The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)
A New York City employee who was convicted of larceny deserves a harsher penalty than he got from an arbitrator, who gave him his job back with retroactive pay and seniority with only minor restrictions, a divided state appeals panel has ruled.
The 3-2 decision from the Appellate Division, First Department, in Social Service Employees Union v. City of New York, 111219/11, handed down Tuesday, was the second time the court remanded the case after finding the arbitrator too lenient. This time, it ordered a new proceeding before a different arbitrator.
Justices Luis Gonzalez (See Profile), Peter Tom (See Profile) and Sallie Manzanet-Daniels (See Profile) joined in the unsigned majority opinion. Justice Helen Freedman (See Profile) dissented, joined by Justice David Saxe (See Profile).
The employee, Bowana Robinson, worked as an institutional aid at a facility run by Department of Juvenile Justice between 1998 and 2005. One of his tasks was inventorying, or vouchering, the possessions of people brought into the facility.
In June 2003, Robinson was arrested and charged with larceny for allegedly overdrawing funds from his account at the Municipal Credit Union of New York City and submitting false documents to the New York City Housing Authority.
Robinson has maintained that he believed he had been approved for a loan from the credit union and that he was not personally responsible for false documents submitted to NYCHA on behalf of his household. Nevertheless, he pleaded guilty to petit larceny, agreed to pay $21,000 in restitution to NYCHA and was sentenced to probation.
In February 2005, the city served Robinson with a disciplinary charge over the incident. In April 2005, it terminated him.
Robinson’s union, Social Service Employees Union, challenged his termination and sought arbitration.
In 2008, Randi Lowitt, an arbitrator with the city’s Office of Collective Bargaining, heard Robinson’s case and issued an award reinstating Robinson and granting him retroactive seniority and back pay as though he had not been terminated. Lowitt found that the city did not have enough evidence to sustain its charges against Robinson.
The union moved to confirm the award, and Manhattan Supreme Court Justice Alice Schlesinger did so. The city appealed. The First Department vacated the award, finding that Lowitt should have given Robinson’s guilty plea preclusive effect. It also said the lack of a penalty was inappropriate given that Robinson’s job gave him responsibility over other people’s property. It remanded the case for imposition of a penalty.
On remand, Lowitt modified the original reward only to the extent of finding that Robinson could not be in a position where he would be responsible for vouchering others’ property. Manhattan Acting Justice Peter Moulton confirmed that award.
The city once again appealed, and the First Department again found the penalty inadequate.
“The reinstatement of petitioner’s member to a civil service position with certain limitations of responsibility, along with an award of full back pay, seniority and benefits, effectively did not impose any penalty,” the majority wrote in Tuesday’s opinion.
It remanded the case to be heard by a different arbitrator, to impose an “appropriate penalty, which can be any penalty within the range of penalties available to the arbitrator.”
Freedman wrote in the dissent that there was “no basis to disturb the arbitration award and its confirmation by Supreme Court.” She said the penalty imposed was substantial.
“By limiting Robinson’s reinstatement to a position for which he is eligible, but which does not permit him to voucher private property, a penalty was imposed. Vouchering property had been part of his job heretofore,” she wrote.
“Accordingly, the arbitrator placed restrictions on his future employment that would likely disqualify him from resuming his present position and force him to accept a reassignment.”
The city is represented by Assistant Corporation Counsel Ronald Sternberg.
“We are pleased that the court agreed the arbitrator’s decision failed to impose an adequate penalty, given the employee’s conviction for larceny,” a spokesman for the Corporation Counsel’s office said.
The union is represented by Jeffrey Kreisberg of Kreisberg & Maitland. He could not be reached for comment.