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February 23, 2010
Arbitrator finds employee guilty of disciplinary charges filed against him; offers employer a choice of penalties to be imposed
Matter of Hansen v New York State Dept. of Correctional Servs., 59 AD3d 903
NYS Correction Officer Ronald Hansen was served with two notices of discipline. One charged him with “failing to obey a direct order;” the second him with “failing to report to duty.”
Hansen filed a disciplinary grievance and the arbitrator ruled that he was guilty of misconduct for failing to report to duty. As to a penalty, the arbitrator said that the appointing authority could either  terminate Hansen or  continue him in service and give a written reprimand and fine him two months of pay.
Hansen appealed the arbitrator’s finding as to guilt and, in addition, challenged the award’s providing for “a choice between two specific sanctions” that Corrections could impose.
Supreme Court confirmed that portion of the arbitration award that found Hansen guilty of failing to report for duty but agreed with him that “the penalty was indefinite and failed to resolve an issue in controversy by providing DOCS with the option as to the penalty to be imposed for the violation.”
Noting that Hansen neither claimed that either penalty was inappropriate nor an abuse of the arbitrator's authority, the Appellate Division reversed Supreme Court’s holding that the “penalty was indefinite.”
Rather, said the court, each penalty as proposed was final and definite and provided the parties with the arbitrator's determination as to what would constitute an appropriate penalty for the misconduct involved. Offering a choice of two definite penalties does not render the final award indefinite.
Citing Matter of Meisels v Uhr, 79 NY2d 526, among other decisions, the Appellate Division said that an award that permits the prevailing party to select from between alternatives lacks finality and definiteness and is subject to vacatur "if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or, if it creates a new controversy."
Rather than set parameters from within which Corrections could choose an appropriate penalty, the award offered Corrections the choice between two definite penalties, either of which would be an appropriate response to the misconduct involved.
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