In re the Arbitration between Security & Law Enforcement Employees & County of Albany

Mikoll and Weiss, JJ.,

concur in part and dissent in part in the following memorandum by Weiss, J. Weiss, J. (concurring in part and dissenting in part). While we agree with the arbitrator’s award of back pay to petitioners because their suspension was in violation of section 1 of article VI of the collective bargaining agreement, we are unable to accept any rationale which would require respondents to pay petitioners’ counsel fees for defense of the criminal charges against them. It is clear that correction officers are local public officers (Public Officers Law, § 2; see Matter of Winkler v Sheriff of Queens County, 256 App Div 770; see, also, Whitmore v State of New York, .55 AD2d 745, 746, mot for lv to app den 42 NY2d 810) and bound by the obligations imposed under law. The collective bargaining agreement recognizes that petitioners are correction officers (art I, recognition), and when discharging criminal duties they are in the service of the public (see Isereau v Stone, 3 AD2d 243, 246). “‘It has been held repeatedly that there is no constitutional power to reimburse a public officer for expenses incurred in defending criminal prosecutions for official acts or omissions, unless a statute provides therefor in advance.’ ” (Comins v County of Delaware, 66 AD2d 931, 932, quoting from Schieffelin v Henry, 123 Misc 792, 795, affd 211 App Div 850.) There is no statute in existence covering the instant situation. Section 409 of the County Law was enacted to provide indemnification of damages, costs and expenses incurred by a county level officer as the result of a civil suit against him in his official capacity. No such statute exists for criminal prosecutions. Nor can it be logically said that the collective bargaining agreement intended to cover criminal acts committed by those covered. No one can dispute the obvious intent of section 1 (false arrest claims) of article XXVIII (indemnification), which was to provide and pay the cost of defense for a covered person against whom a claim of false arrest or abuse of power in the performance of job-related duties was made by an inmate. It would extend logic ad absurdum to hold that the parties intended that petitioners be paid counsel fees to defend themselves against prosecution for acts not in performance of their duties, but crimes they themselves had committed. In this context, examination of the indictment shows eight separate counts which include assaults upon an inmate, official misconduct in taking an inmate to a prohibited area for the express purpose of assaulting him, and falsifying the jail *979records to conceal what had been done. While an arbitrator’s award will not be vacated for errors of law and fact committed by the arbitrator (Matter of Sprinzen [Nomberg], 46 NY2d 623, 629) and it may not be overturned because the court believes the arbitrator has misconstrued the apparent, or even the obvious, meaning of the contract (Matter of Local Div. 1179, Amalgamated Tr. Union, AFL-CIO [Green Bus Lines], 50 NY2d 1007, 1009), nevertheless, an award which violates public policy will not be permitted to stand (Matter of Sprinzen [Nomberg], supra, p 630). We recognize the limitations upon judicial review of an arbitrator’s decision which preclude a court from substituting its judgment for that of the arbitrator (see Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23, 30). However, public policy cannot be said to tolerate either the commission of overt criminal acts or the carte blanche subsidization of defense for such acts by those holding public office, obviously not “in the performance of job related duties”. In essence, there was no prior legal obligation on the part of the county to provide reimbursement for the defense of a criminal act, which can only be construed as a purely private matter and not within “the performance of job related duties” as required by section I of article XXVIII of the agreement. There being no statutory or contractual authority for reimbursement, it is our view that payment of petitioners’ attorney’s fees would constitute a gift of public funds for purely private purposes, a matter expressly prohibited by our Constitution (NY Const, art VIII, § 1; see Corning v Village of Laurel Hollow, 48 NY2d 348). Accordingly, the arbitrator’s award of attorney’s fees should be vacated as violative of public policy. .It is both significant and appropriate to reiterate the words expressed by Judge Wachtler in two cases before the Court of Appeals. “The basic tenor and direction of ethical standards governing conduct in municipal government should neither be molded by the pressures of collective bargaining nor left to the discretion of individual arbitrators” (Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23, 31-32, supra [Wachtler, J., dissenting]). It is essential that the determination of whether the misconduct of a policeman requires removal: “be made only by those persons en-. trusted by the public with that responsibility. Only those persons may be assumed to have in mind the public interest of the community, and only they are directly answerable to that community. That they should be permitted to bargain away that responsibility and allow a labor arbitrator to make such a decision is a grievous disservice to the public” (De Paulo v City of Albany, 49 NY2d 994, 996-997 [Wachtler, J., concurring]). So too here, public policy should not be outraged by permitting the decision of a labor arbitrator to reward criminal conduct of correction officers by payment of defense costs in a prosecution to punish that very criminal conduct. The award should be modified by deleting the provision for reimbursement of defense attorney’s fees, and, as so modified, affirmed. [116 Misc 2d 766.]