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In re Arbitration between Bukowski

Supreme Court of New York, Third Department

March 16, 2017

In the Matter of the Arbitration between MICHAEL BUKOWSKI et al., Appellants, and STATE OF NEW YORK DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.

          Calendar Date: January 20, 2017

          Lippes Mathias Wexler Friedman LLP (William P. Golderman of counsel), Albany, for appellants.

          Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondents.

          Before: Garry, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          Garry, J.P.

         Appeal from an order of the Supreme Court (O'Connor, J.), entered July 24, 2015 in Albany County, which, among other things, partially denied petitioners' application pursuant to CPLR 7510 to confirm an arbitration award.

         In July 2014, petitioner Michael Bukowski, a correction officer at Ulster Correctional Facility, kicked an inmate in the groin, causing him to suffer serious permanent injuries. The inmate later told authorities that, in order to discipline the inmate for talking during a procedure known as "count, " Bukowski took him into a vestibule between two sets of double doors - a part of the facility where they could not be seen - forced the inmate to assume a frisk position against the wall with his legs apart, and then kicked him between the legs from behind. Bukowski then compelled the injured inmate to return to his cell and, later, to join a line of inmates moving to the cafeteria for a meal. After other inmates noticed that the inmate was weeping and other correction officers observed that he was limping and in apparent physical distress, the inmate was hospitalized. Part of his testicle had been ruptured and had to be surgically removed.

         Respondent Department of Corrections and Community Supervision (hereinafter DOCCS) filed a notice of discipline, pursuant to the controlling collective bargaining agreement, that dismissed Bukowski from service based upon five disciplinary charges of violations of multiple provisions of a DOCCS's Employee Manual and an employee directive pertaining to the use of physical force. Specifically, Bukowski was charged with causing serious injury to the inmate by using excessive and unjust physical force and corporal punishment, failing to file a required form reporting that he had used physical force, failing to notify his supervisor or medical staff that the inmate had been injured, falsely stating in a memorandum to a superior officer that he had not kicked the inmate, and falsely responding in the negative when interrogators from the DOCCS Office of the Inspector General asked him whether he had kicked the inmate.

         Pursuant to the grievance procedure outlined in the collective bargaining agreement, the matter was submitted to arbitration. During the arbitration hearing, Bukowski denied that he had kicked or injured the inmate, claimed that the disciplinary session in the vestibule had involved only verbal correction and stated that he had not noticed any signs that the inmate was injured. Following the hearing, the arbitrator sustained all five charges of misconduct, but reduced the penalty from termination to a 120-day suspension. DOCCS refused to comply with the reduced penalty and did not permit Bukowski to return to duty. Bukowski and petitioner New York State Correctional Officers and Police Benevolent Association, Inc. commenced this proceeding pursuant to CPLR article 75 to confirm the arbitrator's decision. Supreme Court confirmed the award only to the extent of sustaining the charges of misconduct against Bukowski, vacated the portion of the award that had reduced the penalty and remitted the matter for the imposition of a new penalty. Petitioners appeal.

         We affirm, but upon distinct grounds. As respondents concede, Supreme Court applied the wrong standard when it vacated the penalty based upon finding the penalty so disproportionate to the offense that it "shock[ed] the conscience." That standard applies to penalty determinations in certain other administrative circumstances (see e.g. Matter of Kelly v Safir, 96 N.Y.2d 32, 39-40 [2001]; Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 A.D.3d 1012, 1013 [2009]), but not here, where the parties have entered into a collective bargaining agreement that provides for the resolution of disputes through binding arbitration. In these circumstances, the reviewing court's role is significantly restricted (see Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 N.Y.2d 321, 326 [1999]; Matter of Sprinzen [Nomberg], 46 N.Y.2d 623, 629-631 [1979]; Matter of State of N.Y., Off. of Children & Family Servs. [Civil Serv. Empls. Assn., Inc.], 79 A.D.3d 1438, 1439 [2010], lv denied 17 N.Y.3d 706');">17 N.Y.3d 706 [2011]).

         "[C]ourts 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 7511 (b) (1)" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 N.Y.2d at 326 [citation omitted]). The public policy exception applies when "strong and well-defined policy considerations embodied in constitutional, statutory or common law prohibit a particular matter from being decided or certain relief from being granted by an arbitrator" (id. at 327). Respondents argue that the penalty imposed by the arbitrator here qualifies for judicial intervention under the second prong of this test, in that the relief granted by the arbitrator in reducing Bukowski's penalty from termination to suspension violates "a well-defined constitutional, statutory or common law of this [s]tate" (id. at 328).

         A court may apply this exception to vacate an arbitration award only when "public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, ... certain relief being granted by an arbitrator. Stated another way, the courts must be able to examine [the]... award on its face without engaging in extended factfinding or legal analysis, and conclude that public policy precludes its enforcement" (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 N.Y.2d 1, 7 [2002] [internal quotation marks and citation omitted]; accord Matter of State of N.Y., Off. of Children & Family Servs. [Civil Serv. Empls. Assn., Inc.], 79 A.D.3d at 1439; see Matter of Fallon [Greater Johnstown School Dist.], 118 A.D.2d 936, 937 [1986], lv denied 68 N.Y.2d 603');">68 N.Y.2d 603 [1986]). The judicial inquiry must focus on the actual result of the arbitration process - here, the arbitrator's determinations as to Bukowski'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 [s]tate" (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 N.Y.2d at 327).

         Initially, application of these principles requires that we reject respondents' argument that the penalty of suspension falls within the public policy exception because it violates a zero-tolerance policy against sexual abuse of inmates by correction officers established by the federal Prison Rape Elimination Act (see 42 USC § 15601 et seq.). Respondents contend that Bukowski's conduct constituted the sexual abuse of an inmate by a correction officer within the meaning of the Act, and that the Act's implementing regulations make termination the presumptive disciplinary penalty for such conduct (see 28 CFR 115.6 [2]; 115.76 [b]). However, as Bukowski was never charged with sexual abuse, the arbitration award necessarily fails to include any finding as to whether he committed such an offense. The public policy exception thus cannot be applied on this basis (compare Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 N.Y.2d at 328).

         We reach a different conclusion as to respondents' alternate contention that the matter qualifies for judicial intervention because the penalty of suspension, imposed for the particular offenses that the arbitrator found that Bukowski committed, violates a specific, strong and clearly expressed policy against the use of corporal punishment and unjustified, excessive physical force by correction officers against prison inmates. In reaching this conclusion, we are mindful that "the scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow" (Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 N.Y.3d 72, 80 [2003]). However, to construe the exception so narrowly as to exclude cases that fall wholly within the strict judicial standards that have been established for its application would be, in effect, to declare that there is no such exception at all. Unlike other cases in which the public policy exception has been held inapplicable ...


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