CITY OF BUFFALO, MTR. OF

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

481
CA 16-01699
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

IN THE MATTER OF ARBITRATION BETWEEN CITY OF
BUFFALO, PETITIONER-APPELLANT,

AND MEMORANDUM AND ORDER

BUFFALO POLICE BENEVOLENT ASSOCIATION, INC.,
RESPONDENT-RESPONDENT.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (MARY B. SCARPINE OF
COUNSEL), FOR PETITIONER-APPELLANT.

CREIGHTON, JOHNSEN & GIROUX, BUFFALO (IAN HAYES OF COUNSEL), FOR
RESPONDENT-RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (Deborah A. Chimes, J.), entered November 18, 2015
in a proceeding pursuant to CPLR article 75. The order and judgment,
among other things, denied the petition to vacate an arbitration
award.

It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order and judgment
denying its petition seeking vacatur of an arbitration award, which
determined that petitioner had violated the terms of the subject
collective bargaining agreement (CBA) and awarded back pay to
petitioner’s employee.

On May 31, 2012, petitioner terminated its employee, a police
officer with the City of Buffalo Police Department, upon learning from
federal authorities that the officer had allegedly confessed to having
operated a marijuana “grow operation” prior to and after his becoming
an officer. As relevant here, the Buffalo Police Commissioner
(Commissioner) served notice of the charges on the officer and then
promptly terminated him prior to holding a disciplinary hearing.

Section 12.1 (A) of the CBA provides that “a permanent employee
shall not be removed or otherwise subjected to any disciplinary
penalty provided in [Article XII] except for . . . misconduct or for
committing a felony or any crime involving moral turpitude, and then
only after a hearing upon stated charges” (emphasis supplied).
Dismissal—one of the disciplinary actions available under the terms of
the CBA—may be accomplished only after certain procedures are
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CA 16-01699

followed: The employee must be served with a written copy of the
charges, after which the employee has 10 days to respond in writing
and serve the response on the Commissioner. Within 10 days of receipt
of the answer, the Commissioner must conduct an informal conference
with the employee concerning the charges. At the conference, the
employee may call witnesses to testify on his behalf. At that point,
the Commissioner has the authority to dismiss or to withdraw the
charges, or to accept a plea of guilty; if the Commissioner does not
take any of the aforementioned actions, a formal hearing must be
conducted before an impartial hearing officer. At the formal hearing,
the party bringing the charges bears the burden of proving them. The
hearing officer must then make a record of the hearing and set forth
findings and recommendations for referral to the Commissioner for his
review and decision.

The day after the officer’s termination, respondent filed a
grievance on behalf of the officer, asserting that petitioner had
violated Article XII of the CBA by summarily terminating the officer
without following the aforementioned due process procedures. After
the parties took the required procedural steps in an attempt to reach
settlement, the matter was submitted to an impartial arbitrator for
consideration of two issues, namely, whether petitioner violated the
terms of the CBA and, if so, the appropriate remedy. The parties
agreed that the factual record would consist of an affidavit from the
Commissioner setting forth details of the federal criminal
investigation and the Commissioner’s reason for terminating the
officer. Respondent did not concede the underlying facts in the
Commissioner’s affidavit, including, as relevant here, the
Commissioner’s averment that federal authorities had informed him that
the officer had confessed to criminal activity.

The arbitrator determined that petitioner had violated the “very
clear procedure” delineated in the CBA and awarded the officer back
pay. Petitioner commenced the instant CPLR article 75 proceeding to
vacate the arbitration award, asserting that it is against public
policy and irrational. Respondent filed an answer, and Supreme Court
confirmed the award. On appeal, petitioner contends that the
arbitration award violates a strong public policy and/or was
irrational (see CPLR 7511 [b] [1] [iii]; Matter of Kowaleski [New York
State Dept. of Corr. Servs.], 16 NY3d 85, 90-91). We conclude that
petitioner failed to meet its “ ‘heavy burden’ ” of demonstrating that
the award should be vacated on either ground (Matter of Rochester City
Sch. Dist. [Rochester Assn. of Paraprofessionals], 34 AD3d 1351, 1351,
lv denied 8 NY3d 807; see Matter of New York City Tr. Auth. v
Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336).

At the outset, we note that courts of this State “have long since
abandoned their distrust and hostility toward arbitration as an
alternative means for the resolution of legal disputes, in favor of a
policy supporting arbitration and discouraging judicial interference
with either the process or its outcome” (Matter of New York City Tr.
Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1,
6, citing Matter of Sprinzen [Nomberg], 46 NY2d 623, 629). Judicial
restraint under the “narrow” public policy exception is particularly
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CA 16-01699

warranted in arbitrations involving public employment collective
bargaining agreements (id. at 7). A court may vacate an award on that
ground “where strong and well-defined policy considerations embodied
in constitutional, statutory or common law prohibit a particular
matter from being arbitrated or certain relief from being granted by
an arbitrator” (Matter of New York State Corr. Officers & Police
Benevolent Assn. v State of New York, 94 NY2d 321, 327, citing
Sprinzen, 46 NY2d at 631). Vacatur of an award may not be granted “on
public policy grounds when vague or attenuated considerations of a
general public interest are at stake” (id. at 327).

The court properly determined that petitioner’s proffered public
policy considerations do not preclude the relief granted by the
arbitrator. Petitioner’s arguments in that regard constitute little
more than vague considerations of a general public interest, which are
insufficient to support vacatur of the award (see id.; see also City
Sch. Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919-920;
Matter of Selman v State of New York Dept. of Corr. Servs., 5 AD3d
144, 144-145).

Although the underlying facts render the size of the award
distasteful—over two years of back pay for a police officer who
allegedly confessed to committing crimes both before and after
becoming a police officer—“[o]ur [public policy] analysis cannot
change because the facts or implications of a case might be
disturbing, or because an employee’s conduct is particularly
reprehensible” (New York State Corr. Officers & Police Benevolent
Assn., 94 NY2d at 327). We note, in this instance, that had the due
process procedures of the CBA been followed, the likelihood would have
been greatly diminished that the officer would have received as large
an award for back pay as he did here.

We also conclude that the court properly determined that
petitioner failed to establish that the award was irrational, i.e.,
that there was “ ‘no proof whatever to justify the award’ ” (Matter of
Rockland County Bd. of Coop. Educ. Servs. v BOCES Staff Assn., 308
AD2d 452, 453; see Matter of Buffalo Council of Supervisors & Adm’rs,
Local No. 10, Am. Fedn. of Sch. Adm’rs [Board of Educ. of City Sch.
Dist. of Buffalo], 75 AD3d 1067, 1068). The arbitrator considered the
narrow issues before him—whether petitioner violated the CBA and, if
so, the appropriate remedy for such violation. Given the CBA’s
language, we conclude that the arbitrator made a rational
determination that petitioner violated the CBA and that the officer
was entitled to back pay as a result thereof.

Entered: May 5, 2017 Frances E. Cafarell
Clerk of the Court