Opinion
Index No. 004245/2023
08-22-2023
In re of the application of WAYNE SPENCE, as President of the New York State Public Employees Federation, AFL-CIO; and MICHELLE LAFRAMBOISE, Petitioners, v. STATE UNIVERSITY OF NEW YORK; JOHN B. KING, JR., as Chancellor of the STATE UNIVERSITY OF NEW YORK; the BOARD OF TRUSTEES of the STATE UNIVERSITY OF NEW YORK; DR. MERRYL H. TISCH as Chair of the BOARD OF TRUSTEESS of the STATE UNIVERSITY OF NEW YORK; STATE UNIVERSITY OF NEW YORK UPSTATE MEDICAL UNIVERSITY; and MANTOSH DEWAN as President of STATE UNIVERSITY OF NEW YORK UPSTATE MEDICAL UNIVERSITY, Respondents. For an Order Pursuant to CPLR Article 75, Vacating an Arbitration Award,
Unpublished Opinion
Present: Hon. Gerard J. Neri, J.S.C.
DECISION AND ORDER
Gerard J. Neri, Judge.
Petitioners WAYNE SPENCE, as President of the New York State Public Employees Federation, AFL-CIO ("Spence") and MICHELLE LAFRAMBOISE ("LaFramboise", and collectively as the "Petitioners") brought this proceeding pursuant to Article 75 of the CPLR to vacate a final and binding arbitration award issued by Arbitrator Thomas N. Rinaldo, Esq. (see Petition, Doc. No. 1, ¶1). An award may only be vacated by a participating party for the following reasons:
"(i) corruption, fraud or misconduct in procuring the award; or
(ii) partiality of an arbitrator appointed as a neutral, except where the award was 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 the defect and without objection" (CPLR §7511 [b][l]).
Petitioners assert that the Arbitrator exceeded his authority by enforcing the vaccine mandate contained in 10 NYCRR §2.61, which this Court had found null void, and of no effect (see Petition, Doc. No. 1, ¶42, citing Medical Professionals for Informed Consent v. Bassett, 78 Misc.3d 482 [Sup. Ct. Onondaga Cty. 2023]). On November 24, 2021, Respondent SUNY Upstate issued a notice of discipline (see Petition, Doc. No. 1, ¶22). LaFramboise was suspended without pay effective November 23, 2021 (see Notice of Discipline, Doc. No. 4). LaFramboise was advised that she was being disciplined for failing to get the first dose of the COVID-19 shot as required by 10 NYCRR §2.61 (ibid). By cover letter dated December 3, 2021, LaFramboise filed a grievance (see Grievance, Doc. No. 6). An arbitration hearing was held on December 13, 2022 (see Petition, Doc. No. 1, ¶29). The Parties made final submissions to the arbitrator on January 13, 2023 (ibid). On January 14, 2023, Petitioner's attorney advised the Arbitrator of this Court's decision declaring the COVID-19 shot mandate under 10 NYCRR §2.61 (the "Mandate") null and void (see Letter, Doc. No. 7). Petitioner's Attorney had urged the Arbitrator to follow a course of prudence and wait for clarity on the issue (see Letter of January 26,2023, Doc. No. 9). On January 27, 2023, Arbitrator Thomas N. Rinaldo issues his decision and award, concluding that "the State had probable [sic] to suspend the [Petitioner] on or about
November 5, 2021; the State has just cause to issue the Notice of Discipline dated November 5, 2021, and had just cause under Article 33 of the CBA to terminate the Grievant" (see Decision and Award, Doc. No. 2). It is conceded by Respondent that LaFramboise was not terminated until the Award was issued by the Arbitrator (see Answer, Doc. No. 21, p. 9, "is the penalty of termination as proposed by the Employer, Upstate Medical University ('SUNY Upstate'), appropriate and for just cause and may this penalty be implemented?", emphasis added). Petitioner seeks an order of the Court: a) vacating the Arbitrator's Decision and Award; b) ordering Respondents to reinstate Petitioner with back pay and interest, restoration of accruals, and correct her record to reflect that she was not terminated, all consistent with current New York State public policy and law; c) award Petitioners the costs, fees, interest, and disbursements of the action, and d) such other and further relief as the Court deems just and proper (see Petition, p. 10).
Respondents appeared and answered via the Attorney General's Office and assert that the Petition fails to state a cause of action (Doc. No. 21). Respondents note the relevant timeline: that on January 13, 2023, this Court issued its Decision and Order in Medical Professionals, that on January 24, 2023, the Department of Health filed a notice of appeal in Medical Professionals, that on January 27, 2023, the Arbitrator issued his decision subject to the instant proceeding, that on January 27, 2023 the Department of Health asked the Appellate Division, Fourth Department to stay this Court's Decision and Order in Medical Professionals, and on February 27, 2023 the Fourth Department issued a stay (see Answer, Doc. No. 21, pp. 2-3). Respondents assert there is conflicting caselaw concerning the legality of the COVID-19 shot mandate, much of which supports Respondents' position (see Answer, Doc. No. 21, p. 5). Respondents note that the Mandate was first implemented as an emergency measure on August 26, 2021, and subsequently extended on November 24, 2021, January 21, 2022, and March 22, 2022 before being permanently adopted on June 22, 2022 (ibid, p. 6). Respondents assert that the Arbitrator's Decision and Award is not arbitrary and the Court must deny the Petition.
On July 18, 2023, the Court held oral arguments on the Petition.
Discussion:
Petitioners seek an order of the Court vacating the Arbitrator's award. The Mandate at issue was adopted as a permanent regulation on June 22, 2022 (10 NYCRR §2.61). "The Mandate has its origin in the beginning stages of the COVID-19 Pandemic. The New York State Legislature ceded powers to the then Governor Andrew Cuomo on an emergency basis. On June 24, 2021, Governor Cuomo rescinded his previous emergency orders related to the COVID-19 Pandemic under certain Executive Orders" (see Medical Professionals at 484). On March 7, 2021, the Legislature had already rescinded the Governor's expanded emergency powers, with a proviso for certain directives to survive for thirty days, and subject to certain limitations, be revived for a further thirty days (see L. 2021, Ch. 71). In any event, such extensions would terminate upon the termination of the state of emergency (ibid, §7).
The Arbitrator's Award must be vacated as it violates public policy. "Under CPLR §7511 (b) an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who 'exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made' (CPLR §7511 [b] [1] [iii]). It is well-settled that an arbitrator 'exceed[s] his power' under the meaning of the statute where his award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Kowaleski (New York State Dept, of Correctional Servs.), 16 N.Y.3d 85, 90 [2010]). Respondent concedes that an arbitration award which violates public policy cannot stand (see Verified Answer, Doc. No. 21, p. 4, citing Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 357 [1976]). Respondent then claims that "public policy, like society, is continually evolving and those entrusted with its implementation must respond to its everchanging demands" (see Verified Answer, Doc. No. 21, p. 5, citing Sprinzen v. Nomberg, 46 N.Y.2d 623, 628 [1979]). What Respondent fails to recognize is the basic constitutional foundation our system of governance:
"Article III of the State Constitution vests the Senate and the Assembly with the legislative power of the State, while article IV vests the executive power in the Governor and article VI vests the court system with the judicial power (see NY Const art III, § 1; art IV, § 1; art VI, § 1). We have recognized that these 'separate grants of power to each of the coordinate branches of government' imply that each branch is to exercise power within a given sphere of authority (Clark v Cuomo, 66 N.Y.2d 185,189, 495 N.Y.S.2d 936,486 N.E.2d 794 [1985]). Stated succinctly, the separation of powers requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies" (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 821-822 [2003], citing Bourquin v Cuomo, 85 N.Y.2d 781, 784 [1995], emphasis added).
Legislative functions did not stop during the COVID-19 Pandemic. "While the legislature ceded much of its authority to the executive, which often went unchecked by the third branch, the legislature still enacted legislations during the pandemic. It passed several laws ranging from women's reproductive rights to criminal justice reform during the pandemic. However, what it did not enact was a state-wide vaccine mandate. Without legislative support, the codification of a vaccine mandate in §2.61 contravened the only applicable laws the legislature actually did pass, namely Public Health Law §206, which expressly forbade vaccine mandates in adults and children" (Cooper v. Roswell Park Comprehensive Cancer Center, Sup. Ct., Erie Cty., August 17, 2023, COLAIACOVO, J., Index No. 805274/2023, pp. 14-15).
This Court had found that the Mandate was null and void (see Medical Professionals) and the Arbitrator was aware of that decision (see Letter, Doc. No. 7). But for reasons best known to him, he ignored this Court's decision and, in effect, continued to apply the Mandate as if still valid. The Arbitrator's decision must be vacated as violative of public policy (see Cooper, supra).
Petitioners next assert that the Award was "totally irrational" (see Memorandum, Doc. No. 10, p. 12). An arbitrator's award will be overturned as irrational where there is no proof to support it (see Peckerman v. D&D Associates, 165 A.D.289, 296 [First Dept. 1991]; see also Cooper at 16). On the date on which the Arbitrator issued the Award, this Court had already struck down the Mandate. Respondent has cited to an ongoing appeal, but at oral arguments before the Fourth Department, the Attorney General appeared late and confessed his reason for being late was that the State would no longer enforce the Mandate. In either case, this Court's decision in Medical Professionals rendered before the Award, or the decision by the State to cease enforcement of the Mandate, there was and is no support of the Award issued by the Arbitrator rendering it irrational (see Beard v. Town of Newburgh, 259 A.D.2d 613, 614 [Second Dept. 1999], stating: "However, based on the subsequent reversal of the criminal judgment, which was the sole factual basis for the arbitration award at issue, the award must be vacated"). In Beard, the Second Department vacated an award by an arbitrator who sanctioned the termination of a police officer due to a criminal conviction (see Beard at 614). At the time of the arbitration award, the underlying criminal conviction was pending appeal (ibid). The conviction was overturned after the award and the Second Department ruled that the arbitrator's award must be vacated as conviction "was the sole factual basis for the arbitration award" (ibid). Similarly, the sole basis for LaFramboise's discipline was the Mandate and her failure to comply with it.
To reiterate, the Legislature ended the Governor's extraordinary COVID-19 related powers on March 7, 2021 (L. 2021, Ch. 71). The Governor ended the declaration of emergency on June 25, 2021 (see Executive Order 210). Then after the end of the emergency, DOH adopts the Mandate on an "emergency" basis. On November 24, 2021, Respondent SUNY Upstate issued a notice of discipline (see Petition, Doc. No. 1, ¶22). Then on June 22, 2022, the Mandate is adopted on a permanent basis (see 10 NYCRR §2.61). On January 13, 2022, this Court declared the Mandate null, void, and of no effect (see Medical Professionals). In Medical Professionals, the sole consideration before the Court was the Mandate as a permanent rule (see Medical Professionals). However, had the Court reviewed the earlier version adopted on an emergency basis pursuant to State Administrative Procedures Act ("SAPA") §202[6], the Mandate would have fared no better. SAPA §202[6][d][i]still requires the statutory authority under which the emergency rule is adopted (SAPA §202[6][d] [i]). The general grant of authority in the Public Health Law which DOH relied on cannot obliterate the specific restrictions found in Public Health Law §206 (see e.g. Medical Professionals at 484). "[I]t is a commonplace of statutory construction that the specific governs the general" (Morales v. TWA, 504 U.S. 374, 384 [1992]; see also Strategic Risk Mgt., Inc, v. Fed. Express Corp., 253 A.D.2d 167, 172 [First Dept. 1999]). "[T]he legislature intended to grant NYSDOH authority to oversee voluntary adult immunization programs, while ensuring that its grant of authority would not be construed as extending to the adoption of mandatory adult immunizations" (Garcia v. N.Y. City Dept, of Health &Mental Hygiene, 31 N.Y.3d 601, 620 [2018], citing Letter from Richard N. Gottfried, Chair, Assembly Comm on Health, to Richard Platkin, Counsel to Governor, July 16, 2004, Bill Jacket, L. 2004, ch. 207 at 5, 2004 N.Y. Legis. Ann. at 179). On January 27, 2023, the Arbitrator issued his Award, finding:
"[T]he State had probable [szc] to suspend the Grievant on or about November 5, 2021; the State had just cause to issue the Notice of Discipline dated November 5, 2021, and had just cause under Article 33 of the CBA to terminate the Grievant" (see Award, Doc. No. 2).
As stated above, LaFramboise was not terminated by her employer, she was only t the Arbitrator's Award. Without the mandate, there is no basis for her punishment and certainly no basis to terminate her. The Award is vacated as it is irrational.
Petitioners further argue that the Award should be vacated as LaFramboise's rights were prejudiced by "corruption, fraud or misconduct in procuring the award" (see Memorandum, Doc. No. 10, p. 15, citing CPLR §7511 [b ][1][i]). An example of misconduct is when an arbitrator excludes "pertinent and material evidence" resulting in "an irrational factual conclusion" (see Matter of State of New York Off. Of Mental Health v. New York State Correctional Officers & Police Benevolent Assn., Inc., 46 A.D.3d 1269, 1270 [Third Dept. 2007]). In this instance, the Arbitrator's error was not one of fact, but one of law. While his decision to ignore the Decision of this Court was certainly irrational and violative of public policy as set forth by the Legislature, it cannot be said that it rises to the level of "corruption, fraud or misconduct". The Petition is · denied in this part.
NOW, THEREFORE, upon reading and filing the papers with respect to the Petition, and due deliberation having been had thereon, it is hereby
ORDERED, that the Petition is GRANTED insofar as the Court VACATES the Arbitration Award; and it is further
ORDERED, that Petitioner MICHELLE LAFRAMBOISE is REINSTATED and her employment record shall be amended consistent with this Decision and Order; and it is further
ORDERED, that the issue of back pay and statutory interest and restoration of accruals is remanded back to arbitration and decided in accordance with the Collective Bargaining Agreement; and it is further
ORDERED, that Petitioners' request for costs, fees, and disbursements is DENIED.