ORIGIHALIN THE SUPREME COURT OF OHIO

. . -

2 137Beth Rist,

Appellant

On Appeal from the Lawrence CountyCourt of AppealsFourth Appellate District

V.

City of Ironton, Appeal of RightCourt of Appeals

Appellee Case No. 10CA10

APPELLANT, BETH RIST'SMEMORANDUM IN SUPPORT OF JURISDICTION

THE LAW OFFICE OF MARC MEZIBOV

MARC D. MEZIBOV (Ohio Bar No. 0019316)SUSAN E. BRABENEC (Ohio Bar No. 0075200)401 E. Court Street, Suite 600Cincinnati, OH 45202Telephone: (513)621-8800Telecopier: (513)621-8833mmezibov@mezibov.comsbrabenec@mezibov.comCounselfor Appellant, Beth Rist

m

MILLER, SEARL & FITCH, LPA

R. Alan Lemons806 Sixth St.Suite 200Portsmouth, OH 45662-0991Counsel,fbr Appellee, City ofIronton

cI^RK Q^ ^QURTSUPRE^^^ L^^H^ ^F OHI®

i

TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................ii

TABLE OF AUTHORITIES .............................................................................iii

1. EXPLANATION OF WHY THIS CASE IS OFGREAT PUBLIC AND GENERAL INTEREST ANDINVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION......... i

II. STATEMENT OF THE CASE AND FACTS ..........................................3

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .................5

Proposition of Law No. 1:

Where the legislature has not affirmatively granted courts

authority to review and/or reverse arbitration decisions on thebasis of public policy under R.C. 2711.10 or other specifiedprovision, such court action violates principles of separation ofpowers ...............................................................................................5

Proposition of Law No. 2:

Where Ohio law does not explicitly provide courts the authority tovacate an arbitration award reinstating an employee under a"public policy" exception, such action is an unconstitutionalexpansion ofjudicialpower .................................................................................................8

Proposition of Law No. 3:

There exists no dominant, well-defined public policy against theenforcement of an arbitration decision reinstating the employmentof a police officer found to have violated the Ohio Revised Code,where that arbitration decision is otherwise reasonable in itsterms for reinstatement ...................................................................ii

IV. CONCLUSION .................................................................................. 14

CERTIFICATE OF SERVICE ............................................................. 15

ii

TABLE OF AUTHORITIES

Supreme Court Rules

S.Ct.R. IV,§1 .....................................................................................................................2

Ohio Statutes

R.C. 737.11 .......................................................................................................................... 12

R.C. 2711 ....................................:.......................................................................................i,8

R.C. 2711. 09 . .................... .............................:.....................................................................4

R.C. 2711.10 ................................................................................................1,24,5,6,7,940

R.C. 2921.13 (A) . ..................................................................................................................3

Ohio Cases

Alliance v. F.O.P./Ohio Labor Council, Inc., 2003 WL 140002, at *3 (Ohio App. 5)

.................................... .................................................................................................. 8,9

Akron Metro. Hous. Auth. v. Local 2517, Am. Fed'n of State, City, & Mun. Employees.,

AFL-CIO (2005),16i Ohio App. 3d 594, 831 N.E.2d 493 .................................................10

Arbino v. Johnson & Johnson (2007), 125 Ohio St.3d 280, 285, 927 N.E.2d 1092,1101 .......................................................................................................................................6

Bd. of Educ. v. Fulton City Budget Comm. (1975), 41 Ohio St.2d 147, 156, 324 N.E.2d566 ........................................................................................................................................7

Cleveland v. Int'l Bhd. of Elec. Workers Local 38, 2009 WL 4181358, at*4 (Ohio Ct.

App. 8) ................................................................................................................................9

Funk v. Rent-All Mart, Inc. (2oo1), 91 Ohio St.3d 78, 80, 742 N.E. 2d 127, 129............7

Hillsboro v. Fraternal Order of Police (1990) 52 Ohio St.3d 174, 176; 556 N.E. 2d 1186,

1188 .................................... .................................................................................................12

Ironton v. Rist, 2010 WL 4273235, 2oto-Ohio-5292, (Ohio Ct.App. 4) ...........................5

Jones v. Franklin County Sheriff (1990) 52 Ohio St.3d 40> 555 N.E.2d 940 ..................i2

iii

Lake City. Bd. of Mental Retardation & Developmental Disabilities v. Profl Ass'. for

Teaching of Mentally Retarded (1994), 71 Ohio St.3d 15, 17-18, 641 N.E.2d 18o, 182)...............................................................................................................................................8

Miller v. Gunckle (2002), 96 Ohio St.3d 359, 362, 775 N.E.2d 475, 479•••••••••••••••••••••••••••6

Miller v. Mgt. Recruiters Int'l., Inc. (2009), 18o Ohio App.3d 645, 653>9o6 N.E.2d 1162,1168 ..............................................................................................................................6, io

State ex rel. Cincinnati Enquirer, Div. of Gannet Satellite Network, Inc. v. Dupuis(2002), 98 Ohio St. 3d 126, 781 N.E. 2d 163) . ....................................................................6

Southwest Ohio Regional Transit Authority v. Amalgamated Transit Union 91 OhioSt.3d 1o8> 742 N.E.2d 630 (2001) ..........................,..............................2, 9^ 10, ii^ 13, 14

Univ. Mednet v. Blue Cross & Blue Shield of Ohio (1997), 126 Ohio App.3d 219, 710N.E.2d 279 .....................................................................................................................7,9

Federal Cases

Columbia Gas of Ohio, Inc. v. Utility Workers Union ofAm., 2009 WL 1351679 (C.A. 6(Ohio) ...................................................................................................................................9

E. Assoc. Coal Corp. v. United Mine Workers of Am. (2000), 531 U.S. 57, 62,121S.Ct.462, 466 ..........................................................................................................i2, 13

Hurd v. Hodge (1948), 334 U.S. 24, 34-35, 68 S.Ct. 847, 852-53 .....................................8

Selby Gen. Hosp. v. Kindig, 2oo6 WL 2457436, at *6 (Ohio Ct. App. 4) ....................6, io

Steelworkers v. Enterprise Wheel & Car Corp. (1960) 363 U.S. at 593, 596, 8o S. Ct. at1358, 136o ...........................................................................................................................i2

United Paperworkers Int'l. Union, AFL-CIO v. Misco, Inc. (1987) 484 U.S. 29, 43, 1o8S. Ct. 364, 373 ...............................................................................................................7,11

W.R. Grace & Co. v. Rubber Workers, (1987) 461 U.S. 757, 766, 103 S.Ct. 2177,2183 ..........................................................................................................................7,11,12

iv

I. EXPLANATION OF WHY THIS CASE IS OFGREAT PUBLIC AND GENERAL INTEREST ANDINVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

Appellant seeks the Court's review determining, (i) whether the courts

may lawfully expand their powers to review and reverse binding arbitration

decisions on the basis of public policy, however well defined, where the

legislature has not empowered the courts make such reviews under R.C. 2711.10

or other provision; (2) whether a court may vacate an arbitration award

reinstating an employee based solely upon a court's determination that the

employee's behavior itself violated a public policy, but in the absence of any

finding by the court that the arbitration process itself was conducted in violation

of public policy; (3) whether an arbitration ruling providing for the reinstatement

and sanctioning of a police officer found to have violated the Ohio Revised Code

by falsifying a police report, violates any dominant, well-defined public policy.

These questions are of great public importance because they stand to affect

the future of collective bargaining agreements and resultant arbitration awards in

Ohio. Should the decision of the court of appeals be permitted to stand, state

employees and unions will be forced to conclude that the terms to which they

contracted with their state employers can be nullified based upon courts' refusal

to be bound by the legislated provisions of the Ohio Arbitration Act, R.C. 2711

and courts' subsequent adoption of the non-legislated "public policy exception."

Undermining in this manner parties' reasonable expectations that Ohio courts

will enforce contract provisions governing arbitration of disputes, necessarily will

have an adverse impact on public confidence in collective bargaining.

Public confidence in a state employer's good faith in contracting will also

be shaken, should the court of appeals' decision stand without further review. In

the present case, the City of Ironton Police Department, despite its agreement in

a valid and regular collective bargaining agreement to abide by binding

arbitration, sought an appeal to vacate an arbitration award and received a ruling

in its favor on the basis of a non-legislated, judicially-created, "public policy

exception" which has never been officially adopted by the Supreme Court of Ohio.

This Court has not meaningfully discussed the issue of enforcing an arbitration

award through the "public policy exception" since its decision in Southwest Ohio

Regional Transit Authority v. Amalgamated Transit Union (2001) ("SORTA").

The decision in that case, however, did not squarely address whether Ohio courts

are authorized to adopt the "public policy exception" and thereby effectively

amend R.C. 2711.10. 9i Ohio St.3d io8, 742 N.E.2d 630. Resolution of this issue

is of great public and general interest and appellate review is necessary to clarify

for lower courts whether the "public policy exception" has actually been adopted

in Ohio.'

A constitutional question presented in this case also necessitates this

court's review. Under Ohio law, an arbitration award may be vacated only on the

grounds provided by the General Assembly in R.C. 2711.1o. Through its adoption

of the "public policy exception," the court of appeals has exercised power which

was never entrusted to it by the legislature. This judicial expansion of the

1 Because the court of appeals has not issued an order certifying a conflict regarding the "publicpolicy exception," Appellant many not appeal by filing a notice of certified conflict with this court(S. Ct. R. IV, § i). However, a district conflict with respect to the "public policy exception" existsand requires resolution by this court for a full review of Appellant's case. See full discussion in"Proposition of Law No. 2," pp. 9-10.

2

grounds upon which an arbitration award can be vacated by a court, constitutes a

violation of the separation-of-powers doctrine implicit in the Ohio Constitution

and requires correction by this court.

For these reasons, this court must grant jurisdiction to review this case

and the erroneous application and interpretation of law found in the decision of

the court of appeals.

II. STATEMENT OF THE CASE AND FACTS

In October 20o8, Beth Rist ("Rist") worked as a Sergeant in the Ironton

Police Department ("IPD") in Ironton, Ohio. Rist's employment was terminated

at that time based upon her falsification of a police report. The falsification had

occurred in August 2oo8, when Rist initiated a routine traffic stop and

discovered that the driver, Dolly Newcombe, had expired license tags and no

driver's license. Instead of citing Ms. Newcombe for the violation, Rist cited the

driver's daughter, Jamie Sparks, for driving with expired license tags and failure

to present proof of car insurance. In September 2oo8, Rist reported the incident

to officials at the police department and acknowledged falsifying the police

report. Rist ultimately pleaded guilty to first-degree misdemeanor falsification, in

violation of R.C. 2921-13 (A).

Rist grieved her employment termination under the terms of the

governing collective bargaining agreement ("CBA") between the City of Ironton

("the City") and her union, the Fraternal Order of Police, Ohio Labor Council,

Incorporated ("FOP"). As the parties could not resolve the grievance, it was

submitted to binding arbitration under the terms of the CBA.

At the hearing, the arbitrator found that Rist had indeed falsified a police

report and had subsequently reported her own violation to the IPD. However, in

light of lenient sanctions imposed upon similarly situated male officers, the

arbitrator also found "an element of disparate treatment" in the City's decision to

terminate Rist's employment. Upon its review of the available evidence and

Rist's flawless 13-year service history within the IPD, the arbitrator ruled that

Rist's employment should be reinstated, albeit without back-pay and subject to a

probation period in sanctioning for the seriousness of her violation.

Despite its submission to binding arbitration in the CBA, the City filed a

motion to vacate the arbitration decision with the Lawrence County Common

Pleas Court, arguing that the arbitrator exceeded his authority under R.C.

2711.1o. Rist responded by seeking a confirmation of the arbitration decision

under R.C. 2711.09. Ultimately, the court asked both parties to prepare findings

of fact and conclusions of law for its consideration.

In its proposed findings and conclusions, the City argued, not that the

arbitrator had exceeded its authority under R.C. 2711.1o, but instead simply that

public policy rendered unenforceable the arbitrator's decision to reinstate Rist.

The City also argued for the futility of Rist's reinstatement, given the necessity

that she serve under a probation status for a period of time.2

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

decision. (Attachment A). Upon appeal, the Lawrence County Court of Appeals

Z Rist's probation was a sanction administered by the arbitrator in accordance with the CBA towhich the City was a contracting party. The City's assertion that Rist's probation period wouldrender her service "futile" is undermined by the City's own agreement in the CBA to allowprobation as a sanction for police officers.

4

affirmed the judgment of the court of common pleas, finding 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." Ironton v. Rist, 2010 WL 4?73235> 2oio-Ohio-5292, (Ohio Ct.App. 4)

(Attachment B).

The court of appeals erred in its analysis and application of the public

policy exception when it rendered unenforceable the arbitration decision to

reinstate Rist's employment. The court of appeals also erred when it found there

to exist a dominant and well-defined public policy against the enforcement of an

arbitration decision reinstating the employment of a police officer found to have

violated the Ohio Revised Code, where the arbitration decision also provides for

sanctioning commensurate with the officer's violation.

In support and explanation of Appellant's position, the following argument

is submitted.

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. i:

Where the legislature has not affirmatively granted courtsauthority to review and/or reverse arbitration decisions onthe basis of public policy under R.C. 2711.10 or otherspecified provision, such court action violates principles ofseparation of powers.

The language of R.C. 2711.10, the Ohio Arbitration Act, directs and limits a

court of common pleas to "make an order vacating the award upon the

application of any party to the arbitration" where any of the following has

occurred:

(A) The award was procured by corruption, fraud, or undue means.

5

(B) There was evident partiality or corruption on the part of thearbitrators, or any of them.

(C) The arbitrators were guilty of misconduct in refusing topostpone the hearing, upon sufficient cause shown, or in refusing tohear evidence pertinent and material to the controversy; or of anyother misbehavior by which the rights of any party have beenprejudiced.

(D) The arbitrators exceeded their powers, or so imperfectlyexecuted them that a mutual, final, and definite award upon thesubject matter submitted was not made.

Only through these four carefully drafted statutory exclusions, has the legislature

provided courts the finite authority to vacate arbitration decisions. See Miller v.

Gunckle (2002), 96 Ohio St.3d 359, 362, 775 N.E.2d 475, 479 (An arbitration

award may be vacated only on the grounds enumerated in R.C. 2711.1o); see also

Selby Gen. Hosp. v. Kindig, 20o6 WL 2457436, at *6 (Ohio Ct. App. 4) (Ohio law

does not recognize non-statutory grounds for vacating an arbitration award.).

"A fundamental principle of the constitutional separation of powers

among the three branches of government is that the legislative branch of

government is `the ultimate arbiter of public policy."' Arbino v. Johnson &

Johnson (2007), 125 Ohio St.3d 280, 285, 927 N.E.2d 1092, iioi (emphasis

added) (quoting State ex rel. Cincinnati Enquirer, Div. of Gannet Satellite

Network, Inc. v. Dupuis (2002), 98 Ohio St. 3d 126, 781 N.E. 2d 163). Had the

legislature wanted to include an exception permitting courts to vacate awards

based upon constructs of "public policy," the legislature could have granted this

sweeping power. Instead, the General Assembly elected to limit courts' ability to

vacate arbitration awards by enacting the precise and bounded language of R.C.

2711.10. See Miller v. Mgt. Recruiters Int'l., Inc. (2009), i8o Ohio App.3d 645,

6

653,9o6 N.E.2d 1162, u68 ("R.C. 2711.1o does not [authorize] reviewing courts to

vacate an arbitration award based on an alleged public policy violation.")(quoting

Univ. Mednet v. Blue Cross & Blue Shield of Ohio (1997), 126 Ohio App.3d 219,

71o N.E.2d 279). As courts are required to "give effect to the words used in a

statute, not to delete words used or to insert words not used," a court cannot

lawfully expand its authority by amending R.C. 2711.10 to include a provision

unauthorized by the General Assembly. Funk v. Rent-All Mart, Inc. (2001), 91

Ohio St.3d 78, 80, 742 N.E. 2d 127, 129; see also Bd. of Educ. v. Fulton City

Budget Comm. (1975), 41 Ohio St.2d 147, 156, 324 N.E.2d 566 (The Supreme

Court of Ohio does not sit as a superlegislature to amend Acts of the General

Assembly).

By implementing a public policy exception as an alternative to R.C.

2711.10, courts have arrogated unto themselves the power and authority to render

arbitration awards unenforceable in situations where the court determines that

an "explicit," "well-defined," and "dominant" public policy" has been violated.

United Paperworkers Int'l. Union, AFL-CIO v. Misco, Inc. (1987) 484 U.S. 29,

43, 108 S. Ct. 364, 373 (citing W.R. Grace & Co. v. Rubber Workers, (1987) 461

U.S. 757, 766, 103 S.Ct. 2177, 2183). This is so, regardless of whether any

violation of R.C. 2711.10 can be demonstrated to justify court interference. This

arrangement invites courts to craft "public policy" when needed, through

reference to relevant laws and legal precedents of their choosing. See W.R. Grace

& Co. v. Rubber Workers, (1987) 461 U.S. at 766,103 S.Ct. at 2183.

7

Courts employing the exception can point to no other authority for its

application other than the general proposition that a court may not enforce a

contract that is contraryto public policy. See Hurd v. Hodge (1948), 334 U.S. 24,

34-35, 68 S.Ct. 847, 852-53. Such an unauthorized and unlegislated judicial

expansion of power inherently threatens the very damage the court seeks to

prevent - the erosion of settled public policy, and in this instance, policy

supporting rights to contract and the separation of governmental powers. See

Alliance v. F.O.P./Ohio Labor Council, Inc., 2003 WL 140002, at *3 (Ohio App.

5) ("In order to uphold the strong public policy favoring private settlement of

grievances, the General Assembly has limited the role of judicial review" of

arbitration decisions to the provisions of R.C. Chapter 2711.) (quoting Lake City.

Bd. of Mental Retardation & Developmental Disabilities v. Prof 1 Ass'. for

Teaching of Mentally Retarded (1994), 71 Ohio St.3d 15, 17-18, 641 N.E.2d 18o,

182).

For the reasons stated above, an appellate review of the legality of the

"public policy exception" is needed to cure the injustice in the present case and to

prevent future courts' unlawful interference with arbitration awards and the

interpretation of contracts and courts' unlawful expansion of judicial authority.

Proposition of Law No. 2:

Where Ohio law does not explicitly provide courts theauthority to vacate an arbitration award reinstating anemployee under a "public policy" exception, such action is anunconstitutional expansion of judicial power.

In contrast to clear federal rulings on this issue, the Supreme Court of

Ohio, (1) has not ruled specifically that the public policy exception is permissible,

8

and (2) has not provided clarity regarding the analysis to be made where a court

vacates an arbitration award based upon public policy. See SORTA (2001), 91

Ohio St.3d 108, 742 N.E.2d 630; see also Columbia Gas of Ohio, Inc. v. Utility

Workers Union of Am., 2009 WL 1351679 (C.A. 6 (Ohio)). Because this Court

has yet to rule with specificity upon the public policy exception, no such authority

yet exists in lower courts to implement the exception. See Cleveland v. Int'l Bhd.

of Elec. Workers Local 38, 2009 WL 4181358, at*4 (Ohio Ct. App. 8) ("The Ohio

State Supreme Court has refused to expand state court review beyond the clear

terms of R.C. 2711.10," making a review based upon the "public policy exception"

impermissible.)(quoting Univ. Mednet v. Blue Cross & Blue Shield of Ohio

(1997), 126 Ohio ApP.3d 219, 71o N.E.2d 279).

It is apparent that, the court of appeals relies heavily upon SORTA and

decisions of the United States Supreme Court for its holding allowing review of

arbitration awards based upon public policy. (Decision and Judgment Entry, ¶¶

15-16); see 91 Ohio St.3d 1o8, 742 N.E.2d 630. However, the constitutionality of

the courts' expansion of judicial power through the adoption of a "public policy

exception," remains undecided in Ohio, as demonstrated by district courts'

decisions. See Alliance v. F.O.P./Ohio Labor Council, Inc., 2003 WL 140002, at

*3 (Ohio Ct. App. 5) (Court upheld decision of trial court to reject vacating

arbitration award on basis of public policy because there is no "public policy"

provision in R.C. 2711.10); Univ. Mednet (1997), 126 Ohio App.3d 219, 710

N.E.2d 27 (Because an arbitration award may be vacated solely pursuant to R.C.

2711.10, there are no lawful non-statutory grounds for such action); Cleveland v.

Int'l Bhd. of Elec. Workers Local 38, 2009 WL 4181358, at*4 (Ohio Ct. App. 8);

9

Selby Gen. Hosp. v. Kindig, 2oo6 WL 2457436, at *6 (Ohio Ct. App. 4); Miller v.

Mgt. Recruiters Int'l., Inc. (2009), 18o Ohio App.3d 645, 653,9o6 N.E.2d 1162,

1168but see Akron Metro. Hous. Auth. v. Local 2517, Am. Fed'n of State, City, &

Mun. Employees, AFL-CIO (2005), 161 Ohio App. 3d 594, 831 N.E.2d 493 (Court

applied public policy exception in confirming an arbitration award terminating

employment). This "district split" exists because this Court has yet to definitively

rule whether the public policy exception is a lawful exercise of judicial power in

light of the clear provisions of R.C. 2711-10.

In the SORTA case, this Court tangentially dealt with the "district split"

concerning public policy when it noted "that [an] arbitration award reinstating

[an employee] drew its essence from the CBA and was not unlawful, arbitrary, or

capricious." (2001) 9i Ohio St.3d at 115, 742 N.E.2d at 637. While the court

recognized the possibility of a "public policy exception," it did not find a requisite

public policy against reinstatement as provided by the arbitration award, and

therefore, never actually implemented the exception. See id. at 114, 636. Most

significant, the Court did not affirmatively rule that the "public policy exception"

was incorporated into Ohio law to supplement the legislature's provisions under

R.C. 2711.10. See id.

Because the Court has not resolved whether a "public policy exception"

allowing courts to review arbitration awards a lawful exercise of power and is

consistent with R.C. 2711.1o, an appellate review resulting in a definitive ruling

on this matter is appropriate and necessary for the future of judicial review of

arbitration awards.

Proposition of Law No. 3:

10

There exists no dominant, well-defined public policy againstthe enforcement of an arbitration decision reinstating theemployment of a police officer found to have violated theOhio Revised Code, where that arbitration decision isotherwise reasonable in its terms for reinstatement.

In the present appeal, the relevant inquiry for the application of the public

policy exception is whether enforcement of the contractual agreement to reinstate

Rist would violate a "well defined" and "dominant" public policy. The court of

appeals failed to make this analysis, as it established no explicit public policy

which was violated by the arbitration process and resultant award. Accordingly,

the court's overturning of the arbitration decision was erroneous.

Under the public policy exception, 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 supposed public interests."' United Paperworkers Int'l.

Union, AFL-CIO v. Misco, Inc. (1987) 484 U.S. 29, 43, 108 S. Ct. 364, 373 (citing

W.R. Grace & Co. v. Rubber Workers, (1987) 461 U.S. at 766, 103 S.Ct. at 2183).

In applying the exception, the question to be answered is not whether an

individual appellant's behavior violates the well defined and dominant public

policy, but rather whether an arbitrator's award based upon the contracted terms

of a CBA violates does so. See SORTA, 91 Ohio St.3d at 113, 742 N.E.2d at 636.

This distinction is of crucial importance. An assessment of a grievant's

conduct under a moral code determined by the court, constitutes an improper

review of facts previously introduced and weighed. See W.R. Grace & Co. v.

Rubber Workers, (1987) 461 U.S. at 764, 103 S.Ct. at 2182. As "[t]he `proper'

11

judicial approach to a labor arbitration award is to `refus[e] ... to review the

merits,"' a review of the merits to establish a violation of public policy is

prohibited. E. Assoc. Coal Corp. v. United Mine Workers of Am. (2000), 531

U.S. 57, 62, 121S.Ct.462, 466 (quoting Steelworkers v. Enterprise Wheel & Car

Corp. (1960) 363 U.S. at 596, 8o S.Ct. at 1358); see also Hillsboro v. Fraternal

Order of Police (1990) 52 Ohio St.3d 174, 176, 556 N.E. 2d 1186, 1188 ("[A]

reviewing court is precluded from reviewing the merits of the arbitration award,

since doing so would interfere with and/or undermine the positive attributes of

the arbitration process.").

In this case, the court of appeals failed to establish the public policy

necessary to render the arbitration decision unenforceable. Citing police officers'

duties to "obey and enforce ... all criminal laws of the state," under R.C. 737.11

and case law for the general proposition that officers are to be "honest[]," the

court of appeals described "general considerations" of public interests as

substitutes for explicit public policy. (Decision and Judgment Entry, ¶ 20);

Misco, (1987) 484 U.S. 29, 43, 108 S. Ct. 364, 373 (citing W.R. Grace & Co.,

(1987) 461 U.S. at 766, 103 S.Ct. at 2183). The general themes cited in Jones v.

Franklin County Sheriff (1990) 52 Ohio St.3d 40, 555 N.E.2d 940, also failed to

establish requisite "public policy" under the exception. (Decision and Judgment

Entry, ¶ 20). While police officers may be "held to a higher standard of conduct

than the general public," the legal application of such vague policy is impractical,

inconsistent, threatens unjust results. It is precisely this type of "general

consideration[] of supposed public interest[]" that does not constitute "public

12

policy" for the purposes of the exception. See Misco (1987), 484 U.S. at 43, io8 S.

Ct. at 373.

In actuality, relevant evidence and case law supports that Rist's

reinstatement, which included the condition of probation and denial of back pay,

was consistent with public policy. See E. Assoc. Coal Corp. v. United Mine

Workers of Am. (2000), 531 U.S. 57, 65, 121S.Ct.462, 468-69 (Reinstatement

with specified sanctions provided pursuant to a collective bargaining agreement

did not violate public policy and was consistent with principles of labor law

supporting the right of employers and employees to negotiate and contract terms

of punishment.). Courts have routinely found arbitration decisions, otherwise

reasonable in their terms allowing reinstatement, do not violate public policy.

See id. (Court found reinstatement award reasonable because it also punished

employee through suspension leading to lost wages, requirement to pay

arbitration costs); SORTA (2001), 9i Ohio St. 3d at 114, 742 N.E.2d at 636

(Arbitration award for reinstatement was reasonable because it denied the

employee back pay, provided future safeguards to prevent recidivism, and

considered the length and positive employment record of employee). Because

Rist's behavior with regard to falsifying a police report was neither condoned nor

excused without sanction, the arbitration award reinstating her employment was

in keeping with examples from case law finding no public policy violated through

such reasonable reinstatement conditions.

In addition to finding no public policy violated by the terms of Rist's

reinstatement, the court of appeals failed to make the proper inquiry in reaching

its decision. In overturning the arbitration decision, the court reasoned that "Rist

13

violated the law and comported herself in a manner that could not bring anything

but disrepute upon the department." (Decision and Judgment Entry, 121). The

court also concluded that Rist was "vulnerable to impeachment" in judicial

proceedings as a result of her "egregious" behavior. (ld.). Due to the court's

assessment of Rist's individual conduct under general considerations of public

interest, deemed "public policy,"3 neither the public policy exception nor

recognized law provided justification for vacating the arbitration award

reinstating and sanctioning Rist. See SORTA, (2001), 91 Ohio St.3d at 113, 742

N.E.2d at 636.

On the basis of the court's failure to establish a public policy which was

violated by an otherwise reasonable reinstatement award, and the court's faulty

application of the public policy exception by consideration of Rist's conduct, the

court of appeals improperly vacated the arbitration award on the basis of the

public policy exception. Accordingly, this Court's review is necessary to rectify

the erroneous decision of the court of appeals.

IV. CONCLUSION

For the foregoing reasons, Appellant Beth Rist respectfully requests that

this court accept jurisdiction of this case for review.

3 General concerns of pubic interest do not establish a"well defined" public policy for thepurposes of the exception. See Misco (1987) 484 U.S. 29, 43,108 S. Ct. 364; 373• However, evenif the court of appeals' formulation of public policy is accepted for these purposes, the court'sreview of Beth Rist's individual actions in relation to such a policy does not allow for theoverturning of the arbitration award. See SORTA, (2001), 91 Ohio St.3d at 113, 742 N.E.2d at

636.

14

MARC D. MEZIBOV (Ohio Bar No. 0019316)SUSAN E. BRABENEC (Ohio Bar No. 0075200)401 E. Court Street, Suite 600Cincinnati, OH 45202Telephone: (513)621-8800Telecopier: (513)621-8833mmezibov@mezibov.comsbrabenec@mezibov.com

Trial Attorneys for Appellant Beth Rist

CERTIFICATE OF SERVICE

The undersigned hereby certifiesforegoing was served on R. Alan LemonsSt., Suite 200, Portsmouth, OH 45662-0this 9th day of December 2010.

theA, 8o6 Si th

regular mail^n

MARC D. MEZIBOV (Ohio Bar No. 0019316)

15

614-533-4377 COfMIDN PLERS CQ1RT 623 P01 JAN 29 1 10 16:10

'.-''P^^^+'t.^'^rf -..u.••

2010 JAP! 29 Ai91l:02IN THE COMMON PLEAS COURT OF LAWRENCE COUNTY, OHIO

' ^.f"iC^ •'•CITY OF ORONTON, OHIO,. ^:...

PLAINTIFF. CASENUMBER09-OC-810

vs JUDOMENT ENTRY

BETH RIST, ET.AL.,

DEFENDANTS.

PlaintiPFs Motion to Vacate the Arbitration Award, issued by Harry Gtaham, is:

hereby grented as explained and outlined in this Court's Findings of facts and

Conclusions of Law. The Court adopts and inaotpontes the Plaintiff s proposed Findings

of Fact and Conclusions of Law filed herein on January 11, 2010. Defendants Motion to

Confirm the Arbitration Award is hereby denied.

cc: JudgeCounsel of recordParties

IN THE COURT OF APPEALS OF OHIO /D C111bFOURTH APPELLATE DISTRICT

LAWRENCE COUNTY.is.n

... . . ; • i^;

CITY OF IRONTON, 01•410,

Plaintiff-Appellee,

V.

BETH RIST,

Defen dant-Ap pe l lant'

Case No. 10CA10

DECISION ANDJUDGMENT ENTRY

APPEARANCES:

Warren N. Morford, Jr„ South Point, Ohio, for appellant.

R. Alan Lemons, MILLER, SEARL & FITCH, LPA, Portsmouth, Ohio, for appellee.

Harsha, J.

{41} 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. l"he City appealed, and the trial court vacated the arbitrator's

award after the court concluded that Rist's reinstatement violated public policy.

{1I2} Initially, Rist complains that the trial court erred when it vacated the award

without a transcript or unspecified exNbits 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.

(13) Rist also contends that the trial court erred in various ways when it found

that her reinstatement vVolated public policy. However, truthful reports from officers are

' The trial court dismissed the Fraternal Order of Police, Ohio Labor Council, Inc. as a party to the action.

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. Lawrence App. No. t 0C+4102

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. Accordinc ly, the trial court did not err when it vacated the arbitration

award.

1. Facts

{44} 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.

{95} 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 w(ith expired tags and

indicated on the ticket that Sparks lacked proof of insurance. After Sparks paid a fine,

she lost her driving privuVeges 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.

{46} The City ergued 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

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L.awrence App. No. 10C•.A10 3

Newcombe/Sparks familly." In addition, the arbitrator noted that Rist had 13 years of

service and no prior disr.:ipline 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 rep(mand for

his misconduct. The ad:)itrator concluded that the City lacked just cause to discharge

Rist and restored her ernployment. However, the arbitrator also found that Rist's

"serious offense" merited "serious discipline" and awarded her no back pay.

{117} The City fiRed 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'Yutile 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.

{48} The trial court adopted the City's proposed findings of fact and

conclusions of law and Saranted 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

{49} Rist assigris the following errors for our review=

The appellant, Beth Rist for her first assignment of error, asserts ihat thetrial court erred, ilo her material prejudice, when it determined that the

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Lawrence App. No. 1 oC,A10 4

binding decision of the arbitrator, Dr. Harry Graham, was against public

policy.

The trial court eri'ed, to the material prejudice of the appellant Beth Rist,when h vacated tihe binding arbitration decision of Dr. Harry Grahamwithout having the record of the arbitration proceedings or all of theevidence presented to the arbitrator, especially including the testimony ofthe 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 andattempted to determine the rights of the parties based upon its ownnotions 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 VacateArbitration Awardl,

The trial court erred, to the material prejudice of appellant, when it refusedto grant her Motic:on to Confirm Arbitration Award.

{1110} 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 18, 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.P. 12(A)(2); Keffer at 48, fn. 2. Nonetheless, we will review all

her arguments.

Ill. Vacation of Arbitration Award

A. Standard of Review

{411} Rist contends that the trial court erred when it found that the arbitrator's

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Lawrence App. No, 10C,410 5

award reinstating her vit:rlated 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. 06CA4•9, 2007-Ohio-6895, at 423, 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'bviil make every reasonable

indulgence to avoid distijrbing an arbitration award." Id., citing Mahoning at 84.

{412} Arbitration awards are presumed valid, thus a trial court's power to vacate

a final, binding arbitraticoi award is limited. Id. at 1123-24. "Because the parties have

contracted to have dispi.utes 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 appeHate 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. Tlwe same is true of the arbitrator's interpretation of the contract."

Southwest Ohio Regional TransitAuth. v. Amalgamated Transit Union, Local 627, 91

Ohio St.3d 108, 110, 2001 -Ohio-294, 742 N.E.2d 630, quoting United Paperworkers

lnternatt. Union, AFL-Clo v. Misco, Inc. (1987), 484 U.S. 29, 37-38, 108 S.Ct. 364, 98

L.Ed.2d 286.

{1113} "The legisllature has specified the narrow circumstances under which a

trial court may vacate an arbitration award." Athens, supra, at 424, citing R_C. 2711.10.

In this case, the City moved to vacate the arbitrator's award under R.C. 2711.10(D),

r.Ara, crxnn^ an vxa7n eac^ceSnuL vca ut:eT ninaianizt

Lawrence App. No. 10C,4106

which provides that a ccummon 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.

{414} 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 i:o 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

{415} The Supreme Court of Ohio has found that if an arbitrator's reinstatement

of an employee violateEi public policy, the award is unlawful and unenforceable. See

SORTA, supra, at 112, citing W.R. Grace & Co. v. Local Union 759, tnternatt Union of

the United Rubber, Cork, Linoleum & Plastic Workers of Am. (1983), 461 U.S. 757, 766,

103 S.Ct. 2177, 76 L.Er,V.2d 298. "[V)acating an arbitration award pursuant to public

2 The trial court also found that enforcement of the award would be "Fuule" given the terms of Rist'sprobation. However, given ciur conclusion that the trial court properly vacated the award because Rist'sreinstatement violated public policy, we need not address the propriety of this finding.

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Lawrence App- No. i OCAi 0

policy is a narrow exception to the `hands off' policy that courts employ in reviewing

7

arbitration awards and't,1oes not othenruise 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 IJ.S. 49, 66, 65 S.Ct. 442, 89 L.Ed.

744.

(916) The issue of whether, in flght 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 47. 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 standaird. Akron at 17; See, also, Jackson Cty„ Ohio Sheriff v. The

Fraternal Order of Police Ohio Labor Council, Inc., Jackson App, No. 02CA15, 2004-

Ohio-3535, at 419 (noting that "appellate review [of an arbitration award] focuses upon

the order issued by the i:rial court"). Accordingly, we must examine the "laws and legal

precedents" in order to cJetermine if there is any public policy that would render the

award reinstating Rist unenforceable. SORTA at 112.

B. Record of Arbitration Proceedings

{417} 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 Ibefore it- She complains that the trial court lacked a transcript of

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Lawrence App. No. 10CoA10

testimony from the arbiti'ation 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 reviewingi court has nothing to pass upon, and as to the claimed error the

court must presume the regularity of thie arbitration proceedings and resulting award.

See Smythe, Cramer Cr.% 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 ( i1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (per curiam).

{418} 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. 2004CA001 99, 2004-Ohio-

6822, at 46. Thus, we neject this argument.

C. Public Policy Analysis

{419} Although 1=list attempts to frame her assignments of error in different ways,

the crux of her argumerit 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 falsffication, 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

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Lawrence App. No. 10C,A10 9

moving violation or a criminal offense; and the c'rtation ultimately was dismissed and no

harm resulted to Jamie Sparks."

{1120} 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 CRjr Lodge No. 69, Fraternal Order of Police, Hamilton App. No. C-

040454, 2005-Ohio-1560, at 1421-22. According to the Supreme Court of Ohio:

[I]t is settled public policy * * * that police officers are held to a higherstandard of concluct than the general public. * * * Law enforcementofficials carry upon their shoulders the cloak of authority of the state. Forthem to commanid the respect of the public, it is necessary then for theseofficers even when off duty to comport themselves in a manner that bringscredit, 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).

{121} 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, R is undisputed that Rist committed such an

act. Rist violated the lav+i and comported herself in a manner that could not bring

anything but disrepute upon the depaitment. 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

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.- Lawrence App. No. 10CA10 10

stranger and without proifit, how can the public expect her to react if presented with an

opportunity to use her position for financial gain or to benefit f(ends or relatives? Rist's

continued employment as a sergeant with the IPD can only serve to erode public trust

and confidence in the clepartment. 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.

{122} Accordinglly, we find thai: the trial court did not err when it found that Rist's

reinstatement violated i:rublic 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

she(ff 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.

' We note that in her brief, Ri;,t accuses the City of "imped[ing] and den[ying] every procedural safeguard,contractural [sic] right and corsstitutional guarantee"**." She specifically complains that the Gityprevented her from confrontirig her accusers during the arbitration_ However, Rist did not assign theseissues as error so we need not address them. Moreover, we fail to see the relevance of these claims toRist's argumeht on appeal gi,.,en the fact that she seeks confirmation of the arbitration award.

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Lawrence App. No. 10CA10

JUDGMENT ENTRY

It is ordered that: the JUDGMENT IS AFFIRMED and that Appellant shall pay thecosts.

The Court finds there were reasonable grounds for this aIWLA

It is ordered that a special mandate issue out of this Court directing the LawrenceCounty Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date ofthis entry,

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 ofthe Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: 4(d-am H. Harsha, Judge

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