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Tuesday, February 07, 2012

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case
Powell v Board of Educ. of Westbury Union Free School Dist., 2012 NY Slip Op 00790, Appellate Division, Second Department

The Education Law §3020-a arbitrator sustained certain charges of misconduct against Darnel Powell and terminated his employment.

Powell appealed, contending that the arbitrator's determination was arbitrary and capricious because the arbitrator did not resolve issues of credibility in his favor.

The Appellate Division rejected Powell’s claim, explaining that in the event "the evidence is conflicting and room for choice exists," a court may not weigh the evidence or reject the choice made by the arbitrator.

Sustaining the arbitrator's ruling, the court, however, pointed out that where the obligation to arbitrate arises as the result of a statutory mandate, as is the case in Education Law §3020-a disciplinary procedures, the arbitrator’s determination is subject to "closer judicial scrutiny" -- i.e., greater scrutiny than it might otherwise receive where submitting the matter to arbitration is a decision of the parties.* Indeed, said the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, a court in reviewing a decision that resulted from compulsory arbitration inquires as to “whether the decision was rational or had a plausible basis," but otherwise accepts the arbitrators' credibility determinations, even where, as noted above, there is conflicting evidence and room for choice exists."

The decision also commented that in this instance, and contrary to Powell’s contention, the arbitrator properly refused to admit into evidence his proffered polygraph test evidence.

* Presumably this standard of review would not apply in arbitrations not statutorily mandated such as arbitrations available in disciplinary procedures negotiated pursuant to §76.4 of the Civil Service Law. 

The decision is posted on the Internet at:


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