No Public Policy Mandates Firing Police Employees Who Are Dishones

In September 2001, the Pelham, New Hampshire Police Department began investigating allegations that Debra Desmarais had, on numerous occasions, solicited and accepted a “police discount” at a local McDonalds restaurant. The Department issued Desmarais a five-day suspension for violating Departmental rules regarding solicitation of discounts or gratuities, it also launched a new investigation of her because of discrepancies between her testimony in the internal affairs investigation and that of restaurant employees. The second investigation resulted in the Department’s decision to terminate Desmarais.

Desmarais’ labor organization, Local 3657 of the American Federation of State, County and Municipal Employees challenged the termination decision in arbitration. Though the Arbitrator found that Desmarais deliberately misrepresented the number of times she requested and received discounts at McDonalds, he concluded that termination was too harsh a penalty. While he did not order back pay or other contract benefits for Desmarais, he did award her reinstatement.

The Town refused to comply with the Arbitrator’s decision, and challenged the decision with New Hampshire’s Public Employee Labor Relations Board. When the Board upheld the Arbitrator’s decision, the Town appealed to the New Hampshire Supreme Court.

The Town’s argument was that the Arbitrator’s decision violated public policy. As the Town put it, there is a “strong and dominant public policy against the reinstatement of Police Department employees who were found to be untruthful and who may, however unlikely the possibility, be required to testify in future criminal matters.”

The New Hampshire Supreme Court disagreed that such a policy existed. The Court found that for a public policy to exist warranting overturning an arbitrator’s award, the policy must be “expressed in controlling statutes, regulations, common law, and other applicable authority.” The Court found no such dominant authority in New Hampshire law.

The Court cautioned that it did “not mean to suggest that the Town’s assertion of a public policy against the reinstatement of a Police Department employee who, as a result of certain misconduct, is deemed to be untrustworthy, is on an intuitive level incorrect. However, we are compelled to look for strong, dominant public policy only within the confines of positive law, including common law. Because we find that no such public policy exists, we hold that the Board did not err as a matter of law by ordering the Town to comply with the Arbitrator’s award.”

Town of Pelham, 2006 WL 2422563 (N.H. 2006).

This article appears in the October 2006 issue