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


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