ALLEGATIONS OF THEFT SERIOUS ENOUGH THAT HEIGHTENED STANDARD OF PROOF REQUIRED TO FIRE OFFICER

Allegations Of Theft Serious Enough That Heightened Standard Of Proof Required To Fire Officer

An arbitrator overturned the termination of an officer and found that the Department had not presented “clear and convincing evidence” that termination was warranted. The Department argued that the arbitrator used an improper burden of proof standard. The Village challenged the Arbitrator’s decision in court, arguing that the use of the “clear and convincing evidence” standard violated public policy. The officer was alleged to have committed a theft, a criminal offense. The arbitrator held that the serious nature of the allegations warranted the heightened standard of proof. The Arbitrator noted a “widespread recognition” that arbitration of just cause vests the arbitrator with discretion to select the required quantum of proof. The Arbitrator found it “difficult to believe that the sophisticated parties who negotiated this contract did not foresee the likelihood that any experienced arbitrator would probably require more than a mere preponderance of the evidence in a case involving allegations of criminal activity.” The Arbitrator further stated that because a finding that an employee is a thief has particularly severe consequences, “a discharge for theft is distinguishable from other types of cases where a simple preponderance of the evidence will suffice.”

The Appellate Court of Illinois upheld the Arbitrator’s opinion. The Court ruled “that selecting a quantum of proof is a legal issue, not a matter of public policy. While there is no precise definition of ‘public policy,’ in general it can be said that public policy concerns what is right and just and what affects the citizens of the state collectively. Determining the quantum of proof is not a matter that affects the public welfare, but is instead a question of law. In the context of arbitration awards, gross errors of judgment in law are not grounds for vacating an award unless the errors are apparent on the face of the award. “Here, the Arbitrator properly selected a quantum of proof. As a general matter, in arbitration proceedings, the quantum of proof required to support a decision to discharge an employee is unsettled. Generally, it is up to the arbitrator to determine the required quantum of proof. While most arbitrators apply the preponderance of the evidence standard to ordinary discipline and discharge cases, in cases involving criminal conduct or stigmatizing behavior, many arbitrators apply a higher burden of proof, typically a clear and convincing evidence standard. Here, the collective bargaining agreement is silent on the required quantum of proof. Because the parties contracted to have their disputes settled by an arbitrator, rather than a judge, it was the Arbitrator’s view of the contract that the parties agreed to accept, including the required quantum of proof.” Village of Posen v. Illinois Fraternal Order of Police Labor Council, 2014 Ill. App. 133329 (2014)

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