Court Upholds Arbitrator’s Opinion In Sex Case

In 2009, a 24-year-old Alaska State Trooper (identified in the Court’s opinion only as “Trooper-Grievant” responded as backup to a domestic abuse call involving a victim identified only as “M.H.” The Grievant assisted in restraining M.H.’s husband, who was intoxicated and physically aggressive.

When the primary trooper on the scene finished interviewing M.H., he asked the Grievant to go over a pamphlet on domestic violence and victim’s rights with her while the trooper interviewed M.H.’s daughter in another part of the house. According to Grievant and M.H., “M.H. flirted with the Grievant as he read her the victim’s rights information.” M.H. asked the Grievant for his personal cell phone number, but he refused to provide it to her. Meanwhile, the other trooper arrested M.H.’s husband and charged him with assault.

When he woke up the next morning, the Grievant obtained M.H.’s cell phone number from his trooper notebook, and sent a text message to M.H. The Grievant told M.H. that he could give her his personal phone number now that he was off duty. M.H. called the Grievant, and after some discussion the Grievant drove to her house in his personal car and out of uniform, arriving at about 6:00 a.m. According to the arbitrator’s findings, when the Grievant arrived, “M.H. was still upset. She expressed her feeling that she was ‘done with’ her marriage.” M.H. and the Grievant proceeded to have consensual sex.

When the State fired the Grievant for his conduct, his labor organization, the Public Safety Employees Association, challenged the discharge in arbitration. An arbitrator found that the Grievant had “engaged in unprofessional conduct and showed poor judgment.” Yet she also found that the State had not fulfilled its duty to inform the Grievant about the parameters of acceptable behavior. The Arbitrator noted that past instances of sexual misconduct had not resulted in terminations, that just cause required consistent disciplinary action, and that the State must inform troopers if the policy has shifted to zero-tolerance. Finally, the Arbitrator determined that the Grievant’s conduct did not rise to the level of egregious behavior and that the principles of progressive discipline thus required the opportunity for rehabilitation. Finding that the Grievant had not been discharged for just cause, the Arbitrator ordered that he be reinstated with back pay and converted his discharge to a three-day suspension.

The Alaska Supreme Court upheld the Arbitrator’s decision. The Court noted that “the United States Supreme Court has made clear that the public policy exception to the enforcement of arbitration awards must be narrow and that the public policy at issue ‘must be explicit, well-defined, and dominant and it must be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ In addition, the Supreme Court warned courts to ‘approach with particular caution pleas to divine further public policy’ in a field in which other political branches have already created a regulatory regime.

“In this case, the question is not whether the Grievant’s conduct is against public policy. Rather, the relevant inquiry is whether a decision to use progressive discipline and to continue the employment of a trooper who has engaged in this type of sexual misconduct is a violation of an explicit, well-defined, and dominant public policy.

“The public policies cited by the State do not compel termination. And the State has not directed us to any public policy that would have compelled the termination of a trooper for the misconduct at issue at the time of the arbitration. Indeed, the State clearly had the authority – and it was in fact the recommendation of the Grievant’s supervisor – to use progressive discipline rather than to discharge the Grievant. No statute or internal regulation prohibited the use of progressive discipline in this case. Because the collective bargaining agreement provided for binding arbitration, the Arbitrator also had the authority to impose progressive discipline. The Arbitrator’s order of reinstatement after suspension, therefore, cannot be characterized as a violation of public policy.”

State of Alaska v. Public Safety Employees Association, 2014 WL 1773293 (Alaska 2014).