specially concurring in part and dissenting in part:
While I agree with the majority’s ultimate conclusion that Gibson should not operate a bus, I respectfully disagree with the majority’s conclusion that he should also be discharged and the reasoning articulated in reaching these conclusions. From the outset, I find Gibson’s underlying criminal behavior reprehensible. However, we are charged, as the reviewing court, to determine if the arbitrator’s award should be upheld, and not penalize Gibson for his criminal conduct, in accordance with the law. When considering the two-part analysis applied in determining whether the award violates public policy, I believe the record before us fails to demonstrate the award clearly contravened the public policies referenced to warrant disturbing the award.
As the majority notes, judicial interference with an arbitration award is extremely limited. 399 Ill. App. 3d at 695. Judicial review of an arbitration award is “extremely limited” and “a court must construe an award, if possible, as valid.” American Federation of State, County & Municipal Employees v. State of Illinois, 124 Ill. 2d 246, 254 (1988) (hereinafter AFSCME I). A court may not reverse an arbitrator’s decision simply because it is contrary to the manifest weight of the evidence. See 710 ILCS 5/12, 13 (West 2006). Any question regarding the interpretation of a collective bargaining agreement is to be answered by the arbitrator, and we will not overrule that construction merely because our interpretation differs from that of the arbitrator. American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 305 (1996) (hereinafter AFSCME ID, citing AFSCME I, 124 Ill. 2d at 254. The majority opinion correctly notes that a court will vacate an arbitration award that is repugnant to the established norms of public policy. 399 Ill. App. 3d at 696. However, as the majority opinion also acknowledges, the “reinstatement of an employee who has violated an important public policy does not necessarily violate public policy.” City of Highland Park v. Teamster Local Union No. 714, 357 Ill. App. 3d 453, 462 (2005).
Yet, while the parties bargained for binding arbitration, the arbitrator’s findings, based upon his interpretation of the parties’ collective bargaining agreement and after hearing testimony from various witnesses, including a therapist who interacted with Gibson during his treatment period, as well as considering public policy arguments, are now rejected. I believe that the majority’s reasoning will be construed to require discharging all municipal bus drivers who are convicted of a sex offense or another felony, or who fail to report their sex offender status, without regard to the bargained-for employment contract and the law as it currently stands, and disturbing arbitration awards reinstating employment following any such conviction or failure as violating public policy.
As the majority acknowledges, the Illinois legislature has not enacted any statute specifically prohibiting registered sex offenders from operating a public transit vehicle. 399 Ill. App. 3d at 699. Statutes exist expressly prohibiting sex offenders from operating a school bus. 720 ILCS 5/11 — 9.3(a) (West 2006); see also 625 ILCS 5/6 — 106.1(a) (West 2008) (convicted sex offenders are ineligible to receive a school bus driver permit). As recently as August 2009, by Public Act 96 — 118, the legislature imposed additional restrictions for sex offenders regarding operation of certain vehicles by adding a provision in the Criminal Code of 1961 prohibiting such individuals from operating an ice-cream truck or ambulance. Pub. Act 96 — 118, eff. August 4, 2009 (adding 720 ILCS 5/11 — 9.4(c—8)). However, the legislature’s amendment did not include any restrictions for operating other types of vehicles, e.g., common carriers or public transit vehicles. If the legislature intended to prohibit sex offenders from operating public bus transit vehicles, the legislature would have included express language doing so. Simply put, these statutes cannot be construed to include a prohibition in operating a public transit vehicle absent express language indicating its intent to do so. See People v. Ellis, 199 Ill. 2d 28, 39 (2002) (in effecting legislative intent by viewing the statute’s plain language, “[the court] must not depart from the statute’s plain language by reading into it exceptions, limitations, or conditions the legislature did not express”); see also People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 184-85 (2009) (same).
Moreover, even if a bus driver’s route includes service stops picking up minor students, that, in and of itself, does not transform the public transit bus into a “school bus” to fall under the statute’s umbrella. See 399 Ill. App. 3d at 699. I find the statute’s language plain and clear as not including a public transit vehicle as a restricted vehicle. Assuming arguendo that the term “school bus” is ambiguous in light of the scenario presented by the majority, any ambiguity in the criminal statute is construed in favor of the accused pursuant to the rule of lenity followed by Illinois courts. See People v. Jones, 223 Ill. 2d 569, 581 (2006), citing People v. Davis, 199 Ill. 2d 130, 140 (2002); see also People v. Williams, 393 Ill. App. 3d 77, 86-87 (2009), citing United States v. Santos, 553 U.S. 507, 514, 170 L. Ed. 2d 912, 920, 128 S. Ct. 2020, 2025 (2008). Certainly, if the legislature specifically intended to prohibit sex offenders from operating public transit vehicles, the legislature would have enacted legislation containing plain language expressing its intent to do so. As the legislature makes the laws, which we merely follow, the legislature should revisit the statute to declare any intent to restrict sex offenders from operating public transit vehicles. See Henrich v. Libertyville High School, 186 Ill. 2d 381, 394-95 (1998) (courts apply legislation as written and “must not rewrite statutes to make them consistent with the court’s idea of orderliness and public policy”).
Indeed, if Gibson’s registration status would have affected his ability to continue in his position, certainly steps would have been taken to notify the CTA, his employer, to meet the safeguards of the registration statute and his probation terms. Yet, the record is absolutely devoid of any notice to the CTA that Gibson could no longer work in a bus driver capacity given his conviction and registry status or even that Gibson failed to disclose his CTA employment as part of his conviction and registration.
Furthermore, the record reveals a CTA manager testified that a felony conviction does not automatically result in discharge from employment. As was raised at oral argument in a question posed to counsel, I remain perplexed that an employee with 17 years of employment as of the date of his termination was not given the opportunity to continue his employment in another position. The arbitrator’s award also references a prior arbitration award (referred to therein as Bus Servicer award) where the discharge of a sex offender for off-duty misconduct involving a member of the public was overturned.1 As the record reveals no specific internal rule or contractual agreement mandating disclosure of Gibson’s plea and registry status, his nondisclosure did not violate any express work rules. Just like the legislature should revisit the issue of enacting express legislation restricting sex offenders from operating public transit vehicles, the CTA, too, must promulgate a rule expressly stating if the CTA desires to require express disclosure of such a conviction. If automatic discharge is predicated upon violation of such an express rule, the parties’ collective bargaining agreement should also incorporate express language to that effect to justify an automatic discharge. Clear language delineating the consequences for violating an express disclosure rule would avoid misinterpretation and alleviate any concerns the CTA has regarding exposure to liability in providing safe and secure transportation.
In this case, the arbitrator emphasized he benefitted from the testimony of opinion witnesses in making his findings. Falco, the then program director who held a master of arts in clinical social work and saw Gibson during his treatment period, opined that Gibson’s risk of recidivism in the course of his employment was low based upon certain factors. The arbitrator highlighted that Leavitt, the CTA’s retained expert who neither treated nor met with Gibson, “appeared to agree” with Falco’s assessment. Indeed, the arbitrator summarized Leavitt’s testimony as stating “there was only ‘a possibility, not likelihood’ that Gibson would reoffend.” (Emphasis in original.) Although Leavitt still harbored concern of a mere “possibility,” the arbitrator apparently found Falco’s opinions more insightful given his close association with Gibson and knowledge about Gibson’s treatment background.
I also respectfully disagree with the majority’s conclusion that the arbitrator’s conditional reinstatement was “contradictory *** if there is no public policy violation.” 399 Ill. App. 3d at 701. Rather, the remedy fashioned was consistent with the opinion testimony presented to the arbitrator that the risk of recidivism was low. See AFSCME II, 173 Ill. 2d at 322-23, citing AFSCME I, 124 Ill. 2d at 263 (finding the court “would be obliged to affirm the award” if the arbitrator reinstates an employee after making “a rational finding that the employee can be trusted to refrain from the offending conduct” and citing cases where arbitrators’ conditioned reinstatements or findings of repeated conduct were unlikely upheld by courts). Here, the arbitrator chose Falco’s expert opinion over Leavitt’s and presented rational reasons for doing so.
Lastly, although one person did ultimately complain about Gibson’s sex offender registration, I suspect that the action was primarily motivated to embarrass, humiliate, and trigger adverse employment action against Gibson, which did indeed occur, rather than to assist the CTA in providing safe transportation for minors. Nonetheless, I believe that had Gibson promptly reported the matter to the CTA, the parties would have had ample opportunity to explore reassignment to a position that involved minimal public contact to avoid the loss of long-term and untarnished employment while effecting the CTA’s goals of providing safe and secure transportation for its passengers. As I conclude, in following the law as stated, the arbitrator’s decision to reinstate Gibson’s employment should not be disturbed, but I believe Gibson should be employed in a different capacity other than a bus driver.
In the arbitrator’s decision, he also noted the CTA unsuccessfully sought to vacate the Bus Servicer arbitration award in the circuit court and highlighted that “ ‘the violation of public policy must be clearly shown.’ ”