Opinion
907000-19
05-08-2020
In the Matter of the Application of Kimberly WILLIAMS, Petitioner, For an Order Pursuant to CPLR Article 75, Confirming an Arbitration Award, v. The NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION ; and Anthony J. Annucci as Acting Commissioner of New York State Department of Corrections and Community Supervision, Respondents.
Renee L. Delgado, Esq., Attorney for Petitioner (John F. Kershko, of counsel) 1168-70 Troy-Schenectady Road, P.O. Box 12414, Albany, New York 12212-2414 Letitia James, Attorney General, Attorney for Respondents (Chris Liberati-Conant, of counsel) The Capitol Albany, New York 12224
Renee L. Delgado, Esq., Attorney for Petitioner (John F. Kershko, of counsel) 1168-70 Troy-Schenectady Road, P.O. Box 12414, Albany, New York 12212-2414
Letitia James, Attorney General, Attorney for Respondents (Chris Liberati-Conant, of counsel) The Capitol Albany, New York 12224
Richard M. Platkin, J. Petitioner Kimberly Williams, a parole officer employed by respondent New York State Department of Corrections and Community Supervision ("DOCCS"), moves pursuant to CPLR article 75 to confirm a final arbitral award following a disciplinary arbitration.
Respondents oppose the application and cross-move for an order "confirming so much of the Final Award as found petitioner guilty of seven disciplinary charges, vacatur of so much of the Final Award as failed to resolve eight disciplinary charges, vacatur of the penalty, and remand to the arbitrator for determination of the unresolved charges and imposition of a new penalty" (NYSCEF Doc No. 9). Petitioner opposes the cross motion.
BACKGROUND
On August 8, 2017, petitioner was driving her official vehicle in the Bronx. A civilian motorist passed petitioner, blew her horn, displayed her middle finger and cursed at petitioner. The motorist then stopped at a red light, at which point petitioner exited her vehicle and approached the other vehicle. When the traffic signal changed and the motorist drove away, petitioner returned to her vehicle and activated the flashing lights and siren. The motorist pulled over, and petitioner pulled behind her. Both petitioner and the motorist exited their vehicles. Petitioner then used force to handcuff the motorist, scratching and pushing her in the process. With one of her hands still free, the motorist called 911, and multiple police vehicles responded. A police sergeant interviewed both parties, released the motorist and informed petitioner that she did not have the right to handcuff the motorist. While all of this was going on, petitioner had her minor son in the backseat of her official vehicle.
By Notice of Discipline ("NOD") dated November 3, 2017, DOCCS charged petitioner with 15 counts of misconduct, suspended her without pay as of that date, and sought a penalty of termination plus loss of any accrued annual leave (see NYSCEF Doc No. 12; see also Doc No. 1 ["Petition"], ¶ 14). The first seven charges concerned petitioner's encounter with the motorist, including the presence of an unauthorized person in her official vehicle. The remaining eight charges alleged that petitioner made false or misleading entries in her employee record on and after the date of the aforementioned incident.
Petitioner grieved the NOD and demanded arbitration pursuant to Article 33 of the collective bargaining agreement between DOCCS and petitioner's employee organization (see Petition, ¶ 15; NYSCEF Doc No. 13 ["CBA"] ). The CBA provides, in relevant part, that "[d]isciplinary arbitrators shall render determinations of guilt or innocence and the appropriateness of proposed penalties," but "shall neither add to, subtract from nor modify the provisions of [the CBA]" (CBA § 33.5 [f] [4] ). The "arbitrator's decision with respect to guilt or innocence [and] penalty ... shall be final and binding on the parties" (id. § 33.5 [f] [5] ). "Upon a finding of guilt the ... arbitrator has full authority, if he/she finds the penalty or penalties proposed by [DOCCS] to be inappropriate, to devise an appropriate penalty including, but not limited to, ordering reinstatement and back pay for all or part of any period of suspension" (id. ).
The disciplinary matter proceeded to arbitration before an arbitrator designated by the American Arbitration Association. The parties stipulated the following issues for determination by the Arbitrator: (1) "Did [DOCCS] prove guilt and just cause to discipline [petitioner] as alleged in the NOD"; (2) "If so, what, if any penalty is appropriate?"; and (3) "Did [DOCCS] prove that it had probable cause to suspend [petitioner] without pay?" (Petition, ¶ 17). Following a hearing, the Arbitrator issued a Final Award on January 3, 2019 (see NYSCEF Doc No. 11 ["Award"] ).
With respect to the charges involving petitioner's employee record, the Arbitrator "assume[d], without finding, that P.O. Williams is not guilty of charges 8 through 15 and base[d] [his] award, including the appropriateness of the penalty, on whether P.O. Williams is guilty of charges 1 through 7" (Award at 9-10). In assuming that petitioner was not guilty of the eight of the 15 charges, the Arbitrator reasoned:
It is clear that DOCCS would not have combed through PO Williams work record on August 8, 2017, but for the incident involving [the motorist]. [The motorist's] complaint sparked the fire for the rest of the investigation and I am willing to find that DOCCS would not have suspended or terminated P.O. Williams but for the original spark (id. at 9).
The Arbitrator proceeded to find petitioner guilty of charges 2 through 7, concluding that petitioner's account of the events involving the motorist was materially false and that she had effected an unauthorized arrest through the use of force. The Arbitrator found "that P.O. Williams was annoyed that [the motorist] had beeped her horn to get around her and had given her the finger as she sped past" (id. at 12). When petitioner approached the motorist's vehicle after engaging her official vehicle's lights and siren to perform a traffic stop, she did so "as a means of showing that [she] had power and authority and should not be dissed. Without any reason for her to respond [the motorist] was fully entitled to drive away; a circumstance which P.O. Williams took as a further insult and thus incited P.O. Williams to ratchet up her response to an even greater showing of authority" (id. ).
Thus, the Arbitrator rejected petitioner's version of events and her rationale for her conduct as "simply not believable," finding that petitioner did not act "in pursuit of her position as a sworn Peace Officer of the State," but rather "in pursuit of her personal desire to show how powerful she was without regard to any purpose related to DOCCS or her position with DOCCS" (id. at 13). The Arbitrator characterized petitioner's actions as "the extreme exercise of police authority which [she] engaged in to satisfy her personal vindication over someone who had insulted her" (id. at 13-14).
The Arbitrator also found petitioner guilty of charge 1 for having her minor child in the backseat of her official vehicle (see id. at 14). This finding was based on the testimony of several eyewitnesses, and the Arbitrator rejected petitioner's "claim that somehow the youngster appeared on the scene after taking a bus home from summer camp [as] simply not believable" (id. ).
The Arbitrator further concluded that DOCCS had probable cause to suspend petitioner, reasoning that "a parole officer who fails to understand the limits of their authority, either as a patrol officer or a sworn Peace Officer, is a danger to innocent persons, particularly those who may have annoyed them or otherwise incurred their anger" (id. at 17).
As to the proper penalty, the Arbitrator noted that his "initial reaction ... was to sustain DOCCS's decision to terminate P.O. Williams, but the Union's Brief convinced [him] otherwise" (id. at 15). In the Arbitrator's view, "P.O. Williams, a seventeen-year veteran parole officer has a lot of talent and experience in dealing with an extremely difficult and dangerous population," and "[a] single incident lasting approximately half an hour during which [she] lost her cool should not cost ... her career or DOCCS the loss of an experienced and competent parole officer" (id. ).
The Arbitrator went on to observe that petitioner "may not have full control over what she does when she is angry":
The incident of August 8, 2017 is an extreme example of P.O. Williams' failure to recognize a
personal insult which caused her to make an inappropriate response. DOCCS can little afford to allow such a character trait to fester unabated; DOCCS' liability is too extreme for such. I believe that P.O. Williams should be given the opportunity to demonstrate that she is able to control her anger and this makes up part of the remedy (id. at 16).
The Arbitrator also expressed concern regarding petitioner's "consistent lies about what happened" (id. ). The Arbitrator believed that petitioner "made up the excuse to chase after [the motorist] and she created the story about her son in the State vehicle out of whole cloth," which also made the Arbitrator "think that termination was appropriate. How can DOCCS trust a parole officer to walk around armed with a weapon and handcuffs if they are subject to making up stories about their activities? That should not happen. I would have appreciated such a direct admission and an apology" (id. ).
Nevertheless, the Arbitrator somehow concluded "that P.O. Williams had little choice but to lie," elaborating:
If she had admitted wrongdoing from the very start, DOCCS would never have accepted such and would have terminated her immediately based solely on such an admission. By lying about the incident, she preserved her right to dispute the facts with the aid of an extremely competent counsel and get before an arbitrator who is not otherwise connected to DOCCS and who may be slightly more understanding of human frailties (id. ).
The Arbitrator ultimately presented petitioner with two "alternative remedies" for the charges involving the motorist: (1) termination with back pay; or (2) reinstatement without back pay on the condition that petitioner "successfully completes a course or training program, not to exceed five days as selected by [her union] and approved by DOCCS, on Use of Force and Anger Management" (id. at 18).
Petitioner chose the reinstatement option and suggested a training program of her choosing (see Petition, ¶¶ 34-35). However, "DOCCS defied ... the ... Award by flatly refusing to consider and process [her] proposed training course and also refusing to reinstate [her]," leaving her "without pay and without her career" to this day (id. , ¶¶ 36-41). This CPLR article 75 proceeding ensued, by which petitioner seeks to confirm the Award in its entirety and to compel DOCCS to fully comply with the Award (see id. , ¶¶ 42-43).
In opposition, DOCCS does not deny that it has refused to permit petitioner to return to her duties as a parole officer and would not consider petitioner's proposed training course. Instead, respondents cross-move to vacate the Award insofar as it found petitioner not guilty of charges 8 through 15 and for vacatur of the penalty as a whole.
Respondents argue that, "[b]y failing to make any findings to support his determination that petitioner was not guilty of charges 8 through 15 ..., the [A]rbitrator exceeded his authority by failing to perform his duties under the CBA" (NYSCEF Doc No. 17 at 12).
Respondents further contend that the "Award further fails to make a final and definite award regarding the 15 charges by deferring to ...petitioner [the Arbitrator's] sole authority as the trier of facts to issue a penalty" (id. ).
Finally, respondents maintain that the Arbitrator's offer of a penalty of reinstatement upon completion of a five-day training course is void as against public policy "based on petitioner's conduct of impersonating a police officer and making an unlawful arrest, both of which violate strong public policies" (id. ).
For her part, petitioner argues that the "Award does not violate strong public policy in any absolute sense and is in all respects rational" (NYSCEF Doc No. 24 ["Opp Mem"] at 3).
As a threshold matter, petitioner appears to argue that respondents' cross motion to vacate is untimely, presumably because it was not made within the 90-day limit prescribed by CPLR 7511 (a) (see Petition, ¶ 39). "Despite this 90-day limitation, a party may wait and make [its] arguments for vacating or modifying the award in opposition to an application to confirm the award, even when that application to confirm is made beyond the 90-day period" (Karlan Constr. Co. v. Burdick Assoc. Owners Corp. , 166 A.D.2d 416, 417, 560 N.Y.S.2d 480 [2d Dept. 1990] ; see CPLR 7510, 7511 [a] ; Matter of Pine St. Assoc., L.P. v. Southridge Partners, L.P. , 107 A.D.3d 95, 100, 965 N.Y.S.2d 15 [1st Dept. 2013] ).
ANALYSIS
"In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role" ( Matter of New York State Correctional Officers & Police Benevolent Assn. v. State of New York , 94 N.Y.2d 321, 326, 704 N.Y.S.2d 910, 726 N.E.2d 462 [1999] ). An arbitrator's award may not be vacated unless " ‘it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power’ " ( Matter of Shenendehowa Cent. Sch. Dist. Bd. of Educ. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864] , 20 N.Y.3d 1026, 1027, 960 N.Y.S.2d 725, 984 N.E.2d 923 [2013], quoting Matter of New York City Tr. Auth. v. Transport Workers Union of Am., Local 100 , 14 N.Y.3d 119, 123, 897 N.Y.S.2d 689, 924 N.E.2d 797 [2010] ). The party seeking to set aside an arbitral award on either ground bears a "heavy burden" ( Matter of City of Buffalo [Buffalo Police Benevolent Assn., Inc.] , 150 A.D.3d 1641, 1643, 55 N.Y.S.3d 550 [4th Dept. 2017] [internal quotation marks and citation omitted]; see Matter of Jandrew [County of Cortland] , 84 A.D.3d 1616, 1620, 923 N.Y.S.2d 778 [3d Dept. 2011] ).
A. Finality
By failing to make any findings of fact on charges 8 through 15 and giving petitioner a choice between two alternative penalties, the Arbitrator is said to have "exceeded his power" under the CBA and "so imperfectly executed" his responsibilities "that a final and definite award upon the subject matter submitted was not made" ( CPLR 7511 [b] [1] [iii] ).
Initially, the Court is unpersuaded by respondents' contention that the Award was indefinite or in excess of the Arbitrator's authority based on the alternative forms of penalty. Under the CBA, if the Arbitrator found "the penalty or penalties proposed by [DOCCS] to be inappropriate," he was authorized "to devise an appropriate penalty including, but not limited to, ordering reinstatement and back pay for all or part of any period of suspension" (CBA § 33.5 [f] [5] ). There is nothing in the text of the CBA that precludes the Arbitrator from crafting a penalty that offers a choice between two definite penalties (see Matter of Hansen [New York State Dept. of Correctional Servs.] , 59 A.D.3d 903, 904-905, 873 N.Y.S.2d 389 [3d Dept. 2009], lv denied 12 N.Y.3d 711, 2009 WL 1298999 [2009] ).The Court does, however, agree with respondents that the Award must be vacated as indefinite and violative of the CBA because the Arbitrator failed to determine petitioner's guilt or innocence as to charges 8 through 15 and failed to take those charges into account in deciding the appropriateness of the penalty proposed by DOCCS.
As stipulated by the parties, the first issue before the Arbitrator was: "Did [DOCCS] prove guilt and just cause to discipline [petitioner] as alleged in the NOD" (Award at 4). Pursuant to the CBA, the Arbitrator was required to "render determinations of guilt or innocence" with respect to each of the 15 charges (CBA § 33.5 [f] [4] ). Further, the CBA denied the Arbitrator the power to "add to, subtract from [or] modify the provisions of th[e] Agreement" (id. ). As to charges 8 through 15, the Arbitrator stated that he was "willing to find" that "DOCCS would not have suspended or terminated [petitioner] but for the original spark" of the unlawful arrest (Award at 9). Therefore, the Arbitrator was "willing to assume, without finding , that [petitioner] [was] not guilty of charges 8 through 15 and base[d] [his] award, including the appropriateness of the penalty, on whether [petitioner] [was] guilty of charges 1 through 7" (id. at 9-10 [emphasis added] ).
By assuming petitioner's lack of guilt on eight of the 15 charges without making any factual findings, the Arbitrator abdicated his responsibility under the CBA to render determinations of guilt or innocence on each of the charges alleged in the NOD. Moreover, the Arbitrator effectively rewrote the CBA by allowing himself to determine some, but not all, of the charges and to base the penalty only on the charges that he elected to decide. Stated differently, the CBA did not allow the Arbitrator to merely assume petitioner's guilt or innocence without reviewing evidence or making findings of fact.
"It is well established that an arbitrator's authority extends only to those issues that are actually presented by the parties" ( Denson v. Donald J. Trump for President, Inc. , 180 A.D.3d 446, 451, 116 N.Y.S.3d 267 [1st Dept. 2020] [citation omitted]; see Trade & Transp., Inc. v. Natural Petroleum Charterers Inc. , 931 F.2d 191, 195 [2d Cir. 1991] ["the submission by the parties determines the scope of the arbitrators' authority"] ). Thus, the Arbitrator was bound to rule on the issues submitted to him, including whether DOCCS had "prove[n] guilt[ ] and just cause to discipline [petitioner] as alleged [in charges 8 through 15] in the NOD" (Award at 4).
By assuming petitioner's innocence without engaging in factfinding, the Arbitrator effectively left charges 8 through 15 unresolved, thereby acting in excess of his authority and rendering the Award indefinite and incomplete (see Matter of Kowaleski [New York State Dept. of Correctional Servs.] , 16 N.Y.3d 85, 91, 917 N.Y.S.2d 82, 942 N.E.2d 291 [2010] ; Matter of Professional, Clerical, Tech. Empls. Assn. [Board of Educ. for Buffalo City Sch. Dist.] , 162 A.D.3d 1479, 1480, 78 N.Y.S.3d 825 [4th Dept. 2018] ; Matter of Westchester County Corr. Officers Benevolent Assn., Inc. v. Cheverko , 112 A.D.3d 842, 842, 978 N.Y.S.2d 60 [2d Dept. 2013], lv dismissed 22 N.Y.3d 1174, 985 N.Y.S.2d 474, 8 N.E.3d 851 [2014] ; Samuel Kirshbaum Fabrics Corp. v. L. & G. Greenfield, Inc. , 80 N.Y.S.2d 443, 447 [Sup. Ct., N.Y. County 1948] ; cf. Matter of Meisels v. Uhr , 79 N.Y.2d 526, 536, 583 N.Y.S.2d 951, 593 N.E.2d 1359 [1992] ). It bears emphasis that the charges upon which the Arbitrator declined to rule relate to petitioner's honesty and integrity, and a determination of guilt presumably would bear on the appropriateness of proposed penalties (see e.g. Redd v. Battisti , 94 A.D.3d 676, 676-677, 943 N.Y.S.2d 84 [1st Dept. 2012] ["In light of petitioner's responsibilities as a parole officer, which depend in large part upon her veracity, her misconduct (of making false accusations of stalking) warranted the penalty of termination"], lv dismissed and denied 20 N.Y.3d 966, 958 N.Y.S.2d 328, 982 N.E.2d 91 [2012] ).
Finally, the Court observes that the Arbitrator's rationale for assuming petitioner's lack of guilt on the latter eight charges does not withstand scrutiny. Even if DOCCS' inquiry into petitioner's employee record had been triggered by her misconduct involving the motorist (see Award at 9), this was not the issue presented to the Arbitrator for determination. Rather, the Arbitrator was tasked with determining petitioner's guilt or innocence for all of the charges alleged in the NOD and deciding the appropriateness of the penalty based on the entire record, including the evidence and arguments presented by DOCCS in support of charges 8 through 15 (see NYSCEF Doc No. 14 at 4-5, 22-25, 30-33).
For all of the foregoing reasons, the Award must be vacated as to charges 8 through 15, and the matter remitted to the Arbitrator to consider these charges and impose a new penalty that is based upon findings of guilt or innocence as to all 15 charges (see generally CPLR 7511 [b] [i] [iii] ; Matter of Slocum v. Madariaga , 123 A.D.3d 1046, 1046-1047, 999 N.Y.S.2d 483 [2d Dept. 2014] ).
B. Public Policy
Respondents further contend that that the Arbitrator's option of a penalty consisting of reinstatement upon the completion of a training course of no more than five days violates a strong public policy of this State and should be vacated on such ground. In support of this argument, respondents point to provisions of the United States and New York Constitutions, state and federal laws, and published DOCCS policies directed at protecting individuals from unauthorized arrest and the unauthorized use of force.
Petitioner argues that her chosen penalty of "last chance reinstatement, plus extra training on [her] own time and expense, plus a suspension without pay for nearly 14-months (a severe penalty of over $95,000.00)" does not violate public policy in an absolute sense (Opp Mem at 10). Petitioner stresses that she "is a very experienced, skillful and valuable parole officer; that she was never found guilty in any court with violating any law at all; that the entire brief matter was fully resolved by the NYPD without so much as a parking ticket being issued; and did not even rise to the level of a police incident report" (id. at 10-11). Petitioner further maintains that respondents "ignore that [she] was a peace officer with full authority, if not a duty, to secure the erratic and aggressive motorist just long enough for the NYPD to arrive [and] that the [CBA] expressly mandates the Arbitrator to devise an appropriate penalty" (id. at 11).
1. Legal Principles
"To vacate an arbitration award on public policy grounds, there must be ‘strong and well-defined policy considerations embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator’ " ( Matter of Walker [Read] , 168 A.D.3d 1253, 1255, 91 N.Y.S.3d 807 [3d Dept. 2019], quoting Matter of New York State Correctional Officers & Police Benevolent Assn. , 94 N.Y.2d at 327, 704 N.Y.S.2d 910, 726 N.E.2d 462 ).
The public policy considerations must "prohibit, in an absolute sense , particular matters being decided or certain relief being granted by an arbitrator. Stated another way, the courts must be able to examine [the] arbitration agreement or an award on its face without engaging in extended factfinding or legal analysis, and conclude that public policy precludes its enforcement" ( Matter of State of NY, Off. of Children & Family Servs. [Civil Serv. Empls. Assn., Inc.] , 79 A.D.3d 1438, 1439, 913 N.Y.S.2d 796 [3d Dept. 2010] [internal quotation marks and citations omitted], lv denied 17 N.Y.3d 706, 2011 WL 2567292 [2011] ; see City School Dist. of City of New York v. McGraham , 17 N.Y.3d 917, 919-920, 934 N.Y.S.2d 768, 958 N.E.2d 897 [2011] ).
"Further, judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement" ( Matter of Ulster County Sheriff's Empls. Assn., CWA Local 1105 [Ulster County Sheriff's Dept.] , 100 A.D.3d 1327, 1329, 956 N.Y.S.2d 595 [3d Dept. 2012] [internal quotation marks and citation omitted], lv denied 20 N.Y.3d 859, 2013 WL 518613 [2013] ).
Finally, "[t]he judicial inquiry must focus on the actual result of the arbitration process — here, the arbitrator's determinations as to [petitioner's] guilt and the consequent penalty — rather than the underlying reasoning, and the award may be vacated only when, on its face and, ‘because of its reach, [it] violates an explicit law of this State’ " (Matter of Bukowski [State of NY Dept. of Corr. & Community Supervision] , 148 A.D.3d 1386, 1388, 50 N.Y.S.3d 588 [3d Dept. 2017], quoting Matter of New York State Correctional Officers & Police Benevolent Assn. , 94 N.Y.2d at 327, 704 N.Y.S.2d 910, 726 N.E.2d 462 ).
2. Analysis
The Court concludes that the option of reinstatement as a parole officer upon the completion of a five-day training course, "imposed for the particular offenses that the [A]rbitrator found that [petitioner] committed, violates specific, strong and clearly expressed policies against" impersonating a police officer, the unauthorized use of force, and the making of unlawful arrests ( id. at 1389, 50 N.Y.S.3d 588 ).
The Court begins with the "basic principle[ ]" ( id. ) that both the federal and state constitutions protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" ( US Const Amend IV ; accord NY Const, art I, § 12 ).
Further protection against unreasonable force and arrest is accorded by 42 USC § 1983, a federal statute that creates a civil right of action against any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws."
For its part, the State of New York has criminalized unlawful imprisonment (see Penal Law §§ 135.00, 135.05, 135.10 ) and the impersonation of a police officer (see id. § 190.26). In fact, the Arbitrator specifically cited Penal Law § 190.26 in finding petitioner guilty of violating charges 2 through 7 (see Award 9-11 & n 7). In addition, DOCCS policies expressly prohibit the use of force to make a false arrest and the impersonation as a police officer. Directive No. 9429, relied on by the Arbitrator, allows physical force to be used only where it is "reasonable and necessary to complete [a] lawful objective" (NYSCEF Doc No. 16; Award at 10 [emphasis added] ). Further, Directive #9429 delineates the circumstances under which a parole officer is authorized to "reasonably exercise physical force," and none of those circumstances were present in the incident with the motorist (id. ). In addition, DOCCS Employee Manual, § 6, ¶ 16.2, also quoted by the Arbitrator, states: "No employee will misrepresent his or her official status to any person ..." (Award at 11 n 10).
Accordingly, the State's policy against impersonating a police officer, using unjustified force and making unlawful arrests is strong, explicit and well defined, as opposed to being based on "a broad or vague statement of general principles" ( Matter of Livermore-Johnson [New York State Dept. of Corr. & Community Supervision] , 155 A.D.3d 1391, 1397, 65 N.Y.S.3d 308 [3d Dept. 2017] ; see Matter of Bukowski , 148 A.D.3d at 1390, 50 N.Y.S.3d 588 ; cf. Matter of State of NY, Off. of Children & Family Servs. , 79 A.D.3d at 1439-1441, 913 N.Y.S.2d 796 ).
By seeking to confirm the Award "in its entirety" (Petition, ¶ 43), petitioner necessarily acquiesces in the Arbitrator's findings that she: (1) impersonated a police officer by using a state vehicle, lights, sirens and handcuffs; and (2) made an unlawful arrest through the use of physical force "in pursuit of her personal desire to show how powerful she was without regard to any purpose related to DOCCS" (Award at 13). As the Arbitrator put it, "Parole Officers have absolutely no authority to engage in use of force tactics to satisfy their own sense of entitlement, even if they had been insulted to the point of road rage" (id. at 13-14).
Still, petitioner maintains that she was "a peace officer with full authority, if not a duty, to secure the erratic and aggressive motorist just long enough for NYPD to arrive" (Opp Mem at 11). Nonetheless, the Arbitrator found to the contrary, and petitioner's claim that NYPD somehow ratified her misconduct flies in the face of the undisputed fact that, "as soon as [a responding member of NYPD] understood the basis for [petitioner's] actions, he removed the handcuffs [from the motorist] and returned them to [petitioner]" (Award at 12-13).
It also bears emphasis that petitioner has consistently lied about the incident with the motorist (see Award at 16). While the Arbitrator inexplicably sought to explain away petitioner's willingness to "mak[e] up stories about [her] activities" (id. ), it is untenable for sworn law enforcement officers to lie to their employer or a tribunal to advance their own personal interests.
While petitioner cites Matter of Quinlan v. City of New York, 33 A.D.2d 714, 305 N.Y.S.2d 4 [3d Dept. 1969] for the proposition that, as a peace officer, she assumed the duty to prevent crime and apprehend criminals, this is "not the case with which [this Court] here [is] presented," as the Arbitrator emphatically found that petitioner's conduct was "unrelated to the performance of [her official] duties" (Matter of Leonard v. New York City Hous. Auth. , 40 A.D.2d 1056, 1056, 338 N.Y.S.2d 927 [3d Dept. 1972], affd 33 N.Y.2d 891, 352 N.Y.S.2d 446, 307 N.E.2d 562 [1973] ; see Award at 13).
In Matter of Bukowski , the Third Department held that public policy precluded confirmation of an arbitral award by which a DOCCS correction officer who used corporal punishment against an inmate was disciplined with a 120-day suspension (see 148 A.D.3d at 1390-1391, 50 N.Y.S.3d 588 ). In so ruling, the Third Department similarly looked to the federal and state Constitutions, New York law and DOCCS directives — all of which manifested a "specific, strong and clearly expressed policy against the use of corporal punishment and unjustified, excessive physical force by correction officers against prison inmates" ( id. at 1389, 50 N.Y.S.3d 588 ; see also Matter of Livermore-Johnson , 155 A.D.3d at 1397, 65 N.Y.S.3d 308 ).
Likewise, in Matter of Phillips v. Manhattan & Bronx Surface Tr. Operating Auth., 132 A.D.3d 149, 15 N.Y.S.3d 331 [1st Dept. 2015], lv denied 27 N.Y.3d 901, 2016 WL 1138314 [2016], the First Department deemed it "necessary to intervene under the ... public policy exception because the arbitrator construed the CBA and fashioned a remedy in a manner that conflict[ed] with a well-defined and dominant public policy" against sexual harassment in the workplace, as embodied in state and federal law ( id. at 155-156, 15 N.Y.S.3d 331 ).
Here too, petitioner violated clear and well-defined public policies against abusing her authority as a sworn law enforcement officer to falsely arrest an individual through the use of force while impersonating a police officer. Moreover, as in Matter of Bukowski , petitioner failed to take responsibility for her actions and consistently and repeatedly lied about her wrongdoing (see Award at 12-14, 16; Matter of Bukowski , 148 A.D.3d at 1391, 50 N.Y.S.3d 588 ). And, as in Matter of Bukowski , the penalty imposed by the Arbitrator would allow petitioner to return to her duties as an officer after completing a mere five days of training, thereby allowing her the use of a state vehicle with lights and siren, a handgun and handcuffs, and unrestricted contact with the public (see 148 A.D.3d at 1391, 50 N.Y.S.3d 588 ). In sum, the Arbitrator found that petitioner engaged in "the extreme exercise of police authority ... to satisfy her personal vindication over someone who had insulted her" (Award at 13-14), she "may not have full control over what she does when she is angry" (id. at 16), and she "consistent[ly] lie[d]" and "ma[de] up stories about [her] activities" (id. ). The Arbitrator further recognized that "a parole officer who fails to understand the limits of their authority ... is a danger to innocent persons" (id. at 17). On these facts, the penalty imposed is in "explicit conflict ... with the strong, specific and absolute public policy against" the use of unauthorized force to effect an illegal arrest under the pretense of police authority ( Matter of Bukowski , 148 A.D.3d at 1391, 50 N.Y.S.3d 588 ).
This and other aspects distinguish this case from Matter of State of NY, Off. of Children & Family Servs., 79 A.D.3d at 1440-1441, 913 N.Y.S.2d 796, cited by petitioner (see Matter of Bukowski , 148 A.D.3d at 1391, 50 N.Y.S.3d 588 ).
CONCLUSION
Based on the foregoing, the Court concludes that respondents have sustained their heavy burden of demonstrating the need to vacate (1) so much of the Award as failed to resolve charges 8 through 15 and (2) the penalty as a whole. Accordingly, it is
ORDERED that the Petition is granted in part and denied in part; and it is further
ORDERED that respondents' cross motion is granted in full; and it is further
ORDERED that the Award is confirmed to the extent that it found petitioner guilty of charges 1 through 7, and the Award is vacated as to charges 8 through 15; and it is further ORDERED that the penalty imposed by the Award is vacated as a whole; and finally it is
ORDERED that the matter is remitted to the Arbitrator for determination of the unresolved charges and imposition of a new penalty not inconsistent with this Decision & Order.
This constitutes the Decision & Order of the Court, the original of which is being uploaded to NYSCEF for entry by the Albany County Clerk. Upon such entry, counsel for respondents shall promptly serve notice of entry on all other parties entitled to such notice (see Uniform Rules for Trial Cts [ 22 NYCRR] § 202.5-b [h] [1], [2] ).