Sunday, April 26, 2015

Arbitrator reinstates police officer - Police Standards Council revokes his police certificate - Alaska Supreme Court affirms both

Lance Parcell was employed by the Airport Police and Fire Department of the Alaska Department of Transportation. In 2006 he was  investigated  for alleged violation of Department rules "relating to unbecoming conduct, courtesy, sexual harassment, private conduct and truthfulness, immoral conduct (deception) and harassment." After an investigation and an interview with the Chief, his employment was terminated. The dispute proceeded to arbitration, and "by the slimmest of margins" Arbitrator Harry MacLean concluded that Parcell should be reinstated without back pay. The arbitrator determined that Parcell's behavior was contrary to his professional responsibility, sexually offensive, and "as far over the line as one could imagine."  He also found that while the Department had not established that Parcell had lied it did prove that he had been "evasive, misleading and not forthcoming." Nevertheless, he concluded that a penalty less than termination was appropriate.

The Department sought to vacate the award, but the Superior Court denied the request. On appeal to the Alaska Supreme Court, the Court affirmed the denial of the request to vacate. State v. Public Safety Employees Ass'n. The Court observed:

While we may disagree with the arbitrator's ruling, this is insufficient to justify reversing the decision given our deferential standard of review. In his opinion, the arbitrator found the grievant to have engaged in harassing conduct and to have been evasive and misleading during the investigation, but he also found there to be a number of mitigating factors that favored a lesser penalty. If we were reviewing this case in the first instance, or under a less deferential standard, we likely would not have reached this conclusion. But our standard for viewing an arbitrator's decision is very deferential: We review for gross error. And it was not gross error for the arbitrator to conclude that the Department did not have just cause to terminate the grievant and that a lesser but still severe penalty, a sixteen-month suspension without pay, was sufficient discipline.

While the issues relating to the arbitration award were being addressed, the Alaska Police Standards Council was independently seeking to revoke Parcell's police certificate. That effort was stayed while the litigation over the arbitrator's award was proceeding, but after the Court's decision the Council renewed its efforts. The issue before the Council was whether Parcell had been dishonest in connection with the investigation  and lacked "good moral character," a basis for revocation of a police certificate. Relying on the facts as described in the Supreme Court's opinion, a hearing officer found that the Department had not met its burden of proof. While finding Parcell's conduct "egregious, rude, and grossly offensive" the Hearing Officer found the evidence insufficient to establish a lack of good moral character. On review, the Council rejected the conclusion of the Hearing Officer and found that Parcell's inappropriate and sexually offensive remarks and evidence that he had been dishonest during the Department's investigation warranted revocation of his certificate.  Parcell's appealed and the Superior Court reversed. It concluded that it need not defer to the Council's determination  of what constituted good moral character. It agreed with the hearing officer and found the Council's contrary conclusion unreasonable. 

The Alaska Supreme Court has now reversed the Superior Court. Alaska Police Standards Council v. Lance Parcell. It concluded that this case (like the earlier appeal of the arbitrator's award) turned on the level of deference due to the underlying decision. The Court summarized its decision:

A police officer's employment was terminated for abuse of alcohol, sexually offensive remarks made to two female officers, and alleged dishonesty during the subsequent police investigation. An arbitrator concluded that terminating the officer's employment was an excessive penalty and ordered the officer's reinstatement. The superior court affirmed the arbitration decision and we affirmed the superior court based on the deference that must be given to an arbitration decision. However, the Alaska Police Standards Council revoked the officer's police certificate after concluding that the officer was not of good moral character and was dishonest. The superior court reversed the decision to revoke, substituting its judgment for the Council's. But because the Council's decision, like that of the arbitrator, is entitled to deference, we reverse the superior court's decision and affirm the Council's decision to revoke the officer's police certificate.

It found that the Council's decision was not unreasonable and concluded that the fact that the Court had previously held that  there was no legal requirement to terminate a police officer's employment for minor acts of dishonesty  (State v. Pub. Safety Employees Ass'n) did not limit the Council's discretion to terminate the officer's certificate. Applying the same deferential standard of review it had on the appeal of the arbitration award, the Court deemed the Council's decision reasonable and entitled to affirmance.

A somewhat similar situation is discussed at  Fired, reinstated, then fired again - court rejects effort to enforce Arbitrator's award


Sunday, April 19, 2015

Arbitrator finds conduct of Sheriff's deputy in stalking former fiancee provides just cause for dismissal

Grievant was employed as a deputy on the Anoka County Sheriff's Office. During his employment he began a romantic relationship with another deputy. After two years, the second deputy resigned her position with the Sheriff's office and accepted other employment. The relationship continued, however, and the two ultimately became engaged and moved in together. A wedding date was set, but approximately one month before the wedding the prospective bride called off the wedding and asked grievant to move out of her home. As described in Arbitrator Eugene C. Jensen's award:

The Grievant’s behavior toward A.P. [the former fiancée] following their “break-up” resulted in a 2/26/2014, Harassment Restraining Order (HRO), an internal affairs investigation by the Employer, a criminal investigation by Chisago County, a 5/13/2014, criminal complaint for stalking, with a judges determination that there was probable cause to support the charge, and the Grievant’s termination on 6/4/2014.

Grievant was accused, inter alia, of sending hundreds of text messages to A.P. the day after the breakup, showing up at her door bearing jewelry he wanted to return to her despite having been told to stay away from her, and violating a Harassment Restraining Order. Grievant was arrested for the violation of the HRO and spent two nights in jail.

Pursuant to a plea agreement grievant agreed to plead guilty to stalking in exchange for dismissal of the HRO violation. The agreement also provided for a stay of adjudication, a stayed jail sentence of 365 days, a mental health evaluation, and two years probation. Upon successful completion of probation, grievant would be able to seek to have the charges expunged.

Despite the Union's arguments that several of the allegations against grievant were not proven, that the stalking with which he was charged was not "stalking in the traditional sense" and that the County erroneously accepted the former fiancée’s claim that she "never wavered" from her decision to end the relationship, Arbitrator Jensen upheld the termination. He found that grievant's actions were of the type to bring discredit to the Sheriff's office and to erode the essential trust between a sheriff's office and one of its sworn peace officers. He also found that while grievant had "gained some insight" into his behaviors and was unlikely to violate probation, he continued to minimize his behavior and to shift responsibility back to the victim.

Finally he concluded that a second chance was unwarranted, observing:

...although I am optimistic that the Grievant would not let this occur again in the future, the actions that led up to the charge of gross misdemeanor stalking -- those actions that were validated by two independent investigations -- are such that the Arbitrator would be remiss if he put the Grievant back to work, either now or following a protracted suspension. His return to work would further violate the Employer’s mission statement: to operate in a “manner that preserves the public trust.” The Anoka County Sheriff’s office did what was necessary to preserve that public trust: it terminated the Grievant’s employment. For the sake of the Sheriff’s Office’s reputation alone, the Employer needed to set distance between itself and the Grievant’s actions. While it is a shame to lose a fully trained and long-serving deputy, the Arbitrator agrees with the Employer’s decision.

Arbitrator Jensen's award can be found here.

Sunday, April 12, 2015

Police officer, special needs child, use of force and a clash of cultures

Grievant was employed as a police officer by the City of Bloomington, Illinois. He responded to an incident at a local school to address an issue with an out of control student. After that issue was resolved, grievant was talking with one of the teachers when he heard "loud screaming and a thumping sound" coming from the teacher's classroom. The officer entered the classroom where a seven year old was being restrained by the school's psychologist. The psychologist first became aware of the officer's entrance when grievant told the student to be quite, he was giving the officer a headache. Following school protocol, the psychologist relinquished control of the student to the officer. Grievant lifted the student and briefly held him against a wall. There was a dispute about whether he lifted the student by his coat or by his neck. He then "very intently" placed the student in a nearby chair. After the student delayed responding to a direction to go to the principal's office grievant carried him there and "very roughly" placed him in a chair. Acting in part on a complaint from the student's father the City terminated grievant's employment for what was alleged to be his "overly aggressive" handling of the student.

The Policemen's Benevolent and Protective Association arbitrated the termination, and Arbitrator Jeanne Vonhof sustained the grievance. Arbitrator Vonhof concluded that grievant's conduct was "objectively reasonable" and that while it would have made sense in retrospect for grievant to have asked more questions and gathered more information before he entered the classroom [grievant was unaware that the student was a special needs child] he was "following his training and acted quickly and instinctively in taking control" of the student. The arbitrator found insufficient evidence that grievant had lifted the student by his neck or restricted his breathing in any way. She found grievant's actions consistent with a "soft-empty-hand technique" authorized by the Department's use of force guidelines and concluded that the dispute arose from a failure of communication and a "clash of cultures" between that of the school staff and that of the police .  Accordingly she sustained the grievance and ordered grievant's reinstatement. She did conclude that a one day suspension was appropriate for grievant's failure to file a use of force report as required by Department policy.

The City moved to set aside the award. It argued, inter alia, that the award violated a well-defined and dominant public policy of protecting the safety of school age children and preventing use of excessive force by police officers. The trial court vacated the award, finding it violated the public policy of ensuring the welfare and protection of minors and that it effectively condoned the actions taken by grievant and indirectly encouraged similar behavior in the future.

The Appellate Court of Illinois has now reversed that decision, effectively confirming the award. While agreeing that there was a strong public policy concerning the protection and welfare of minors, the court noted that the Arbitrator's found as a fact that no misconduct had occurred. Similarly it rejected the City's claim that the Arbitrator had failed to make any findings that the grievant would not repeat his actions or offer any reassurance that grievant posed no future risk. Given the Arbitrator's factual findings, the Court found the City's argument unpersuasive, noting:

Here, no finding regarding grievant's remorse or likelihood to reoffend could be made because no misconduct was found in the first place. Additionally, the arbitrator found (1) grievant would not have intervened had he known more about N.A.'s needs and behavioral issues; (2) Bloomington police officers would rarely encounter an "out-of-control, combative[seven-year-old]," similar to this child; and (3) this incident was largely the result of a "clash of cultures" where, on one hand, school personnel are trained to passively wait for a student to deescalate and, on the other, police officers are trained to act quickly and efficiently to dispel any possible threat to the safety of others and property. Based on these findings, the arbitrator concluded the staff at Stevenson and the Department should reevaluate their policies to make sure an incident such as this one does not recur. By encouraging the two entities to develop better policies for handling disruptive juveniles, the arbitrator provided the reassurance called for under AFSCME, and we are obliged to affirm the award.

The Court's decision can be found here.