Public Policy Does Not Prohibit Reinstatement Of Dishonest Police Officer

In July 2005, an Alaska state trooper attended an out-of-state motorcycle certification program. Upon arrival at the program, the trooper was informed of a rule against horseplay such as performing “burnouts” with a motorcycle. It was later discovered that a student had performed a burnout with one of the motorcycles.
At first, when he was asked individually and during a group meeting as to who performed the burnout, the trooper denied any involvement. Eventually he admitted that he was responsible. When the State terminated the trooper for dishonestly, the trooper’s labor organization, the Public Safety Employees Association, challenged the termination in arbitration.

An arbitrator ordered the reinstatement of the trooper. The Arbitrator commented that “this type of record presents considerable problems for an arbitrator, and especially where the misconduct alleged is typically viewed as warranting termination. If the State’s history demonstrated it had substantially restricted the trooper’s work assignments or if it had not created a history of lenient behavior towards similarly situated employees, its action would be sustained. As that is not the case, the burden is on the State to show why, in this case, more serious discipline was warned. I do not find the State has met its responsive burden.”
The State then challenged the Arbitrator’s decision through the Court system. When the case eventually made it to the Alaska Supreme Court, the main question before the Court was whether the Arbitrator’s decision was unenforceable as against public policy.

Under the “public policy” doctrine, an arbitrator’s decision will not be upheld if it is contrary to an “explicit, well-defined and dominant” public policy against enforcement. In adopting the “public policy” doctrine, the Court observed that “by establishing a higher hurdle for the overturning of arbitration awards, the test incorporates into its structure the special public interest in the enforcement of arbitration decisions that will be present in every case of arbitration review.”
The State contended that because it was undisputed that the trooper had engaged in dishonesty, the Arbitrator’s award necessarily violated public policy in ordering the reinstatement of the trooper. The Court disagreed. After an extensive review of the law in Alaska and other states, the Court found:

“All of the preceding sources support the conclusion that it is Alaska’s policy to maintain an honest police force. But there has never been a question that it is against public policy for a police officer to lie. The question is whether it is against Alaska’s public policy to reinstate a police officer who has lied as the trooper did in the present case.

“None of the sources cited by the State clearly sets out a public policy as to the consequences that must follow when a law enforcement officer commits a relatively minor act of dishonesty. The statutes regulating the Alaska Police Standards Council provide that the Council ‘may’ revoke their certificate of a police officer who does not meet standards. The use of ‘may’ instead of ‘shall,’ along with the State’s prior instances of leniency towards police officers who were dishonest, suggests that there is no categorical requirement in Alaska public policy for the termination of officers who engage in relatively minor forms of dishonesty, and thus that the reinstatement of such an officer is not in all cases a violation of public policy.”

The Court closed with a summation of its conclusions: “(1) The public policy exception to labor arbitration disputes involving public employees in positions of public trust is most clearly applicable where a statute or regulation compels the termination or prevents the hiring of an employee for committing the relevant misconduct; (2) the relevant inquiry is whether the Arbitrator’s decision to reinstate the employee violates public policy, not whether an employee’s conduct does; so statutes or regulations that merely prohibit the conduct are insufficient to support the public policy exception; and (3) a court should be particularly vigilant where the employee’s misconduct was in the performance of his or her duties and directed toward the public, and could therefore undermine confidence in public institutions that rely upon the public’s trust.”

State v. Public Safety Employees Ass’n, 257 P.3d 151 (Alaska 2011).

This article appears in the November 2011 issue.