NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as

amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and,
therefore, may not fully address the facts of the case or the panel's decisional
rationale. Moreover, such decisions are not circulated to the entire court and,
therefore, represent only the views of the panel that decided the case. A summary
decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its
persuasive value but, because of the limitations noted above, not as binding precedent.
See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

16-P-891

CITY OF NEWTON

vs.

MATTHEW A. CUMMINGS.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The city appeals from an order denying its motion for

judgment on the pleadings seeking to vacate an arbitration

award, and allowing the defendant's cross motion to confirm that

award. The city argues that it was entitled to judgment on its

amended complaint which sought, pursuant to G. L. c. 251,

12(a)(2), to vacate the arbitration award on the ground that

the arbitrator was partial.1 Our review is de novo, see

Massachusetts Hwy. Dept. v. Perini Corp., 79 Mass. App. Ct. 430,

436 (2011) (de novo review applies to orders confirming

arbitration); Martinez v. Waldstein, 89 Mass. App. Ct. 341, 345

1 The amended complaint alleged a number of additional bases for

vacating the arbitration award. However, most (if not all) of
them are not recognized bases, under G. L. c. 251, 12(a), for
vacating an arbitration award. For example, the city's claim
that the arbitrator was required to accept the negative
inference drawn by the hearing officer is not within the scope
of review permitted by G. L. c. 251, 12(a), nor does the city
even attempt to explain how it is.
(2016) (de novo review applies to motions for judgment on the

pleadings), and we affirm.

The case arises from the city's termination of the

defendant for conduct unbecoming a police chief. The parties'

relationship was subject to an employment agreement, which

specified that any dispute concerning the defendant's

"termination of employment . . . shall be resolved exclusively

by arbitration under the Voluntary Labor Arbitration Rules of

the American Arbitration Association." The agreement also

specified that "[t]he arbitrator's decision, if in accordance

with law, shall be final and binding upon the parties."

The defendant invoked arbitration after his termination.

After a five-day arbitration proceeding during which both sides

presented and cross-examined witnesses, the arbitrator ruled

that the city had not met its burden of showing conduct

unbecoming a chief, awarded damages, and ordered reinstatement.

The city filed a complaint in Superior Court seeking to vacate

the arbitrator's award, arguing in essence that the arbitrator

had exceeded his authority. A judge of the Superior Court

agreed with the city, vacated the arbitration award, and

remanded the matter for reconsideration by the arbitrator

limited to the evidentiary record that had been before the

hearing examiner.

2
 On remand, the arbitrator followed the judge's

instructions, limited himself to the pretermination evidentiary

record,2 and again found in favor of the chief. He also again

awarded damages, but -- because the city now had the option

(which it had exercised) to terminate the chief for any reason

during the fifth year of the contract -- did not order

reinstatement. The city then filed the amended complaint which

underlies this appeal and moved, as we noted at the outset, for

judgment on the pleadings on the ground that the arbitrator was

evidently partial.3 G. L. c. 251, 12(a)(2).

Courts "shall" confirm arbitration awards unless a party

shows that the award falls within one of the five limited

exceptions specified in G. L. c. 251, 12(a). G. L. c. 251,

11. The exception at issue here is when "there was evident

partiality by an arbitrator appointed as a neutral." G. L.

c. 251, 12(a)(2). Partiality in this context does not mean

2 The arbitrator stated that he "disregarded the entire five-day

trial" that he performed prior to making his first award and
"limit[ed] [his] consideration to the evidence submitted at the
disciplinary hearing." We are unpersuaded by the city's
argument that we should disbelieve the arbitrator's
representations in this regard. Nothing in the record (whether
intrinsic or extrinsic to the arbitrator's decision) suggests
that the arbitrator did not follow the judge's order.
3 On appeal, the city wisely does not renew its claim that the

arbitrator "grant[ed] relief beyond the scope of the arbitration

agreement, [awarded] relief beyond that to which the parties
bound themselves, or [awarded] relief prohibited by law."
Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407
Mass. 1006, 1007 (1990).

3
that the arbitrator favored one side over the other, or had a

predisposition, was biased, or was "partial" in a colloquial

sense. "Evident partiality is more than just the appearance of

possible bias. Rather evident partiality means a situation in

which 'a reasonable person would have to conclude that an

arbitrator was partial to one party to an arbitration.'" JCI

Communications, Inc. v. International Bhd. of Elec. Workers,

Local 103, 324 F.3d 42, 51 (1st Cir. 2003), quoting from

Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 626

(6th Cir. 2002) (construing similar language in the Federal

Arbitration Act). Such a situation exists where there is an

undisclosed preexisting "toxic relationship between an

arbitrator and a party or counsel," Bernstein v. Grammercy

Mills, Inc., 16 Mass. App. Ct. 403, 411-412 (1983), such as

where "the arbitrator had a financial or personal interest in

the result of the arbitration or [] had [a] past or present

relationship with [a party]." Turner Fisheries, Inc. v. Seafood

Workers Union I.L.A., 19 Mass. App. Ct. 925, 928 (1984)

(construing similar language in G. L. c. 150C, 11(a)(2)). For

example, evident partiality may exist where an arbitrator has

received consulting fees from a party for a lengthy period, or

where he repeatedly represented a party in legal matters, or

where he had a long and established business relationship with a

4
party. See Bernstein v. Gramercy Mills Inc., supra at 413-414

(collecting cases).

The city has made no showing here of evident partiality as

our cases have construed the term. There is nothing to suggest

that the arbitrator had any preexisting relationship with the

defendant or his counsel, let alone a relationship that was

undisclosed. Instead, the city's claim of partiality rests

entirely upon its assertion that the arbitrator was

"dissatisfied" or "frustrated" with the remand order. Even were

we to assume that the arbitrator expressed frustration in his

decision (a matter we stress we assume only for the purpose of

argument) we "do not see how the comment of the arbitrator . . .

evinced a bias against" the city. Turner Fisheries, Inc. v.

Seafood Workers Union I.L.A., supra.

Concluding as we do with respect to the city's claim of

"evident partiality," we need not consider the defendant's

argument that the initial order of remand was incorrect. Simply

put, even if the defendant is correct, he would be entitled to

5
no additional relief.

Judgment affirmed.

By the Court (Vuono,

Wolohojian & Carhart, JJ.4),

Clerk

Entered: April 26, 2017.

4 The panelists are listed in order of seniority.