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City of Newton v. Cummings

Superior Court of Massachusetts, Middlesex

April 21, 2016

City of Newton
v.
Matthew A. Cummings No. 133834

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION TO CONFIRM ARBITRATION AWARD

          Thomas P. Billings, Justice

         For the 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 below.

         BACKGROUND

         The 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.

         A 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.

         Cummings' 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:

         18. Arbitration

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.

         The 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 arbitration are:

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?

         Hearings began in March and ended in June 2013. In the Arbitrator's summary,

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 ...

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