No Basis To Overturn Arbitrator’s Decision Upholding Termination Of Sergeant

Peter McKenna was a sergeant with the Albany, New York Police Department. In January 2009, police received a 911 call reporting an apparently intoxicated individual who was driving a truck at a high rate of speed through city streets, and who had nearly caused a head-on collision, swerved erratically, struck snow banks with his truck, hit a parked car and then drove away from the scene of the accident. A check of the truck’s license revealed that it belonged to George McNally, a detective in the Department. The person who reported the incident was an off-duty police officer from another municipality who had followed McNally at a distance. McNally crossed into the Town of Bethlehem, Albany County, slowed and eventually stopped at a supermarket.

McKenna was on duty and found McNally’s truck at the supermarket parking lot. McKenna pulled next to the truck as McNally returned to it from the store and apparently attempted to speak to him. McNally ostensibly did not respond, but instead drove off in his truck. McKenna did not attempt to stop McNally from leaving the parking lot or contact Town of Bethlehem police regarding McNally’s location.

The off-duty officer who had reported the incident told McKenna that McNally’s truck was the one he had observed. McKenna then returned to the scene of the parked car that McNally had damaged in the City of Albany. There, McKenna allegedly failed to inform and misled superior officers about what had transpired in the supermarket parking lot. McNally was arrested and eventually pleaded guilty to driving while intoxicated and reckless driving.

Following an investigation, McKenna was charged in June 2009 with 14 counts of misconduct. An arbitrator was selected in accordance with the collective bargaining agreement between the City and the Albany Police Supervisor’s Association, and a hearing was conducted. The Arbitrator rendered a decision finding McKenna guilty of nine of the charges and concluding that termination of employment was the appropriate penalty. The Association then challenged the Arbitrator’s decision in court.

The Appellate Division of the New York Supreme Court upheld the Arbitrator’s ruling. The Court began by noting that “an arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice. A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”

The Court then held that “in light of the limited scope of judicial review, there is no basis in this record to vacate the arbitrator’s award. The Association contends that McKenna was not legally authorized to stop McNally because he was outside the jurisdiction of the APD, and a high speed chase would have violated the pursuit policy of the APD. When McKenna encountered McNally at the supermarket parking lot, there was no pursuit in progress since McNally was parked. Nor was there necessarily a reason to believe that a high speed chase would ensue. Moreover, viewed with the appropriate deferential standard, there was sufficient proof at the hearing of information known to McKenna such that he should have attempted to stop McNally in the parking lot despite the fact that they were then located in an adjoining jurisdiction.”

The Association also pointed to a reference in the City’s arbitration brief to McKenna as “a liar.” While the Court found that the reference was “clearly unnecessary,” it also concluded that the comment “did not rise to the level of gross misconduct totally infecting the fairness of the entire arbitration. The Arbitrator’s findings that McKenna was untruthful when questioned by a superior officer regarding what occurred in the supermarket parking lot are supported by the record and did not result from the Arbitrator grossly expanding the charges or other arbitral misconduct.”

In re Albany Police Sup’r’s Ass’n (City of Albany), 2012 WL 1623053 (N.Y. A.D. 3 Dept. 2012).