The City of Aurora v. The Association of Professional Police Officers

2019 IL App (2d) 180375
No. 2-18-0375
Opinion filed February 21, 2019
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE CITY OF AURORA, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellee, )
)
v. ) No. 18-MR-70
)
THE ASSOCIATION OF PROFESSIONAL )
POLICE OFFICERS and DANIEL WAGNER, ) Honorable
) David R. Akemann,
Defendants-Appellants. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices McLaren and Spence concurred in the judgment and opinion.

OPINION

¶1 Defendant Daniel Wagner, a police officer employed by plaintiff, the City of Aurora

(City), was accused of installing and monitoring hidden surveillance cameras in his former

marital home without the permission of his ex-wife, Lisa. (Wagner was never charged with a

criminal offense.) The police chief, Kristen Ziman, terminated Wagner’s employment, and the

City, Wagner, and defendant the Association of Professional Police Officers (Union) proceeded

through the grievance process to arbitration. The arbitrator found that the City had just cause to

discipline Wagner but reduced the discipline to a one-year suspension without “creditable service

for either Department seniority or pension purposes.” The Union moved to modify the

arbitrator’s award, seeking a specific finding that Wagner was not likely to repeat the conduct for
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which he was suspended. In the meantime, the City sought judicial review and the arbitrator

determined that he did not have jurisdiction to rule on the Union’s motion. The trial court

vacated the arbitrator’s award and denied defendants’ motion to confirm the award or, in the

alternative, to remand for a ruling on the Union’s motion to modify. The court determined that

the arbitrator’s award was contrary to public policy and, thus, reinstated the termination.

Defendants appeal. We reverse the trial court and confirm the arbitrator’s award.

¶2 I. BACKGROUND

¶3 Wagner was a patrol officer and a member of the Union. The City and the Union are

parties to a collective bargaining agreement (CBA), which provides that matters relating to

suspension or discharge of nonprobationary police officers “shall be handled in accordance with

the grievance procedure herein set forth.” Article XXII, section 22.22(E), of the CBA contains

the grievance process, the final step of which is binding arbitration. See 5 ILCS 315/8 (West

2016); see also 710 ILCS 5/1 et seq. (West 2016).

¶4 A. Wagner’s Interrogation

¶5 On November 1, 2016, Wagner was interrogated by Aurora Police Department personnel

and was represented by Union counsel. See 50 ILCS 725/3 to 3.11 (West 2016). Wagner stated

that Lisa filed for divorce in November 2015 and that the divorce was finalized on July 7, 2016.

Wagner and Lisa had two children: a six-year-old daughter and a two-year-old son. During the

divorce proceedings, Wagner lived in the marital home in Sugar Grove. Afterward, Lisa retained

the property and Wagner moved out. However, Lisa permitted Wagner to have access to the

home, to help with maintenance, the children, and the dog.

¶6 Wagner stated that Lisa never gave him permission to install audio-video surveillance

equipment in the residence, either during the marriage or after the divorce. He installed such

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equipment in March 2016. He installed one camera in the kitchen (by the refrigerator) and two

in the master bedroom (one by the dresser and one in an air vent). He and Lisa had discussions

in both the kitchen and the bedroom. Wagner explained that he installed the cameras because he

wanted to protect himself against any false allegations by Lisa, to protect his career, to safeguard

his property, and to ensure that the children were cared for. Lisa had tried to use Wagner’s job

as leverage and threatened to make false allegations against him to obtain half of his pension, the

house, and other property. When asked if he installed the cameras to obtain information about

Lisa’s personal life, Wagner denied it and reiterated his motive to protect himself against false

allegations.

¶7 The cameras were deactivated at times but were generally activated, including after the

divorce. Wagner monitored the cameras from his personal phone and occasionally from his

work phone. He “probably” monitored them daily.

¶8 When asked if he ever had a plan to remove the cameras, Wagner stated that he would

have done so when the relationship was “absolutely concluded.” Postdivorce, he and Lisa had

good days and bad days. Wagner conceded that he once called his daughter after overhearing a

conversation between her and Lisa in the house, after he had moved out. He listened to the

conversation because his daughter had contacted him through her iPad, crying and wanting to see

him.

¶9 On September 11, 2016, Lisa discovered the cameras and Wagner received a notification

that the devices were off-line. Wagner texted her, “I know what you know. We have to talk.”

In a text to Ron Hain, a family friend and Kane County Sheriff’s Office sergeant, Wagner stated,

“I don’t wanna go to jail. I don’t wanna lose my job.” He asked Hain to ascertain what was

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occurring at Lisa’s house. Her family, who did not care for Wagner, was present, as were Sugar

Grove police officers.

¶ 10 Wagner stated that he knew that it is a misdemeanor to place in another person’s

residence a device that transmits live audio, with the intent to transmit that audio without the

person’s consent. He also knew that it is a felony to transmit live video of a person from a

person’s residence without that person’s consent. The use of eavesdropping devices in a

secretive manner for the purpose of overhearing, transmitting, or recording all or any part of a

conversation to which one is not a party, unless done with the consent of all parties involved, is

also a felony. When asked if he believed that he violated any criminal statutes by installing and

monitoring the cameras, Wagner replied “in hindsight yes. At that time I was—as I said before, I

was using them to safeguard myself.” Wagner stated that he never intended to interfere with

Lisa’s life. He intended to protect his children and himself.

¶ 11 During the divorce, while having heated conversations, he and Lisa would record each

other with their phones.

¶ 12 B. Grievance Process

¶ 13 On September 11, 2016, Ziman became aware that Wagner might have been involved in

off-duty misconduct at his former marital residence, and she ordered Lieutenant Mark Weeks,

who was in charge of the office of professional standards, to initiate an internal investigation.

Weeks collected police reports and text messages and attempted to interview Lisa. He also took

Wagner’s compelled statement.

¶ 14 In his report, Weeks related that, initially, Lisa cooperated with Sugar Grove police and

provided a statement to an investigator. She related that Wagner moved out of the marital

residence on July 8, 2016, two days after the divorce was finalized. Afterward, Lisa believed

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that Wagner was aware of certain personal information that she had not shared with him. Sugar

Grove police turned their investigation over to the Illinois State Police, who executed a search

warrant at the residence on September 12, 2016. When Weeks attempted to obtain a statement

from Lisa on September 16, 2016, she refused to cooperate.

¶ 15 Weeks found sustained the allegations of violations of certain Aurora Police Department

rules (4.3.2(C), conduct and behavior; 4.3.2(F), truthfulness; and 4.3.1(A), obedience to laws). 1

Weeks stated that, although Wagner might not have had malicious or criminal intent when he

installed and monitored the cameras, he was aware that he had no legal right to do so and might

have violated criminal statutes. Also, he did not use sound judgment and failed to follow

ordinary and reasonable rules of good conduct and behavior.

¶ 16 Subsequently, the police commander concurred with Weeks’s findings and recommended

a 15-day suspension for the conduct-and-behavior violation and a 15-day suspension for the

obedience-to-laws violation. He found the offenses terminable but recommended suspension

instead because “this situation evolved under a heavy emotional time” for Wagner, Wagner was

forthcoming during his interview, and he had incurred no serious discipline during his nine-year

1
The City’s exhibit No. 9 lists the rules at issue. Rule 4.3.2(C) provides that

“[e]mployees, whether on-duty or off-duty, shall follow ordinary and reasonable rules of good

conduct and behavior and shall not commit any act in an official or private capacity tending to

bring reproach, discredit, or embarrassment to their profession or the Department. Employees

shall follow established procedures in carrying out their duties as employees of the Department

and shall at all times use sound [judgment].” Rule 4.3.2(F) provides that “[e]mployees shall not

make false or untrue statements.” Rule 4.3.1(A) provides that “[e]mployees shall comply with

all federal and state laws, as well as the ordinances of the City of Aurora.”

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tenure with the department. However, the Employee Review Board recommended termination

for the obedience-to-laws violation.

¶ 17 On January 16, 2017, Ziman ordered termination of Wagner’s employment. She found

that Wagner admitted to surveilling Lisa on an almost daily basis and that his assertion that he

did so to protect himself from false accusations by Lisa and to monitor his children’s well-being

was “curious,” given that two cameras were in her bedroom—“an unlikely place to monitor

potential ‘false accusations’ or his children’s welfare.” Ziman acknowledged that “emotions run

high” during a divorce, but she could not ignore that Wagner committed a Class 4 felony by

eavesdropping on Lisa. “Monitoring his ex-wife daily from both his work and personal cell

phone using cameras that he installed goes beyond ‘lack of judgment’ or emotion. It was willful

and wanton disregard for the law that [Wagner] himself has taken an oath to uphold.” The

human-resources director concurred in Ziman’s recommendation and terminated Wagner’s

employment, effective January 19, 2017.

¶ 18 C. Arbitration Hearing

¶ 19 The arbitration hearing occurred on October 10, 2017. Three witnesses testified on the

City’s behalf: Weeks, Hain, and Ziman. Wagner called no witnesses.

¶ 20 1. Weeks

¶ 21 Weeks testified that he had worked for the Aurora Police Department for 27 years. In

September 2016, Ziman informed Weeks of an incident involving Wagner and the Sugar Grove

Police Department. The police had been contacted about cameras found in Lisa’s house. Weeks

subsequently obtained a police report, along with copies of text messages between Wagner and

Hain. Weeks attempted to interview Lisa, but she refused. However, Weeks spoke with Lisa’s

parents, who were present on the day the cameras were found in Lisa’s house.

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¶ 22 On November 1, 2016, Weeks interrogated Wagner. When Weeks asked Wagner if Lisa

had given him permission after their divorce to install the cameras, Wagner replied in the

negative. Wagner never indicated that Lisa was aware of the installation. He knew that it is a

misdemeanor to place in another person’s residence a device that transmits live audio, with the

intent to transmit the audio without the person’s consent. Wagner also knew that it is a felony to

transmit live video of a person from a person’s residence without that person’s consent. When

Weeks asked Wagner if he violated any criminal statutes, Wagner replied that in hindsight he did

but that he was using the cameras to safeguard himself. Wagner told Weeks where he had

installed the cameras. Wagner generally monitored the cameras daily. He installed the cameras

in March 2016, when he still lived at the home. Lisa did not know about the cameras until

September 2016.

¶ 23 In one text message to Hain, Wagner wrote, “Please stress to Lisa if I lose my job I’m

done with child support. Sorry brother I’m still just freaking out man[.] I don’t want to lose my

kids[.] I don’t want to lose my job[.] *** They will prove it was illegal and I’m fired[.] ***

E[]aves[]dropping[.] *** They will investigate and I’m fired[.] *** With a felony I can’t even

get a job[.] [D]on’t tell her that[.]” In other texts, Wagner stated that he installed the cameras

because he believed that Lisa was cheating on him and because, during the divorce, Lisa had

threatened to fabricate a domestic battery or sexual assault allegation. Wagner wanted to protect

himself.

¶ 24 During the interrogation, Wagner invoked the fifth amendment, but he was ordered to

answer the questions.

¶ 25 2. Hain

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¶ 26 Hain was a sergeant at the Kane County Sheriff’s Office and had worked there for 14

years. He testified that he had known Wagner since 2005, was Wagner’s friend, and would like

to see Wagner retain his job. He socialized with Wagner and Lisa when they were married.

¶ 27 On September 11 or 12, 2016, at about 5 p.m., Hain, who was off duty, and his wife went

to the Wagner residence after Lisa contacted him. Sugar Grove police officers were present, as

were Lisa’s father, stepmother, sister, and brother. Lisa was upset (though her family was more

upset) and told Hain that something terrible was found at the residence.

¶ 28 Lisa explained to Hain that she had told her sister that she believed that Wagner always

knew what she was doing or what she had said. Lisa’s sister searched online for how to locate

surveillance equipment, and they then looked through the vents in the house. In Lisa’s bedroom,

they saw a red beam shining from a vent, took off the cover, and found a camera. Lisa showed it

to Hain. Hain testified that Lisa appeared very surprised by the discovery.

¶ 29 Meanwhile, Hain and Wagner were in contact. Wagner was very upset that Lisa and her

sister found the camera, and he was very apologetic that he had caused anyone duress. Hain

tried to calm down Wagner. Wagner told Hain where the two additional cameras were. Hain

retrieved the second camera in the bedroom and unplugged it.

¶ 30 Wagner was very concerned that the incident was going to cost him his job. He texted,

“They will prove it was illegal.” Police officers collected the evidence, and Hain was

interviewed by state police. Later that night, Wagner told Hain that he had not monitored the

cameras for a long time.

¶ 31 Ziman told Hain that she stood by her decision to terminate Wagner’s employment.

However, she also stated that Wagner was a good cop and that, if the arbitrator returned Wagner

to his job, it would not be the worst thing to happen to the City.

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¶ 32 According to Hain, Lisa’s father wanted Wagner to lose his job, but Lisa did not agree.

Hain’s wife and Lisa were very good friends. Hain knew that Lisa had insinuated that she could

make accusations about Wagner if he did not give up his pension to her in the divorce

proceedings. Hain believed that, if Wagner returned to work, he would be a good police officer.

¶ 33 3. Ziman

¶ 34 Ziman testified that she became a police officer in 1994 and had been police chief for 22

months. Prior to the incident at Lisa’s residence, Wagner had been assigned to a State police

task force position involving narcotics investigations.

¶ 35 She stated that, generally, it is important that officers not engage in off-duty conduct that

holds the department in disrepute. Officers who are charged with enforcing the law need to

follow the law.

¶ 36 After she learned about the incident, Ziman’s first thought was that Wagner’s actions

constituted a felony. Ultimately, after Weeks’s investigation, Ziman determined that termination

was warranted. Wagner was a good cop, in Ziman’s view, and had no history of misconduct.

However, he committed a crime and Ziman could not overlook that.

¶ 37 Addressing Wagner’s statement that he did not intend to spy on Lisa but was trying to

protect himself from false allegations, Ziman believed that this was odd. During the

interrogation, Wagner admitted to monitoring the cameras almost daily. He also stated that he

activated the cameras in July, after the divorce was final and he no longer lived at the residence.

However, he had not been charged with any crimes.

¶ 38 D. Arbitrator’s Decision

¶ 39 On January 5, 2018, the arbitrator issued his decision, determining that Wagner should be

suspended for one calendar year from the date of his termination. The arbitrator noted that

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Wagner was charged with violating Aurora Police Department rules 4.3.2(C) and 4.3.1(A), and

he also cited the eavesdropping statute (720 ILCS 5/14-1 et seq. (West 2016)) and a portion of

the disorderly conduct statute addressing unauthorized video recording and live video

transmission (id. § 26-4). 2

¶ 40 The arbitrator noted the “unusual circumstances” surrounding the hearing, where Wagner

was present but chose not to testify out of a concern that anything he said might be used against

him in a criminal proceeding. These circumstances, according to the arbitrator, made it difficult

to understand Wagner’s point of view and his motivation. Also, because Lisa did not testify, it

was difficult to determine whether she gave consent. Still, the arbitrator determined that Wagner

installed the surveillance cameras without Lisa’s knowledge or consent. As support, he pointed

to her reaction when she discovered the cameras, according to Hain’s testimony. “Lisa did not

consent to the invasion of her privacy at any point from the time of installation to the time of

discovery.” Addressing Lisa’s failure to press charges against Wagner and failure to appear at

the hearing, the arbitrator found that to do so would have been against her children’s interests. If

Wagner were terminated, it would be more difficult for Wagner to meet his support obligations

to the children.

2
The eavesdropping statute makes it a violation for any person to use an eavesdropping

device for purposes of intercepting, recording, or transcribing “in a surreptitious manner any

private electronic communication to which he or she is not a party unless he or she does so with

the consent of all parties to the private electronic communication.” 720 ILCS 5/14-2(a)(3) (West

2016). The disorderly conduct statute proscribes “any person to knowingly make a video record

or transmit live video of another person in that other person’s residence without that person’s

consent.” Id. § 26-4(a-5).

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¶ 41 The arbitrator addressed the Union’s argument that the appropriate remedy was a 15-day

suspension, as recommended by the police commander. He rejected that suggestion, noting that

the Union did not call the commander to testify.

¶ 42 Summarizing, the arbitrator found that Wagner broke the law and his oath as a police

officer and that Lisa decided not to press charges, based on her children’s best interests. The

remedy, the arbitrator found, should be severe enough to let Wagner and the community know

that such behavior is not acceptable but should also take into account the circumstances

surrounding Wagner’s breach of the law. Wagner “was a nine[-]year veteran of the police force

with good work evaluations for his past performance. He was going [through] a difficult divorce

and his emotions may have clouded his judgment.” Termination, the arbitrator determined,

would be “too harsh a remedy here.” Accordingly, he ordered that Wagner be suspended for one

calendar year from the date of his termination and that the suspension term not be considered

creditable service for either department seniority or pension purposes.

¶ 43 On January 15, 2018, the Union filed a motion with the arbitrator to modify the award,

seeking a finding that Wagner was not likely to repeat the conduct for which he was suspended.

City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240, 2015 IL App (1st)

140957. It attached to its motion a copy of Ziman’s January 5, 2018, text message to Wagner:

“Hi Dan, it’s Kristen. I’m sure you heard the news of the Arbitrator’s ruling.

Congratulations. Sincerely.

Are you able to call DC Jackson, Commander Cross and I at [number]?

We are attempting to work through logistics since shift picks have already posted

and want to include you on that discussion.

***

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We want to make sure we get you squared away!”

¶ 44 E. Trial Court Proceedings

¶ 45 On January 18, 2018, the City filed in the trial court a complaint for declaratory relief and

to vacate the arbitration award, arguing that the award violated clearly established public policies

requiring special accountability of police officers for their off-duty conduct and prohibiting gross

invasions of privacy. The City asserted that Wagner’s employment should be terminated.

¶ 46 On January 31, 2018, the arbitrator denied the Union’s motion to modify the arbitration

award, finding that he no longer had jurisdiction because the City’s suit was pending in the trial

court. See 710 ILCS 5/9 (West 2016). Addressing the recidivism issue, the arbitrator noted that

it was never raised during the arbitration hearing. However, he added, “I did cover his

experience as a police officer on the Aurora Police force for nine years and his record over that

period in the award report. I did note that his offenses involved a difficult period in his life,

going through a divorce with his wife.”

¶ 47 Subsequently, after the City refused to allow Wagner to report for duty on January 18,

2018, defendants filed in the trial court a motion to maintain the status quo. On March 16, 2018,

the trial court denied the motion. Defendants also filed in the trial court a motion to confirm the

arbitrator’s award or, alternatively, to remand for a ruling on the Union’s motion to modify.

¶ 48 On May 3, 2018, the trial court determined that the arbitrator’s decision was against

public policy and it vacated the decision and confirmed the City’s decision to terminate

Wagner’s employment. The court found significant the arbitrator’s determination that Wagner

installed the cameras without Lisa’s knowledge or consent and that this activity constituted an

invasion of her privacy from the time of installation to the time of discovery. The court also

noted that the arbitrator made no finding as to whether in the future Wagner would refrain from

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the offending conduct. Applying the relevant two-part test, the court first determined that there

is a clear public policy against invasions of privacy or interceptions of communication by

eavesdropping devices or other means (see Ill. Const. 1970, art. I, § 6; 720 ILCS 5/14-2, 26-4

(West 2016); Orsa v. Police Board of the City of Chicago, 2016 IL App (1st) 121709

(concerning police officers’ accountability for their off-duty conduct)). As to the second

question—whether the arbitrator’s reinstatement of Wagner violated that public policy—the

court found that the answer depended on whether the arbitrator made a rational finding that

Wagner could be trusted to refrain from the offending conduct upon his reinstatement. Because

the arbitrator made no such finding, the court determined that Wagner’s reinstatement would

violate public policy.

“It is difficult to construe a greater violation of privacy than a continuous live stream of

audio and visual of a person’s bed and bedroom without that person’s knowledge and

consent. This activity, which the grievant knew to be unlawful and in derogation of his

sworn oath, ran largely unabated for 5-6 months constituting an egregious violation of

domestic privacy.”

The court further determined that, in the absence of the “required finding,” the arbitrator’s

decision must be vacated. The court explained that case law did not require a remand for a

recidivism finding by the arbitrator and that a remand would not be fruitful in this case, because

the record contained no “testimony from witnesses that would permit the arbitrator to make such

a determination” (a reference to the fact that Wagner elected not to testify at the arbitration

hearing). The court vacated the arbitrator’s decision, confirmed the City’s termination of

Wagner, and denied defendants’ motion to enter judgment on the arbitrator’s award. Defendants

appeal.

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¶ 49 II. ANALYSIS

¶ 50 Defendants argue that the trial court erred in vacating the arbitrator’s decision. They

maintain that the arbitrator’s award did not violate public policy and that, alternatively, the trial

court erred in denying their request to remand the case to the arbitrator for a recidivism finding.

For the following reasons, we agree that the arbitrator’s award did not violate public policy and

that the arbitrator implicitly considered the likelihood that Wagner would reoffend.

¶ 51 A. Standard of Review and Public-Policy Exception

¶ 52 Judicial review of an arbitrator’s award is “extremely limited” and reflects the

legislature’s intent in enacting the Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2016))

to provide finality for labor disputes submitted to arbitration. American Federation of State,

County & Municipal Employees v. State (AFSCME), 124 Ill. 2d 246, 254 (1988); see 710 ILCS

5/12 (West 2016) (where arbitration involves a collective bargaining agreement, a court will

disturb the arbitration award only on the common-law grounds that existed prior to enactment of

statute). “The Act contemplates judicial disturbance of an award only in instances of fraud,

corruption, partiality, misconduct, mistake, or failure to submit the question to arbitration.”

American Federation of State, County & Municipal Employees v. Department of Central

Management Services (DuBose), 173 Ill. 2d 299, 304 (1996). “[A] court is duty bound to

enforce a labor-arbitration award if the arbitrator acts within the scope of his or her authority and

the award draws its essence from the parties’ collective bargaining agreement.” Id. at 304-05.

“Because the parties have contracted to have their disputes settled by an arbitrator, rather than by

a judge, it is the arbitrator’s view of the meaning of the contract that the parties have agreed to

accept.” Id. at 305. A court will not overturn an arbitrator’s construction of a collective

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bargaining agreement merely because its own interpretation differs from that of the arbitrator.

Id.

¶ 53 However, courts have recognized a public-policy exception to vacate arbitration awards

that are based on collective bargaining agreements. Id. at 306. To vacate an arbitration award on

this ground:

“[T]he contract, as interpreted by the arbitrator, must violate some explicit public policy.

[AFSCME, 124 Ill. 2d at 261; W.R. Grace & Co. v. Local Union 759, International Union

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

In this respect, the exception is a narrow one and is invoked only when a contravention of

public policy is clearly shown. [AFSCME, 124 Ill. 2d at 261, citing United Paperworkers

International Union v. Misco, Inc., 484 U.S. 29, 43 (1987))] Moreover, the public policy

must be ‘well-defined and dominant’ and ascertainable ‘by reference to the laws and

legal precedents and not from generalized considerations of supposed public interests.’

[W.R. Grace, 461 U.S. at 766.] This court has stated that it will look to our ‘constitution

and *** statutes, and when cases arise concerning matters upon which they are silent,

then in its judicial decisions and the constant practice of the government officials’ when

determining questions regarding public policy. Zeigler v. Illinois Trust & Savings Bank,

245 Ill. 180, 193 (1910).” (Emphasis in original.) Id. at 307.

¶ 54 Application of the public-policy exception is a two-step process. Id. The first inquiry is

whether a well-defined and dominant public policy can be identified, and, if so, then the next

question is whether the arbitrator’s award, as reflected in his or her interpretation of the

agreement, violated that public policy. Id. at 307-08.

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¶ 55 The ultimate applicability of the exception is necessarily fact-dependent. Id. at 311.

However, we review de novo whether an arbitrator’s decision violates public policy.

Des Plaines, 2015 IL App (1st) 140597, ¶ 20 (further noting that, in DuBose, although the

supreme court did not explicitly set forth a standard, its analysis appeared to apply de novo

review).

¶ 56 AFSCME and DuBose are the two most relevant supreme court cases analyzing the

public-policy exception. In AFSCME, the supreme court held that the arbitrator did not violate

public policy when he reinstated and suspended two Department of Mental Health and

Developmental Disabilities (Department) employees who were absent from work without

permission. AFSCME, 124 Ill. 2d at 263. The employees were technicians at a facility that

provided care and treatment for profoundly mentally disabled residents. On a day when the

facility was short-staffed, the employees were authorized to go to a grocery store to purchase

food for an impromptu barbeque for the residents that afternoon. Id. at 250. After shopping for

groceries for 30 minutes, the employees made an unauthorized trip to a flea market for 1¼ hours.

During their absence, a male resident died while left unattended. The employees were not

assigned to the resident’s wing. Pursuant to Department rules and regulations and facility policy,

the employees were discharged for conduct constituting mistreatment of a service recipient. Id.

at 251.

¶ 57 The arbitrator reduced the discipline to four-month suspensions, finding that the

employees admitted wrongdoing and expressed remorse, had exemplary work histories, treated

the residents as though they were family, provided straightforward and truthful testimony at the

arbitration hearing, and were unlikely to repeat the conduct upon reinstatement. Id. at 251-52.

The trial court vacated the arbitrator’s award, finding that it violated the public policy of

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protecting mental health patients. Id. at 252. The appellate court, in turn, reversed the trial

court, determining that the arbitrator’s award did not violate that public policy, because the

employees were suspended for four months without back pay or benefits. Id. at 252-53.

¶ 58 The supreme court first addressed the Department’s argument that the arbitrator exceeded

his authority by considering mitigating factors in reducing the discipline to suspensions. Id. at

253. It held that he did not exceed his authority, because the collective bargaining agreement did

not mandate discharge but provided four types of disciplinary measures that could be imposed

upon a finding of just cause. Id. at 257-59.

¶ 59 Next, the court addressed the public-policy exception and acknowledged the public

policy of providing compassionate care for the mentally disabled, but it also noted the policies of

promoting constructive public-employer and public-employee relationships and finality of

arbitration awards. Id. at 262. The court then held that the parties’ collective bargaining

agreement, as interpreted by the arbitrator, did “not violate any explicit public policy” that was

“well-defined and dominant.” Id. at 262-63. The court concluded that no policy mandated the

discharge of the employees when the arbitrator expressly found that the employees were

otherwise exemplary, punishment had been imposed, and there was no nexus between the

infraction and the death. Id. at 263. The court specifically noted that the employees’ did not

abuse or injure any resident. Id.

¶ 60 Finally, the supreme court addressed the arbitrator’s explicit finding that the employees

were not likely to repeat their conduct. Id. at 263-65. The court held that, in light of this finding,

the award was not against public policy (on the basis that it posed a danger to third persons).

Rather, the award drew its essence from the collective bargaining agreement, which provided for

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progressive and corrective discipline. Id. at 264. The court upheld the arbitrator’s finding that

the conduct at issue was serious enough to warrant suspension. Id. at 264-65.

¶ 61 In DuBose, the court reached a different result. In that case, a Department of Children

and Family Services (DCFS) child welfare specialist falsely stated that she had seen three

children and that they were doing fine. In fact, the children had died in an accidental fire one

month earlier. An investigation revealed that the employee had also failed to submit case plans

for the family for three years. DuBose, 173 Ill. 2d at 301. DCFS discharged the employee, and

the arbitrator reinstated her, finding that DCFS breached the collective bargaining agreement by

failing to timely discipline the employee. The arbitrator did not decide whether DCFS lacked

just cause to discharge the employee. Id. at 302. The trial court vacated the arbitrator’s award,

finding that reinstatement violated public policy as stated in the neglected-child reporting statute,

and remanded the matter for a decision on the merits. Id. at 302-03. On remand, the union stood

on its timeliness argument and did not address the merits. The arbitrator thus denied the

grievance. The trial court denied the union’s petition to confirm the initial award reinstating the

employee. Ultimately, the appellate court held that the initial award upheld the agreement’s

essence and could not be vacated in favor of the public policy of establishing time frames for

commencing various actions. Id. at 303.

¶ 62 The supreme court reversed the appellate court, holding that the arbitrator violated the

public policies of providing truthful and accurate reporting and of employing of honest and

diligent individuals. The arbitrator based his ruling on violations of the agreement’s time

provision, which did not allow for exigent disciplinary circumstances, without considering the

nature of the employee’s conduct or finding that the welfare of children supervised by DCFS

would not be compromised by the reinstatement. Id. at 317-18. Specifically, the court first

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pointed to “the comprehensive legislative scheme designed for the welfare and protection of

children found to be abused or neglected” and concluded that there was a well-defined and

dominant public policy against DCFS’s employing dishonest and neglectful individuals, who

could seriously undermine the welfare, safety, and protection of children. Id. at 315-16. This

policy, the court noted, augmented the policy of timely contact with children “and accurate

documentation of investigations necessary for DCFS to fulfill its legislative mandate of

investigating claims of suspected child abuse and neglect.” Id. at 316-17.

¶ 63 Second, the supreme court held that the arbitrator’s award violated public policy because

it did not promote the welfare and protection of children. Id. at 318. By agreeing to a time

provision that did not allow for exigent disciplinary circumstances, DCFS compromised its

ability to discharge its statutory duties. Id. The court rejected the union’s position that, because

no statute expressly prohibited hiring a dishonest worker, there was no public-policy violation.

Id. at 319-20. The court determined that the statutes presupposed that only trustworthy workers

would be hired. Id. at 321. The court also disagreed with the union’s position that overturning

the initial award ignored the agreement. Id. at 322. The court noted that its holding did not

restrain an arbitrator from imposing an appropriate remedy within the agreement’s confines. Id.

“[A]s long as the arbitrator makes a rational finding that the employee can be trusted to refrain

from the offending conduct, the arbitrator may reinstate the employee to his or her former job,

and we would be obliged to affirm the award.” Id. However, the court continued, the

arbitrator’s freedom in fashioning an appropriate remedy is not unlimited. Id. at 323. “Where,

as here, an arbitrator awards full reinstatement as a remedy for the contractual violation without

any findings that the worker poses no risk to the welfare and protection of DCFS’s children and

their families, the award simply cannot stand. *** [T]he full measure of the arbitrator’s

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2019 IL App (2d) 180375

discretion must always yield to public policy.” Id. The court distinguished AFSCME by noting

that there it had upheld the arbitrator’s reinstatement because the arbitrator had made an express

finding concerning the employees’ amenability to discipline, “a factual determination which

cannot be questioned or rejected by a reviewing court.” Id. at 331-32 (noting arbitrator’s

findings that employees had good work histories, punishment had been imposed, and there was

no nexus between the infraction and the death). The DuBose court also cited several cases in

which courts vacated arbitrators’ reinstatement awards for various forms of egregious

misconduct. Id. at 308-10; see Delta Air Lines, Inc. v. Air Line Pilots Ass’n, International, 861

F.2d 665, 674 (11th Cir. 1988) (termination of pilot who flew commercial airliner while

intoxicated; court noted employer’s duty to prevent employee from violating clear legal

standards; collective bargaining agreement, as interpreted by arbitrator, violated public policy);

Iowa Electric Light & Power Co. v. Local Union 204 of the International Brotherhood of

Electrical Workers, 834 F.2d 1424, 1429 (8th Cir. 1987) (nuclear power plant employee who had

safety device disconnected so that he could go to lunch violated strict federal nuclear-regulatory

scheme and, thereby, jeopardized public safety and could not be reinstated consistently with that

policy); United States Postal Service v. American Postal Workers Union, 736 F.2d 822, 825 (1st

Cir. 1984) (postal worker terminated for embezzling postal funds; offense went to heart of his

responsibilities and violated public trust placed in postal branch); Board of Education of School

District U-46 v. Illinois Educational Labor Relations Board, 216 Ill. App. 3d 990, 1003-06

(1991) (school-bus driver fired for unsafe driving violated well-defined and dominant public

policy favoring safe transportation of school children).

¶ 64 Thus, as this court recently summarized:

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“[P]roving a violation of public policy requires more than making a plausible

argument that the public will suffer some sort of harm from the enforcement of an

arbitration award. *** [I]n cases *** in which awards were overturned on public-policy

grounds, the awards amounted to condoning blatant and specific violations of established

policies and in effect to enabling future violations by employees who had demonstrated

their proclivities to gross unfitness or illegality. The possibility of harm arising indirectly

from the enforcement of the award appears to be insufficient, even if it is possible to state

that this harm is contrary to some sort of general public policy or public interest.” Illinois

State Toll Highway Authority v. International Brotherhood of Teamsters, Local 700, 2015

IL App (2d) 141060, ¶ 63.

¶ 65 With this background in mind, we turn to the public-policy exception’s applicability in

this case.

¶ 66 1. Is There A Well-Defined and Dominant Public Policy?

¶ 67 Our first inquiry is whether there is a well-defined and dominant public policy. DuBose,

173 Ill. 2d at 307-08. In their reply brief, defendants concede that public policy is implicated in

a case, such as this, involving misconduct by a police officer. They point to Wagner’s admission

that he violated general orders in regard to misconduct in his personal life, outside of his official

duties. The City points to the following sources of the policies implicated in this case: (1) the

Illinois Constitution (Ill. Const. 1970, art. I, § 6 3), (2) criminal statutes addressing eavesdropping

3
“The people shall have the right to be secure in their persons, houses, papers and other

possessions against unreasonable searches, seizures, invasions of privacy or interceptions of

communications by eavesdropping devices or other means. No warrant shall issue without

probable cause, supported by affidavit particularly describing the place to be searched and the

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and unauthorized video recording (720 ILCS 5/14-2, 26-4 (West 2016)), (3) invasion-of-privacy

case law (e.g., Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 35 (recognizing

tort of intrusion upon seclusion)), (4) the policy requiring special accountability of police officers

for their off-duty conduct (see, e.g., Orsa, 2016 IL App (1st) 121709, ¶¶ 63-64), and (5) police

department rule 4.3.2(C) (concerning conduct and behavior).

¶ 68 This first question is easily resolved. We agree with the parties that there is a well-

defined and dominant public policy in favor of holding police officers accountable for their off-

duty conduct, as set forth in criminal statutes and police department rules, and against invasions

of privacy, as set forth in our constitution and case law.

¶ 69 2. Did the Arbitrator’s Award Violate Public Policy?

¶ 70 The second question is whether the arbitrator’s award, as reflected in his interpretation of

the CBA, violated public policy. Defendants argue that the City did not make such a showing.

They assert that, although the found that Wagner had engaged in off-duty misconduct, the

remedy should take into account the circumstances surrounding it. The arbitrator, defendants

note, specifically determined that Wagner had a good work history, that he was going through a

difficult divorce, and that emotions might have clouded his judgment. Defendants also argue

that the City did not specify what conduct requires termination and that the CBA provides for

progressive and corrective discipline.

¶ 71 Defendants urge that, in the absence of a rule mandating termination, courts have

declined to find that reinstatement violates public policy when some punishment was imposed

and the employee’s work performance was otherwise satisfactory but have found that

reinstatement violates public policy when a comprehensive statutory scheme delineated the

persons or things to be seized.” (Emphasis added.) Ill. Const. 1970, art. I, § 6.

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2019 IL App (2d) 180375

employee’s duties or where no punishment was imposed. Compare AFSCME, 124 Ill. 2d at 262-

64 (acknowledging policies of providing compassionate care for mentally disabled and

promoting constructive relationships between public employers and public employees, but

concluding that no policy mandated discharge where employees had exemplary work records,

punishment had been imposed, and there was no nexus between the infraction and the death;

further concluding that reinstatement did not violate public policy where arbitrator found that

employees would not likely repeat their misconduct), and City of Harvey, 333 Ill. App. 3d at

677-80 (although there is a policy favoring employees’ safety in the workplace, reinstatement of

employee who assaulted supervisor did not violate the policy where arbitrator found that

behavior would not likely recur, employee had long work history and good disciplinary record,

and employee was punished with suspension and no back pay), with DuBose, 173 Ill. 2d at 313-

15 (examining DCFS’s role in implementing comprehensive legislative scheme to identify the

public policy implicated in the case), and County of De Witt v. American Federation of State,

County & Municipal Employees, 298 Ill. App. 3d 634, 634-39 (1998) (county operating nursing

home terminated nurse’s aide with long and exemplary work history who allegedly struck an

elderly resident in the head; collective bargaining agreement provided for immediate discharge

of employees who abused residents; reviewing court held that arbitrator’s reinstatement of

employee—based on finding that striking “may have” occurred and that, even if it did, employee

merely brushed side of resident’s head—violated public policy of protecting the elderly from

abuse, which tolerates no incidents of abuse, no “matter how infrequent or mild”; further holding

that arbitrator’s finding that employee would pose no threat of future abuse was not rational

where employee denied wrongdoing “even in the face of overwhelming evidence that she did,”

other employees might have covered up for her and no witness testified that striking was

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accidental or a brushing, and arbitrator awarded complete reinstatement with no reprimand to

deter future misconduct).

¶ 72 Defendants also note that reinstatement can be upheld even where the employee violated

public policy. Specifically, in State v. AFSCME (AFSCME Council 31), 321 Ill. App. 3d 1038,

1041-43 (2001), the Fifth District held that the arbitrator’s reinstatement of a correctional officer,

who had a good work history but initiated the use of force against an inmate by punching him in

the face, did not violate public policy. The court first determined that it was undisputed that

there is a policy against battering prisoners. Id. at 1041 (citing 730 ILCS 5/1-1-2(c) (West

1992)). Next, it concluded that the reinstatement did not violate that policy where no contractual

provision required termination and the arbitrator made a rational finding that the employee was

amenable to discipline. Id. at 1042. The arbitrator noted that the employee had a long work

history, good evaluations, and lack of prior discipline and that he did not provoke the fight with

the inmate. Id. Further, the court noted the implicit finding that the employee was amenable to

rehabilitation and that the risk of future incidents was low. Id. Here, defendants argue that the

CBA provides for arbitral discretion concerning discipline and that a one-year suspension thus

was within the arbitrator’s purview under the agreement. Further, they note that the City has not

identified any authority mandating termination for objectionable off-duty behavior.

¶ 73 The City relies on Decatur Police Benevolent & Protective Ass’n Labor Committee v.

City of Decatur, 2012 IL App (4th) 110764, where the reviewing court affirmed the trial court’s

finding that the arbitrator’s award of reinstatement violated public policy. Id. ¶ 44. In Decatur,

a police officer’s wife alleged that, during an argument, her husband pushed her onto their bed,

“ ‘got in her face,’ ” and, after she pushed him away, “ ‘head-butted’ ” her above her nose. Id.

¶ 5. A police investigator’s report stated that, at the scene, the officer had denied that there was

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any physical contact. After the investigator spoke to the wife, the officer was arrested. Id. ¶ 6.

The following morning, the officer was interviewed at police headquarters and stated that any

injury to his wife resulted from her striking him in the forehead with her face and nose. Id. ¶ 7.

The officer had received awards and commendations for his police work (id. ¶ 4) but had also

previously—about four months before the incident at issue—been disciplined for domestic

battery, which resulted in a 30-day suspension and an order to participate in an employee-

assistance program (id. ¶ 8). The arbitrator determined that the proper penalty was a 45-day

suspension, instead of termination. He noted that no order or finding stated that the officer

committed domestic battery (id. ¶ 11) and he determined that there was no clear and convincing

evidence of battery. He ruled that, although the officer admitted making untruthful statements,

they provided an insufficient basis for termination. Id. ¶¶ 13-14. The trial court set aside the

arbitrator’s award, finding that it violated the public policy against acts of domestic violence and

for law enforcement officers to be truthful during police investigations. Id. ¶¶ 15-16. The

reviewing court affirmed, holding that there is a public policy against acts of domestic violence,

including by a police officer, whether on- or off-duty. Id. ¶ 44. The court also concluded that

employing an officer who has been found, by a preponderance of the evidence, to be abusive and

untruthful is against public policy. Id.

¶ 74 The City maintains that Wagner’s conduct was much more egregious than that in

Decatur. It contends that, contrary to the arbitrator’s finding that he was going through a

difficult divorce and that emotions might have clouded his judgment, he used the surveillance

cameras to spy on Lisa after the divorce was finalized. Further, he installed two of the cameras

in her bedroom, allowing him to spy on her most intimate activities from the convenience of his

personal―and, sometimes, work-issued―phone. The City notes that Wagner continued to

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monitor the cameras long after the divorce, until he was caught. The City also maintains that

Wagner was dishonest during his interrogation, when, although he acknowledged that his actions

were criminal, he stated that he used the cameras only to safeguard himself. It asserts that,

because Wagner was divorced when he used the cameras, his safeguarding defense was a lie. It

also asserts that defendants’ reliance on AFSCME Council 31 is misplaced because the

employee’s actions there were not nearly as egregious as Wagner’s repeated criminal and

tortious acts, which rose to the level of violating public policy.

¶ 75 We conclude that the arbitrator’s award did not violate public policy. There was no

contractual provision mandating termination of police officers for off-duty misconduct, and the

arbitrator, in our view, made a rational finding that Wagner was amenable to discipline. See

AFSCME Council 31, 321 Ill. App. 3d at 1042. The CBA contemplates various forms of

discipline, specifically noting removal, suspension, and discharge as possible measures for

findings of cause. The arbitrator noted that the remedy had to be severe enough that Wagner and

the community knew that his behavior was not acceptable, but that it also had to take into

account the circumstances. Specifically, the arbitrator noted Wagner’s long work history, his

good work performance, and the fact that he was going through “a difficult divorce and his

emotions may have clouded his judgment.” The arbitrator specifically found that termination

would be too harsh and, instead, ordered a one-year suspension, which would not be considered

creditable service for department seniority or pension purposes. As this summary of the

arbitrator’s findings shows, he fashioned an award that considered the seriousness of Wagner’s

acts but also the mitigating circumstances of the case, such as Wagner’s work history and the

divorce. “[A]n employee’s amenability to discipline is a factual determination which cannot be

questioned or rejected by a reviewing court.” DuBose, 173 Ill. 2d at 331-32 (distinguishing

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AFSCME on the basis that the arbitrator in that case expressly found certain mitigating factors

and imposed punishment).

¶ 76 We agree with defendants that Decatur, upon which the City relies, involved more

egregious circumstances than this case. In Decatur, the Fourth District held that the arbitrator’s

award, reinstating a police officer who had assaulted his wife, violated public policy. Decatur,

2012 IL App (4th) 110764, ¶ 44. The officer denied the allegations of physical contact,

fabricated an alternative scenario, and, critically, had previously been disciplined for domestic

battery. Here, the City points to the fact that Wagner used the surveillance cameras after the

divorce was finalized and in Lisa’s bedroom. Wagner’s safeguarding defense, in the City’s

view, was a lie because he continued to use the cameras after the divorce. However, once

Wagner’s scheme was discovered, he did not deny it or fabricate another scenario, as did the

officer in Decatur. Although we agree that the safeguarding defense is somewhat questionable,

Hain did testify to certain threats that Lisa had made concerning Wagner’s pension, and Wagner

and Lisa did hold discussions in the bedroom. Further, Wagner had not been previously

disciplined for the same conduct, as had the Decatur officer. Finally, we note that Lisa did not

give a statement or testify and, thus, as defendants note, she did not dispute Wagner’s version of

the events.

¶ 77 We believe that this case is more like City of Harvey and AFSCME Council 31, where the

reviewing courts held that reinstatement did not violate public policy, because the arbitrators had

assessed the employees’ work histories and had imposed punishments that contemplated the

employees’ amenability to discipline. The City contends that City of Harvey is distinguishable

because the employee’s behavior in that case—threatening his supervisor—was not nearly as

egregious as Wagner’s behavior in this case. We disagree with the City’s characterization of

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2019 IL App (2d) 180375

City of Harvey. In fact, the employee in that case assaulted his supervisor, and the reviewing

court upheld the arbitrator’s reinstatement of the employee, as he had a long work history and a

good disciplinary record and was punished, and the arbitrator found that he would not likely

repeat the offensive conduct. City of Harvey, 333 Ill. App. 3d at 677-80.

¶ 78 We also reject the City’s argument that the arbitrator’s finding that the difficult divorce

might have clouded Wagner’s judgment is conclusory and has no factual basis. The City notes

that Wagner did not testify during the arbitration hearing. However, the text messages between

Wagner and Hain reflected not only that emotions ran high when Lisa discovered the cameras

and contacted the police, but also that Lisa’s family did not hold Wagner in high esteem and that

the couple still had an emotional relationship. Further, Wagner’s interrogation reflected that

some of the circumstances of the divorce were unusual, in that Wagner had frequent access to the

former marital home and continued to help Lisa with some domestic chores. From these facts,

the arbitrator could reasonably have found heightened emotions.

¶ 79 In summary, the arbitrator’s award did not violate public policy.

¶ 80 B. Remand

¶ 81 Wagner argues next, in the alternative, that, if we do not affirm the arbitrator’s award, we

should remand this case to the arbitrator for a recidivism finding. Even though we affirm the

arbitrator’s award, we choose to address this argument, because, as we explain below, the

arbitrator implicitly considered the issue.

¶ 82 Wagner argues that the trial court’s failure to remand violated Des Plaines, 2015 IL App

(1st) 140957, ¶ 39. In Des Plaines, a police officer was accused of using excessive force against

four arrestees over two years and failing to report that conduct pursuant to department rules. Id.

¶ 1. The city sought to terminate the officer, and the arbitrator determined that, although the

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2019 IL App (2d) 180375

officer violated certain rules, termination was not warranted, because the city had delayed in

investigating the allegations and the police department had condoned his conduct. Id. ¶¶ 11-13.

The arbitrator determined that reinstatement was appropriate, without back pay, benefits, or

accumulated seniority, along with other conditions. Id. ¶ 14. The trial court vacated the

arbitration award, finding that it violated public policy, and it denied the union’s motion to

remand to the arbitrator for findings concerning the officer’s likelihood of engaging in the same

misconduct following reinstatement. Id. ¶ 15. The First District held that there is a well-defined

and dominant “public policy against police officers unnecessarily using force against prisoners

and being dishonest about that use of force during a subsequent investigation.” Id. ¶ 24 (citing

cases). Next, the court assessed whether the reinstatement violated that policy, noting that the

arbitrator had found that the officer used unnecessary force and was untruthful about his actions

but had made no finding concerning the likelihood of recidivism. Id. ¶ 25. The absence of a

recidivism finding, the court held, precluded determining whether the arbitration award violated

public policy. Id. Although case law supported the notion that an implicit finding may suffice,

the court concluded that the award in the case before it was “ambiguous on this point.” Id. It

noted that the arbitrator did not make any finding related to recidivism, such as regarding the

officer’s work history, character, disposition for violence, or rehabilitative potential. Id. ¶ 26.

Instead, the award was based on the city’s delay in investigating the incidents and the

department’s condonation of the conduct. Id. The court further noted that case law supported a

remand where a court requires clarification of ambiguities in the arbitrator’s findings. Id. ¶¶ 37-

38 (citing cases). Concluding that the award was “incomplete, or at least ambiguous,” the court

determined that a remand was necessary. Id. ¶¶ 39-41 (further noting that DuBose “explicitly

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recognizes that arbitrators can, and indeed should, make such a determination” and

distinguishing case law that did not address whether remand was warranted).

¶ 83 Here, defendants acknowledge that the arbitrator made no explicit finding that, if Wagner

were reinstated, he would refrain from the offending conduct in the future. However, defendants

argue first that the unique nature of Wagner’s conduct renders a repeat offense impossible.

Second, defendants point to Ziman’s text that it would not be the worst thing for the City if

Wagner were reinstated, Hain’s testimony that Wagner was a good police officer, and the

arbitrator’s finding that Wagner’s judgment was clouded during his divorce. Defendants also

note that, although Wagner did not testify at the arbitration hearing, his interrogation showed that

he was truthful and forthcoming and did not have the requisite intent to violate the criminal

statutes.

¶ 84 The City’s position is that a remand is not warranted, because the nature of the conduct

here is so egregious that reinstatement violates public policy. It also argues that a remand would

not be fruitful, because Wagner did not testify and, therefore, there is no basis upon which the

arbitrator could make a recidivism finding. Specifically, the City argues that Des Plaines is

irrelevant here because that case rested on a procedural question; there was no finding, implicit

or explicit, as to the likelihood of recidivism. Also, the City contends that, in Des Plaines, the

officer’s conduct related to an act that he was generally authorized to perform—the use force.

Here, the City urges, Wagner’s conduct was morally reprehensible, intrinsically wrong, and

clearly illegal. The City maintains that an officer who plants hidden cameras in his ex-wife’s

house to watch her in her bedroom clearly does not have the morals or respect for the law needed

for the role of police officer. The City argues that case law distinguishes between questionable

conduct at work and conduct involving moral turpitude, and it asserts that this case falls in the

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latter category. See DuBose, 173 Ill. 2d at 333 (“[W]hen public policy is at issue, it is the court’s

responsibility to protect the public interest at stake. That is why courts will not give the drunken

pilot the opportunity to fly a commercial airliner again even though no harm befell his

passengers.”); see also Chicago Transit Authority v. Amalgamated Transit Union, Local 241, 399

Ill. App. 3d 689, 698-702 (2010) (arbitrator’s reinstatement of bus driver after authority

terminated him upon discovering that he had been convicted of aggravated criminal sexual abuse

of his stepdaughter violated public policy in favor of safe and secure transportation of the public,

especially children; driver had not completed treatment, failed several polygraphs, had not taken

his final polygraph, and, during his employment, was serving a four-year probation term and was

a registered sex offender, both of which he hid from the authority).

¶ 85 We conclude that the arbitrator implicitly found that Wagner was unlikely to reoffend.

We affirm that finding, and, therefore, a remand is not warranted. See DuBose, 173 Ill. 2d at 332

(where an arbitrator has expressly or by implication determined that an employee can be

rehabilitated and thus is not likely to commit an act that violates public policy in the future, “ ‘a

court would be hard-pressed to find a public policy barring reinstatement’ ” (quoting Stead

Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200, 1213 (9th

Cir. 1989))). The arbitrator specifically noted that Wagner was a nine-year veteran of the police

force, with good performance evaluations but was going through a “difficult divorce and his

emotions may have clouded his judgment.” The arbitrator thus determined that termination

would be too harsh and ordered a one-year suspension. These findings reflect that the arbitrator

considered the circumstances of this case and implicitly found that Wagner was unlikely to

commit similar misconduct in the future. This case is more like AFSCME Council 31, which

upheld an implicit finding (AFSCME Council 31, 321 Ill. App. 3d at 1042-43 (holding that

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arbitrator made rational implicit finding that employee was amenable to discipline and that the

risk of future incidents was low, where arbitrator noted that the employee had long work history,

good evaluations, and lack of prior discipline and that he did not provoke the fight with the

inmate)) than Des Plaines, where the court determined that the arbitrator’s findings were

ambiguous (Des Plaines, 2015 IL App (1st) 140957, ¶¶ 37-41 (holding that the award was

“incomplete, or at least ambiguous” and that remand was necessary)). 4 Accordingly, a remand is

not warranted.

¶ 86 Finally, we note again that, before the arbitrator had ruled on the Union’s motion to

modify the award to include a recidivism finding, the City sought judicial review of this case.

The parties agree that the arbitrator lost jurisdiction to rule on the motion when the City filed its

complaint in the trial court. Indeed, the arbitrator agreed. In his January 31, 2018, order denying

the motion, he found that he no longer had jurisdiction because the City’s suit was pending in the

trial court. See 710 ILCS 5/9 (West 2016). We need not resolve the jurisdictional issue.

Whether or not the arbitrator had jurisdiction to resolve the recidivism issue, there is no

prejudice, because, as we hold above, he had already implicitly considered it.

¶ 87 III. CONCLUSION

¶ 88 For the reasons stated, the judgment of the circuit court of Kane County is reversed and

the arbitrator’s decision is confirmed.

¶ 89 Circuit court judgment reversed.

4
We agree with Des Plaines to the extent that it concludes that, where a record does not

indicate that recidivism was determined, the trial court should remand the case to the arbitrator

for further findings.

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