Arbitrator Can Set Clear And Convincing Burden Of Proof In Disciplinary Cases

When Officer Kevin Hammond was terminated by the Village of Posen, Illinois Police Department, his labor organization, the Illinois FOP Labor Council, challenged the termination in arbitration. An arbitrator overturned the termination, finding that the Village had not presented “clear and convincing evidence” that termination was warranted.

Discussing the proper quantum of proof, the Arbitrator noted a “widespread recognition” that arbitration of just cause vests the arbitrator with discretion to select the required quantum of proof. The Arbitrator found it “difficult to believe that the sophisticated parties who negotiated this contract did not foresee the likelihood that any experienced arbitrator would probably require more than a mere preponderance of the evidence in a case involving allegations of criminal activity.” The Arbitrator further stated that because a finding that an employee is a thief has particularly severe consequences, “a discharge for theft is distinguishable from other types of cases where a simple preponderance of the evidence will suffice.”

The Village challenged the Arbitrator’s decision in court, arguing that the use of the “clear and convincing evidence” standard violated public policy. The Appellate Court of Illinois rejected the challenge and upheld the Arbitrator’s opinion.

The Court ruled “that selecting a quantum of proof is a legal issue, not a matter of public policy. While there is no precise definition of ‘public policy,’ in general it can be said that public policy concerns what is right and just and what affects the citizens of the state collectively. Determining the quantum of proof is not a matter that affects the public welfare, but is instead a question of law. In the context of arbitration awards, gross errors of judgment in law are not grounds for vacating an award unless the errors are apparent on the face of the award.

“Here, the Arbitrator properly selected a quantum of proof. As a general matter, in arbitration proceedings, the quantum of proof required to support a decision to discharge an employee is unsettled. Generally, it is up to the arbitrator to determine the required quantum of proof. While most arbitrators apply the preponderance of the evidence standard to ordinary discipline and discharge cases, in cases involving criminal conduct or stigmatizing behavior, many arbitrators apply a higher burden of proof, typically a clear and convincing evidence standard. Here, the collective bargaining agreement is silent on the required quantum of proof. Because the parties contracted to have their disputes settled by an arbitrator, rather than a judge, it was the Arbitrator’s view of the contract that the parties agreed to accept, including the required quantum of proof.”

The Court also noted that “it is curious that the Village challenges the award on this basis because the Arbitrator ultimately considered whether the allegations were proven by a preponderance of the evidence – the Village’s desired quantum of proof. In contrast to the Arbitrator’s initial statement that he would apply a clear and convincing evidence standard, in his written decision, the Arbitrator stated that he believed that the evidence ‘preponderates in favor of Hammond’s explanations’ and that ‘the Department cannot carry its burden under any quantum of proof.’ We acknowledge that this approach is unusual. Nonetheless, the Arbitrator’s finding eliminates any grounds for vacating the award based on the quantum of proof. Even if the Arbitrator erred in his initial choice of clear and convincing evidence, any error had no effect because the Arbitrator found that the Village failed to meet its burden by any standard.”

Village of Posen v. Illinois Fraternal Order of Police Labor Council, 2014 Ill. App. 133329 (2014).