In re the Arbitration between Binghamton City School District & Peacock

Mugglin, J. (dissenting).

In this case, although we would not hesitate to affirm the penalty of dismissal if that had been imposed against respondent and if that were the issue, we must, for the reasons hereinafter expressed, respectfully dissent from the majority holding that an arbitrator exceeds his or her authority by imposing a too lenient penalty, thereby violating the public policy of this state against inappropriate teacher-student relationships.

First, we concede that our colleagues in the Second Department so held (see Matter of Board of Educ. of E. Hampton Union Free School Dist. v Yusko, 269 AD2d 445, 446 [2000]). We do not regard this case as persuasive authority, however, for the reasons hereinafter expressed and because it cites only three cases brought pursuant to CELR article 78 as authority. While CELR 7803 (3) authorized judicial review of the penalty imposed, the Legislature, in 1994, amended Education Law § 3020-a (5) to specifically provide that judicial review of arbitrator’s decisions in teacher disciplinary matters be strictly *1078limited to the grounds set forth in CPLR 7511 (c) (see L 1994, ch 691, § 3). As the majority correctly notes, the sole basis for vacating the penalty was that the Hearing Officer exceeded his power (see CPLR 7511 [b] [1] [iii]). That sole issue divides us.

It is settled law that “courts may vacate an arbitrator’s award only on the grounds stated in CPLR 7511 (b)” (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). Moreover, an arbitrator exceeds his or her power “only where the arbitrator’s award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (id. at 336; accord Matter of North Country Community Coll. Assn. of Professionals [North Country Community Coll.], 29 AD3d 1060, 1061-1062 [2006], lv denied 7 NY3d 709 [2006]).

To invoke the public policy exception (as the majority does here), “the court must be able to examine an arbitration agreement or an award on its face, and conclude that public policy considerations, embodied in either statute or decisional law, prohibit (1) arbitration of the particular matters to be decided, or (2) certain relief being granted” (Board of Educ. of City of N.Y. v Hershkowitz, 308 AD2d 334, 336 [2003], lv dismissed 2 NY3d 759 [2004]). In performing this examination, a court “must focus on the result only, and can vacate the award if the arbitration agreement itself violates public policy; if the award intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this [s]tate. Our analysis cannot change because the facts or implications of a case might be disturbing, or because an employee’s conduct is particularly reprehensible” (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 327 [1999]). Judicial intervention concerning the relief granted—i.e., the penalty assessed—can only be justified if “the award itself ‘violate[s] a well-defined constitutional, statutory or common law of this [s]tate’ ” (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 11 [2002], quoting Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, supra at 328). The court’s task is to identify an existing public policy “ ‘embodied in statute or decisional law, [which] prohibits] in an absolute sense’ ” the arbitrator from imposing the penalty of one year’s suspension without pay (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 11-12 [2002], supra [emphasis omitted], quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631 [1979]). This task cannot successfully be *1079performed for the reason that there is no absolute prohibition embodied in case law or statute that imposes this prohibition. The reverse is true, as the statute specifically empowers the arbitrator to impose this penalty (see Education Law § 3020-a [4]). By affirming Supreme Court’s judgment which found the penalty to be “shockingly lenient,” the majority fails to observe these principles and fails to give due deference to the arbitrator’s decision and seeks to “ ‘mold the award to conform to their sense of justice’ ” (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005], supra [citation omitted]). Accordingly, we would reverse Supreme Court’s judgment and dismiss the petition.

Crew III, J., concurs. Ordered that the judgment is affirmed, without costs.