Stephen Martir, Esq. Bee Ready Fishbein Hatter & Donovan, LLP Attorneys for Petitioner 170 Old Country Road, Suite 200 Mineola, New York 11501 516-746-5599 email@example.com Hilda Mortensen, Esq. Office of the District Attorney Attorneys for Petitioner 262 Old Country Road Mineola, New York 11501 516-571-3659 David A. Davis, Esq. Davis & Ferber, LLP Attorneys for Respondent The Nassau County Investigators Police Benevolent Association, Inc. 1345 Motor Parkway Islandia, New York 11749 631-543-2900 firstname.lastname@example.org
Stephen Martir, Esq. Bee Ready Fishbein Hatter & Donovan, LLP Attorneys for Petitioner 170 Old Country Road, Suite 200 Mineola, New York 11501 516-746-5599 email@example.com Hilda Mortensen, Esq. Office of the District Attorney Attorneys for Petitioner 262 Old Country Road Mineola, New York 11501 516-571-3659 David A. Davis, Esq. Davis & Ferber, LLP Attorneys for Respondent The Nassau County Investigators Police Benevolent Association, Inc. 1345 Motor Parkway Islandia, New York 11749 631-543-2900 firstname.lastname@example.org Randy Sue Marber, J.
Papers Submitted: Notice of Petition x Notice of Cross-Petition x Memorandum of Law in Support x Memorandum of Law in Opposition x Answer to Cross-Petition x Reply Affirmation x
Upon the foregoing papers, the petition (Mot. Seq. 01) by the Petitioner, THE COUNTY OF NASSAU (the "County"), seeks an Order pursuant to CPLR § 7511, vacating and setting aside the July 23, 2018 Opinion and Order on Motion to Dismiss, issued by Arbitrator John E. Sands ("Arbitrator Sands"), which dismissed certain charges imposed by the County against Investigator Michael Falzarano ("Falzarano") and directed reinstatement of his employment with full back pay and benefits, on the grounds that it is irrational, exceeded Arbitrator Sands' powers, and violates public policy; and the cross-petition (Mot. Seq. 02) by the Respondent, THE NASSAU COUNTY INVESTIGATORS POLICE BENEVOLENT ASSOCIATION, INC., seeking an Order pursuant to CPLR §§ 7510-7511, confirming the same Arbitration Award, are decided as hereinafter provided.
On June 29, 2017, the County terminated Falzarano due to his alleged misconduct in connection with an investigation into corruption in the Town of Oyster Bay spearheaded by the Nassau County District Attorney's Office (the "NCDA"). In accordance with the terms of Falzarano's Collective Bargaining Agreement ("CBA"), a Disciplinary Arbitration ensued resulting in an Arbitration Award by Arbitrator Sands.
Nassau County District Attorney's Investigation
In April 2016, the NCDA commenced an investigation into corruption by, inter alia, certain elected officials within the Town of Oyster Bay (the "Investigation"). In connection with the Investigation, on July 15, 2016, the Appellate Division, Second Department granted NCDA's application for an Eavesdropping Warrant pursuant to Criminal Procedure Law ("CPL") Section 700, authorizing the interception, monitoring and recording of telephonic and electronic communications of certain public officials within the Town of Oyster Bay.
As certain targets of the Investigation were elected officials, additional controls were implemented to ensure heightened confidentiality. One such control was NCDA's selection of only fourteen specific investigators out of thirty-seven that were a part of the Investigators Police Benevolent Association ("IPBA") to monitor the surveillance pursuant to the Eavesdropping Warrant. In particular, NCDA intentionally excluded Executive Board members of the IPBA due to their frequent contact with elected officials arising out of contract negotiations. One of the investigators excluded was Falzarano as he was the President of the IPBA at the time.
Another control implemented was to secure the area of the monitoring "plant" where the surveillance was being conducted. Only the selected investigators were permitted access to the plant, as well as the outer corridor leading to the plant. Access to the plant required a key and was only accessible by attorneys and the selected investigators assigned to the Investigation. Non-assigned investigators, including Falzarano, were explicitly, specifically instructed not to access the plant, nor to be or remain in the outer corridor leading thereto.
Lastly, upon presentment of indictments to the grand jury regarding the Investigation, non-assigned investigators, including Falzarano, again were instructed to stay away from the grand jury room and to avoid contact with any witnesses or grand juror assigned to hear evidence thereat.
The Petitioner claims that certain evidence gathered during the course of the Investigation revealed that Falzarano clearly breached his duties to NCDA by disobeying the directives for non-assigned investigators outlined above, and further, that Falzarano unlawfully disclosed the existence of the Eavesdropping Warrant to a target being monitored for the offenses denominated as "Corrupt Use of Position or Authority and Bribe Receiving".
It is the manner in which the County ascertained such information that is largely in dispute between the parties. To this end, during the course of monitoring the targets, assigned investigators intercepted four communications between the targets suggesting that Falzarano violated Penal Law 250.20 by disclosing the existence of the wiretaps to the targets.
Based on the foregoing information uncovered, in August 2016, NCDA applied for and was granted a retrospective amendment to the original Eavesdropping Warrant pursuant to CPL § 700.65 (4) to permit the subsequent use and disclosure of the four intercepted communications to investigate whether criminal charges against Falzarano were warranted.
The retrospective amendment authorized NCDA to utilize the four intercepted communications to investigate whether charges against Falzarano were warranted. Following its investigation into Falzarano pursuant to the retrospective amendment, Falzarano's employment was terminated due to his misconduct in connection with the above-referenced Investigation.
Disciplinary Charges & Disciplinary Arbitration
In accordance with the terms of the CBA, Falzarano, through the IPBA Union counsel ("Union counsel"), demanded a Disciplinary Arbitration (See Demand for Arbitration, annexed to Petition as Exhibit "C"). On July 17, 2017, Falzarano was served with written notice of the discipline and charges of misconduct (See CBA, Section 10-5, p. 11, annexed to Petition as Exhibit "A"; see also Notice of Personnel Action, annexed to Petition as Exhibit "D"). The Disciplinary Charges at issue read as follows:
On or about July 16, 2016, Chief Investigator Daniel Rizzo via a communication emailed to all Investigators assigned to the Nassau County District Attorney's Office, instructed that only assigned investigators, having received wiretap monitoring instructions relative to [the Investigation], were to be permitted in the hallway outside of the monitoring location in the basement of 272 Old Country Rd., Mineola NY. On or about August 22, 2016, [Falzarano] was in violation of that directive. Again, on or about August 29, 2016, [Falzarano] was observed in the vicinity of the hallway just outside the monitoring location. Both August incidents were in violation of explicit instructions to avoid the location used to intercept and monitor communications authorized by court-ordered wiretaps.
On or about August 15, 2016, [Falzarano] did have a conversation with a target of [the Investigation] in which [Falzarano] did, in sum and substance, advise the target that the Public Corruption Bureau was conducting an investigation utilizing wiretaps. The substance of that conversation was overheard in a court ordered wiretap, on or about August 18, 2016.
On or about March 24, 2017, at a meeting of the Nassau County District Attorney's Investigators, at which [Falzarano] was present, said investigators were instructed to make every effort to avoid any contact with either witnesses or jurors assembled for the Special Grand Jury to hear evidence for case referenced above. On or about April 5, 2017, [Falzarano] disobeyed such directives and was in the vicinity of the Special Grand Jury and a witness for that proceeding.
On or about and between August 15, 2016 and February 13, 2017, without good cause and contrary to directives, [Falzarano] engaged in a course of conduct seeking to continually interact with investigators assigned to the above referenced investigation in an effort to elicit information regarding the details of the investigation and to influence the investigators' conduct by referencing prior favorable labor relations between the NCDA investigator staff and the targets. (See Exhibit "D")
Thereafter, Union counsel served a discovery demand upon the County seeking, inter alia, "all wiretaps, recorded communications, photographs, and/or computer images pertaining to the June 29, 2017 termination" of Falzarano (See Exhibit "E" annexed to Petition). In response, NCDA applied for, and was granted, an Unsealing Order pursuant to CPLR § 700.55 by the Appellate Division, Second Department. The Unsealing Order unsealed certain confidential information pertaining to the Eavesdropping Warrant for use in the pending Disciplinary Arbitration. As part of the Unsealing Order, the appellate court permitted, inter alia, disclosure of four identified intercepted communications for use in said proceeding (See Unsealing Order, dated 10/17/17, annexed to Petition as Exhibit "F"). The Unsealing Order, in pertinent part, specifically provides: ORDERED, that the identified warrant, application, and redacted affidavits and copies of the four identified intercepted communications are unsealed for the purpose of providing a copy of these documents to (Union counsel), for use and disclosure in a pending arbitration proceeding set for hearing on October 24, 2017. (Exhibit "F" at p. 2)
In or about November 2017, the IPBA filed a combined motion to dismiss and motion in limine. IPBA's motion sought, in part, to exclude the wiretap evidence unsealed by the Appellate Division for the specific use in the arbitration proceeding on the grounds that it was double-hearsay and deprived Falzarano of his right of confrontation. The parties agreed to have the branch of IPBA's motion which sought to exclude such evidence decided first by Arbitrator Sands and counsel were directed to solely brief this issue in furtherance of same. The remaining portions of IPBA's motion to dismiss were preserved for review and shall be discussed infra.
By Opinion and Order dated December 21, 2017, Arbitrator Sands granted IPBA's motion in limine and excluded the wiretap evidence at issue from evidence at the subject Disciplinary Arbitration (See Opinion and Order in Limine, annexed to Petition as Exhibit "J").
The remaining branches of IPBA's motion sought dismissal of the charges on the grounds that NCDA committed various improper "possibly criminal acts" in that the subject four intercepted communications were improperly used to obtain the retrospective amendment to the Eavesdropping Warrant and commence disciplinary proceedings against Falzarano. IPBA also alleged that NCDA improperly disclosed the eavesdropping materials to Union counsel in violation of Penal Law 250.20 and CPL 700.55 and 700.65.
Arbitration Award (Arbitrator Sands' Opinion and Order on Motion to Dismiss):
In delineating the facts Arbitrator Sands found to be "essentially undisputed", he referred to the four intercepted communications overheard by assigned investigators monitoring the targets' calls, stating that the targets mentioned Falzarano's name "in connection with people having trouble calling one of their phones and with fund-raising efforts of a judicial candidate and of the IPBA." (See Award at p. 3, Exhibit "M"). Preliminarily, the Court is perplexed by the Arbitrator's reference to same given his decision granting IPBA's motion in limine to exclude such evidence from the arbitration proceeding as double-hearsay. It is unclear from the record before the Court whether such evidence was in fact considered by the Arbitrator.
Arbitrator Sands also considered the County's ex-parte application to the Appellate Division seeking the retrospective amendment to the Eavesdropping Warrant, specifying that the application sought to include Falzarano and others for violating NY Penal Law 250.20. He then highlights that, while the grand jury returned sealed indictments against certain individuals, Falzarano was not indicted. He places emphasis on the fact that the County issued the charges at issue here which led to Falzarano's termination "more than ten months after having overheard the four conversations" (Id. at p. 4). Great emphasis is also placed on the County having "disclosed the existence of the eavesdropping warrant" when it served Union counsel with notice of the written charges. Arbitrator Sands then recited the efforts the County undertook to secure the Unsealing Order, noting its purported obligation "to secure judicial authorization to disclose even the existence of an eavesdropping warrant " (Id. at p. 5)
After reciting the parties' respective legal arguments concerning IPBA's motion to dismiss, Arbitrator Sands concluded, in pertinent part: On the entire record before me I must grant IPBA's motion in part to dismiss Charges 1 and 2 and deny it with respect to Charges 3 and 4. Because I do not believe the subject matter of Charges 3 and 4 warrant summary termination of employment, I shall order NCDA to reinstate Falzarano to its payroll with full back pay and benefits during the pendency of this arbitration proceeding. (Arbitration Award at p. 10, annexed to Petition as Exhibit "M").
Arbitrator Sands based his conclusion, in sum and substance on five grounds. First, that NCDA violated NYPL section 250.20 by divulging the existence and content of the Eavesdropping Warrant at issue to Union counsel, Falzarano, the IPBA, himself as the Arbitrator, and "all others who received or processed the charges". To support his conclusion that NCDA violated the Penal Law, Arbitrator Sands engaged in a legal analysis as to the requirements and exceptions of Penal Law § 250.20 and CPL § 700.65 (Arbitration Award at p. 10).
Second, that NCDA's seeking judicial approval for disclosure of "limited portions" of the eavesdropping warrants, "after-the-fact", and months after initially disclosing the existence of same, "did not cure NCDA's improper actions when made". Arbitrator Sands also accused NCDA of "cherry-picking" the evidence to be disclosed, which he found deprived Falzarano of a fair opportunity to prepare and mount an effective defense to the charges against him. (Id. at p. 11).
Third, that NCDA's pursuit of the charges against Falzarano are improper because he was never in fact indicted by the grand jury for the crime NCDA accused Falzarano of committing. On this issue Arbitrator Sands considered and analyzed, in detail, the evidence that was submitted to the Appellate Division in obtaining the amended Eavesdropping Warrant, essentially concluding that "none of these observations provides logical support" that Falzarano committed the crime of Divulging a Wiretap. Arbitrator Sands continued: These considerations lead me to the conclusion that NCDA, which could have indicted and suspended grievant during the pendency of his criminal proceeding, instead summarily discharged him and brought these disciplinary charges based on wiretap evidence that improperly disclosed the existence of eavesdropping warrants and sealed court records.
Arbitrator Sands then goes even one step further by finding that, "among the various appropriate managerial options available to NCDA to address what it saw as grievant's threat to the security of its operation this was not one." Based on his determination that NCDA improperly obtained the wiretap evidence, Arbitrator Sands dismissed Charge 2 as it relied "entirely upon the wiretap evidence and its fruits." (Arbitration Award at p. 13).
The fourth ground is based on Arbitrator Sands' "inference" that Charge 1 "is inextricably linked to the wiretap evidence and its fruits" because NCDA waited more than ten months to pursue it. This finding appears to be based in part on the nature of Charge 1 having occurred in August 2016 "immediately following interception of the four conversations" but not having been pursued promptly thereafter. As such, Arbitrator Sands discounts that Charge 1 could only have involved Falzarano's failure to comply with Chief Investigator Rizzo's direction to refrain from the hallway outside the monitoring location based merely on its temporal proximity with the intercepted calls. (Id.)
The fifth ground bears no relation to the dismissal of Charges 1 and 2. Rather, Arbitrator Sands found that Charges 3 and 4, notwithstanding his denial of IPBA's motion to dismiss them, and despite not having heard any evidence on these charges, would not support the discharge penalty imposed by NCDA. In so finding, Arbitrator Sands unilaterally determined that Falzarano had a right to engage in the conduct asserted in Charge 3 because, as president of the IPBA Board members, his interaction with members concerning the subject matter referred to in Charge 3 and positive labor relations issues "would appear to fall within the ambit of protected union activity." (Arbitration Award at pp. 15-16).
As to Charge 4, Arbitrator Sands found that termination would not be appropriate because "the grand jury did in fact issue the indictments NCDA sought [as to the targets] notwithstanding anything grievant had done" (Id. at p. 16). Without addressing the burden of proof for indictments, Arbitrator Sands determined without providing any support that, even if the allegations in Charge 4 were proven by NCDA, termination would not be a just penalty.
Based on the foregoing, Arbitrator Sands directed Falzarano's immediate reinstatement with full back pay and benefits. The instant application followed.
Petitioner's Article 75 and Respondent's Cross-Petition
By this proceeding, the County now seeks to vacate the Arbitration Award on the grounds that Arbitrator Sands exceeded his limited powers enumerated in the CBA, and that the Award is wholly irrational and violative of public policy.
In support of its Petition, the County points to Section 10-9.5(f) of the CBA which provides that "[t]he Arbitrator shall only decide whether misconduct or incompetence existed and, if so, the appropriate penalty permitted by this Agreement." The County also relies upon Section 10-9.4 of the CBA which provides, in pertinent part: The arbitrator shall have no authority to add to, subtract from, modify or change in any way the provisions of this Agreement or any expressly written amendment or supplement thereto, or to extend its duration, unless the parties have expressly agreed, in writing, to give the arbitrator specific authority to do so, or to make an Award that has this effect. (CBA at p. 13, annexed to Petition as Exhibit "A").
In turn, the Respondent filed a cross-petition seeking to confirm the Arbitration Award and for a preliminary injunction pursuant to CPLR § 6301 to compel the Petitioner to comply with the directives of the Award during the pendency of this proceeding.
At the outset, the Court notes that, at the oral argument held on the record on September 17, 2018, Respondent's counsel withdrew that portion of his cross-petition which sought a preliminary injunction. As such, the Court shall only consider the remaining branch of the cross-petition seeking to confirm the Arbitration Award.
Section 7511(b) of the CPLR provides, in pertinent part: The award shall be vacated on the application of a party who participated in the arbitration if the court finds that the rights of that party were prejudiced by:
*** (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
It is well settled that there exist three narrowly construed grounds upon which an arbitrator's award may be challenged and ultimately vacated, to wit, where the award: (i) violates strong public policy; (ii) is irrational; or (iii) clearly exceeds a specifically enumerated limitation on the arbitrator's power (Board of Ed. of Arlington Central School Dist. v. Arlington Teachers Association, 78 NY2d 33, 37 ). The applicable principle is that an "arbitrator's award will not be vacated unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation" (Albany County Sheriff's Local 775 of Council 82 v. Albany County, 63 NY2d 654 ).
Under CPLR § 7511 (b) an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made" (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 90 , quoting CPLR § 7511 [b]  [iii]).
As noted in the parties' CBA, the Arbitrator is tasked with the responsibility and power to determine solely the issue of whether misconduct or incompetence existed and, if so, the appropriate penalty permitted by the CBA. First and foremost, Arbitrator Sands exceeded the scope of his enumerated authority by engaging in and ultimately determining that the Nassau County District Attorney's Office committed a crime by violating Penal Law § 250.20 and Criminal Procedure Law §§ 700.55 and 700.65. While the Petitioner urges that it did not violate any provision of the Penal Law or CPL, this Court declines to engage in the type of conduct in which Arbitrator Sands should not have engaged. It is not the Court's role to analyze the requirements and standard for obtaining an eavesdropping warrant and any prospective amendment thereto. That was not the issue before the Arbitrator, nor is it the issue before this Court.
As an aside, even if the issue was properly before Arbitrator Sands, he erroneously concluded that NCDA's disclosure was violative of the Penal Law. At the time the disciplinary charges were imposed against Falzarano and notice of the charges were served (as the County was obligated to do under the CBA), the Investigation had concluded, the Eavesdropping Warrant had already been fully disclosed in open court and referenced in a news article, and there was no proof that NCDA disclosed the information with the intention to obstruct, impede, or prevent its own investigation. --------
Initially addressing the Arbitrator's dismissal of Charge 2, which charged Falzarano with disclosing an investigation utilizing wiretaps to a target, the Arbitrator did not draw his conclusions from the CBA itself. Rather, Arbitrator Sands erroneously determined that the NCDA improperly obtained and unlawfully disclosed wiretap evidence for the purpose of bringing the disciplinary proceedings. This, however, was wholly outside the scope of the parties' agreement to arbitrate. By basing his dismissal of Charge 2 on the determination that the NCDA entirely relied upon the wiretap evidence (unlawfully obtained) and its fruits, Arbitrator Sands neglected to decide the specific issue before him, whether Falzarano did engage in the misconduct alleged.
This leads the Court to its second point, to wit, the Arbitrator's failure to review that which he was required to review. To this end, Arbitrator Sands reexamined the evidence presented to the Appellate Division, Second Department and its finding of "good cause" which led to the issuance of the Unsealing Order and concluded that (i) the NCDA improperly obtained the Order; and (ii) permitting use of the sealed information in the arbitration proceedings would be inappropriate. Acting as his own appellate court (i.e. the Court of Appeals), the Arbitrator's refusal to consider the evidence on the grounds that NCDA improperly obtained the Order in effect challenged the Appellate Division's finding of good cause and its determination that the information was for use in the arbitration proceeding. By doing so, the Arbitrator unequivocally exceeded his authority in failing to review the very information necessary to determine whether Falzarano did indeed engage in the conduct alleged in Charge 2. (See Matter of O'Flynn (Monroe County Deputy Sheriffs' Assn., Inc.), 141 AD3d 1097 [4th Dept. 2016].
The Arbitrator's dismissal of Charge 1 must be vacated for similar reasons. Insofar as the Arbitrator inferred that Charge 1 is "inextricably linked" to NCDA obtaining the wiretap evidence merely because of the purported delay in pursuing the charges, the dismissal is totally irrational. In the first instance, Charges 1 and 2 on their face are entirely different. In the second instance, and more importantly, Charge 2 addresses Falzarano's insubordination in failing to comply with a clear, explicit directive by Chief Investigator Rizzo — an issue Arbitrator Sands never actually determined. The fact that NCDA waited ten (10) months to pursue the charges has no bearing on whether Falzarano was insubordinate. Thus, this too exceeded the scope of his authority.
The Arbitrator's dismissal of Charges 3 and 4 are most perplexing as the basis for the determination bears no indicia of rationality. Without hearing a stitch of evidence on either Charge, or conducting a hearing, Arbitrator Sands baselessly leaped to the conclusion that the conduct alleged in Charge 3 was "protected union activity". While not directly stated, it appears that the Arbitrator agrees that Falzarano committed the acts alleged, but that such conduct was protected. However, to the extent that the Arbitrator's denial of the motion to dismiss Charge 3 plainly contradicts his conclusion that the charged conduct is "protected union activity", this must also be vacated.
As to Charge 4, the fact that the grand jury ultimately indicted the targets that the NCDA sought "notwithstanding anything grievant had done" grossly underscores an employer's right to discipline an employee for engaging in improper, insubordinate conduct. Without the benefit of a full review of the record, and absent hearing any evidence concerning this charge, Arbitrator Sands determined that the charged conduct "even if proven" would not warrant termination. In essence, the Arbitrator comes to the conclusion that there is no need to discipline Falzarano even if found to have violated explicit directives by his employer. The risk involved in permitting such insubordination to go unaddressed is so profound that it could cripple the operations of the District Attorney's Office. The Court will not condone the Arbitrator's "no harm, no foul" approach. It bears repeating that the Arbitrator's obligation was solely to determine, after hearing all the evidence, whether Falzarano engaged in the misconduct alleged and, if so, the appropriate penalty permitted by the CBA.
Although the Court finds the foregoing more than sufficient to vacate the Arbitration Award as totally irrational and exceeding the scope of the Arbitrator's authority pursuant to the CBA, additional reasons exist. It is noteworthy to address the Arbitrator's conclusion that NCDA should never have pursued the disciplinary charges on the basis that Falzarano was never indicted or criminally prosecuted. In doing so, Arbitrator Sands intermingles the difference between the NCDA's role as Falzarano's employer with its role as a prosecutor. As correctly noted by the Petitioner, "[t]he District Attorney is a constitutional officer with quasi-judicial authority who has wide latitude in the discretionary exercise of his duty to prosecute crimes." People v. Tassiello, 300 NY 425, 427 . "The decision to [bring or] not bring a prosecution has been held to be beyond the function of the courts to supervise." Staten Island Branch of NAACP v. State of New York Grievance Committee for Second, Eleventh & Thirteenth Judicial Districts, 52 Misc 3d 233, 239-40 [Sup. Ct., Kings County 2016]).
Once again, without having been presented with any evidence as to why (which would not be an arbitrable issue in any event), it was clear error and far beyond the scope of the Arbitrator's authority to conclude that the disciplinary charges were improper because the NCDA either "failed to convince the grand jury" or "did not seek an indictment because it did not believe its evidence provided sufficient support for that effort." Arbitrator Sands wholly ignored the different burdens of proof applicable to criminal indictments and disciplinary proceedings. By impermissibly drawing his conclusion on this basis, Arbitrator Sands in effect usurped the role of the District Attorney's Office as a prosecutor and plainly ignored his obligation to arbitrate the labor dispute between the parties within the scope of his limitations governed by the CBA.
Parenthetically, while not specifically vacating the Arbitration Award on this ground, the Court finds that public policy would also preclude its enforcement. The Court of Appeals has cautioned that a court's authority to overturn an arbitration award on public policy grounds is a recognized, but narrow exception (New York City Transit Authority v. Transport Workers Union of America, Local 100, AFL-CIO, 99 NY2d 1, 6-7 ; Matter of New York State Correctional Officers & Police Benevolent Assn. v. State of New York, 94 NY2d 321, 326—327 . To invoke the exception, the court must be able to examine an arbitration agreement or an award on its face, and conclude that public policy considerations, embodied in either statute or decisional law, prohibit (1) arbitration of the particular matters to be decided, or (2) certain relief being granted (New York City Transit Authority, 99 NY2d at 8; City of New York v. Uniformed Fire Officers Ass'n, Local 854, IAFF, AFL-CIO, 95 NY2d 273 ; see also Board of Educ. of City of New York v. Hershkowitz, 308 AD2d 334 [1st Dept. 2003], lv. dismissed, 2 NY3d 759 ). The Court finds the decisional law cited by the Petitioner, while in the context of a different procedural context, persuasive on this point.
In Matter of Alfieri v. Murphy, 47 AD2d 820 [1st Dept. 1975], aff'd, 38 NY2d 976 , the petitioner, a 15-year veteran of the police department with a satisfactory service record, was charged with unlawfully taking merchandise of the value of $4.17 from a Nassau County department store without paying for same. The criminal charges imposed against the petitioner were ultimately withdrawn. In affirming the penalty imposed, termination of employment, the Appellate Division, First Department reasoned that, "[c]onfidence in a police officer's integrity and honesty patently constitutes a 'supervening public interest' sufficiently compelling under the circumstances herein to justify the disciplinary sanction imposed." (Id.) There the Appellate Division found that the petitioner acted in the manner of a shoplifter and such conduct tends to destroy public confidence in the integrity and efficiency of the police (Id.). The misconduct at issue in Alfieri pales in comparison to that which is alleged here.
In this matter, the allegations against Falzarano, particularly his disclosure of the existence of NCDA's confidential eavesdropping investigation to the targets of that investigation during its pendency are serious, and if proven, egregious. By allowing the Award to stand, where the Arbitrator failed to review potentially inculpatory evidence as to whether Falzarano engaged in the alleged misconduct, and further determined that NCDA committed a crime in obtaining and utilizing such inculpatory evidence, the public policy of a law enforcement agency's broad power in conducting criminal investigations and the integrity of such investigations would be crippled. Further warranting vacatur of the Award is the finding by the Arbitrator that Falzarano did in fact disobey explicit directives relating to NCDA's heightened security precautions, but that such insubordination was somehow justified and did not warrant termination.
Based on the entirety of the record presented, and the particular circumstances of this case, the Court in its sound discretion finds it appropriate to vacate the Arbitration Award and remand the matter for rehearing and determination before a new arbitrator pursuant to the parties' CBA (See CPLR § 7511 (d); Matter of O'Flynn (Monroe County Deputy Sheriffs' Assn., Inc.), 141 AD3d 1097 [4th Dept. 2016]).
Accordingly, it is hereby
ORDERED, that the Petition the petition (Mot. Seq. 01) by the Petitioner, THE COUNTY OF NASSAU, seeking an Order pursuant to CPLR § 7511, vacating and setting aside the July 23, 2018 Opinion and Order on Motion to Dismiss, issued by Arbitrator John E. Sands, (the "Arbitration Award"), which dismissed certain charges imposed by the County against Investigator Michael Falzarano and directed reinstatement of his employment with full back pay and benefits, is GRANTED, and the Arbitration Award is hereby VACATED; and it is further
ORDERED, that the cross-petition (Mot. Seq. 02) by the Respondent, THE NASSAU COUNTY INVESTIGATORS POLICE BENEVOLENT ASSOCIATION, INC., seeking an Order pursuant to CPLR §§ 7510-7511, confirming the same Arbitration Award, is DENIED in all respects; and it is further
ORDERED, that this matter shall be remanded for hearing and determination before a new arbitrator pursuant to the parties' CBA.
All matters not specifically addressed herein are DENIED.
This constitutes the decision and Order of this Court. Dated:January 7, 2019 Mineola, New York _____________________________ Hon. Randy Sue Marber, J.S.C.