Vacating an arbitrator's award based on a finding it constituted a violation of public policy

Vacating an arbitrator's award based on a finding it constituted a violation of public policy Nassau Co. v Sheriff's Officers Association, Supreme Court, Nassau County, Justice Ralph P. Franco, [Not selected for publication in the Official Reports] Vacating an arbitrator's award is not an easy task. Article 75 of the Civil Practice Law and Rules sets out the limited basis for overturning an arbitration award as follows: (i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award is by confession; or (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection. In addition, courts have vacated arbitration awards found to violate strong public policy. This case arose as a result of Gemelli, a Nassau County corrections officer, being found guilty of assaulting an inmate under his care by a federal district court jury. As a result the Sheriff terminated Gemelli from his position effective March 1, 1999. Gemelli filed a grievance challenging his dismissal and eventually the matter was submitted to arbitration.* The Arbitrator made the following award: 1. The County's discharge of the grievant, Salvatore Gemelli, was not time barred. 2. The County did not have just cause to discharge Gemelli. 3. Gemelli shall, forthwith, be made whole for any wages and benefits lost, less any interim earnings, for the period of March 1, 1999, until Gemelli's retirement, effective May 27, 1999. Nassau County brought an Article 75 action in an effort to vacate the arbitrator's award. The Sheriff's Officers Association, on the other hand, asked the court to confirm the award. Justice Franco, after reading the arbitrator's decision and award, said: 1. An arbitration award shall be vacated where it is totally irrational or violative of strong public policy. 2. The arbitrator's award in this instance conflicts with strong public policy. The court indicated that Gemelli, in exercising his responsibilities, was required to protect and care for this mentally retarded inmate under his care at the jail. In contrast to Gemelli's actions, Justice Franco said that "[t]he inmate was to be protected by him, not assaulted by him as the jury found in the Federal trial." Turning to the arbitrator's holdings overturning Gemelli's termination, the court ruled that "[a]s his conduct was clearly a violation of public policy, he was justly discharged and is not entitled to be made whole for wages." The bottom line: Based upon all the facts and circumstances presented to him, Justice Franco vacated the arbitrator's award on the grounds that it constituted a violation of a strong public policy. Accordingly, Gemelli's separation from the Sheriff's Department may now be recorded as a dismissal as a result of disciplinary action taken against him rather than as a "retirement." * Gemelli retired while the disciplinary arbitration procedure was still pending.

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