MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO
CONFIRM ARBITRATION AWARD
P. Billings, Justice
reasons that follow, Plaintiff's Motion for Judgment on
the Pleadings is DENIED and Defendant's Motion to Confirm
Arbitration Award is ALLOWED, as specified in the Order
defendant (" Cummings") was the Chief of Police for
the City of Newton. Allegations of misconduct came to the
attention of the Mayor, who retained an outside contractor
(Edward Mitnick, Esq.) to undertake an investigation. When it
received his report, the City filed five charges of conduct
unbecoming a Police Chief.
hearing was held on October 10, 2012, at which the City and
Cummings were represented by counsel. The City called four
witnesses and introduced three exhibits. Cummings called
three witnesses, offered no exhibits, and did not testify.
The next day the hearing officer (Robert R. Rooney, also an
outside contractor) issued a three-page document titled
" Findings of Fact by Hearing Officer Robert R.
Rooney." He found that Cummings had engaged in conduct
unbecoming a Police Chief on five occasions, when he (1)
called his secretary a " bitch"; (2) told her she
looked like a " whore" in the workplace; (3)
remarked to a pregnant police officer, " You look almost
as fat as I am"; (4) kicked his secretary, breaking her
shoe and injuring her foot; and (5) falsely told his
secretary that an " I-Team" was investigating her.
Cummings was terminated that day.
five-year Chief of Police Contract, dated March 5, 2009,
provided that he could be terminated " for cause and
after a hearing, " and that " cause" included
" conduct unbecoming a Police Chief." Certain due
process rights--notice, a hearing and the opportunity to
respond; right to counsel; confrontation, and so forth--were
guaranteed. (Section 5(a) and (b)). The Contract also had the
following arbitration clause:
Any dispute concerning the meaning or application of the
terms of this Agreement, or a claim to breach, or the
termination of this Agreement, or the termination of
employment of the Chief of Police, shall be resolved
exclusively by arbitration under the Voluntary Labor
Arbitration Rules of the American Arbitration Association.
The arbitrator's decision, if in accordance with the law,
shall be final and binding upon the parties. The arbitrator
shall have no power to add to, detract from or modify any of
the terms of this Agreement, but shall otherwise have the
power to adjudicate any disputes and apply any appropriate
remedy. The administrative costs shall be borne equally by
the parties and each party shall bear the cost of its own
legal fees and litigation expenses. The parties acknowledge
that they are expressly waiving resort to the courts and the
right to trial by jury, and submitting to arbitration as the
exclusive method for the adjudication of any disputes arising
from this Agreement, to any claim to breach, or the
termination of this Agreement, or the termination of the
employment of the Chief of Police.
matter went to arbitration. As the Arbitrator (Michael W.
Stutz, from the AAA panel) framed the issues, apparently by
agreement of the parties, The questions to be answered at
1) Whether the City satisfied its burden of proving that Mr.
Cummings engaged in conduct unbecoming a Police Chief, as
charged and found by Hearing Officer Robert Rooney.
2) If not, what shall be the remedy?
began in March and ended in June 2013. In the
Voluminous evidence was submitted into the record, including
Mr. Mitnick's report dated August 21, 2012, the
transcript and video of the public disciplinary hearing on
October 10, 2012 and testimony ...