Ironton v. Rist , 2010 Ohio 5292 ( 2010 )

[Cite as Ironton v. Rist, 2010-Ohio-5292.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
CITY OF IRONTON, OHIO, : Case No. 10CA10
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
BETH RIST, :
: Released 10/25/10
1
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Warren N. Morford, Jr., South Point, Ohio, for appellant.
R. Alan Lemons, MILLER, SEARL & FITCH, LPA, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Beth Rist appeals the judgment of the Lawrence County Common Pleas
Court that vacated an arbitration award against the City of Ironton. The arbitrator found
that the City lacked just cause to discharge Rist from her position as a sergeant with the
Ironton Police Department (“IPD”) after she falsified a report, so the arbitrator reinstated
her without back pay. The City appealed, and the trial court vacated the arbitrator’s
award after the court concluded that Rist’s reinstatement violated public policy.
{¶2} Initially, Rist complains that the trial court erred when it vacated the award
without a transcript or unspecified exhibits from the arbitration proceedings. However,
those portions of the record were not necessary for the trial court to resolve the City’s
public policy argument. Therefore, we reject this claim.
{¶3} Rist also contends that the trial court erred in various ways when it found
that her reinstatement violated public policy. However, truthful reports from officers are
1
The trial court dismissed the Fraternal Order of Police, Ohio Labor Council, Inc. as a party to the action.
Lawrence App. No. 10CA10 2
essential for a police force to effectively perform its duties and to maintain public trust
and confidence. Public policy precludes the reinstatement of an officer who falsifies a
police report. Accordingly, the trial court did not err when it vacated the arbitration
award.
I. Facts
{¶4} Rist worked as a sergeant for the IPD until October 2008 when she was
fired for making a false report. Rist filed a grievance under the terms of a collective
bargaining agreement (“CBA”) between the City and her union, the Fraternal Order of
Police, Ohio Labor Council, Inc. Because the parties were unable to settle the
grievance, they submitted it for binding arbitration in accordance with the CBA.
{¶5} The arbitrator found that in August 2008, Rist initiated a routine traffic
stop. After Rist learned that the driver of the stopped vehicle, Dolly Newcombe, had
expired tags and no driver’s license, Rist called Newcombe’s daughter, Jamie Sparks,
and asked her to come to the scene. When Sparks arrived, “she was directed to sit
behind the steering wheel.” Rist issued Sparks a ticket for driving with expired tags and
indicated on the ticket that Sparks lacked proof of insurance. After Sparks paid a fine,
she lost her driving privileges and unsuccessfully tried to contact Rist. In September
2008, both Sparks and Rist reported the incident to officials at the police department. In
an interview with Detective Jim Akers, Rist acknowledged falsifying the ticket.
{¶6} The City argued that Rist lied about knowing Newcombe before the traffic
stop occurred. However, the arbitrator could not find “with positive assurance” that Rist
was acquainted with Newcombe prior to this incident. The arbitrator also found that Rist
did not act with “harmful intent” but was simply acting to “do a favor to the
Lawrence App. No. 10CA10 3
Newcombe/Sparks family.” In addition, the arbitrator noted that Rist had 13 years of
service and no prior discipline problems. The arbitrator also found “an element of
disparate treatment” in the manner the City handled the incident with Rist. Specifically,
the arbitrator pointed to evidence that a male officer who engaged in “amorous activity
with a female Speedway employee while on duty” only received a written reprimand for
his misconduct. The arbitrator concluded that the City lacked just cause to discharge
Rist and restored her employment. However, the arbitrator also found that Rist’s
“serious offense” merited “serious discipline” and awarded her no back pay.
{¶7} The City filed a motion to vacate the arbitration award, arguing that the
arbitrator exceeded his authority in various ways under R.C. 2711.10. In response, Rist
sought an order confirming the arbitration award under R.C. 2711.09. After a hearing,
the court asked each party to prepare proposed findings of fact and conclusions of law.
In its proposal, the City argued that the arbitration award must be vacated because
Rist’s reinstatement was contrary to public policy. The City also argued that
enforcement of the award would be a “futile act” because Rist pleaded guilty to one
count of falsification based on the incident with Newcombe and Sparks, and the terms
of Rist’s probation prevented her from performing certain job duties.
{¶8} The trial court adopted the City’s proposed findings of fact and
conclusions of law and granted the City’s motion to vacate the arbitration award. The
court denied Rist’s application to confirm the award. This appeal followed.
II. Assignments of Error
{¶9} Rist assigns the following errors for our review:
The appellant, Beth Rist for her first assignment of error, asserts that the
trial court erred, to her material prejudice, when it determined that the
Lawrence App. No. 10CA10 4
binding decision of the arbitrator, Dr. Harry Graham, was against public
policy.
The trial court erred, to the material prejudice of the appellant Beth Rist,
when it vacated the binding arbitration decision of Dr. Harry Graham
without having the record of the arbitration proceedings or all of the
evidence presented to the arbitrator, especially including the testimony of
the witnesses and all of the exhibits received into evidence.
The trial court erred, to the material prejudice of the appellant Beth Rist,
when it misapplied the test for vacation of an arbitration award under R.C.
§2711.10(D).
The trial court erred, to the material prejudice of the appellant Beth Rist,
when it set aside the parties’ Collective Bargaining Agreement and
attempted to determine the rights of the parties based upon its own
notions of industrial justice and/or “fairness[.”]
The trial court erred, to the material prejudice of the appellant Beth Rist,
and abused its discretion in granting appellee’s Motion to Vacate
Arbitration Award.
The trial court erred, to the material prejudice of appellant, when it refused
to grant her Motion to Confirm Arbitration Award.
{¶10} Rist presents only one argument for her six assignments of error. App.R.
16(A)(7) requires separate arguments for each assignment of error. “While appellate
courts may jointly consider two or more assignments of error, the parties do not have
the same option in presenting their arguments.” Keffer v. Cent. Mut. Ins. Co., Vinton
App. No. 06CA652, 2007-Ohio-3984, at ¶8, fn. 2. Thus, we would be within our
discretion to simply disregard Rist’s assignments of error and summarily affirm the trial
court’s judgment. App.R. 12(A)(2); Keffer at ¶8, fn. 2. Nonetheless, we will review all
her arguments.
III. Vacation of Arbitration Award
A. Standard of Review
{¶11} Rist contends that the trial court erred when it found that the arbitrator’s
Lawrence App. No. 10CA10 5
award reinstating her violated public policy, vacated the award, and denied her
application for an order confirming the award. “As a matter of policy, the law favors and
encourages arbitration.” Athens Cty. Commrs. v. Ohio Patrolmen’s Benevolent Assn.,
Athens App. No. 06CA49, 2007-Ohio-6895, at ¶23, citing Mahoning Cty. Bd. of Mental
Retardation & Developmental Disabilities v. Mahoning Cty. TMR Edn. Assn. (1986), 22
Ohio St. 3d 80, 84, 488 N.E.2d 872. Therefore, courts “will make every reasonable
indulgence to avoid disturbing an arbitration award.” Id., citing Mahoning at 84.
{¶12} Arbitration awards are presumed valid, thus a trial court’s power to vacate
a final, binding arbitration award is limited. Id. at ¶¶23-24. “Because the parties have
contracted to have disputes settled by an arbitrator chosen by them rather than by a
judge, it is the arbitrator’s view of the facts and the meaning of the contract that they
have agreed to accept. Courts thus do not sit to hear claims of factual or legal error by
an arbitrator as an appellate court does in reviewing decisions of lower courts. To
resolve disputes about the application of a collective-bargaining agreement, an
arbitrator must find facts and a court may not reject those findings simply because it
disagrees with them. The same is true of the arbitrator’s interpretation of the contract.”
Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627, 91
Ohio St. 3d 108, 110, 2001-Ohio-294, 742 N.E.2d 630, quoting United Paperworkers
Internatl. Union, AFL-CIO v. Misco, Inc. (1987), 484 U.S. 29, 37-38, 108 S. Ct. 364, 98
L. Ed. 2d 286.
{¶13} “The legislature has specified the narrow circumstances under which a
trial court may vacate an arbitration award.” Athens, supra, at ¶24, citing R.C. 2711.10.
In this case, the City moved to vacate the arbitrator’s award under R.C. 2711.10(D),
Lawrence App. No. 10CA10 6
which provides that a common pleas court shall vacate an arbitration award upon the
application of any party to the arbitration if “[t]he arbitrators exceeded their powers, or
so imperfectly executed them that a mutual, final, and definite award upon the subject
matter submitted was not made.” “Once it is determined that the arbitrator’s award
draws its essence from the collective bargaining agreement and is not unlawful,
arbitrary or capricious, a reviewing court’s inquiry for purposes of vacating an arbitrator's
award pursuant to R.C. 2711.10(D) is at an end.” Hillsboro v. Fraternal Order of Police,
Ohio Labor Council, Inc. (1990), 52 Ohio St. 3d 174, 176, 556 N.E.2d 1186, quoting
Board of Edn. of the Findlay City School Dist. v. Findlay Edn. Assn. (1990), 49 Ohio
St.3d 129, 551 N.E.2d 186, at paragraph two of the syllabus.
{¶14} In her brief, Rist sets out arguments addressing how the arbitration award
met each of these requirements. However, in the City’s proposed findings of facts and
conclusions of law, which the trial court adopted, the City did not argue that the
arbitration award failed to draw its essence from the collective bargaining agreement or
that it was arbitrary or capricious. Instead the City claimed, and the trial court ultimately
concluded, that the award reinstating Rist was unlawful because it violated public
policy.2
{¶15} The Supreme Court of Ohio has found that if an arbitrator’s reinstatement
of an employee violates public policy, the award is unlawful and unenforceable. See
SORTA, supra, at 112, citing W.R. Grace & Co. v. Local Union 759, Internatl. Union of
the United Rubber, Cork, Linoleum & Plastic Workers of Am. (1983), 461 U.S. 757, 766,
103 S. Ct. 2177, 76 L. Ed. 2d 298. “[V]acating an arbitration award pursuant to public
2
The trial court also found that enforcement of the award would be “futile” given the terms of Rist’s
probation. However, given our conclusion that the trial court properly vacated the award because Rist’s
reinstatement violated public policy, we need not address the propriety of this finding.
Lawrence App. No. 10CA10 7
policy is a narrow exception to the ‘hands off’ policy that courts employ in reviewing
arbitration awards and ‘does not otherwise sanction a broad judicial power to set aside
arbitration awards as against public policy.’” Id., quoting Misco, supra, at 43.
Therefore, the public policy “must be 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.’” Id., quoting W.R. Grace & Co. at 766, in
turn, quoting Muschany v. United States (1945), 324 U.S. 49, 66, 65 S. Ct. 442, 89 L. Ed.
744.
{¶16} The issue of whether, in light of the arbitrator’s factual findings, an
employee’s reinstatement violates public policy presents a question of law. See Akron
Metro. Hous. Auth. v. Local 2517, Am. Fedn. of State, Cty., & Mun. Emp., AFL-CIO, 161
Ohio App. 3d 594, 2005-Ohio-2965, 831 N.E.2d 493, at ¶7. See, e.g. SORTA at 112.
Thus, we review the trial court’s judgment vacating the arbitration award on that basis
under a de novo standard. Akron at ¶7; See, also, Jackson Cty., Ohio Sheriff v. The
Fraternal Order of Police Ohio Labor Council, Inc., Jackson App. No. 02CA15, 2004-
Ohio-3535, at ¶19 (noting that “appellate review [of an arbitration award] focuses upon
the order issued by the trial court”). Accordingly, we must examine the “laws and legal
precedents” in order to determine if there is any public policy that would render the
award reinstating Rist unenforceable. SORTA at 112.
B. Record of Arbitration Proceedings
{¶17} Initially, we must address Rist’s argument that the trial court could not
vacate the arbitration award on public policy grounds without a complete record of the
arbitration proceedings before it. She complains that the trial court lacked a transcript of
Lawrence App. No. 10CA10 8
testimony from the arbitration hearing and did not have all of the exhibits presented at
the hearing. If portions of the record that are necessary for resolution of a claimed error
are omitted, a reviewing court has nothing to pass upon, and as to the claimed error the
court must presume the regularity of the arbitration proceedings and resulting award.
See Smythe, Cramer Co. v. Breckenridge Real Estate Marketing Group, Inc. (Feb. 9,
2000), Medina App. No. 2870-M, 2000 WL 150773, at *1, fn. 2. See, e.g., Knapp v.
Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199, 400 N.E.2d 384 (per curiam).
{¶18} However, the omitted portions of the record in this case are not necessary
for resolution of Rist’s assigned errors. The primary issue in this appeal is whether
Rist’s reinstatement violated a dominant, well-defined public policy. Resolution of this
issue presents a purely legal inquiry; therefore, the hearing transcript and exhibits are
not required to resolve it. See In re Self, Stark App. No. 2004CA00199, 2004-Ohio-
6822, at ¶6. Thus, we reject this argument.
C. Public Policy Analysis
{¶19} Although Rist attempts to frame her assignments of error in different ways,
the crux of her argument on appeal is that the trial court erred when it vacated the
arbitration award because her reinstatement did not violate public policy. Rist admitted
that she falsified the ticket given to Sparks. And although the arbitrator did not
specifically mention it in his findings of fact, the limited record from the arbitration
proceedings shows that Rist pleaded guilty to first-degree misdemeanor falsification, in
violation of R.C. 2921.13(A). Nonetheless, Rist argues that “much ado is made about
nothing” by the City because she “did not profit personally or financially from her poor
exercise in judgment; the citation she issued was for a registration infraction, not a
Lawrence App. No. 10CA10 9
moving violation or a criminal offense; and the citation ultimately was dismissed and no
harm resulted to Jamie Sparks.”
{¶20} The City argues that a dominant, well-defined public policy prohibits the
reinstatement of a police officer who falsifies a report. We agree. The police force of a
municipal corporation is obligated to “preserve the peace, protect persons and property,
and obey and enforce * * * all criminal laws of the state and the United States * * *.”
R.C. 737.11 (Emphasis added). Moreover, honesty is vital to the effective performance
of these duties and to ensuring public trust and confidence in the police force. See
Brink v. Wadsworth (Dec. 14, 1988), Medina App. No. 1728, 1988 WL 134279, at *2;
Cincinnati v. Queen City Lodge No. 69, Fraternal Order of Police, Hamilton App. No. C-
040454, 2005-Ohio-1560, at ¶¶21-22. According to the Supreme Court of Ohio:
[I]t is settled public policy * * * that police officers are held to a higher
standard of conduct than the general public. * * * Law enforcement
officials carry upon their shoulders the cloak of authority of the state. For
them to command the respect of the public, it is necessary then for these
officers even when off duty to comport themselves in a manner that brings
credit, not disrespect, upon their department.
Jones v. Franklin Cty. Sheriff (1990), 52 Ohio St. 3d 40, 43, 555 N.E.2d 940 (internal
citations omitted).
{¶21} Based on this statute and these legal authorities, we conclude that Ohio
has a dominant, well-defined public policy against the reinstatement of an officer who
falsifies a police report. And in this case, it is undisputed that Rist committed such an
act. Rist violated the law and comported herself in a manner that could not bring
anything but disrepute upon the department. Contrary to Rist’s assertions, the fact that
she did not gain anything from her dishonesty in this case does not make her conduct
any less egregious. Given Rist’s willingness to lie and break the law for an apparent
Lawrence App. No. 10CA10 10
stranger and without profit, how can the public expect her to react if presented with an
opportunity to use her position for financial gain or to benefit friends or relatives? Rist’s
continued employment as a sergeant with the IPD can only serve to erode public trust
and confidence in the department. And because of her vulnerability to impeachment,
the department would face a serious problem if it had to rely upon Rist’s testimony in
legal proceedings.
{¶22} Accordingly, we find that the trial court did not err when it found that Rist’s
reinstatement violated public policy, vacated the arbitration award, and denied Rist’s
application for confirmation of that award. See, e.g., Jones, supra, at 43 (Supreme
Court of Ohio held that State Personnel Board of Review improperly reinstated deputy
sheriff who engaged in off-duty vigilante activity that “could not bring anything but
disrepute upon the sheriff’s department.”). We overrule her assignments of error and
affirm the trial court’s judgment.3
JUDGMENT AFFIRMED.
3
We note that in her brief, Rist accuses the City of “imped[ing] and den[ying] every procedural safeguard,
contractural [sic] right and constitutional guarantee * * *.” She specifically complains that the City
prevented her from confronting her accusers during the arbitration. However, Rist did not assign these
issues as error so we need not address them. Moreover, we fail to see the relevance of these claims to
Rist’s argument on appeal given the fact that she seeks confirmation of the arbitration award.
Lawrence App. No. 10CA10 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence
County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: __________________________
William H. Harsha, Judge