Sunday, May 11, 2014

Does public policy require termination of a state trooper who had a sexual encounter with a domestic violence victim?

The Supreme Court of Alaska has rejected a public policy challenge to the decision of an arbitrator upholding a grievance filed on behalf of a State Trooper dismissed for engaging in consensual sex with a domestic violence victim.

Grievant entered the academy in February of 2008. Following field training and the expiration of his probationary period he was promoted to the position of State Trooper in March of 2009. The incident in issue took place in April 2009. Grievant was called to assist another Trooper in the investigation of a claim of domestic violence. While the first Trooper interviewed the husband, Grievant spoke with the victim. According to Grievant, the victim began to flirt with him and asked for his personal cell phone number, but he refused to provide it. The husband was arrested and charged with assault. Early the next morning, while off duty, grievant texted his cell phone number to the complainant. The complainant called grievant, who then went to her home where they had consensual sex.

Subsequently complainant told her husband of her actions. He in turn told his defense attorney who told the district attorney. The state conducted an investigation of grievant's actions. Grievant's supervisor recommended that he be suspended, but the Director of State Troopers decided instead to terminate his employment.

The dismissal was grieved and submitted to arbitration. The Arbitrator concluded that that the State had not engaged in progressive discipline, that previous instances of sexual misconduct had not resulted in termination, and that if the State intended to apply a zero tolerance policy it needed to inform the troopers. While finding the grievant had engaged in unprofessional conduct and had shown poor judgment she reduced the dismissal to a suspension and ordered the grievant's reinstatement.

While the arbitration was pending, the State also sought, through the State's Police Standards Council, revocation of grievant's basic police certificate. Possession of a certificate is a requirement for every state trooper. An administrative law judge found revocation warranted, and the Police Standards Council voted to revoke grievant's certificate.

The State filed a complaint, seeking to set aside the arbitrator's award as being the result of gross error, and because, the State claimed, it was contrary to public policy. The Superior Court upheld the arbitrator's award in part. It rejected the State's public policy argument, but concluded that the revocation of grievant's certificate precluded his reinstatement. Accordingly, it upheld the award of back pay from the time of termination to the date of the revocation of the certificate. It declined to uphold the ordered reinstatement.

The State appealed, and the Alaska Supreme Court has affirmed the decision of the superior court. In rejecting the State's arguments, the Court observed:

the correct question is not whether the Trooper-Grievant's conduct violated public policy; rather, it is whether the arbitration award of reinstatement with back pay itself violates an "explicit, well-defined, and dominant public policy." Although we cannot disagree with the State that the Trooper-Grievant's conduct was censurable, we also cannot overturn an arbitrator's decision if that decision does not violate an explicit, well-defined, and dominant public policy. We therefore must affirm the superior court's decision to uphold the arbitrator's award in part.

In reaching its decision the Court noted several cases from other jurisdictions rejecting efforts to set aside arbitrators' awards reinstating law enforcement officers who had consensual sex with a witness or informant. (Monroe County Sheriff v. Fraternal Order of Police;  Bureau of Maine State Police v. Pratt;  City of Lincoln Park v. Lincoln Park Police Officers Ass'n)

Because it agreed with the lower court that grievant could not be reinstated without a police certificate, however, it also affirmed the lower court's refusal to enforce that portion of the award ordering grievant's reinstatement.

The Court's decision, State v. Public Safety Employees Association, can be found here.

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