Wednesday, May 02, 2012

Disciplinary action for off-duty misconduct vacated as unrelated to the employee’s ability to satisfactorily perform the duties of the position

Disciplinary action for off-duty misconduct vacated as unrelated to the employee’s ability to satisfactorily perform the duties of the position

A town building inspector cited a building owned by a Town of Huntington employee for “numerous violations” of the Town of Huntington’s Town Code. As a result the employee was served with a notice of discipline and later "suspended from his position."

The employee's union filed a grievance protesting the suspension on the employee’s behalf and ultimately the matter was submitted to arbitration. 

The arbitrator made an award finding that the Town had just cause for suspending the employee. Supreme Court, however, vacated the award after holding that it was irrational and, therefore, the arbitrator exceeded her authority.

The town appealed but the Appellate Division affirmed the lower court’s ruling. Noting that a court may vacate an arbitrator's award only on the grounds stated in CPLR §7511(b), the Appellate Division said that the only ground asserted by the union was that the arbitrator "exceeded [her] power."

Such an excess of power occurs only where the arbitrator's award (1) violates a strong public policy, (2) is irrational, or (3) clearly exceeds a specifically enumerated limitation on the arbitrator's power. In this instance the union argued that the award was irrational because the individual’s employment by the Town was “completely unrelated to the off-duty misconduct of which he [was] accused.”

Observing that if an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power," this basis for the objection requires a showing that there was "no proof whatever to justify the award."

The Appellate Division held that although the charges against the employee flowing from his ownership of a building situated in the town, if proven, “are substantial and directly affect the safety of the public,” they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. As there was no proof in the record to justify the town suspending the employee, it ruled that Supreme Court had properly vacated the arbitration award.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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