[Cite as Cleveland v. Cleveland Police Patrolmen's Assn., 2012-Ohio-5746.]




          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98259



                                  CITY OF CLEVELAND

                                                           PLAINTIFF-APPELLANT

                                                     vs.

                    CLEVELAND POLICE PATROLMEN’S
                            ASSOCIATION

                                                           DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED
                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-742310

       BEFORE: Stewart, P.J., Celebrezze, J., and Sweeney, J.

       RELEASED AND JOURNALIZED: December 6, 2012

ATTORNEYS FOR APPELLANT

Barbara A. Langhenry
Cleveland Interim Law Director

BY:    William M. Menzalora
           Alejandro V. Cortes
Assistant Law Directors
601 Lakeside Avenue, Room 106
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Patrick A. D’Angelo
Patrick A. D’Angelo, LLC
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113

R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

      {¶1} Appellant city of Cleveland appeals from a court order that

confirmed an arbitration award in favor of appellees Cleveland Police

Patrolmen’s Association and city of Cleveland Police Officer Patrick Brown.

The award found that the city violated the terms of the union’s contract by

refusing to provide Brown with legal representation in a Section 1983 action

in federal court. The city argues that the court should not have confirmed

the arbitration award because the arbitrator committed an error of law by

refusing to give preclusive effect to a judgment rendered by the federal court

in the Section 1983 action.     That judgment, the city argues, invoked the

terms of a stated exception in the legal representation section of the collective

bargaining agreement and thus vindicated the city’s refusal to provide Brown

with legal representation.

                                        I

      {¶2} The litigation giving rise to Brown’s demand that the city

represent him centered on a Section 1983 action that named both the city and

Brown as defendants. The plaintiff in that action, Frank Angelone, alleged

that the off-duty Brown assaulted him during an altercation that occurred
outside of the Cleveland Police Department’s territorial jurisdiction. That

altercation occurred after Brown, incensed by the antics of the driver of a

vehicle that Angelone occupied, followed the vehicle in his personal car,

culminating with Brown confronting and assaulting Angelone outside a bar.

Angelone alleged that the city demonstrated a deliberate indifference to the

rights of its citizens by failing to provide Brown with proper training; by

failing to remedy a clear pattern of excessive violence on Brown’s part; and

failing to correct, discipline, or terminate Brown.

      {¶3}     Brown demanded that the city provide him with legal

representation under a collective bargaining agreement provision requiring

the city to assume the litigation costs and provide indemnity for any civil

action “arising out of any alleged act * * * while the officer was acting within

the course and scope of his duties as an officer * * *.”      The city refused

Brown’s demand, claiming that it was relieved of the duty to provide legal

representation and indemnification because the city’s law director had good

cause to believe that Brown’s actions were manifestly outside the course and

scope of employment. Brown then filed the grievance that is the subject of

this appeal.

      {¶4} As the grievance was pending, the Section 1983 claim was

removed to the United States District Court for the Northern District of Ohio.
 The city sought summary judgment in federal court on grounds that there

was no evidence that Brown acted under color of state law — an essential

element of a prima facie Section 1983 claim.              See 42 U.S.C. 1983;

Cooperman v. Univ. Surgical Assoc., Inc., 32 Ohio St.3d 191, 199, 513 N.E.2d

288 (1987). The city offered evidence showing that Brown was off-duty at the

time of the altercation; he was driving his personal vehicle and had been

consuming alcohol; he did not flash his badge and only identified himself as a

police officer immediately before the altercation; he did not report the

incident to his supervisors nor request payment for his activities; and he

violated general police orders relating to the conduct of off-duty officers.

       {¶5} Brown appeared in the federal court action but, as stated by the

arbitrator, did “little to nothing” in his own defense.

       {¶6} The facts before the district court showed that the off-duty Brown

had been drinking in three different establishments between 4 p.m. and 10:30

p.m.   He was on his way to another bar but was stopped at a railroad

crossing. Angelone was a passenger in a Ford Bronco stopped at the same

railroad crossing. The driver of the Bronco was spinning its tires to create a

cloud of smoke. When the railroad crossing opened, the Bronco drove away,

making quick lane changes.
      {¶7} Brown did not chase the Bronco, but soon saw it stopped at a red

light. The driver of the Bronco again started to smoke the tires. Brown

called three different friends in the Cleveland Police Department, eventually

asking for a license check run on the vehicle. The Bronco was not reported

as stolen. At that point, Brown decided to follow the vehicle and started

flashing his high beam lights at it.

      {¶8} The Bronco pulled into the parking lot of a bar. Brown parked

behind the Bronco. He saw the driver and Angelone exit the Bronco and

decided to confront Angelone, running after him and yelling “Cleveland

Police.” Brown did not show his badge. He blocked the entrance to the bar,

so Angelone tried to push him out of the way. Brown told Angelone, “that’s

an assault on a police officer.” Angelone again tried to push Brown away, at

which point Brown grabbed Angelone and slammed him to the ground.

Angelone’s face struck the ground, leaving him in a “a pool of blood with a

bloody, swollen face.” Brown entered the bar and asked the patrons to call

the local police. Angelone required hospitalization.

      {¶9} The district court granted the city’s motion for summary

judgment, agreeing with the city that “consideration of all the evidence shows

that [Brown] was not acting under the color of law” because “he was not

acting as a police officer, but merely engaging in a purely private act.” In a
memorandum opinion, the court found that Brown never showed his badge

and “appeared more to be engaged in a personal pursuit rather than in the

exercise of official authority.” To bolster its conclusion that Brown was not

acting as a police officer, the district court noted that Brown did not make an

arrest (he was admittedly outside the territorial jurisdiction of the Cleveland

Police Department) and instead asked the patrons of the bar to call the local

police department. Even though Brown claimed to have identified himself as

a police officer several times before throwing Angelone to the ground, the

court found that fact did not lead to the conclusion that Brown was acting

under color of law — at best he had witnessed a traffic infraction and he had

no authority to make any arrest. The court decided that Brown acted “more

consistent with a civilian case of ‘road rage’” rather than as a police officer

executing his official duties. With the federal jurisdictional claims denied,

the district court remanded the case to the court of common pleas.

                                      II

      {¶10} Brown’s grievance was denied at all internal stages, leading to

arbitration as provided by the collective bargaining agreement between the

union and the city.

      {¶11} Apart from an issue of arbitrability that is not raised in this

appeal, the arbitration centered on the effect of the district court’s summary
judgment on Angelone’s Section 1983 claim. The city argued that the district

court’s determination that Brown had not acted under the color of law when

he injured Angelone was res judicata on the issue of whether the city properly

denied Brown’s demand for representation — the collective bargaining

agreement allows the city to deny legal representation if a police officer was

not acting under color of law, and the district court made that finding as a

matter of law when granting the city’s motion for summary judgment.

      {¶12} The union argued that Brown’s actions were not manifestly

outside the course and scope of his duties, so the city wrongly rejected his

demand for legal representation. It further argued that the district court’s

summary judgment was unpersuasive because Brown did not oppose it and

his interests were not considered.

      {¶13} The arbitrator found no relevant authority addressing the

contours of a police officer’s course and scope of duties, so he turned to

workers’ compensation cases.         Citing Smith v. Cleveland, 8th Dist. No.

78889, 2001 Ohio App. LEXIS 5516 (Dec. 13, 2001), the arbitrator determined

that a police officer acts within the course and scope of his duties “if his

actions are consistent with and logically related to his employment and his

obligation as a peace officer.” The arbitrator then determined that Brown

was acting within the course and scope of his employment as a police officer
in   the   events   leading   to   the   altercation   with   Angelone,   although

acknowledging that Brown made a number of errors of judgment along the

way. Regarding the district court’s opinion that Brown was not acting under

“color of law” but “more consistent with a civilian case of ‘road rage,’” the

arbitrator decided:

      This statement is not an affirmative finding that [Brown] was
      actually guilty of having road rage — it is merely an opinion that
      his behavior was consistent with one who had road rage.
      Without a more definitive factual conclusion, the Court’s decision
      is insufficient to reach the factual conclusion that the City claims.
       Moreover, the fact that [Brown] made no defense during this
      part of the proceeding justifies a closer examination of the Court’s
      opinion and renders its impact less significant.

      If the Court had instead reached a more definitive factual
      determination on this point — that [Brown] was acting with road
      rage — a different outcome would result. As written, the Court’s
      opinion is not definitive and only speaks to how [Brown’s] conduct
      “appears,” not how it was proven. Therefore, as a factual matter
      it must be found that the Court’s decision was not determinative
      on this narrow question.

      {¶14} The arbitrator went on to conclude that Brown’s actions “should

not be measured as whether he acted correctly under the police department’s

rules and regulations[,]” but “whether those acts were consistent with a

person with official police powers who was attempting to act consistent with

those police powers.”

      {¶15} Using this standard, the arbitrator found no authority for the

proposition that the district court’s “color of law” analysis was synonymous
with the relevant “course and scope of employment” standard. Given that

the collective bargaining agreement used the course and scope of employment

standard, the arbitrator felt obliged to give that term meaning.              He

concluded:

      For the undersigned to take the Federal Court opinion and find
      that its “color of law” analysis is the same as a “course and scope”
      determination would require that the undersigned interpret and
      apply Federal case law. Without a specific case that finds the
      phrases are synonymous, it would be inappropriate for the
      undersigned to do so here.

                                       III

      {¶16} The city sought to vacate the arbitration award in the court of

common pleas. The city cited both R.C. 2711.10 and 2711.11 as a basis for

the motion to vacate the award, but made no specific argument under either

statute. Instead, it argued that “the court can vacate an arbitration result

when the arbitrators rule contrary to law or make such manifest mistake [sic]

as naturally works a fraud[,]” and that the arbitrator’s decision to “ignore” the

preclusive effect of the district court’s summary judgment constituted a

manifest mistake.

      {¶17} The court denied the city’s motion to vacate the arbitration

award. The court determined that the city’s only viable ground for seeking

relief was under R.C. 2711.10(D) — that “[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.” Noting that an

error of law or fact by an arbitrator does not provide a basis for vacating an

arbitration   award,    the   court   found    that   the   arbitrator’s   decision

“demonstrate[d]   a    rational   nexus    between    the   collective   bargaining

agreement and the arbitration award such that a mutual, final and definite

award was made.” Although the court conceded that the “the decision of the

arbitrator is at variance with that of the federal court and may not be the

decision that this Court would have reached,” the city failed to show that the

arbitrator exceeded his powers or so imperfectly executed his duties that a

mutual, final, and definite award was not made.

                                          IV

      {¶18} Arbitration is a favored method of resolving disputes, Williams v.

Aetna Fin. Co., 83 Ohio St.3d 464, 1998-Ohio-294, 700 N.E.2d 859, so the

scope of judicial review of the arbitration proceedings is limited by statute

and construing case law. Goodyear Tire & Rubber Co. v. Local Union No.

200, United Rubber, Cork, Linoleum & Plastic Workers of Am., 42 Ohio St.2d

516, 520, 330 N.E.2d 703 (1975).

      {¶19} Under R.C. 2711.10, a court can vacate an arbitration award for

one of four reasons, all of which relate to the conduct of the arbitrator:

fraud, corruption, misconduct, or exceeded powers.            The city does not
specifically state which subsection of R.C. 2711.10 it relies upon in seeking

vacation of the arbitrator’s decision, although, as the court noted, the only

provision consistent with its argument would be subsection (D):        that the

arbitrator exceeded his powers in refusing to give preclusive effect to the

federal court decision.

      {¶20} In Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn., 49

Ohio St.3d 129, 132-133, 551 N.E.2d 186 (1990), the supreme court stated the

applicable standard of review under R.C. 2711.10(D):

      [G]iven the presumed validity of an arbitrator’s award, a
      reviewing court’s inquiry into whether the arbitrator exceeded his
      authority, within the meaning of R.C. 2711.10(D), is limited.
      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.

      {¶21} The review of an arbitration award pursuant to R.C. 2711.10(D)

is not a de novo review of the merits of the dispute. Buyer’s First Realty, Inc.

v. Cleveland Area Bd. of Realtors, 139 Ohio App.3d 772, 784, 745 N.E.2d 1069

(8th Dist.2000). Also, we do not review an arbitration award for legal or

factual errors. Cleveland v. Fraternal Order of Police, Lodge No. 8, 76 Ohio

App.3d 755, 758, 603 N.E.2d 351 (8th Dist.1991); Cleveland v. Internatl. Bhd.

of Elec. Workers Local 38, 8th Dist. No. 92982, 2009-Ohio-6223, ¶ 34. Our
review under R.C. 2711.10(D) is limited to the question of whether the

arbitration award “draws its essence from the * * * agreement and is not

unlawful, arbitrary or capricious.” Findlay City School Dist. Bd. of Edn.,

supra, paragraph two of the syllabus.

      {¶22} Limited by this very narrow standard of review, we must reject

the city’s argument that the arbitrator’s decision was unlawful because he

disregarded the preclusive effect of the district court’s legal conclusion that

Brown was not acting under color of law.                       As the court noted, any

disagreement it might have with the arbitrator’s application of the doctrine of

res judicata is not a valid basis for vacating an arbitration award under R.C.

2711.10(D). Massillon Firefighters IAFF Local 251 v. Massillon, 5th Dist.

No. 2012CA00033, 2010-Ohio-4729, ¶ 35. The arbitration award drew its

essence from the terms of the collective bargaining agreement because it was

based on Brown’s contractual right to have the city provide him with a legal

defense for acts arising out of the course and scope of his employment. The

arbitrator’s legal conclusions are therefore immaterial and not a basis for

overturning the court’s refusal to vacate the arbitration award.

      {¶23} Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
JAMES J. SWEENEY, J., CONCUR
