional Resources Recovery Authority (SCRRRA) at the so-called “municipal rate.” We conclude that General Statutes § 16-243e does not require this and therefore order a remand for further proceedings.

Examination of the record discloses that on June 8, 1987, SCRRRA filed a petition with DPUC pursuant to General Statutes §§ 4-176, 16-243a (c), and 16-243e. The petition sought a declaratory ruling determining the amounts and the prices that CL&P would be required to pay for the electrical output generated by the SCRRRA municipal solid waste disposal facility.

In accordance with General Statutes § 16-2 (c), the matter was assigned to a panel of three of DPUC's five commissioners for a hearing and decision. Pursuant to General Statutes § 16-8 (a), a member of DPUC’s staff, who was also a member of the Connecticut bar, was designated as a hearing examiner to conduct the hearing, ascertain the facts, and make a report thereon to the commissioners. Following six public hearings on the matter, the three commissioners issued their unanimous ruling on October 9,1987. The gravamen of their decision was that General Statutes § 16-243e mandated that (1) the plaintiff CL&P was to purchase all of SCRRRA’s electrical output, and (2) CL&P was to pay SCRRRA for the electricity at the “municipal rate.”

On November 5,1987, CL&P filed an administrative appeal in the Superior Court pursuant to General Statutes §§ 16-35 and 4-183 (a), naming as defendants, DPUC, consumer counsel and SCRRRA. Thereafter, on December 14, 1987, the trial court, Shaughnessy, Jgranted motions to intervene filed by the defendant towns of Groton, Guilford, East Lyme, Griswold, Ledyard, New London, North Stonington, Stonington and Preston. On April 11,1988, pursuant to their stipulation and at the request of all the parties, the court, Allen, J., reserved the matter for the consideration and advice of the Appellate Court in accordance with Practice Book §§ 4147 and 4148. On August 4, 1988, we transferred the matter to ourselves pursuant to Practice Book § 4023.

The defendant SCRRRA is a municipal resource recovery authority established by the joint resolution of its eleven member towns, in accordance with the provisions of General Statutes § 7-273aa. SCRRRA proposes to build in the town of Preston a $72,000,000 private power production facility that is designed to dispose of municipal solid waste. The waste will be burned through the use of a mass-burning grate system and boiler combination to produce steam that will in turn energize turbines and thereby generate electricity. The Preston facility will not only serve the salutary function of producing electricity, but will also provide the member towns with a means of disposing of their solid waste at a time when their available landfill space is dwindling rapidly.

The plaintiff CL&P is a public service company that sells gas and electricity to its various customers throughout Connecticut. It either purchases the electricity at a wholesale price or generates the electricity at a cost that is generally lower than the price for which it sells it to others. In regulatory parlance, this is called the “avoided cost” of the electricity. See General Statutes § 16-243a (a). This must be contrasted with the higher “municipal rate” which is the amount that CL&P charges it municipal customers. See General Statutes § 16-243e, footnote 3, supra.

CL&P’s customers include residents in eight of the eleven communities belonging to SCRRRA. Its service area, however, does not include the town of Norwich, the Jewett City borough of Griswold or the entire city of Groton and a portion of the town of Groton. Approximately 30 percent of the total tonnage to be consumed at the SCRRRA solid waste facility will come from these three communities whose residents are not CL&P customers.

As owner of the proposed private power production facility, SCRRRA will be a private power producer within the meaning of General Statutes § 16-243b (a) (3). CL&P, as a public service company, is required under the provisions of § 16-243a (b) to “[p]urchase any electrical energy and capacity made available, directly by a private power producer [SCRRRA].” The rate to be paid for the electricity generated by the private power producer is to be “based on the full avoided costs of the electric public service company . . . .” General Statutes § 16-243a (c) (2).

SCRRRA’s facility, however, in addition to being a private power production facility will also be a resources recovery facility within the meaning of General Statutes § 22a-260 (11). This being the case, a public service company such as CL&P is required to purchase the electrical output of such a facility “at the same rate that the electric company charges the municipality or municipalities for electricity.” General Statutes § 16-243e. Thus, by paying the higher “municipal rate,” the stockholders and customers of public service companies subsidize the resources recovery facility by purchasing its electrical output at a price higher than the public service company could purchase it or generate it elsewhere.

The DPUC ruling concluded that § 16-243e required CL&P to purchase all of SCRRRA’s electrical output for twenty-five years and to pay for the same at the “municipal rate” for the first twenty years of the contract. Over the term of the contract, the resulting CL&P subsidy is estimated to be $105,000,000.

CL&P appealed this ruling contending that § 16-243e as construed by DPUC: (1) preempts the letter and purposes of the federal Public Utility Regulatory Policies Act of 1978 in violation of the supremacy clause of the United States constitution; (2) violates the commerce clause of the United States constitution; (3) unconstitutionally takes CL&P’s property for public use without just compensation; and (4) unconstitutionally deprives CL&P of the equal protection of the laws. CL&P further argues that DPUC misconstrued § 16-243e in entering its order. We agree with CL&P that the statute was misapplied to the factual circumstances evident here and do not, therefore, reach the constitutional issues raised. We, therefore, remand the matter for further proceedings.

CL&P argued to DPUC that only 70 percent of the municipal solid waste that would fuel the resources recovery facility came from municipalities served by CL&P. CL&P argued that it should therefore have to pay for only 70 percent of the electrical output at the higher municipal rate required by § 16-243e and that it should be able to purchase the remaining 30 percent of the output at the avoided cost rate prescribed by § 16-243a. DPUC rejected this argument stating in its declaratory ruling that “[t]he statute [§ 16-243e] states simply that an electric company ‘purchasing electricity’ shall enter into contracts at the statutory rate. It makes no mention, by way of limitation on this obligation, in regard to where the waste for the electricity originates from.” We disagree.

Generally, this court accords “considerable deference to the construction given a statute by the administrative agency charged with its enforcement.” Sutton v. Lopes, 201 Conn. 115, 120, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986). However, “the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.” Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987).

General Statutes § 16-243e establishes a special rate to be paid by electric companies for the purchase of “electricity generated by a resources recovery facility . . . owned by or operated by or for the benefit of a municipality . . . .” This rate is “the same rate that the electric company charges the municipality or municipalities for electricity.” General Statutes § 16-243e. The special rate to be paid by the electric company under § 16-243e, therefore, is the same rate that it charges the municipality for electricity. We emphasize that these rates are to be equivalent. If the electric company is not charging the municipality anything for its electricity, it follows that the municipality may not charge the electric company under § 16-243e for the electricity it may produce. Since CL&P was charging Groton, Norwich and Jewett City nothing for electricity, CL&P is not required to pay SCRRRA at the municipal rate prescribed in § 16-243e for the 30 percent of its electrical output that is forecast to be generated by the municipal solid waste contributed by those three communities.

This, of course, is not to say that CL&P has no obligation to purchase the electricity. General Statutes § 16-243a (b) provides in relevant part: “Each electric public service company . . . shall: (1) Purchase any electrical energy and capacity made available ... by a private power producer . . . .” General Statutes § 16-243a (c) (2) provides in relevant part: “The rates for electricity purchased from a private power producer shall be based on the full avoided costs of the electric public service company . . . regardless of whether the purchaser [electric public service company] is simultaneously making sales to the private power producer.” Here there is no statutory linkage between the rate paid and the rate charged, simply a clear mandate to purchase all of the electricity at the avoided costs of the electric public service company.

To the reserved question “Does the Decision of the Department of Public Utility Control, dated October 6, 1987, in Docket No. 87-06-12 (‘Decision’) err in interpreting and applying Section 16-243e of the General Statutes by requiring plaintiff The Connecticut Light and Power Company (‘CL&P’) to purchase all of the electricity generated by defendant Southeastern Connecticut Regional Resources Recovery Authority (‘SCRRRA’)?” the answer is “Yes.” There is error and the matter is remanded to DPUC for a recalculation of the rates to be paid by CL&P to SCRRRA through application of both General Statutes § 16-243a and General Statutes § 16-243e.

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 4-176 provides: “declaratory rulings. Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”
      This section was subsequently revised by Public Acts 1988, No. 88-317.

       General Statutes § 16-243a (c) provides in relevant part: “The department of public utility control, with respect to electric public service companies . . . shall establish rates and conditions of service for: (1) The purchase of electrical energy and capacity made available by a private power producer .... The rates for electricity purchased from a private power producer shall be based on the full avoided costs of the electric public service company . . . regardless of whether the purchaser is simultaneously making sales to the private power producer.”

       General Statutes § 16-243e provides: “Any electric company, as defined in section 16-1, purchasing electricity generated by a resources recovery facility, as defined in section 22a-260, owned by or operated by or for the benefit of a municipality or municipalities, shall enter into a contract with the owner of such facility requiring the electric company to purchase such electricity, for a period beginning on the date that the facility begins generating electricity and having a duration of not less than twenty years, at the same rate that the electric company charges the municipality or municipalities for electricity.”

       General Statutes § 16-2 (c) provides: “Any matter coming before the authority may be assigned by the chairperson to a panel of three commissioners, not more than two of whom shall be members of the same political party. Except as otherwise provided by statute or regulation, the panel shall determine whether a public hearing shall be held on the matter, and may designate one or two of its members to conduct such hearing or appoint an examiner to ascertain the facts and report thereon to the panel. The decision of the panel, if unanimous, shall be the decision of the authority. If the decision of the panel is not unanimous, the matter shall be referred to the entire authority for decision.”

       General Statutes § 16-8 (a) provides in relevant part: “The department may designate in specific cases a hearing examiner who may be a member of its technical staff or a member of the Connecticut Bar engaged for that purpose ... to hold a hearing and make report thereon to the department.”

       General Statutes § 16-35 provides in relevant part: “Any company, town, city, borough, corporation or person aggrieved by any order, authorization or decision of the department of public utility control . . . may appeal therefrom in accordance with the provisions of section 4-183.”

       General Statutes (Rev. to 1987) § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision ... is entitled to judicial review by way of appeal under this chapter . . . .”

       Practice Book § 4147 provides in relevant part: “A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered.”

       Practice Book § 4148 provides in relevant part: “Before any question shall be reserved by any court, counsel shall file in that court a stipulation which shall clearly and fully state the question or questions upon which advice is desired.”

       The member towns are East Lyme, Griswold, Groton, Ledyard, Mont-ville, New London, North Stonington, Norwich, Sprague, Stonington and Waterford.

       General Statutes § 7-273aa (b) provides in relevant part: “Any . . . two or more municipalities may, by concurrent ordinances of their legislative bodies, adopt the provisions of this chapter and . . . create a new . . . regional resource recovery authority.”

       General Statutes § 16-243b (a) (1) provides: “ ‘Private power production facility’ means a facility which generates electricity in the state (A) solely through the use of cogeneration technology, provided the average useful thermal energy output of the facility is at least twenty per cent of the total energy output of the facility, (B) solely through the use of renewable energy sources or (C) through both only.”

       General Statutes § 16-243a (a) provides: “As used in this section, ‘avoided costs’ means the incremental costs to an electric public service company, municipal electric energy cooperative organized under chapter 101a or municipal electric utility organized under chapter 101, of electric energy or capacity or both which, but for the purchase from a private power producer, as defined in section 16-243b, such company, cooperative or utility would generate itself or purchase from another source.”

       General Statutes § 16-243b (a) (3) provides in relevant part: “ ‘Private power producer’ means ... (C) ... a political subdivision of the state or any other person, firm or corporation . . . which generates electricity solely through ownership of one hundred per cent or less of a private power production facility . . . .”

       General Statutes § 22a-260 (11) provides: “ ‘Resources recovery facility’ means a facility utilizing processes aimed at reclaiming the material or energy values from solid wastes.”

       General Statutes § 16-243e provides: “Any electric company, as defined in section 16-1, purchasing electricity generated by a resources recovery facility, as defined in section 22a-260, owned by or operated by or for the benefit of a municipality or municipalities, shall enter into a contract with the owner of such facility requiring the electric company to purchase such electricity, for a period beginning on the date that the facility begins generating electricity and having a duration of not less than twenty years, at the same rate that the electric company charges the municipality or municipalities for electricity.”

       Because CL&P has agreed to pay for 70 percent of the electrical output at the higher municipal rate, we need not address the preemption issues that CL&P raises on appeal, “Constitutional issues are not considered unless absolutely necessary to the decision of a case . . . . ” State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974),