August 19, 2019

Vacating of an arbitration award barred absent a finding that the award violated "strong public policy"


Article 75 of the Civil Practice Law and Rules set out the limited grounds available to the courts for vacating an arbitrator's award. The major exception to this is that an arbitrator's award will be vacated even if it cannot be overturned on the authority of Article 75 if a court determines that it violates strong public policy. However, the party seeking to vacate the award on the grounds that it contravene a strong public policy has a heavy burden to meet to prove its claim.

In this action the arbitrator's award was challenged on the grounds that it infringed on the School District's responsibility to maintain "educational standards" in violation of strong public policy. The Appellate Division disagreed and declined to vacate the award.

At issue was the arbitrator's decision interpreting the agreement with respect to the qualification of two candidates for the position of Faculty Manager. The Court ruled that the award did not infringe on the District's responsibility because:

a. The District conceded that both applicants for the position were qualified for the appointment; and

b. The position of Faculty Manager did not involve a classroom assignment and thus did not infringe on the District's responsibility to maintain classroom standards.

Similarly in Matter of Martin ex rel Lekkas, 86 AD2d 712, the Appellate Division held that an individual’s failure to possess a valid license otherwise required for the position is not fatal to the employee’s continuation in service if he or she is not performing duties set out in the job description for the position for which the license is otherwise required.

Lekkas, a permanent Assistant Clinical Physician was employed by the then Office of Mental Retardation and Developmental Disabilities, was never licensed to practice medicine in New York or in any State of the United States or in the Dominion of Canada. Summarily terminated from his position pursuant to §6522 of the Education Law,*Martin, representing the estate of Lekkas, initiated an Article 78 proceeding alleging that both the Federal and State Constitutions as well as §50.4 of the Civil Service Law required that Lekkas should have been given a pre-termination hearing or, alternatively, the opportunity to respond to the reasons given by the State for his discharge.

The Appellate Division, noting that the duties of an Assistant Clinical Physician were both defined and changed by administrative fiat, found that at the time of Lekkas' termination he was not practicing medicine without a license and, therefore, the court "must look to the Civil Service Law rather than the Education Law to determine his rights."

Conceding that Lekkas would not have been eligible either to take the required examination for the position or to be appointed if successful had the announcements for civil service examinations for positions as physicians in State hospitals had reflected the 1971 statutory changes, the Appellate Division, citing Civil Service Law §50.4, found that "it is equally clear that [the appointing authority] could not terminate [Lekkas] on the ground of disqualification, in the absence of fraud, more than three years after the date of such appointment".

Accordingly, the Appellate Division sustained Supreme Court's ruling annulling Lekkas' discharge and ordering his reinstatement with back pay and benefits.

* §6522 of the Education Law provided that "Only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician."

The school district decision is posted on the Internet at:

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