New Haven v. AFSCME, Council 4, Local 3144 ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CITY OF NEW HAVEN v. AFSCME,
COUNCIL 4, LOCAL 3144
(SC 20362)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Keller, Js.
Syllabus
The plaintiff city sought to vacate an arbitration award reinstating the griev-
ant, J, a member of the defendant union, to her employment as executive
director of the city’s Commission on Equal Opportunities. In that posi-
tion, J oversaw construction contract compliance and enforcement of
the chapter of the city’s code of ordinances that requires building con-
tractors doing business with the city to hire certain percentages of
women, minorities and city residents. The union filed a grievance, claim-
ing that the city did not have just cause to terminate J’s employment.
Thereafter, pursuant to the parties’ collective bargaining agreement, the
matter proceeded to a hearing before an arbitration panel, which issued
an award in which it found that the city had proven only three of
the eleven factual claims that it had asserted justified J’s termination,
specifically, that she failed to comply with a certain request for informa-
tion during the city’s investigation of the relationship between the com-
mission and a certain training and employment program created and
funded by the city, which was operated under the auspices of the com-
mission, until it was spun off into a legally separate private entity, that
she formed C Co., a private company that advertised contract compliance
services in Connecticut, without informing the city, and that she issued
four memoranda under her signature soliciting donations for the subject
program from contractors in lieu of fines, despite having been warned
by the city’s corporation counsel office that doing so could expose her,
commission staff or the city to potential claims of bribery. The panel
concluded that, although J’s misconduct was serious in nature, the city
was not justified in terminating J’s employment. The panel, therefore,
ordered that J be reinstated to her position; however, she did not receive
two years of back pay and benefits. The city filed an application to
vacate the award, claiming that the award violated the clear public
policy prohibiting unethical, unlawful and/or illegal conduct by public
officials. The union, in turn, filed an application to confirm the award.
Following a hearing, the trial court rendered judgment granting the
union’s application to confirm the award and denying the city’s applica-
tion to vacate the award, from which the city appealed. Held that the trial
court properly confirmed the arbitration award and correctly determined
that the award did not violate public policy, the city having failed to meet
its burden of demonstrating that the reinstatement of J’s employment
violated public policy: although the statutory, regulatory and decisional
law of Connecticut evinces an explicit, well-defined and dominant public
policy against public corruption in all of its forms, this court’s review
of the applicable factors governing whether termination of employment
is the sole means to vindicate public policy indicated that the arbitration
award reinstating J did not violate those public policies, as the record
revealed that, with respect to the only relevant findings of misconduct,
namely, those related to J’s formation of C Co. and her issuing four
memoranda under her signature soliciting donations, the provisions
of the city’s ethics ordinance prohibiting conflicts of interest or the
appearance of any such conflicts did not require termination of employ-
ment but, rather, permitted the imposition of discipline up to and includ-
ing removal from office only for certain specified offenses, none of
which were implicated in this case, and the city identified no provision
of the collective bargaining agreement, employee regulation or city ordi-
nance that requires the termination of employment for employees who
disregard the advice of the corporation counsel’s office; moreover,
although J’s employment arguably implicated the public trust, it did not
bring her into contact with vulnerable populations or involve public
safety or any other essential public service and the city presented no
evidence that her employment involved significant fiscal responsibilities,
fiduciary duties, access to financial records or control over public
finances, and J’s conduct, although serious, was not so egregious that
an award reinstating her employment but docking her two years of pay,
could not vindicate the relevant public policies and send a powerful
message to other municipal employees and the public at large that
similar conduct will not be tolerated; furthermore, there was nothing
in the record to suggest that J was incorrigible, but, rather, to the
contrary, during the nearly twenty years that she worked for the city,
J had a spotless employment record and was cited on several occasions
for her high ethical standards, and her amenability to discipline was
demonstrated by the fact that she did not appeal from the arbitration
award, which imposed one of the most severe punishments short of
termination ever meted out in an arbitration proceeding conducted pur-
suant to a collective bargaining agreement; additionally, the city’s con-
tention that a public sector employer should not have to countenance
conduct by an executive level employee in a fiscally sensitive position
that has a negative impact on public accountability and public confidence
was unavailing, as it is well established that general notions of public
good, public accountability or public trust are insufficient grounds for
invoking the extremely narrow public policy exception to judicial
enforcement of arbitral awards.
Argued October 13, 2020—officially released March 4, 2021*
Procedural History
Application to vacate an arbitration award, brought
to the Superior Court in the judicial district of New
Haven, where the defendant filed an application to con-
firm the award; thereafter, the case was tried to the
court, Abrams, J.; judgment denying the plaintiff’s
application to vacate and granting the defendant’s appli-
cation to confirm, from which the plaintiff appealed.
Affirmed.
Proloy K. Das, with whom, on the brief, was Chelsea
K. Choi, for the appellant (plaintiff).
Kimberly A. Cuneo, with whom was J. William
Gagne, Jr., for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, the city of New Haven (city),
appeals1 from the judgment of the trial court granting
the application of the defendant, AFSCME, Council 4,
Local 3144 (union), to confirm an arbitration award
reinstating the grievant, Nichole Jefferson, a member
of the union, to her employment as executive director
of the city’s Commission on Equal Opportunities (com-
mission) and denying the city’s corresponding applica-
tion to vacate the award on public policy grounds. On
appeal, the city claims that the trial court incorrectly
determined that the award did not violate public policy.
We disagree and, accordingly, affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. At all times relevant
to this appeal, the city and the union were parties to a
collective bargaining agreement that provided for final
and binding arbitration of disputes arising under the
agreement. Jefferson was employed by the city from
March 6, 1996, until her termination on August 5, 2015.
During that time, she enjoyed an excellent employment
record, won various awards and was promoted five
times, the last time, in 2001, to the position of executive
director of the commission. The commission is com-
prised of a nine member board of commissioners
(board), eight of whom are appointed by the mayor,
with the remaining member chosen by the Board of
Aldermen from its number.2 As executive director of the
commission, Jefferson oversaw construction contract
compliance3 and enforcement of chapter 12 1/2 of the
New Haven Code of Ordinances, which requires build-
ing trade contractors doing business with the city to
hire certain percentages of women, minorities and New
Haven residents. In addition to its enforcement powers,
the commission is responsible for sponsoring educa-
tional programs, providing resources and expanding
outreach efforts in all segments of society to eliminate
discrimination within the city. Although commission
staff can recommend fines for violations of chapter 12
1/2, the board has the final say as to whether any such
fines will be imposed.4 As executive director of the
commission, Jefferson reported to the board as well as
to the city’s economic development administrator.
In 2013, the city elected a new mayor, who was sworn
in in January, 2014. At the request of the outgoing admin-
istration, Jefferson prepared transition documents for
the new mayor to familiarize her with the commission,
its organizational structure and responsibilities. The
documents contained numerous references to the ‘‘Con-
struction Workforce Initiative 2’’ (CWI2), a program
created by the city in the early 2000s to provide training
and employment opportunities in the construction
industry for disadvantaged low to moderate income city
residents. CWI2 was funded by the city and operated
under the auspices of the commission until 2011, at
which time it was spun off, at the direction of the city,
into a legally separate, nonprofit entity.5 According to
the arbitration award, after being ‘‘spun off, CWI2 was
always intended to be the recipient of city assistance
and resources, includ[ing] services provided by . . .
city paid employees whose salaries were funded in part
from fines and donations received by [the commission]
and funds received by CWI2 but turned over to the city
. . . .’’ (Citation omitted.) It was also intended that
commission staff would continue to ‘‘perform duties for
[the commission] and CWI2 simultaneously.’’ (Internal
quotation marks omitted.)
Upon review of the transition documents submitted
by Jefferson, the new mayor ordered an investigation
into the relationship between the commission and
CWI2. According to the arbitration award, the city’s then
corporation counsel, Victor Bolden, retained outside
counsel to conduct the investigation. ‘‘Over the next
few months, the office of corporation counsel reviewed
the documents received by [outside counsel], including
grant applications [that Jefferson had prepared] on
behalf of CWI2, documents produced by the mayoral
transition, and the documents provided by . . . Jeffer-
son.’’ (Internal quotation marks omitted.) On March 18,
2015, Matthew Nemerson, the then newly appointed
economic development administrator, placed Jefferson
on administrative leave. On August 6, 2015, following
a Loudermill hearing,6 the city sent Jefferson a letter
terminating her employment. The letter stated in rele-
vant part:
‘‘You have violated the [c]ity’s [c]ode of [e]thics and
abused your power as the [e]xecutive [d]irector of the
[commission]. You have engaged in intimidation,
attempted bribery and corruption with contractors
doing business with the [c]ity of New Haven, namely,
Lab Restoration and Construction, [LLC], John Moriarty
and Associates, Inc., and Tri-Con Construction Manag-
ers, LLC.
‘‘You used [c]ity time and resources to create and
operate a separate entity, [Career Compliance Place-
ment, LLC (CCP)]. At no time did you disclose that you
created such an entity.
‘‘You operated a private entity, [CWI2], and through
misrepresentations used the [c]ity to further benefit
your private entity.7 You even sought donations for your
private entity from the contractors whose employment
practices you were entrusted to enforce [while] affiliat-
ing yourself with the [c]ity despite being warned not
to do so. You also misrepresented to the [s]tate when
applying for grant funds [for] your private entity.
‘‘You failed to cooperate with this investigation while
on paid leave. You failed to comply with . . . Nemer-
son’s May 13, 2015 requests for information highly perti-
nent to this investigation. You failed to attend investiga-
tory meetings in connection with this report. You failed
to cooperate in the June 9, 2015 investigatory interview
as clearly set forth in the audio of that interview.’’ (Foot-
note added.)
On August 6, 2015, the union filed a timely grievance,
claiming that the city did not have just cause to termi-
nate Jefferson. After exhausting internal grievance pro-
cedures, the union invoked its contractual right to sub-
mit the matter to the state Board of Mediation and
Arbitration for arbitration before a panel of three arbi-
trators (panel). In its brief to the panel, the union
argued, inter alia, that the city had ‘‘justified its investi-
gation of . . . Jefferson upon an obvious fallacy and
pretext,’’ namely, ‘‘the [need for] an investigation into
the relationship between . . . Jefferson, the [commis-
sion] and CWI2’’ and that ‘‘[n]o such investigation was
ever justified because the [c]ity had . . . [itself] cre-
ated, fostered and maintained the relationship between
CWI2 and the [c]ity.’’ The union further argued that the
city’s claims that Jefferson engaged in acts of intimida-
tion, attempted bribery and corruption toward various
contractors were wholly unfounded. Finally, the union
asserted that Jefferson had formed CCP ‘‘with the
expressed permission of the [c]ity’s [d]eputy [c]orpora-
tion [c]ounsel, John Ward, in 2008’’ and annually dis-
closed her consulting work to the city’s labor relations
and human resources offices.
Following eighteen days of hearings, the parties sub-
mitted the following unrestricted submission to the
panel: ‘‘Did the [city] have just cause to terminate . . .
Jefferson’s employment on August 6, 2015? If not, what
shall the remedy be?’’ On March 27, 2018, the panel
issued a thirty-seven page decision in which a majority
of the panel found that the city had proven only three
of the eleven factual claims8 that it had argued justified
Jefferson’s termination. Specifically, the panel found
that the city had proven that, although Jefferson had
‘‘received city authorization to provide consulting ser-
vices’’ in New York, she ‘‘did not receive authorization,
nor did she disclose that she [had] formed [CCP], a
Connecticut LLC that advertise[s] contract [compli-
ance] services, which could . . . lead to the appear-
ance of impropriety and a conflict of interest as defined
and argued by the city . . . .’’9 (Internal quotation
marks omitted.) The panel found that ‘‘the [city’s] ethics
ordinance establishes standards of conduct that require
city employees to ‘be impartial and responsive to the
public interest’ without regard ‘to personal gain or
advantage.’ And, as argued by the city, the advertising
of contract compliance service in . . . Connecticut
represents a conflict of interest as defined by the city’s
ethics ordinance.’’ The panel further found, however,
that ‘‘there [was] no evidence’’ that Jefferson ever pro-
vided any such services in Connecticut or ever intended
to deceive the city about CCP’s existence, which, the
panel added, ‘‘was a matter of public record.’’ According
to the arbitration award, ‘‘Jefferson testified that she
formed CCP . . . as a limited liability company [in
Connecticut] because she had to form [the company]
in . . . the state where [she] live[d] and that she could
not perform consulting . . . in New York as Nichole
Jefferson because ‘you [have] to be a company.’ ’’ She
further testified that, in January, 2008, she e-mailed
Ward requesting permission to perform ‘‘consultation
work for [national builder and developer] Gilbane [Inc.]
. . . in . . . New York’’ and was told by him ‘‘that her
consultancy with Gilbane [Inc.] was acceptable pro-
vided it . . . was not in . . . Connecticut.’’ (Internal
quotation marks omitted.)
The panel also found that the city had proven that,
while on administrative leave, Jefferson had ‘‘fail[ed]
to comply with . . . Nemerson’s May 13, 2015 request
for information,’’ and, therefore, she ‘‘did not cooperate
with the investigation,’’ as required by the collective
bargaining agreement. The panel further found, how-
ever, as a ‘‘mitigating circumstance,’’ that Jefferson had
followed the union’s advice with respect to this request.
Finally, the panel found that the city had proven that,
in 2008, ‘‘Jefferson, by means of issuing four letters
under her signature, sought donations for CWI2 from
the contractors whose employment practices [she] was
entrusted to enforce . . . despite being warned not to
do so.’’ (Internal quotation marks omitted.) The evi-
dence presented to the panel established that, on or
about June 6, 2005, Jefferson requested and received
permission from the city’s Board of Aldermen ‘‘to accept
outside funds, gifts, and bequests from public or private
sources’’ to be used ‘‘to enhance the resident manpower
and training programs sponsored by the city . . .
[through CWI2].’’10 Subsequently, in late 2005, Jefferson
asked the corporation counsel’s office ‘‘if [the commis-
sion] could collect charitable donations from contrac-
tors in lieu of penalties for noncompliance with [chap-
ter] 12 1/2.’’ After researching the issue, Kathleen
Foster, the city’s then deputy corporation counsel,
issued a memorandum on February 23, 2006, in which
she stated in relevant part: ‘‘In the absence of . . .
specific [legal] authority . . . [providing] that [the
commission] . . . may arrange for charitable contribu-
tions in lieu of penalties, we believe that any such action
could expose the commission, the [c]ity and/or any
individual involved to civil claims and potential criminal
charges for bribery or solicitation of bribery, notwith-
standing their lack of criminal intent. I urge [the com-
mission’s] enforcement counsel, Attorney [Evans]
Jacobs, to examine this issue carefully in the context
of any pending disputes. [The commission’s] ability to
lawfully accept gifts or contributions to fulfill its pur-
poses is a separate legal issue from whatever considera-
tions or actions it may make to resolve violations of
[c]hapter 12 1/2. Acceptance of gifts or contributions,
again, would require the approval of the [city’s] Board
of Aldermen.’’
According to the arbitration award, in connection
with this claim, the city also presented ‘‘an August 14,
2008 [m]emorandum of [u]nderstanding [(memoran-
dum)] . . . as well as three additional [memoranda]
issued on or about September 30, 2008, and November
13, 2008, all stating that noncompliance issues could
be resolved with donations to the Career Development
School [(school)], a CWI2 program, in lieu of the fines
authorized by the . . . [c]ommission. . . . [E]ach of
the [memoranda] . . . were under . . . Jefferson’s
signature and did not contain a notation copying other
individuals.’’ (Citation omitted; internal quotation
marks omitted.) One such memorandum stated in rele-
vant part: ‘‘Barret[t], Inc., and their associates Zeldes,
Needle and Cooper, [P.C.], shall make donation[s] [i]n
the amount of ($10,000.00) ten thousand and
([$]5,000.00) . . . five thousand dollars respectively to
the [school]; Barrett, [Inc.], further agrees to remove
all unauthorized workers, if any, from the Eastview
Terrace Construction site. Satisfying these two stipula-
tions will bring Barrett, [Inc.], into full compliance in
relation to this project.’’ The memorandum further
stated that it was subject to ratification by the board
and that ‘‘Jefferson, as the [e]xecutive [d]irector, recom-
mended ratification by the [board].’’ In its brief to the
panel, the city argued that the memoranda established
that ‘‘Jefferson was . . . soliciting donations from con-
tractors while she was carrying [out] her enforcement
duties for [the commission] in defiance of the direct
advice from [the] [c]orporation [counsel’s] office.’’
According to the city, although it was perfectly proper
for Jefferson to solicit donations from the contractors—
indeed, under chapter 12 1/2, article I, § 12 1/2-5, of the
New Haven Code of Ordinances; see footnote 10 of this
opinion; it was her ‘‘duty’’ to do so—it was improper
for her to solicit them in lieu of fines.
Before the panel, the union argued that ‘‘Foster’s
letter on charitable contributions . . . did not forbid
donations but instead stated that such donations could
be solicited only with Board of Aldermen approval,’’
and that the Board of Alderman had ‘‘passed such an
order expressly authorizing donations . . . [and]
thereafter adopted budgets expressly accounting for
the potential of such donations . . . .’’ (Citation omit-
ted.) In siding with the city on this issue, the panel
rejected the union’s interpretation of Foster’s letter,
concluding, instead, that the letter made clear that
whether the commission could accept donations and
whether it could accept donations in lieu of fines were
two separate issues. The panel noted, however, that
‘‘there is no evidence as to what eventuated from the
[memoranda in question]. Nevertheless, the [memo-
randa] appear to clearly amount to an attempt to solicit
donations in lieu of fines which [as the city argued]
‘could expose [the city and/or individual employees] to
charges of bribery or solicitation of bribery.’ . . . And,
as the [memoranda] appeared under . . . Jefferson’s
signature, a majority of the panel conclude[d] that . . .
Jefferson, as with the case of most [e]xecutive [d]irec-
tors, and absent other evidence regarding the back-
ground of the [memoranda in] question, bears . . .
responsibility for them.’’ (Citation omitted.)
The panel next considered Jefferson’s employment
record with the city, noting the numerous awards and
citations she had received throughout her career, as
well as several positive performance evaluations rating
her ‘‘[e]xcellent’’ in the category of ‘‘[e]thics and [g]ov-
ernment’’ and describing her as exhibiting ‘‘ ‘strong ethi-
cal behavior’ ’’ in her work. In light of these and other
findings, the panel concluded that the city was not justi-
fied in terminating Jefferson’s employment. Specifi-
cally, the panel stated: ‘‘It is said to be axiomatic that
the degree of penalty shall be in keeping with the seri-
ousness of the offense. . . . [After] [t]horough consid-
eration [of the] seriousness of the proven offenses . . .
the panel concluded that, though those offenses are of a
serious nature, they are not individually or cumulatively
extreme to the point of justifying termination from
employment. . . .
‘‘The panel has devoted thorough consideration to all
of the available documentary and testimonial evidence
that has been presented by the parties. The panel has
also thoroughly considered the nature and the seri-
ousness of the offenses that the city has identified, and
met the burden of [proving], and . . . has weighed
[the] same in light of . . . Jefferson’s employment
record, and length of service. . . . Accordingly, a
majority of the panel has concluded . . . [that] Jeffer-
son shall be reinstated to the position of executive
director of the [commission], and the city shall restore
back pay, minus interim earnings, and . . . Jefferson
shall otherwise be made whole of contractual benefits
for the period starting on August 1, 2017, through [the]
date of reinstatement. In the event that . . . Jefferson
has . . . receive[d] state unemployment compensation
[during] the stipulated period, that compensation shall
not be deducted.’’ (Citations omitted; internal quotation
marks omitted.) Thus, pursuant to the award, Jefferson
did not receive back pay and benefits for the two year
period beginning on August 5, 2015, the date of her
termination, and ending on August 1, 2017.
On April 25, 2018, the city, pursuant to General Stat-
utes § 52-418, filed a timely application to vacate the
arbitration award, claiming that the award violated the
clearly defined and dominant public policy prohibiting
‘‘unethical, unlawful and/or illegal conduct’’ by public
officials, as set forth in chapter 12 5/8 of the New Haven
Code of Ordinances,11 the city’s ethics ordinance; the
Connecticut Code of Ethics for Public Officials, General
Statutes § 1-79 et seq.; and General Statutes §§ 53a-14812
and 53a-161,13 which govern the solicitation or receipt
of bribes by public officials and employees. On October
4, 2018, the union, pursuant to General Statutes § 52-
417, filed an application to confirm the award, which
the city opposed for the reasons set forth in its applica-
tion to vacate the award.
Following a hearing, the trial court issued an order
granting the union’s application to confirm the award
and denying the city’s corresponding application to
vacate. The trial court’s order stated in relevant part:
‘‘While the city identifies a number of issues with the
award, the only issue that it deals with in detail is its
claim that the award violated public policy. In such
cases, the court must first determine whether the award
does, indeed, implicate an explicit, well-defined and
dominant public policy, and, if so, then the court must
determine whether the award violates that policy.’’
Although the court agreed with the city that the issues
addressed in the award raised ‘‘strong public policy
concerns,’’ it disagreed that the only way to vindicate
those concerns was for the city to terminate Jefferson’s
employment.
In reaching its decision, the trial court noted that, in
Burr Road Operating Co. II, LLC v. New England
Health Care Employees Union, District 1199, 316
Conn. 618, 114 A.3d 144 (2015), this court identified
four factors (Burr factors) courts should consider in
determining whether termination of employment is the
sole means to vindicate an important public policy: ‘‘(1)
any guidance offered by the relevant statutes, regula-
tions, and other embodiments of the public policy at
issue; (2) whether the employment at issue implicates
public safety or the public trust; (3) the relative egre-
giousness of the grievant’s conduct; and (4) whether the
grievant is incorrigible.’’ Id., 634. Without specifically
addressing all of the Burr factors,14 the trial court con-
cluded that ‘‘the violation of public policy at issue in
this case does not mandate termination . . . .’’ Specifi-
cally, the trial court stated: ‘‘While the court finds that
there was actual harm sufficient to consider the behav-
ior at issue egregious,’’ there was ‘‘insufficient support
for the argument that . . . Jefferson would not
respond appropriately to progressive workplace disci-
pline, and, as a result, [the court] cannot find her ‘incor-
rigible.’ ’’
On appeal, the city contends that the trial court incor-
rectly determined that Jefferson’s reinstatement did not
violate public policy merely because there is no evi-
dence that Jefferson is incorrigible. The city argues,
inter alia, that the trial court’s decision is untenable in
light of the city’s claim that the conduct that led to
Jefferson’s termination violated and implicated state
and local ethics laws and criminal statutes. The city
further argues that a public sector employer should not
be required to prove that an employee ‘‘who held a
fiscally sensitive position of public trust and engaged in
egregious conduct’’ that included ‘‘acts of intimidation,
attempted bribery, corruption, and misuse of city time
and resources,’’ will not reoffend before it may termi-
nate that employee. The city contends that the four
factor test set forth in Burr Road Operating Co. II, LLC,
does not adequately address a public sector employer’s
need to maintain and promote public accountability
and that, in cases involving public sector employers,
courts ‘‘should consider the impact on public account-
ability or public confidence as a factor in its own
right . . . .’’
The union responds, inter alia, that the trial court
correctly determined that termination of Jefferson’s
employment was not required to vindicate the public
polices at issue. The union contends that the city, in
arguing to the contrary, incorrectly states that the trial
court ‘‘found’’ that Jefferson had violated various state
and local laws, when, in fact, the court merely observed
that ‘‘the issues raised implicate strong public policy
concerns.’’ Indeed, the union argues that the city, in its
brief to this court, ‘‘takes its own argument and makes
it seem as if [the trial court agreed with it],’’ when, in
fact, the trial court expressed no such agreement. The
union also asserts that the city’s brief is replete with
factual assertions, including that Jefferson engaged in
‘‘acts of intimidation, attempted bribery, corruption,
and misuse of city time and resources,’’ that completely
disregard the actual findings of the arbitration panel,
which were to the contrary. We agree with the union.
At the outset, we set forth the standard of review.
‘‘When the parties agree to arbitration and establish the
authority of the arbitrator through the terms of their
submission, the extent of our judicial review of the
award is delineated by the scope of the parties’ agree-
ment. . . . When the scope of the submission is
unrestricted, the resulting award is not subject to de
novo review even for errors of law so long as the award
conforms to the submission. . . . Because we favor
arbitration as a means of settling private disputes, we
undertake judicial review of arbitration awards in a
manner designed to minimize interference with an effi-
cient and economical system of alternative dispute reso-
lution. . . . Accordingly, the factual findings of the
arbitrator . . . are not subject to judicial review. (Cita-
tion omitted; internal quotation marks omitted.) Nor-
walk Police Union, Local 1727, Council 15, AFSCME,
AFL-CIO v. Norwalk, 324 Conn. 618, 628,153 A.3d 1280(2017). ‘‘[I]n applying this general rule of deference to
an arbitrator’s award, [e]very reasonable presumption
and intendment will be made in favor of the [arbitral]
award and of the arbitrators’ acts and proceedings. . . .
‘‘We have recognized, however, that an arbitration
award should be vacated when, inter alia, it violates
clear public policy. . . . When a challenge to a consen-
sual arbitration award raises a legitimate and colorable
claim of violation of public policy, the question of
whether the award violates public policy requires de
novo judicial review.15 . . .
‘‘The public policy exception applies only when the
award is clearly illegal or clearly violative of a strong
public policy. . . . A challenge that an award is in con-
travention of public policy is premised on the fact that
the parties cannot expect an arbitration award approv-
ing 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. . . . When a challenge to the arbitrator’s author-
ity 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.
. . . Accordingly, the public policy exception to arbitral
authority should be narrowly construed and [a] court’s
refusal to enforce an arbitrator’s interpretation of [a
collective bargaining agreement] is limited to situations
where the contract as interpreted would violate some
explicit public policy that is [well-defined] and domi-
nant, and is to be ascertained by reference to the laws
and legal precedents and not from general considera-
tions of supposed public interests. . . .
‘‘The party challenging the award bears the burden
of proving that illegality or conflict with public policy
is clearly demonstrated. . . . [G]iven the narrow scope
of the public policy limitation on arbitral authority, the
trial court’s order [confirming] the arbitrator’s award
should be [reversed] only if the plaintiff demonstrates
that the . . . award clearly violate[d] an established
public policy mandate. . . . As we repeatedly have
emphasized, implicit in the stringent and narrow con-
fines of this exception to the rule of deference to arbitra-
tors’ determinations, is the notion that the exception
must not be interpreted so broadly as to swallow the
rule.’’ (Citations omitted; footnote altered; internal quo-
tation marks omitted.) State v. Connecticut Employees
Union Independent, 322 Conn. 713, 721–22, 142 A.3d
1122 (2016).
Consistent with the foregoing law, the sole issue
before us is whether the panel’s award reinstating Jef-
ferson to employment 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 determines whether an
explicit, well-defined and dominant public policy can be
identified. If so, the court then decides if the arbitrator’s
award violated [that] policy.’’ (Internal quotation marks
omitted.) Id., 723.
In the present case, the city argues that the dominant
public policies implicated in this appeal are set forth
in the bribery statutes applicable to public servants and
employees; see footnotes 12 and 13 of this opinion; and
in the city’s ethics ordinance, particularly the provisions
requiring city employees to avoid conflicts of interest,
impropriety or the appearance of impropriety. See foot-
note 11 of this opinion. We agree with the city that the
statutory, regulatory and decisional law of Connecticut
evinces an explicit and well-defined public policy
against public corruption in all of its forms; see, e.g.,
Statewide Grievance Committee v. Ganim, 311 Conn.
430, 462, 87 A.3d 1078 (2014) (‘‘[g]overnment corruption
breeds cynicism and mistrust of elected officials . . .
[and] has the potential to shred the delicate fabric of
democracy by making the average citizen lose respect
and trust in elected officials’’ [internal quotation marks
omitted]); and in favor of imposing strong ethical stan-
dards on government officials. See, e.g., General Stat-
utes § 1-79 et seq. (establishing code of ethics for state
public officials); General Statutes § 7-148h (authorizing
establishment of municipal ethics commissions).
Because the existence of these important public poli-
cies is not in dispute, we turn to the question of whether
the panel’s award violated them.
In making this determination, we are mindful that
‘‘the fact that an employee’s misconduct implicates pub-
lic policy does not require the arbitrator to defer to the
employer’s chosen form of discipline for such miscon-
duct. As the United States Supreme Court has held, an
arbitrator is authorized to disagree with the sanction
imposed for employee misconduct. United Paperwork-
ers International Union, AFL-CIO v. Misco, Inc., 484
U.S. 29, 41, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987). . . .
[Thus] [t]he arbitrator has the authority to choose the
appropriate form of discipline even when the employee
misconduct implicates public policy.’’ (Citation omit-
ted; internal quotation marks omitted.) State v.
AFSCME, Council 4, Local 391, 309 Conn. 519, 532, 69
A.3d 927 (2013); see also State v. Connecticut Employ-
ees Union Independent, supra, 322 Conn. 739 (empha-
sizing that ‘‘public policy based, judicial second-guess-
ing of arbitral awards reinstating employees is very
uncommon and is reserved for extraordinary circum-
stances’’). ‘‘The party seeking to vacate an award
reinstating a terminated employee bears the burden of
proving that nothing less than . . . termination of . . .
employment will suffice given the public policy at
issue.’’ (Internal quotation marks omitted.) State v.
Connecticut Employees Union Independent, supra,
725.
As previously indicated, this court has identified four
factors ‘‘a reviewing court should consider when evalu-
ating a claim that an arbitration award reinstating a
terminated employee violates public policy . . . .
[They are]: (1) any guidance offered by the relevant
statutes, regulations, and other embodiments of the
public policy at issue; (2) whether the employment at
issue implicates public safety or the public trust; (3)
the relative egregiousness of the grievant’s conduct;
and (4) whether the grievant is incorrigible.’’ (Citation
omitted; internal quotation marks omitted.) Id., 725–26.
‘‘The first factor requires us to consider whether the
relevant statutes, regulations, and other manifestations
of the public policy at issue themselves recommend or
require termination of employment as the sole accept-
able remedy for a violation thereof. . . . Put differ-
ently, we ask whether the offense committed by the
employee involves the sort of conduct the law deems
to be inexpiable, or that would expose the employer
to substantial liability if it were to reoccur. . . .
Whether sources of public policy themselves mandate
termination is a question of law subject to plenary
review.’’ (Citations omitted; internal quotation marks
omitted.) Burr Road Operating Co. II, LLC v. New
England Health Care Employees Union, District 1199,
supra, 316 Conn. 634–35.
In considering this factor, we note that Jefferson was
found to have engaged in three types of misconduct:
(1) failing to respond to Nemerson’s May 13, 2015
request for information, (2) forming CCP, a private com-
pany that advertised contract compliance services in
Connecticut, without informing the city that she had
done so, and (3) ‘‘by means of issuing four [memoranda]
under her signature, ‘[seeking] donations for CWI2 from
the contractors whose employment practices [she] was
entrusted to enforce . . . .’ ’’ Because the city does
not argue that the first finding implicates the type of
dominant and well-defined policy that the public policy
exception is intended to vindicate, we confine our anal-
ysis to the latter two findings.
With respect to Jefferson’s formation of CCP, the city
argues that this act violated provisions of the city’s
ethics ordinance prohibiting conflicts of interest or the
appearance of any such conflicts. A review of the city’s
ethics ordinance reveals, however, that it does not
require termination of employment for the conduct at
issue but, rather, permits ‘‘an appropriate authority to
impose discipline’’ up to and including removal from
office only for certain specified offenses, none of which
is implicated in this appeal.16 New Haven Code of Ordi-
nances, c. 12 5/8, § 12 5/8-8 (i); see State v. Connecticut
Employees Union Independent, supra, 322 Conn.
726–27 (public policy did not mandate termination of
state employee who had been caught smoking mari-
juana at work because relevant state regulations and
drug-free workplace policy provided that state employ-
ees may be disciplined short of termination for use of
illegal drugs while on duty); State v. New England
Health Care Employees Union, District 1199, AFL-
CIO, 271 Conn. 127, 136–37, 140, 855 A.2d 964 (2004)
(public policy did not mandate termination of state
employee who deliberately shoved client into chair,
causing him injury).
With respect to the panel’s finding that Jefferson
attempted to solicit donations in lieu of fines, which
the city argues could have exposed the city or commis-
sion staff to charges of bribery or solicitation of bribery,
we conclude that the strong public policy against the
solicitation or acceptance of bribes by public officials
would be violated by any discipline short of termination
if the panel had found that Jefferson had solicited or
accepted a bribe. See, e.g., Groton v. United Steelwork-
ers of America, 254 Conn. 35, 46–47, 757 A.2d 501 (2000)
(reinstatement of municipal employee convicted of
embezzling money from employer ‘‘violated the clear
public policy against embezzlement, [which] encom-
passes the policy that an employer may not be required
to reinstate the employment of one who has been con-
victed of embezzlement of his employer’s funds’’). As
the union contends, however, the panel made no such
finding. Indeed, the panel rejected the city’s only claim
alleging that Jefferson solicited a bribe (as opposed to a
donation in lieu of a fine), concluding that the evidence
simply did not support it.17 We are bound by that factual
determination. See, e.g., AFSCME, Council 4, Local
1565 v. Dept. of Correction, 298 Conn. 824, 837, 6 A.3d
1142 (2010) (in determining whether arbitration award
violated public policy, reviewing court was bound by
arbitration panel’s factual findings regarding nature of
employee’s misconduct); see also C. R. Klewin North-
east, LLC v. Bridgeport, 282 Conn. 54, 97, 919 A.2d 1002(2007) (‘‘even if [we] . . . were to assume . . . that
there exists an explicit, well-defined, and dominant pub-
lic policy against enforcing illegally procured contracts,
[we] would defer to the arbitrator’s factual findings
under this court’s standard of review of the narrow
public policy exception . . . that the contract [at issue]
was not illegally procured’’ (internal quotation marks
omitted)).
Rather, the panel found that, because they ‘‘appeared
under [her] signature,’’ Jefferson ‘‘[bore] . . . responsi-
bility’’ for four memoranda written in 2008 that ‘‘appear
to clearly amount to an attempt to solicit donations in
lieu of fines,’’ despite having been warned by Foster,
the deputy corporation counsel, that doing so ‘‘could
expose the [commission], the city and/or any individual
involved to civil claims and potential criminal charges
for bribery or solicitation of bribery, notwithstanding
their lack of criminal intent.’’ In other words, the panel
found that Jefferson ignored Foster’s legal advice and,
in doing so, could have exposed herself, her staff or
the city to potential claims of bribery—meritorious or
not—a serious disciplinary matter perhaps, but one
clearly governed by the disciplinary procedures out-
lined in the parties’ collective bargaining agreement,
not the state’s bribery statutes. The city has identified
no provision of that agreement or an employee regula-
tion or ordinance that requires termination of employ-
ment for employees who disregard the advice of the
corporation counsel’s office.18 As previously indicated,
the panel also found that there was no evidence that
the memoranda actually resulted in the receipt of dona-
tions to CWI2 in lieu of fines. In light of the foregoing,
we conclude that the first Burr factor does not support
vacating the panel’s award.
The second factor we consider is ‘‘whether the nature
of the employment at issue implicates public safety or
the public trust.’’ Burr Road Operating Co. II, LLC v.
New England Health Care Employees Union, District
1199, supra, 316 Conn. 635. As we previously have
explained, ‘‘in the vast majority of cases in which courts
have vacated for public policy reasons arbitration
awards reinstating terminated employees, the grievant
has been a public sector employee, primarily working
in fields such as law enforcement, education, transpor-
tation, and health care, in other words, fields that cater
to vulnerable populations or help ensure the public
safety. . . . This reflects the fact that the threat to pub-
lic policy involved in reinstating a terminated employee
is magnified when the offending employee provides
an essential public service, and especially when he is
employed by, represents, and, ultimately, is answerable
to the people.’’ (Citations omitted.) Id., 635–36. ‘‘This
factor . . . hinges on general questions of law and pol-
icy and is, therefore, subject to plenary judicial review.’’
Id., 637.
It is undisputed that Jefferson’s employment did not
bring her into contact with vulnerable populations or
involve public safety or any other essential public ser-
vice. The city argues, nonetheless, that the second fac-
tor is satisfied because ‘‘[Jefferson’s] reinstatement
. . . put her back into [a position that] involves policy
making, significant fiscal responsibility, fiduciary
responsibilities, and access to financial records,’’ all of
which ‘‘[implicate] the public trust.’’ The union
responds, and we agree, that the city presented no evi-
dence that Jefferson’s job involved significant fiscal
responsibility, fiduciary duties, access to financial
records or control over public finances. Although Jeffer-
son’s enforcement duties included recommending to
the board whether to impose fines for violations of
chapter 12 1/2, it is undisputed that the board had the
ultimate decision-making authority over whether to
impose any such fines. Nevertheless, there was testi-
mony that, ‘‘if a [commission] staff [member] and a
contractor made arrangements to do so, fines could be
dropped prior to the [board’s] vote.’’ Thus, Jefferson’s
job arguably implicated the public trust to the extent it
authorized her to negotiate with noncompliant building
contractors and to excuse violations of the city’s equal
opportunity laws. Taking into account all of these facts,
we conclude that the second Burr factor does not weigh
in favor of or against vacating the award but is, instead,
neutral.
We next consider the third Burr factor, namely,
‘‘whether the grievant’s conduct was so egregious that
no disciplinary measure short of termination will vindi-
cate the relevant public policies.’’ Burr Road Operating
Co. II, LLC v. New England Health Care Employees
Union, District 1199, supra, 316 Conn. 645. ‘‘This factor
encompasses myriad considerations, including, but not
limited to: (1) the severity of the harms imposed and
risks created by the grievant’s conduct; (2) whether
that conduct strikes at the core or falls on the periphery
of the relevant public policy; (3) the intent of the griev-
ant with respect to the offending conduct and the public
policy at issue; (4) whether reinstating the grievant
would send an unacceptable message to the public or
to other employees regarding the conduct in question;
(5) the potential impact of the grievant’s conduct on
customers/clients and other nonparties to the employ-
ment contract; (6) whether the misconduct occurred
during the performance of official duties; and (7)
whether the award reinstating the employee is founded
on the arbitrator’s determination that mitigating circum-
stances, or other policy considerations, counterbalance
the public policy at issue. . . .
‘‘This factor presents a mixed question of law and
fact. We take as our starting point the factual findings
of the arbitrator, which are not subject to judicial
review. . . . We defer as well to the arbitrator’s ulti-
mate determination whether termination was a just or
appropriate punishment for the conduct at issue. . . .
[F]or purposes of the public policy analysis, [however]
our determination of whether the conduct in question
was so egregious that any punishment short of termina-
tion would offend public policy is not restricted to those
findings. . . . A broader review is required because the
arbitrator, in determining whether there was just cause
or some other contractual basis for termination, may
focus on case specific considerations such as how the
employer has disciplined other employees under similar
circumstances. Judicial review, by contrast, necessarily
transcends the interests of the parties to the contract,
and extends to the protection of other stakeholders and
the public at large, who may be adversely impacted by
the decision to reinstate the employee. . . . Accord-
ingly, we review de novo the question whether the rem-
edy fashioned by the arbitrator is sufficient to vindicate
the public policies at issue.’’ (Citations omitted.) Id.,638–39.
Upon consideration of these myriad factors, and bear-
ing in mind the parties’ arguments with respect thereto,
we agree with the panel that Jefferson’s acts, though
serious, were not so egregious that an award reinstating
her employment but not making her whole, essentially
docking her two years of pay,19 could not vindicate the
public policies at issue and send a powerful message
to other municipal employees and the public at large
that similar conduct will not be tolerated. Indeed, the
city has not cited a single case from Connecticut—or
any other jurisdiction for that matter—in which a court,
in applying the public policy exception, concluded that
termination of employment was the sole, acceptable
punishment for similar conduct. Nor has our indepen-
dent research revealed any such case. The only case
cited by the city, Groton v. United Steelworkers of
America, supra, 254 Conn. 46–47, is readily distinguish-
able because it involved reinstatement of a municipal
employee who was convicted of embezzling funds from
his employer, a far cry from the conduct at issue in the
present case.20
The panel found that Jefferson (1) disregarded Fos-
ter’s advice not to solicit donations in lieu of fines from
companies whose labor and employment practices she
oversaw, and (2) formed a private company that ran
afoul of the city’s conflict of interest laws. The panel
also found, however, that the city authorized Jefferson
to solicit donations from the companies she oversaw21
and even allowed her to perform consulting work for
one of them, Gilbane, Inc., in New York.22 Thus, the city
is hardly blameless in this matter. Indeed, it is evident
that the city’s own policies and decision making at
critical junctures created for Jefferson an ethical tight-
rope that could only end in the ethical lapses and errors
of judgment of which the city now complains.
As for Jefferson’s specific acts of misconduct,
although the panel found that Jefferson failed to seek
authorization from the city to form CCP, it also found
in mitigation that CCP never provided any consulting
services in the state and that Jefferson never sought to
hide the company from the city. As previously indicated,
Jefferson testified that she formed CCP for liability
reasons after the city granted her permission to provide
consulting services in New York and that she registered
it in Connecticut because she thought that she was
required to register it in the state where she lived.
As for the panel’s finding that Jefferson, as executive
director of the commission, ‘‘[bore] . . . responsibil-
ity’’ for four memoranda issued ‘‘under [her] signature’’
in 2008, in which the commission agreed to accept dona-
tions to CWI2 in lieu of the payment of fines, the panel
also found that there was no evidence as to what eventu-
ated from the memoranda in question, which, by their
express terms, had to be approved by the board. We
note, moreover, as the union argues, that the city pre-
sented no evidence that Jefferson personally benefited
in any way from her fundraising efforts for CWI2, which,
in 2008, was a city program operated under the auspices
of the commission.23 Nor was there any evidence that
the fines discussed in the memoranda were not actually
owed by the contractors or were in any way improper.
Furthermore, according to the testimony of Attorney
Clifton Graves, a member of the board during the rele-
vant time period, ‘‘when fines [were] collected, they
were put into the [commission] fund,’’ which ‘‘was a
fund that was set up primarily to run programs and to
assist the [commission] in achieving its goals.’’ Because
CWI2 was itself a city program operated by the commis-
sion, and because the memoranda merely allowed the
contractors to donate to CWI2 directly in lieu of paying
fines into the commission’s general fund, it is difficult
to discern the basis for the city’s contention that the
memoranda exposed the city and commission staff to
‘‘potential criminal charges for bribery or solicitation
of bribery . . . .’’ We need not resolve this question,
however, to conclude that the third Burr factor weighs
against the conclusion that the panel’s award violates
public policy.
The fourth Burr factor requires us to consider
‘‘whether the grievant is so incorrigible as to require
termination. . . . Put differently, in light of the griev-
ant’s full employment history, is there a substantial risk
that, should a court uphold the arbitration award of
reinstatement, this particular employee will reengage
in the offending conduct? . . . Here, relevant consider-
ations include whether, on the one hand, the grievant
has committed similar offenses in the past and has
disregarded an employer’s prior warnings or clear pol-
icy statements; or, on the other hand, whether the griev-
ant: (1) has generally performed his work in a compe-
tent and professional manner; (2) has demonstrated a
willingness to change and an amenability to discipline;
(3) has exhibited remorse and attempted to make resti-
tution for past offenses; and (4) is likely to benefit from
additional training and guidance. . . . We also con-
sider whether the penalty imposed by the arbitrator is
severe enough to deter future infractions by the grievant
or others. . . .
‘‘Because these considerations are largely fact based
and case specific, a reviewing court must defer to an
arbitrator’s assessment—whether express or implied—
that a particular employee is unlikely to reoffend if
reinstated. . . . [In the absence of] an express finding
by the arbitrator, which would be unreviewable, a court
will deem an employee incorrigible only when the likeli-
hood of recidivism is plain from the face of the record.’’
(Citations omitted; internal quotation marks omitted.)
Burr Road Operating Co. II, LLC v. New England
Health Care Employees Union, District 1199, supra,
316 Conn. 639–40.
Although the panel made no express finding regard-
ing Jefferson’s incorrigibility, the city concedes that
there is nothing in the record to suggest that she is
incorrigible. To the contrary, the panel found that, dur-
ing the nearly twenty years that she worked for the
city, Jefferson enjoyed a spotless employment record
and was cited on several occasions for her high ethical
standards. As for Jefferson’s amenability to discipline,
we note that she did not appeal the panel’s decision
not to award her back pay and benefits for two of the
three years that she was out of work as a result of her
termination and the parties’ lengthy arbitration, which,
as the city acknowledged during oral argument before
this court, ranks as one of the most severe punishments
short of termination ever meted out in an arbitration
proceeding conducted pursuant to a collective bar-
gaining agreement.
The city argues, however, that incorrigibility or ‘‘a
likelihood to reoffend should not be a dispositive factor
. . . in reviewing the termination of a public employee
who commits egregious acts that violate public trust
and confidence.’’ We disagree that it is a dispositive
factor. Although it may have figured prominently in
the trial court’s analysis, the weight a reviewing court
attaches to it—or to any Burr factor—necessarily
depends on the facts of the case. Undoubtedly, there
will be cases in which an employee’s misconduct is so
egregious that even an exemplary employment history
will have no bearing on the outcome. See, e.g., State v.
AFSCME, Council 4, Local 387, AFL-CIO, supra, 252
Conn. 468–69, 478 (reinstatement of correction officer
convicted of harassment in second degree after using
work phone to place obscene, racist telephone call to
state senator violated public policy); State v. Council
4, AFSCME, 27 Conn. App. 635, 636, 641, 608 A.2d 718(1992) (reinstatement of employee who admitted to
misusing state funds by cashing falsely generated public
assistance checks violated public policy). This is not
such a case.
The city contends, nonetheless, that a public sector
employer should not have to countenance conduct by
an executive level employee in a ‘‘fiscally sensitive posi-
tion’’ that ‘‘has a negative impact on public accountabil-
ity and public confidence.’’ The city asserts that, ‘‘[a]side
from [her] fiscally sensitive misconduct, [Jefferson
also] failed to cooperate with an investigation while
on administrative leave,’’ which ‘‘[n]o public employer
should be expected to treat . . . as not constituting
good cause to dismiss an employee.’’ We disagree.
‘‘When a reviewing court is applying the public policy
exception, considerations of . . . what . . . an
employer should be able to do . . . do not in any man-
ner constitute public policy and are thus not relevant
to our inquiry. A reviewing court’s only inquiry is
whether the arbitration award . . . violates a clearly
established public policy.’’ (Emphasis added; internal
quotation marks omitted.) State v. AFSCME, Council
4, Local 391, supra, 309 Conn. 531. It is well established
that general notions of the public good, public account-
ability or the public trust are insufficient grounds for
invoking the extremely narrow public policy exception
to judicial enforcement of arbitral awards. See, e.g.,
State v. New England Health Care Employees Union,
District 1199, AFL-CIO, supra, 271 Conn. 135–36 (‘‘the
public policy exception to arbitral authority [must] be
narrowly construed and [a] court’s refusal to enforce
an [arbitration award] 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 sup-
posed public interests’’ (emphasis added; internal quo-
tation marks omitted)); South Windsor v. South Wind-
sor Police Union Local 1480, Council 15, 255 Conn.
800, 824, 770 A.2d 14 (2001) (‘‘the public policy requiring
the confidence of the public in its police force with
respect to matters of public safety’’ is ‘‘[a] general con-
sideration [that] fails to meet the test [for] the public
policy exception to arbitral authority’’ (internal quota-
tion marks omitted)); Board of Police Commissioners
v. Stanley, 92 Conn. App. 723, 740 n.15, 887 A.2d 394(2005) (citing cases and explaining that ‘‘general notion
of the public interest fails to meet the test for the public
policy exception to arbitral authority’’).
We note, finally, that, in State v. Connecticut Employ-
ees Union Independent, supra, 322 Conn. 713, we
rejected a claim that the public policy exception should
be construed more broadly to allow employers to dis-
miss their employees for a wider range of misconduct,
and our reasons for doing so are fully applicable to the
present case: ‘‘Our general deference to an experienced
arbitrator’s determinations regarding just cause and the
appropriate remedy is vital to preserve the effectiveness
of an important and efficient forum for the resolution
of employment disputes. If an employer wishes to pre-
serve the right to discharge employees guilty of miscon-
duct such as that at issue in this case, thereby removing
the matter from an arbitrator’s purview, it remains free
to negotiate for the inclusion of an appropriate provi-
sion in the collective bargaining agreement that would
achieve that result.’’ Id., 739–40. Until such time, how-
ever, the employer must abide by the arbitrators’ deter-
minations regarding just cause and the appropriate rem-
edy for that conduct.
In light of the foregoing, we conclude that the city
has failed to meet its burden of demonstrating that
Jefferson’s reinstatement violated public policy.
The judgment is affirmed.
In this opinion the other justices concurred.
* March 4, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The city appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
Chapter 12 1/2, article I, § 12 1/2-3, of the New Haven Code of Ordinances,
which established the commission, provides in relevant part: ‘‘There is
hereby created a commission on equal opportunities . . . which shall con-
sist of nine . . . members, each of whom shall reside in New Haven . . .
[and] shall serve without compensation. Eight . . . members shall be
appointed by the mayor, and one . . . member shall be elected by the board
of aldermen from its number. One . . . member shall be designated by the
mayor as chairperson. . . . The commission may adopt such rules and
regulations, including rules of practice, as it deems necessary to effectuate
the purposes and provisions of this chapter. These rules and regulations
shall be subject to approval of the board of aldermen.’’
Chapter 12 1/2, article I, § 12 1/2-5, delineates the powers and duties of
the nine board members, which include ‘‘(f) [t]o receive, initiate, investigate
and mediate discriminatory practice complaints’’ and ‘‘(k) [t]o appoint an
executive director and a legal counsel and such other staff and consultants
as are necessary for the commission to carry out its responsibilities under
this chapter.’’
3
Chapter 12 1/2, article II, § 12 1/2-20 (a) (1), of the New Haven Code of
Ordinances establishes ‘‘a contract compliance office, headed by a contract
compliance director.’’ Chapter 12 1/2, article II, § 12 /12-20, (a) (2) specifies
that the ‘‘contract compliance director shall be subject to the supervision
of the executive director of the commission . . . .’’
4
According to the arbitration award, during the relevant time period, ‘‘[i]f
a contractor was not in compliance, [commission] staff [were] authorized
to issue a letter advising a contractor about his or her failure to comply
with federal or state regulations . . . and . . . the fines/penalties incurred
as a result. . . . If it was determined that a contractor was not in compli-
ance, and a fine was to be imposed, the [board] had to vote to impose the
fine and to accept any [money] tendered to satisfy the fine. . . . Former
. . . Commissioner Harvey Fineberg, a union witness, testified that, if a
[commission] staff [member] and a contractor made arrangements to do
so, fines could be dropped prior to the [board’s] vote.’’ (Citations omitted;
internal quotation marks omitted.)
5
Chapter 12 1/2, article II, § 12 1/2-24 (c), of the New Haven Code of
Ordinances required contractors doing business with the city to ‘‘utilize city
sponsored recruitment and training programs to the most feasible extent
in order to ensure the hiring of qualifiable minority, women and physically
disabled employees, trainees and apprentices.’’ According to the arbitration
panel’s findings, ‘‘[i]t is undisputed that CWI2 was the only city sponsored
recruitment and training program’’ during the relevant time period.
6
‘‘[A] tenured public employee is entitled to oral or written notice of the
charges against him [or her], an explanation of the employer’s evidence,
and an opportunity to present his [or her] side of the story before termination.
. . . The opportunity to present one’s side of the story is generally referred
to as a Loudermill hearing.’’ (Citation omitted; internal quotation marks
omitted.) AFSCME, Council 4, Local 2663 v. Dept. of Children & Families,
317 Conn. 238, 243 n.3, 117 A.3d 470 (2015); see also Board of Education
v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
7
At all times relevant to this appeal, CWI2 was a city operated and funded
recruitment and training program. As previously indicated, it was spun off
into a private, nonprofit entity in 2011. Even then, however, it relied heavily
on the city for a variety of support. It was never Jefferson’s ‘‘private entity,’’
as alleged by the city in Jefferson’s termination letter.
8
The eight claims that the panel found were not proven are: (1) in 2004,
Jefferson solicited a $15,000 bribe from Artnel Banton, the owner of Lab
Restoration and Construction, LLC; (2) on May 24, 2014, Jefferson threatened
Brack Poitier, owner of Tri-Con Construction Managers, LLC, during a tele-
phone call; (3) Jefferson incorrectly cited article VI, § 6.2 (A) (10), of a
development and land disposition agreement for the development of prop-
erty located at 100 College Street in New Haven as authority for imposing
fines on John Moriarty & Associates, Inc.; (4) Jefferson used city time and
resources to create and operate CCP, a private entity that advertised contract
compliance services in Connecticut; (5) Jefferson operated a private entity,
CWI2, ‘‘and through misrepresentations used the city to further benefit [that]
entity’’; (6) Jefferson ‘‘misrepresented to the state when applying for grant
funds that [CWI2] was affiliated with the city’’; (7) Jefferson failed to cooper-
ate at a June 9, 2015 investigatory meeting; and (8) Jefferson failed to attend
investigatory meetings convened in connection with the investigation.
9
According to the arbitration award, ‘‘the CCP website advertise[d] CCP
as a woman owned minority business enterprise . . . with a Connecticut
office located at 3000 Whitney Avenue, Hamden, CT. . . . The website also
advertise[d] that CCP offers a mixed contract compliance inspection service
and . . . that its staff has worked primarily in New Syracuse, NY, and New
Haven, CT. . . . The city contend[ed] that the cumulative effect of these
representations [was] that CCP . . . provide[d] contract compliance ser-
vices in . . . Connecticut. . . . The city further argue[d] that inasmuch as
CCP . . . used [Connecticut counsel] as an agent for service for CCP . . .
Jefferson could have formed CCP . . . in New York . . . designating an
agent for service in [that] state to avoid a perceived or actual [conflict] with
[the commission].’’ (Citations omitted.)
10
Chapter 12 1/2, article I, § 12 1/2-5, of the New Haven Code of Ordinances
provides in relevant part: ‘‘The commission shall have the power and duty
. . . (l) [u]pon the approval of the mayor and the board of aldermen, to
accept outside funds, gifts or bequests, public or private, to help finance
its activities under this chapter. . . .’’
11
In particular, the city relied on chapter 12 5/8, § 12 5/8-5 (e), of the
New Haven Code of Ordinances, which provides that ‘‘[a] public official or
municipal employee has a conflict of interest if he makes or participates in
the making of any governmental decision or the taking of any governmental
action with respect to any matter in which he has any economic interest
distinguishable from that of the general public,’’ and on chapter 12 5/8, § 12
5/8-5 (a), of the New Haven Code of Ordinances, which provides that ‘‘[a]
public official or municipal employee has a conflict of interest if he or she
has, or has reason to believe or expect that they or a member of their
immediate family or household, or a business or other organization with
which or whom they are employed or with which or whom they are associ-
ated with, will or may derive a direct monetary gain or suffer a direct
monetary loss, as the case may be, by reason of the official’s or employee’s
official activity or position.’’
12
General Statutes § 53a-148 provides in relevant part: ‘‘(a) A public servant
or a person selected to be a public servant is guilty of bribe receiving if he
solicits, accepts or agrees to accept from another person any benefit for,
because of, or as consideration for his decision, opinion, recommendation
or vote. . . .’’
13
General Statutes § 53a-161 provides in relevant part: ‘‘(a) An employee,
agent or fiduciary is guilty of receiving a commercial bribe when, without
consent of his employer or principal, he solicits, accepts or agrees to accept
any benefit from another person upon an agreement or understanding that
such benefit will influence his conduct in relation to his employer’s or
principal’s affairs. . . .’’
14
The trial court did not address the first or second Burr factor.
15
Accordingly, we reject the city’s repeated assertion, in its brief and in
oral argument before this court, that the sole issue before the court is
whether the trial court correctly determined that, although the city satisfied
the first three Burr factors, including proving that Jefferson’s conduct was
egregious, it did not prove that Jefferson was incorrigible, and, therefore,
it did not prove that the award violates public policy. As previously indicated,
the trial court did not specifically address each of the Burr factors, but
even if it had, this court is not bound by that court’s determinations with
respect thereto but, rather, as we have explained, applies de novo review
to the question of whether an arbitration award violates public policy.
16
Chapter 12 5/8, § 12 5/8-8, of the New Haven Code of Ordinances, titled
‘‘Prohibited practices; removal from office,’’ provides in relevant part: ‘‘In
addition to those practices enumerated in the City Charter, section 190 (b)
and section 211 (b) of Article XXXVII, which concern removal from office,
the following shall be considered cause for removal from office:
‘‘(a) The deliberating, testifying or voting by a member of a board or
commission or task force on any matter before said board, or commission,
or task force, or any of its committees, which matter requires [or] involves
a disclosure of interest on the part of by said member pursuant to section
210 of Article XXXVII of the City Charter or 12 5/8-7 . . . .
‘‘(b) No public official or municipal employee shall request, use, or permit
the use of, any consideration, treatment, advantage, benefit, or favor beyond
that which it is the general practice to grant or make available to the public
at large.
‘‘(c) No public official or municipal employee shall request, use, or permit
the use of any publicly owned or supported property, vehicle, equipment,
material, labor or service for the personal convenience or the private advan-
tage of himself or any other person, beyond that which is the general practice
to grant or make available to the public at large.
‘‘(d) That rule shall not be deemed to prohibit a public official or municipal
employee from requesting, using, or permitting the use of such publicly
owned or supported property, vehicle, equipment, material, labor, or service
that it is the general practice to make available to the public at large, or
that is provided as a matter of stated public policy for the use of public
officials and municipal employees in the conduct of official business.
‘‘(e) The failure to remove oneself from the decision-making process in
cases set forth in subsection 12 5/8-7 (i).
‘‘(f) No public official or municipal employee shall accept any fee or
honorarium for an article, appearance, or speech, or for participation in an
event in the official’s or employee’s official capacity, provided that but they
may accept reimbursement of necessary expenses incurred that are due to
such activity or participation, if those are disclosed within thirty (30) days
of the activity or the reimbursement, whichever is later.
‘‘(g) No public official or municipal employee shall knowingly provide
false or misleading information to the public.
‘‘(h) No public official or municipal employee shall take any action in
retaliation against any person who makes a complaint or allegation of unethi-
cal conduct in accordance with the procedures outlined in this chapter with
regard to the standards of conduct delineated herein.
‘‘(i) The foregoing prohibited practices are also sufficient for an appro-
priate authority to impose discipline in accordance with the City Charter,
this chapter, the city’s executive management compensation plan, and/or
any applicable collective bargaining agreement.’’
17
As previously indicated in this opinion, in its letter terminating Jeffer-
son’s employment, the city alleged that, in 2004, Jefferson solicited a $15,000
bribe from Artnel Banton, the owner of Lab Restoration and Construction,
LLC, in exchange for overlooking various noncompliance issues. See foot-
note 8 of this opinion. In rejecting the city’s claim, the panel found, inter
alia, that there was no evidence that Banton had a contract with the city
in 2004. The panel also questioned why Banton never reported the bribe to
city officials, the board or the police. It also found that Banton’s testimony
that it was difficult for him to secure work with the city after he refused
to pay the bribe was not supported by the evidence, which indicated that
he was awarded contracts ‘‘in 2006 and at least through 2008.’’ Before
the panel, the union ‘‘questioned ‘the nature of the [c]ity’s discovery of
[Jefferson’s] alleged misconduct . . . [arguing that the] [c]ity, without ever
speaking to any of the thousands of contractors who interacted with . . .
Jefferson incredibly discovered . . . Banton but thereafter made no attempt
to ascertain whether she [had ever] solicited any other bribes [from any
other contractors].’ ’’ In the arbitration award, the panel also noted that
Banton ‘‘did not report the bribe solicitation until interviewed in 2015, though
the evidence indicates that he had contact with the police in connection
with [an] incident with CWI2 staff in 2006,’’ which resulted in the police
issuing him a citation warning him ‘‘to stay away from the [commission’s
office].’’
18
We note that the panel’s finding in this regard conformed to the city’s
framing of the issue, which was not that Jefferson had solicited a bribe by
seeking charitable donations in lieu of fines but, rather, that she had acted
‘‘in defiance of the direct advice [of the] corporation [counsel’s] office.’’
(Internal quotation marks omitted.)
19
As previously indicated, although Jefferson was terminated on August
5, 2015, the panel awarded her back pay and benefits only ‘‘for the period
starting on August 1, 2017, through [the] date of reinstatement.’’
20
The union complains, and we agree, that the city, throughout its brief
to this court, mischaracterizes the nature of the panel’s findings. Although
the city leveled extremely serious charges of misconduct against Jefferson,
it failed to prove the most serious of those charges. For example, in addition
to rejecting the city’s claim that Jefferson attempted to solicit a bribe from
Lab Restoration and Construction, LLC, the panel also rejected the city’s
claim that Jefferson had threatened another contractor, Brack Poitier, during
a telephone call. In so doing, the panel noted the flimsy nature of the city’s
evidence, stating in relevant part: ‘‘It is noted as the union points out, that
there is no evidence that . . . Poitier made any claim of misconduct against
. . . Jefferson, [the commission] or CWI2 prior to his 2015 interview, though
the threat was alleged to have taken place in the course of a telephone call
from . . . Jefferson to . . . Poitier just before Memorial Day weekend,
2014. Of course, an allegation of a threat is a serious matter. In this case,
the perceived threat, according to . . . Poitier, consisted of . . . [Jeffer-
son’s] asking, in the course of a telephone conversation, if . . . Poitier
intended to have any [Sheetrock] workers over the Memorial [Day] weekend
at the 603 Orchard Street, New Haven site, and . . . that [the commission]
would be watching and might inspect the property. The city referred to this
scenario, as . . . Poitier explained to the interviewer, as [the commission
applying] ‘heightened scrutiny’ . . . though it does not argue that [that]
scrutiny itself . . . would amount to a threat. . . . [With respect to Jeffer-
son’s question about Sheetrock workers], the union argued that . . . [chap-
ter 12 1/2, article II, §] 12 1/2-24 (c) [of the New Haven Code of Ordinances]
. . . requires that all firms doing business in the city shall utilize city spon-
sored recruitment and training programs. . . . It is undisputed that CWI2
was the only city sponsored recruitment and training program. Thus, any
effort by [Jefferson] and [the commission] to encourage the contractors to
utilize graduates to avoid future compliance issues with [the commission]
was not only proper but was required by the city’s own rules. . . . Taking
these factors into account and attempting to understand the essence of the
perceived threat, it is concluded that substantial proof of a threat is not
evident. Furthermore, it is noted that, [although] two city . . . investigators
. . . and . . . the Federal Bureau of Investigation among other agencies
. . . were involved to look into . . . Jefferson’s interactions with the con-
tractors doing business with the city, there is no evidence in the record that,
on or about May 24, 2014 . . . Poitier received a [threatening] telephone
call from . . . Jefferson,’’ as the city claims. (Citations omitted; internal
quotation marks omitted.)
21
Before the panel, the city acknowledged that Jefferson’s job required
her to enforce chapter 12 1/2 and to fundraise for CWI2; it argued, however,
that ‘‘[b]lending enforcement and fundraising create[d] a conflict of interest.’’
To demonstrate just how blurred the ethical lines could become, the panel
found that, in April, 2014, John Moriarty, a contractor doing business with
the city, ‘‘received an invitation from CWI2 to attend a fundraiser . . . .
On April 9, 2014, Moriarty provided a check for $10,000 for the occasion.
. . . On the same date, a preaward conference took place which involved
[the commission], Moriarty and the subcontractors for the 100 College Street
project. . . . There does not appear to be [any] question regarding the
solicitation and receipt of the donation, [which] as the union points out
. . . ‘was made with the full knowledge and participation of the [c]ity.’ ’’
(Citations omitted; emphasis added.) Chapter 12 1/2, article II, § 12 1/2-26 (a),
of the New Haven Code of Ordinances explains that a preaward conference
occurs ‘‘prior to award of a contract’’ and that, ‘‘[a]t such pre-award confer-
ence the contract compliance director shall . . . determine whether or not
the apparent successful bidder has complied with sections 12 1/2-22 through
12 1/2-25, and then shall submit his determination and recommendation
thereon to the commission and the director of the department involved.
After receiving the recommendation of the contract compliance director,
the executive director of the commission shall process the award recommen-
dation to the awarding agency.’’
22
According to the arbitration award, ‘‘on or about June 9, 2009, [commis-
sion] staff, under the direction of . . . Jefferson, as [e]xecutive [d]irector,
prepared another [memorandum] to resolve a noncompliance issue by pay-
ment of [a] $10,000 fine. . . . [T]he [memorandum] was prepared for . . .
Jefferson’s signature, and contained a notation copying several people,
including two representatives from Gilbane [Inc.], and Economic Develop-
ment [Administrator] Kelly Murphy.’’ (Citation omitted.)
23
As previously indicated in this opinion, CWI2 was not spun off into a
separate entity until 2011.