concurring in part and dissenting in part.
I concur in the result reached in this case and agree with the majority’s conclusion that the arbitrator reached an irrational result, exceeded his powers, and disregarded both G.L.1956 § 40-13.2-5 and the Department of Children, Youth and Families (DCYF or the department) policies regarding the department’s own responsibilities once it discovers disqualifying conduct by a licensed child-care worker, including one of its own employees. I also agree with the Court’s conclusion that the Certification of Child Care Personnel Act *1260(act) must be construed to apply to both present and future employees of DCYF who are subject to termination from service upon the discovery of a disqualifying event. Consequently I agree with the holding of the majority that DCYF’s policy Nos. 806 and 232 relating to disqualification of individuals pursuant to the act are applicable to this case. I write separately, however, because I am of the opinion that DCYF must comply with its own policies.
In this case the record reveals that DCYF did not properly follow the policy provisions entitling defendant Maurice Howie (Howie) to have his “prior employment history balanced against the disqualifying information.” The arbitrator found, and I agree, that although DCYF sought to apply the statute and the policies to Howie, “it never gave any consideration to the * * * procedure for balancing grievant’s prior record against his conviction on domestic assault.” I am of the opinion that this failure alone necessitates a remand of this case to the Superior Court with directions to vacate the arbitration award and to provide instructions for the arbitrator to consider the applicability of all policies in their entirety. This remand includes permitting Howie the opportunity to demonstrate “a record of excellence in child care sufficient to warrant disregard of the otherwise disqualifying information,” as both policy Nos. 806 and 232 contemplate. I recognize that Howie may very well be unable to satisfy such a standard in the face of his record, but nevertheless both policies clearly mandate that Howie should be given the opportunity to do so.
Indeed the written decision of the administrative hearing officer reflects an attempt by Howie at the initial grievance hearing to procure the attendance of the former associate director for juvenile services, as well as an attempt to obtain documents relating to Howie’s imprisonment and other types of documentation. These requests were denied by the hearing officer after DCYF’s legal counsel objected on the ground that the materials were not relevant to DCYF’s request for an administrative hearing. Howie, however, asserted that the former associate director for juvenile services would have information concerning the reasons DCYF did not take any action against him from June 1991 until March 1992. The department responded that this offer of proof did not constitute a valid defense to its request for an administrative hearing under the terms of the collective bargaining agreement (CBA) and its objection was sustained on the grounds of materiality. It was only at this point that the union representative advised Howie that he and the union should not continue to participate in the hearing. Thus I disagree with the majority’s conclusion that Howie “voluntarily chose not to participate in any administrative hearing leading to DCYF’s termination decision” and that he “failed to carry his burden of demonstrating why his work record should outweigh his criminal convictions.” The record simply belies this very conclusion.
I also disagree with the majority’s conclusion that Howie’s attempts to present this evidence was “apparently for the purpose of pursuing some sort of estoppel theory rather than to demonstrate that Howie’s excellent work record justified his continued DCYF employment.” The arbitrator’s decision recites the union’s position that DCYF was well aware of Howie’s disqualifying conduct as early as 1991 and that despite this fact, DCYF chose not to commence termination proceedings at that time. This fact gives rise to the reasonable inference that “discretion was exercised in grievant’s favor since there was a three page memorandum written by Mr. Mastrangelo [the witness determined to be irrelevant] to Mr. Bohan [the then-executive director of DCYF] in June 1991 informing Mr. Bohan of the details of griev-ant’s situation.” Accordingly I disagree that this evidence was intended for “some sort of estoppel theory,” and even if it were intended for this purpose, I still cannot agree that it was immaterial. Estoppel may very well have been relevant in the context of this case and pursuant to the CBA. It remains undisputed that DCYF did not take any action against Howie until a reporter inquired, at which point termination proceedings began. Howie is entitled to know why.
Moreover, everyone at that hearing, including DCYF, was operating under the *1261provisions of the CBA which provide for arbitration at the request of either party. Having elected to proceed pursuant to the terms of the CBA, DCYF should not now be permitted to change the rules, nor should Howie be penalized for exercising his rights under the CBA and proceeding directly to arbitration. This finding is especially appropriate since DCYF instituted this termination proceeding through the provisions of the CBA.
I also respectfully disagree with the majority's conclusion that Howie failed to submit any evidence of his outstanding work record to the arbitrator. The issue presented to the arbitrator read, “Was the grievant, Maurice Howie, discharged without just cause? If so, what shall be the remedy?” Since the arbitrator proceeded to find that neither the act nor the policies were applicable to an existing employee, the arbitrator determined that Howie was discharged without just cause. The arbitrator never passed upon Howie’s record of exemplary employment and he certainly made no findings that Howie had failed to introduce evidence relevant to his employment record. Nor should we. Moreover, the arbitrator summarized the evidence presented to him, including two performance evaluations in which Howie was rated good or excellent in all categories and observed that Howie “had proved to be a satisfactory employee in all respects.” Furthermore, the record discloses that Howie did in fact present evidence. Howie presented the testimony of Bohan who acknowledged receiving the June 1991 memorandum concerning criminal charges pending against Howie. Bohan stated, however, that the memorandum could not be found and that DCYF had made no effort to ascertain the final disposition of the criminal charge. I therefore disagree with the conclusion of the majority that Howie failed to introduce any evidence that would have allowed the arbitrator to balance his work record against his postemployment disqualifying conduct. Having concluded that the act and the policies were inapplicable, the arbitrator reasoned that balancing was unnecessary. The arbitrator also found that since DCYF did not promulgate a policy that covered an employee’s off-duty conduct “there is no need to discuss this aspect any farther.” (Emphasis added). Simply stated, the finder of fact did not reach this issue, and I am of the opinion that we should remand this case with instructions for the arbitrator to do so.
As the trial justice noted, it is undisputed that Howie maintained a good employment record during the entire term of his employment. It is equally undisputed that he was honest with his employer and kept DCYF informed of all criminal charges, including the fact that he was held at the Adult Correctional Institutions. The department, however, took no action against Howie until an inquiry was made by a journalist. Moreover, the termination proceedings taken by DCYF, although in accordance with the CBA, did not comply with policy Nos. 806 and 232. Here DCYF does not contend that it was entitled to act independently of the CBA, nor does it object to arbitration on the ground that this matter was not arbitrable. See State v. Local No. 2883, AFSCME, 463 A.2d 186, 191-92 (R.I.1983). The procedures outlined in policy Nos. 806 and 232, however, differ significantly from the grievance and arbitration provisions of the CBA where the focus is on determining whether the employee was terminated for just cause. See generally Rhode Island Brotherhood of Correctional Officers v. State, 643 A.2d 817 (R.I.1994); Council 94, AFSCME v. State, 475 A.2d 200 (R.I.1984).
As the trial justice observed, DCYF’s ability to discharge an employee is “subject to the limitations specified in the [Agreement itself. Articles 24, 25, and 26, which give a party aggrieved by a termination the right to a hearing before an arbitrator, is just such a limitation.”
Thus, notwithstanding the applicability of the act and the policies adopted pursuant thereto, which we have determined to be binding upon the parties and the arbitrator, DCYF has yet to- afford Howie the opportunity to overcome the discretionary discharge decision. As the trial justice so aptly noted:
“Even if the regulations did cover current employees, the arbitrator could have applied the reasoning provided in the regulations to overturn Mr. Howie’s dismissal through his demonstrated record as an *1262excellent employee at the Training School. If the employer has discretion in determining ‘just cause’ for dismissal of an employee before unqualified full employment on the basis of disqualifying information, the arbitrator may by the same token in his or her discretion conclude that just cause does not exist under these regulations as to an employee subject to a collective bargaining agreement.”
Therefore, although I agree with the majority’s conclusion that the act and the policies promulgated pursuant thereto apply to both current and prospective employees of DCYF, I do not believe that this finding concludes the matter. Accordingly I would remand this case to the Superior Court with instructions to vacate the arbitration award and direct the arbitrator to render an award consistent with the act and DCYF policies.