In the Matter of the Arbitration between Professional, Clerical, Technical Employees Association, Respondent, and Buffalo Board of Education, Appellant

Order unanimously reversed on the law without costs, petition denied, cross motion granted and award vacated. Memorandum: Supreme Court erred in granting the petition, which sought an order confirming the arbitrator’s award. The arbitrator sustained petitioner’s grievance and determined that respondent violated the collective bargaining agreement by failing to appoint the highest scoring unit member on the eligible list to the position of associate account clerk. We reverse. An employer "may not surrender its ultimate appointing authority” in a collective bargaining agreement (Matter of Economico v Village of Pelham, 50 NY2d 120, 129; see, Civil Service Law § 61). The agreement improperly restricts respondent’s discretionary authority by requiring respondent to appoint the highest scoring unit member and, thus, the arbitrator erred in enforcing it. Because the arbitrator’s award is in violation of public policy, it must be vacated. (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Arbitration.) Present — Denman, P. J., Pine, Fallon, Balio and Boehm, JJ.