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This appeal arises out of the discharge or suspension of 28 employees of theChicago Fire Department (CFD), by respondent, the City of Chicago, (the City), as aresult of their participation in an unauthorized retirement party at a Chicago firehouse. Petitioners, the Chicago Fire Fighters Union Local No. 2 (the Union) grieved the discipline, and an arbitrator held the discharges and disciplinary suspensions untimely,thereby reinstating the employees to their respective positions and vacating the disciplinary actions. The Union then initiated an action to enforce an arbitration award issuedpursuant to Section 11 of the Uniform Arbitration Act. 710 ILCS 5/11 (West 1998). The City filed a counter petition to vacate the arbitration award. After considering crossmotions for summary judgment, the circuit court of Cook County entered an order granting the Union's motion and denying that of the City. On appeal, the City contends thatthe arbitration award should be vacated as against public policy. For the followingreasons, we vacate the order entered below, and reverse and remand this matter forfurther proceedings consistent with this opinion.

BACKGROUND

The following facts are relevant to this appeal. In May 1997, CFD InternalAffairs Division ("IAD") Executive Assistant Mark Edingburg learned of the existenceof a videotape of an unauthorized retirement party held on April 12, 1990, at the CFDfirehouse known as Engine 100. The videotape depicted firefighters drinking alcoholicbeverages inside the firehouse; leaving the firehouse in fire trucks to respond to fire calls;some participants making offensive racial, gender and ethnic slurs; and some engaging inother conduct such as exposing their bare buttocks and genitals. Edinburg viewed thevideotape on May 9, 1997. On May 13, 1997, Edinburg advised Edward F. Altman, theIAD Director, of the existence of the videotape via memorandum. Altman did not notifyhis superiors of the existence of the videotape until late November 1997, after Altmanlearned that a local television news reporter had obtained a copy of the videotape. Atthat time, the CFD and the City commenced the disciplinary investigation process.

In early December 1997, the City filed charges against the 28 employees whoparticipated in the videotaped party. Following an investigation conducted by InspectorGeneral Alexander Vroustouris, discipline was imposed on the employees in May 1998. The disciplinary actions consisted of the discharge of seven employees and suspensionsranging form 6 to 60 days for the remaining employees.

On February 10, 1998, Altman was also charged with misconduct for failing toopen an investigation after learning of the videotape and failing to apprize his superiorsof the existence of the videotape. By letter dated February 25, 1998, Altman wasseparated from his position as Director of IAD.

Pursuant to the collective bargaining agreement (Agreement) between the Cityand the Union, the Union filed grievances on behalf of the 28 disciplined CFD employees. An arbitration hearing commenced before Arbitrator Edwin H. Benn on October 2,1998. The arbitration proceedings were limited to the threshold question as follows:

"Whether the investigation of the alleged April 12, 1990incident at Engine 100's quarters and/or the disciplineimposed regarding such incident was or were untimely, thatthe discipline cannot stand? If so, what is the appropriateremedy?"

The text of the opinion and award includes Benn's comment in a footnote that:

"The videotape was received in evidence over the Union'sobjection. By receipt to the tape in evidence, I do not find atthis time that the named Grievants engaged in the conduct orto the degree attributed to them by the charges in this case. The videotape was received for the limited purpose of showing that it was the basis used by the City to impose discipline."

Arbitrator Benn issued his opinion and award on December 30, 1998, finding that thedisciplinary action was invalid as untimely, pursuant to Section 16.2(E) of theAgreement. Section 16.2(E) provides in pertinent part as follows:

"The Employer shall conduct disciplinary investigationswhen it receives complaints or has reason to believe anemployee has failed to fulfill his responsibilities as anemployee and just cause for discipline exists."

Benn found that pursuant to section 16.2(E), the City was required to have begun adisciplinary investigation "at the time" it learned of the alleged misconduct, and that asix-and-one-half month delay in the commencement of the disciplinary investigativeprocess "was far beyond any reasonable time period allowed."

Next, as stipulated by the parties, Benn determined the appropriate remedypursuant to section 16.2C of the Agreement which provides that:

"Any employee found to be unjustly suspended or dischargedshall be reinstated with full compensation for all lost time andwith full restoration of all other right, benefits and conditionsof employment, without prejudice, unless a lesser remedy isagreed upon as a grievance settlement or deemed appropriateby an arbitrator."

Benn concluded that the disciplinary actions shall be rescinded:

"[t]hose employees discharged shall be reinstated to theirformer positions without loss of seniority rights, benefits andconditions of employment, without prejudice. All affectedemployees shall have their records cleared of references todiscipline stemming from the April, 1990 party. All affectedemployees shall be made whole for lost wages and benefitsand in all other respects."

After setting forth the award, Benn noted that he was required by American Federation ofState County and Municipal Employees v. Department of Central Management Services,173 Ill. 2d 299, 671 N.E. 2d 668 (1996), to take precautionary steps to ensure themisconduct at issue would not be repeated and to take into consideration pertinent publicpolicy concerns. Benn stated:

"As I view the evidence before me, I am satisfied, andI find, that the public can be assured that the allegedmisconduct will not be repeated by Grievants and that stepshave been or can be taken to ensure that result.

Taken at its worst, the alleged misconduct in this caseshows that eight years before they were disciplined,Grievants, in varying degrees, consumed alcohol in afirehouse against regulations (and with the implication thatthe citizens of the community served by Engine 100 did nothave at their disposal the services of a full complement ofunencumbered firefighters); some made racial, gender andethnic offensive comments; and some engaged in boorishexhibitionist conduct. Those are troubling and seriousallegations and the implications of that conduct have aprofound impact on the citizens of the City. However, I amsatisfied that the alleged misconduct will not happen againfrom these Grievants.

First, I must consider the nature of the involvedemployees. For the most part, Grievants are very long termemployees, some having over 25 years of service with theCity. Since the incident, a number of Grievants have beenpromoted to Engineer, Lieutenant, Captain, or BattalionChief indicating their competence and capabilities asmembers of the Department. Since the incident, a number ofGrievants have received commendations for their service andhave saved lives and protected property of the citizens ofChicago. The parties agreed that there has been no pertinentdiscipline for Grievants prior to April 12, 1990 (with theexception of an oral reprimand). [citation omitted] With theexception of the alleged misconduct which occurred on oneday some eight years before they were actually disciplined,Grievants' records show them to be exceptional employeesand they have not engaged in similar misconduct (or for thatmatter, for all purposes, any misconduct) during that lengthyperiod of time.

Second, I also have to consider the nature ofGrievants' work. They are firefighters. As such, Grievantsroutinely risk their lives to save the lives and protect theproperty of others. They have been trained at considerablepublic expense and have amassed considerable experience atperforming their craft. Particularly with respect to thosedischarged, the public loses when those long term andexperienced employees are no longer permitted to use theirtraining and experience for the safety and protection of thecitizens of the City.

Third, the fact that the City moved to take very strongdisciplinary action against Grievants is a clear and unambiguous statement to Grievants that they will be disciplined tothe fullest extent should they engage in such conduct in thefuture. Given the high quality of employees involved in thiscase, I am satisfied that message will be heeded.

Fourth, this case has received extensive publicity -locally and nationally - and I suspect that the publicity willprobably now continue. Given the nature of some of themisconduct involved in this dispute, to be part of that kind ofpublicity must be a damning public embarrassment to theseGrievants. Again, the strong message has been sent toGrievants of the consequences of this type of conduct and theneed that it never again be repeated.

Fifth, the City has already put in place mechanisms toprevent such conduct from occurring in the future. InDepartment Memo M-39-37 dated December 8, 1997 whichissued as a result of the alleged misconduct in this case, theFire Commissioner ordered all Department members to re-familiarize themselves with the orders prohibiting substanceabuse and discrimination and sexual harassment; advised theemployees that violations of those orders will not be toleratedand that discipline for such violations will be taken; and thatmanagement changes were put in place to ensure strictcompliance with the Department's Code of Conduct. Ifanything is not crystal clear, the Department's stance on thekind of party and conduct which occurred on April 12, 1990is now known - it will not be tolerated.

Sixth, with respect to the alleged racial, gender andethnic offensive comments made by some one [sic] thevideotape, if the City is of the opinion that such views stillexist within the ranks of Department, it is free within thescope of its managerial prerogatives and the terms ofAgreement to train and repeatedly retrain its members as awhole that such conduct has absolutely no place in theworkplace. If that training does not work, the City is free totake strong and swift disciplinary action. The City has withinits control powerful mechanisms to make certain thatGrievants do not engage in this kind of conduct in the future.

In sum then, I am satisfied - and I find - that Grievantsare capable of rehabilitation; that the conduct allegedlyengaged in by Grievants will not reoccur; and that steps havebeen taken and can be taken to assure the public of thatresult." (Emphasis in original).

The Union filed a petition to enforce the arbitration award in the circuit court, andthe City filed a counter-petition to vacate the arbitration award. The parties filed crossmotions for summary judgment. In its motion, the City argued that the arbitrator hadexceeded his authority and that the award violated public policy.

On June 22, 1999, the circuit court granted the Union's petition to enforce theaward and denied the City's counter-petition to vacate the award. The circuit court foundthat the City was estopped from raising public policy as a ground for vacating the awardbecause it had agreed to submit the question of timeliness and the issue of the remedy tothe arbitrator. The City filed a timely appeal from the order of the circuit court.

OPINION

This matter calls upon the court to address a serious matter of public policyaffecting the health, safety and welfare of the citizens of the city of Chicago. On appeal,the City contends that the trial court erred in refusing to consider public policy as aground for vacating the arbitration award entered in favor of the Union. The City arguesthat the award violates the public policy favoring a safe and effective fire preventionsystem. We agree.

We acknowledge that judicial review of an arbitral award is extremely limited. American Federation of State, County & Municipal Employees v. State of Illinois, 124Ill.2d 246, 254, 529 N.E.2d 534 (1988) (hereafter "AFSCME I "); Board of Trustees v.Cook County College Teachers Union, Local 1600, 74 Ill.2d 412, 418, 386 N.E.2d 47(1979). This standard reflects the legislature's intent in enacting the Illinois UniformArbitration Act, that is, to provide finality for labor disputes submitted to arbitration. See710 ILCS 5/12 (West 1994) (denying judicial authority to vacate arbitral awards excepton grounds recognized at common law). The Act contemplates judicial disturbance of anaward only in instances of fraud, corruption, partiality, misconduct, mistake, or failure tosubmit the question to arbitration. Board of Education v. Chicago Teachers Union,Local No. 1, 86 Ill.2d 469, 474, 427 N.E.2d 1199 (1981). Thus, a court of review mustenforce a labor-arbitration award if the arbitrator acts within the scope of his or herauthority and the award draws its essence from the parties' collective-bargainingagreement. American Federation of State, County and Municipal Employees, AFL-CIOv. Department of Central Management Services, 173 Ill. 2d 299, 305, 671 N.E. 2d 668(1996) (hereafter "AFSCME II")

However, even if the arbitrator makes his award within the scope of his authorityand the award is based on the arbitrator's interpretation of the agreement, we will vacatethe award if it is repugnant to the established norms of public policy. AFSCME I, 124Ill.2d at 254, 529 N.E.2d 534 (1988); County of De Witt v. American Federation ofState, County, Mun. Employees, Council 31, 298 Ill.App.3d 634, 637, 699 N.E.2d 163(1998).

In the present case, the trial court held that the City was "estopped" from raising apublic policy defense because the parties stipulated to submit to the arbitrator only theissue of the timeliness of the discipline and the fashioning of the appropriate remedy. Thus, on appeal, the Union contends that the City "waived" its right to condemn theaward as violative of public policy.

The Union's contention is unsupported by either the record or controllingauthority. Questions of public policy are left to the courts, not the arbitrator. On review,this court is not bound by the arbitrator's consideration of public policy and we may notabdicate to the arbitrator our responsibility to protect the public interest at stake. Board ofTrustees, 74 Ill. 2d at 424, 386 N.E. 2d 47 (1979). "Questions of public policy * * * areultimately left for resolution by the courts." AFSCME II, 173 Ill. 2d at 318.

The authority relied upon by the Union in support of its argument for waiver isdistinguishable. For example, in Board of Education v. Illinois Education Labor Relations Board, 289 Ill. App. 3d 1019, 682 N.E. 2d 398 (1997), the Board of Education(Board) terminated a teacher for unsatisfactory performance. The Chicago TeachersUnion (CTU) filed a grievance on behalf of the teacher, arguing that the Board violatedthe collective bargaining agreement by evaluating the teacher's performance according tothe incorrect procedures for tenured teachers. The grievance went to arbitration, and thearbitrator issued a final and binding award in favor of the CTU, ordering reinstatement ofthe teacher. The Board, however, failed to both comply with the arbitrator's award, andto file any timely exceptions to the award. After the deadline for the filing of exceptionspassed, the Board filed exceptions to the ALJ's original decision, arguing that thedecision was against the public policy of providing a quality public education. TheIELRB issued its opinion holding that the original decision by the ALJ was final andbinding. Board of Education, 289 Ill. App. 3d at 838.

On appeal, this court held that the Board's failure to file timely exceptions to theoriginal decision of the ALJ constituted waiver of its right to contest the propriety of thatdecision. This court found the public policy concerns "radically different" from thoseimplicated in AFSCME II (see discussion infra) and not controlling of the factspresented in the Board's appeal. Board of Education, 289 Ill. App. 3d at 1022.

By contrast, in the present case, the issue of public policy was properly before thearbitrator. The record shows that the arbitrator not only acknowledged the implication ofpublic policy concerns, but went to great lengths in his opinion and order to addressthose concerns, ultimately concluding that public policy was not adversely affected by hisdecision to reinstate the 28 firefighters.

An agreement to submit to arbitration does not operate as a device or structure tocircumvent questions of public policy, especially where, as here, the Union initiated anaction in court to enforce the arbitration award. We therefore find erroneous the trialcourt's determination that the City was foreclosed from challenging the award as againstpublic policy upon review in the circuit court.

In order to vacate an award under the "public policy exception" we are required toundertake a two-step analysis. First, we inquire whether a well-defined and dominantpublic policy can be identified. If so, we must then determine whether the arbitrator'saward, as reflected in his interpretation of the agreement, violated the public policy. Toascertain the existence of public policy, we look to our constitution, statutes and relevantjudicial opinions. AFSCME II, 173 Ill.2d at 308; De Witt, 298 Ill. App. 3d at 637.

As to the first inquiry, it is unquestionable that an established public policy existsin Illinois favoring safe and effective fire protection services. The Illinois Legislaturespecifically created fire protection districts in 1871 (Laws 1871-72, p.218, art. V, (asrenumbered)