Arbitrator Overturns Chief’s Termination

Matthew Cummings was the Chief of Police for the City of Newton, Massachusetts. Allegations of misconduct came to the attention of the Mayor, who retained an outside contractor to undertake an investigation. When it received his report, the City filed five charges of conduct unbecoming a police chief.

At a pre-disciplinary hearing, Cummings called three witnesses, offered no exhibits, and did not testify. The hearing officer found that Cummings had engaged in conduct unbecoming a police chief on five occasions, when he (1) called his secretary a “bitch”; (2) told her she looked like a “whore” in the workplace; (3) remarked to a pregnant police officer, “You look almost as fat as I am”; (4) kicked his secretary, breaking her shoe and injuring her foot; and (5) falsely told his secretary that an “I–Team” was investigating her. The City terminated Cummings that day.

Cummings’ had a contract with the City that called for arbitration of discipline. After a five-day hearing, an arbitrator concluded that Cummings had not committed conduct unbecoming a police chief, and ordered that he be reinstated for the balance of his five-year term and made whole for lost wages and benefits. The City then challenged the Arbitrator’s opinion in court.

A trial court judge ordered the Arbitrator to revisit the case. The trial court ruled that the Arbitrator should have been confined to reviewing the evidence presented at the pre-disciplinary hearing. The Arbitrator reluctantly did so, and again overturned the termination. The City then asked a second judge to overturn the Arbitrator’s opinion.

The Court concluded that the City’s arguments “misunderstood the nature of an arbitration hearing, and the interplay between the contract’s provisions for a hearing before the Mayor can act, and for arbitration to review the Mayor’s action. Nowhere does the contract suggest that if a dispute is arbitrated, the Arbitrator is to be limited to evidence presented in the pre-disciplinary hearing. Such a rule would grant the Hearing Officer the non-reviewable power to exclude material evidence. I am not aware of (and the City does not cite) any precedent suggesting that the Arbitrator should not hear evidence; to the contrary, an arbitrator’s refusal to hear evidence material to the controversy is one of the few grounds for vacating an award. The parties evidently understood this when they willingly participated in five days of evidentiary hearings.

“In short: there never should have been a re-do, and it is therefore the first award that is to be reviewed. There is no evidence of corruption, fraud, or other undue means by a party, or of evident partiality, corruption, or misconduct by the Arbitrator. The Arbitrator did not exceed his powers; nor did he wrongly refuse to postpone a hearing or to consider material evidence (quite the contrary), or otherwise fail to conduct the hearing. There are, in short, no grounds to vacate the award.”

City of Newton v. Cummings, 2016 WL 3344796 (Mass. Super. 2016).