Matter of New York State Law Enforcement Officers Union Dist. Council 82 AFSCME AFL-CIO v State of New York

[*1] Matter of New York State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO v State of New York 2005 NY Slip Op 52356(U) [18 Misc 3d 1145(A)] Decided on August 22, 2005 Supreme Court, Albany County Tomlinson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 11, 2008; it will not be published in the printed Official Reports.

Decided on August 22, 2005
Supreme Court, Albany County

In the Matter of the Application of New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO and Glenn Looney, Petitioners,

against

State of New York, New York State Department of Correctional Services, and Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, Respondents.



655-05



APPEARANCES:

ENNIO J. CORSI, ESQ.

General Counsel to Council 82

(Matthew P. Ryan, Esq.)

63 Colvin Avenue

Albany, New York 12206

Hon. Eliot Spitzer, Attorney General

Attorney for Respondents

(Jeffrey P. Mans, AAG)

NYS Department of Law-The Capitol

Albany, New York 12224

Guy P. Tomlinson, J.

Petitioner has commenced the instant proceeding pursuant to article 75 of the CPLR seeking a judgment confirming an arbitration award which found that respondents had failed to prove petitioner Looney's guilt with respect to certain disciplinary charges beyond a reasonable doubt. Respondents have cross-petitioned to vacate and set aside the award on the grounds that the award is completely irrational, was made in excess of the arbitrator's authority and violates the State's public policy.

Petitioners' answer to the cross-petition asserts that it is untimely as it was not brought within 90 days of delivery of the arbitration award as required by CPLR § 7511 (a). However, it is well settled that an objection to an arbitration award may be brought as a cross-petition to an application to confirm an award, notwithstanding the passage of more than 90 days (see Matter of Lyden v. Bell, 232 AD2d 562 [1996]; Matter of Brentnall v. Nationwide Mut. Ins. Co., 194 AD2d 537 [1993]; Karlan Constr. Co. v. Burdick Assocs. Owners Corp., 166 AD2d 416 [1990]; Vilceus v. North River Ins. Co., 150 AD2d 769 [1989]). Accordingly, the affirmative defense is without merit.

This proceeding involves disciplinary charges against petitioner Looney, a Corrections Lieutenant employed by the New York State Department of Correctional Services. Petitioner Looney was charged with having sexual contact with a female inmate in the disciplinary office at Bedford Hills Correctional Facility during the first week of July, 2002. By agreement, the Notice of Discipline was amended to specify the date and time as July 4, 2002 at approximately noon. Petitioner Looney has consistently admitted having improper sexual contact with the inmate, but has not admitted the date or time of the incident. Notwithstanding petitioner Looney's admissions, the inmate's testimony, her contemporaneous written note of the date of the occurrence and facility records which show that the inmate was escorted from the special housing unit to some unrecorded destination for 40 minutes at approximately noon on July 4, 2002, the arbitrator found that the respondent had not proven that the admitted sexual contact occurred at the charged date and time by proof beyond a reasonable doubt.

Judicial review of arbitration awards is extremely limited. The Court of Appeals has stated: "Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management. In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice (see, Matter of Sprinzen [Nomberg], 46 NY2d 623, 629-631; see also, United Paperworkers Intl. Union v Misco, Inc., 484 U.S. 29, 38; International Bhd. of Elec. Workers v Niagara Mohawk Power Corp., 2nd Cir., 143 F.3d 704, 714).Despite this deference, courts may vacate arbitral awards in some limited circumstances. A court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power under CPLR [*2]7511(b)(1) (Matter of Board of Educ. v Arlington Teachers Assn., 78 NY2d 33, 37)." (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326, [1999]).

Moreover, even when the arbitration agreement provides, as here, that the arbitrator may not alter, add to or detract from the provisions of the agreement, "[a]n arbitrator's interpretation may even disregard the apparent, or even the plain, meaning of the words' of the contract before him and still be impervious to challenge in the courts (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582). " (Matter of Albany County Sheriff's Local 775 [County of Albany], 63 NY2d 654, 655 [1984]; see also Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of NY, 1 NY3d 72, 82 [2003]; Maross Constr. v Central N .Y. Regional Transp. Auth., 66 NY2d 341, 346 [1985]).

Thus the Court of Appeals has held that the courts should not interfere even when it appears that the arbitrator's award rendered certain contractual provisions totally inoperative (see Matter of Town of Callicoon [Civil Service Employees Assn., Town of Callicoon Unit], 70 NY2d 907 [1987]).

In order to be vacated on public policy grounds, the award must directly violate a strong and well defined policy embodied in law. Indirect or attenuated consequences of an award, which does not on its face decide matters which are not arbitrable or violate a law, do not suffice. Thus, the fact that a corrections officer is found not guilty of charges by an arbitrator, even though he may have engaged in conduct which could create a significant security or safety risk to correctional facilities, is insufficient to apply the public policy exception to judicial deference to arbitration awards ( see Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d at 327-328; Matter of County of Nassau v. Sheriff's Officers Assn., 294 AD2d 31 [2002]). The instant case is indistinguishable. It is therefore determined that the arbitration award herein does not directly violate any strong public policy.

Furthermore, it cannot be said that the award is completely irrational. The record contains some evidence from which it could be determined that it was unlikely that the inmate was taken to the disciplinary office at the time alleged in the notice of discipline. Her presence there was not logged in and the log entry for the return of an officer at the logging station could be read as either 11:00 or 11:20. If read as 11:00, the inmate's presence should have been recorded. Moreover, the respondents agreed to limit the charges to the specific date and time. As such, the fact that petitioner Looney admitted sexual contact at some other time would not be dispositive, or even relevant to the arbitrator's determination.

However, the issue of whether the arbitrator exceeded his powers yields a different result. An arbitrator is considered to have exceeded his powers if he considers a question or issue which has not been placed before him (see Matter of Karadhimas v. Allstate Ins. Co., 9 AD3d 429, 430-431 [2004]; Banc of Am. Sec., v. Knight, 4 Misc 3d 756, 758 [2004]). In the instant award, the arbitrator considered and determined the issue of whether the respondents proved petitioner Looney's guilt of the charges beyond a reasonable doubt. The collective bargaining agreement entered into by the parties provided that they would follow the procedures for the arbitration [*3]process as set forth in a specified agreement or any amendments thereof. Respondents have shown that the procedural agreement was amended by agreement executed in February, 1989. Such agreement expressly provided that "the State's burden of proof, even in serious matters which might constitute a crime if prosecuted under a criminal statute, is not proof beyond a reasonable doubt.' " Such explicit provision in the arbitration agreement constitutes a limitation on the powers of the arbitrator, and limits the issue to be determined by the arbitrator to whether the respondents proved petitioner Looney's quilt of the charges by a preponderance of the evidence. It is therefore determined that the arbitrator exceeded his powers when he failed to determine the issue properly before him and applied an improper burden of proof. This constitutes grounds for vacatur of the award (see e.g. Matter of Walker v. General Motors Corp., Pontiac Motor Div., 159 Misc 2d 651, 652-653 [1993]).

Accordingly, it is

ORDERED that the petition to confirm the award is hereby dismissed. The cross-petition to vacate the award is hereby granted. The proceeding shall be remanded for a new hearing before a different arbitrator.

This memorandum shall constitute both the decision and the order of the Court. All papers, including this Decision and Order, are being returned to the attorneys for respondents. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

IT IS SO ORDERED!

________________________________

Dated: August 22, 2005
GUY P. TOMLINSON,

Albany, New York
ACTING JUSTICE OF THE SUPREME COURT