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Arbitrator?s award vacated after being judged to violate strong public policy

Arbitrator?s award vacated after being judged to violate strong public policy
Nassau Co. v Sheriff?s Officers Association, Supreme Court, Nassau County, Justice Ralph P. Franco, [not officially reported]

Vacating an arbitrator?s award is not an easy task. Article 75 of the Civil Practice Law and Rules sets out the limited basis for overturning an arbitration award as follows:

(i) Corruption, fraud or misconduct in procuring the award; or

(ii) Partiality of an arbitrator appointed as a neutral, except where the award is by confession; or
(iii) An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.

In addition, courts have vacated arbitration awards found to violate strong public policy.*

This case arose as a result of Gemelli, a Nassau County corrections officer, being found guilty of assaulting an inmate under his care by a federal district court jury. As a result the Sheriff terminated Gemelli from his position effective March 1, 1999.

Gemelli filed a grievance challenging his dismissal and eventually the matter was submitted to arbitration. Ultimately the Arbitrator found Gemelli not guilty, ruling that

1. Nassau County did not have just cause to discharge him and

2. Nassau County was to make Gemelli ?whole for any wages and benefits lost, less any interim earnings, for the period of March 1, 1999, until Gemelli?s retirement, effective May 27, 1999.?

Nassau County brought an Article 75 action in an effort to vacate the arbitrator?s award.

The Sheriff?s Officers Association, on the other hand, asked the court to confirm the award.

Justice Franco, after reading the arbitrator?s decision and award, said:

1. An arbitration award shall be vacated where it is totally irrational or violative of strong public policy.

2. The arbitrator?s award in this instance conflicts with strong public policy.

The court indicated that Gemelli, in exercising his responsibilities, was required to protect and care for this mentally retarded inmate under his care at the jail. In contrast to
Gemelli?s actions, Justice Franco said that ?[t]he inmate was to be protected by him, not assaulted by him as the jury found in the Federal trial.?

Turning to the arbitrator?s holdings overturning Gemelli?s termination, the court ruled that ?[a]s his conduct was clearly a violation of public policy, he was justly discharged and is not entitled to be made whole for wages.? The bottom line: Based upon all the facts and circumstances presented to him, Justice Franco vacated the arbitrator?s award on the grounds that it constituted a violation of a strong public policy.

Accordingly, Gemelli?s separation from the Sheriff?s Department may now be recorded as a dismissal as a result of disciplinary action taken against him rather than as a ?retirement.?**

Ford v CSEA, 94 AD2d 262, is another case that addresses the question of the power of an arbitrator in rendering a decision that impacts on, or affects, a public policy within the ambit of a disciplinary action. In this case, an employee of the Department of Mental Hygiene was charged and found guilty of misconduct (having sexual relations with a patient).

The arbitrator imposed the penalty of a two-month suspension without pay, finding that the patient ?consented? to the sexual act. The appointing authority (Ford) sought to vacate the arbitration award and dismiss the employee.

The Court said that the arbitrator ?exceeded his powers and made an irrational award in violation of ?a public policy which is beyond waiver? (by the State).? The Court indicated that ?Any other result would ... defeat the very purpose for which the Mental Hygiene Law was enacted and the Office of Mental Hygiene created. No collective bargaining agreement to arbitrate can be allowed to destroy the very master it serves.?

The Appellate Division noted that ?mental patients are incapable of ?consent? in (this) context ...? and ?the determination of ?physical abuse? ... cannot be passed off lightly with an adjective such as ?minimal.?? The court said that it found such a characterization ?appalling? and the arbitrator?s refusal to impose the penalty of termination ?plainly irrational?. The court then directed the matter returned for adjudication by a different arbitrator.

* An arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power (CPLR 7511[b]; Matter of Town of Callicoon, 70 NY2d 907.

** Gemelli retired while the disciplinary arbitration action was still pending the arbitrator?s determination.

Full post as published by New York Public Personnel Law on June 09, 2010 (boomark / email).