Appeal from Circuit Court of Macon County No. 11MR63 Honorable Robert C. Bollinger, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Steigmann and Cook concurred in the judgment and opinion.
¶ 1 In July 2010, plaintiff, Decatur Police Benevolent and Protective Association Labor Committee (the Union), filed a grievance on behalf of its member, police officer Jeremy Welker, contesting his discharge from the police department after allegations of domestic battery and untruthfulness. Pursuant to a collective-bargaining agreement under the Illinois Public Labor Relations Act (Labor Act) (5 ILCS 315/1 to 27 (West 2008)), the Union and defendant, the City of Decatur (the City), agreed to resolve the issue of whether just cause existed to discharge Officer Welker. After a hearing, the arbitrator, in a 99-page decision, found no just cause and determined Officer Welker should be reinstated upon serving a 45-day suspension. City of Decatur v. Policeman's Benevolent and Protective Ass'n Labor Committee, FMCS No. 10-55173-A (2011) (Donegan, Arb.).
¶ 2 The Union applied to the circuit court to confirm the arbitration award and the City sought a declaration the award was void as against public policy. In a 14-page judgment, the court agreed the arbitration award violated public policy and vacated the arbitrator's award. The Union appeals, arguing (1) the court ignored relevant, predominant statutory law; and (2) because the arbitrator did not find Officer Welker committed domestic violence, public-policy considerations are furthered by the arbitrator's decision. We affirm.
¶ 4 At arbitration, both sides presented extensive evidence. In summary, the Union presented evidence showing Officer Welker had worked in the juvenile investigations division at the Decatur police department since July 1994. Officer Welker received awards and commendations for his police work. For example, in July 1995, Officer Welker received the "key drug award" because of his work that resulted in the arrests of drug dealers. He received two more key drug awards in 1998. In addition, the City's police department, between 1997 and 2005, commended Officer Welker for his work preventing a possible suicide, arresting felons, helping diffuse a hostage situation, and helping solve a sexual assault and robbery.
¶ 5 The City produced, among other items of evidence, a written statement by Officer Welker's wife Michelle. According to Michelle's statement, on January 17, 2010, Michelle and Officer Welker argued in their kitchen. Michelle, not wanting to argue, went to the bedroom. In the bedroom, Officer Welker pushed her onto the bed. After Michelle stood, Officer Welker "got in her face." Michelle, afraid Officer Welker would attack her, attempted to push him away. After she did so, Officer Welker "head-butted" her in the face above her nose.
¶ 6 The City also submitted into evidence a report by Sergeant Steven Carroll, who investigated the incident. According to that report, when Sergeant Carroll arrived at the scene that night, he asked Officer Welker what occurred. Officer Welker stated he and Michelle had argued and she left the house. Officer Welker stated there had been an argument but no battery or physical contact. Sergeant Carroll then interviewed Michelle and returned to their residence to arrest Officer Welker.
¶ 7 The City further produced evidence showing in the early morning hours following the event, Officer Welker went to the police headquarters, where he was interviewed by Sergeant Carroll. Officer Welker admitted the physical altercation, but stated if Michelle had an injury it was from her striking him. Officer Welker stated Michelle hit him in the forehead with her face and nose.
¶ 8 The arbitrator also considered evidence Officer Welker previously had been disciplined for domestic battery involving Michelle. In September 2009, Michelle notified the police of the incident. The police department disciplined Officer Welker for this conduct by instituting a 30-day suspension and ordering him to participate in an employee-assistance program.
¶ 9 Upon considering the evidence from both sides, the arbitrator concluded Officer Welker's termination for the criminal offense of domestic battery and untruthfully responding to direct questions about the incident was not for just cause. While the arbitrator on at least three occasions stated the City proved by a preponderance of the evidence the domestic-violence incident occurred, he found the City had not proved domestic violence by clear and convincing evidence:
"Like in most arbitrations, there was considerable conflicting evidence in the instant case. The preponderance of the credible, pertinent evidence was presented by the Agency.
Fifth, the Arbitrator finds that the Agency has proven by a preponderance of the evidence that the charged conduct occurred. However, the Arbitrator requires that an Employer must prove domestic battery and untruthfully responding to direct questions regarding the incident by clear and convincing evidence in order to justify termination of an employee. The standard of proof was not met in the instant case. ***
Sixth, the Arbitrator finds that the Agency proved the charges of domestic battery and lack of truthfulness in answering direct questions concerning the incident by [Officer Welker] by a preponderance of the evidence. It did not prove the charges by clear and convincing evidence which would be required to terminate the Grievant. The Grievant denied the charges. However, the [City's] witnesses were somewhat more credible."
¶ 10 While the arbitrator found a nexus existed between Officer Welker's conduct and the reputation and efficiency of the service and determined Officer Welker's misconduct was "somewhat detrimental," the arbitrator determined Officer Welker's "conduct can be corrected with progressive discipline instead of termination." The arbitrator noted Officer Welker's conduct did not occur in a public place, meaning the alleged conduct would have a limited effect on the department's reputation as the alleged incident occurred in the privacy of Officer Welker's home. The arbitrator concluded officer Welker "did not bring discredit or embarrassment on himself or the police department."
¶ 11 The arbitrator further concluded the department did not apply progressive discipline and the termination of Officer Welker was unfair and unreasonable. The arbitrator found "[a] lesser penalty should bring about corrective behavior on the part of the Grievant. Discipline should be corrective not punitive." Applying the "Douglas factors" (Douglas v. Veterans Administration, 5 M.S.P.B. 313, 331-32 (1981)), the arbitrator noted Officer Welker "had a very good record with infrequent discipline" and over 14 years of "good to excellent service." The arbitrator determined the proper penalty was a 45-day suspension. The arbitrator further observed "the Agency has presented no judicial finding or order that the Grievant has committed the crime of domestic battery."
¶ 12 The arbitrator determined Officer Welker had been disciplined more severely for untruthfulness than other incidents committed by the City's police officers. One officer was suspended for 30 days for filing a false police report. Another officer was suspended 15 days for untruthfulness in departmental matters and two other violations.
¶ 13 The arbitrator determined Officer Welker, in arbitration, retained a presumption of innocence and was entitled to the benefit of substantial doubt. The arbitrator concluded "there are definitely substantial doubts in the [a]rbitrator's mind that a domestic battery occurred." "There may have been some physical contact but no clear and convincing evidence that there was a battery." The arbitrator ...