In re the Arbitration between Binghamton Civil Service Forum & City of Binghamton , 57 A.D.2d 27 ( 1977 )

Greenblott, J.

One of the terms of a collective bargaining agreement between the City of Binghamton as employer and the Binghamton Civil Service Forum as employee representative provided that "[n]o [covered] employee shall be disciplined or discharged without just cause.” Another contained a clause whereby any dispute between the parties, including one concerning the meaning or interpretation of the agreement itself, was to be finally resolved by arbitration. The Forum successfully moved at Special Term to confirm the award of an arbitrator by which one of its members was directed to be reinstated, although without back pay and with a fine, to the position from which he had been discharged and the city now appeals.

The arbitrator found that the grievant had received bribes. He stated, "was the discharge for just cause? Standing alone the resolution of this question would be almost instant. A city official receiving a gratuity from a Vendor is inviting discharge. He is in fact constructively signing a blanket resignation.” Thus the arbitrator obviously determined the factual issue of "just cause” in favor of the city.

However, the arbitrator then proceeded to relieve the grievant of responsibility for his acts by saying that they must be measured against "two related events”. He stated that the first of these related events occurred when the Mayor of the City of Binghamton received a campaign contribution from an officer of the vendor, which he returned. We see nothing illegal about a situation where a candidate for public office returns a contribution after discovering that the contributor may possibly have had a dishonest motive in making the . contribution.

Secondly, the arbitrator equated this case with a case of another city employee who apparently had been reinstated after a discharge for receiving gifts. The two cases are distinguishable. In the other proceeding, the agreement expressly granted the arbitrator power to determine if a sentence was excessive, and to reduce it if he so found. Here, the finding of whether there was just cause for the disciplinary action taken is at the periphery of the arbitrator’s power under the not so broad clause in the contract governing these parties.

Furthermore, the arbitration award is violative of a strong public policy (see Matter of Associated Gen. Contrs., N. Y. State Chapter [Savin Bros.], 36 NY2d 957). The policy of this State is clear and distinct. Section 30 of the Public Officers Law states: "Every office shall be vacant upon * * * [the holder’s] conviction of a felony, or a crime involving a violation of his oath of office”. While it is true that the grievant herein was not convicted of any felony, there is no dispute that he committed acts which constituted participation in the vendor’s officer’s acts of bribery. Under these circumstances, the public policy of this State compels the conclusion that municipal authorities not be restricted in their power to discharge employees who participate in criminal acts in the absence of a clear and express waiver of that power.

The order and judgment should be reversed, on the law and the facts, with costs; the application to confirm award denied and cross motion to vacate award granted.