| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Public Safety Employees Association (7/29/2011) sp-6586
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-13782
Appellant, )
) Superior Court No.
v. ) 3AN-08-06897 CI
)
PUBLIC SAFETY EMPLOYEES ) O P I N I O N
ASSOCIATION, )
)
Appellee. ) No. 6586 - July 29, 2011
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Craig Stowers, Judge.
Appearances: Brenda B. Page, Assistant Attorney General,
Anchorage, and Daniel S. Sullivan, Attorney General, Juneau,
for Appellant. Stephen F. Sorensen, Simpson, Tillinghast, &
Sorensen, P.C., Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, and Winfree, Justices.
[Christen and Stowers, Justices, not participating.]
CARPENETI, Chief Justice.
I. INTRODUCTION
An Alaska state trooper was terminated partly for dishonesty. The Public
Safety Employees Association (PSEA) filed a grievance on behalf of the discharged
trooper and then invoked arbitration. The arbitrator reinstated the trooper, ruling that the
State did not have "just cause" to terminate the trooper. The superior court upheld the
----------------------- Page 2-----------------------
arbitrator's decision. The State now appeals, arguing that the arbitrator committed gross
error, and that the arbitrator's reinstatement of the trooper is unenforceable as a violation
of public policy. We take this opportunity to recognize the existence of a public policy
exception to the enforcement of arbitration awards. But we hold that the arbitrator's
award in the present case is not unenforceable as a violation of public policy. Because
the arbitrator's award is neither unenforceable nor grossly erroneous, we affirm the
superior court and uphold the arbitration decision.
II. FACTS AND PROCEEDINGS
A. Facts
The State of Alaska first employed the Alaska state trooper (the Trooper)
in this case in August 2003.1 After attending the police training academy in Sitka, the
Trooper was assigned to Palmer, a training post. The arbitrator found considerable
evidence that Palmer is understaffed and that new troopers often work there without
sufficient supervision or guidance.
In July 2005, the Trooper attended a motorcycle certification program out
of state. The Trooper requested to attend the course, and a superior supported his request
because of the Trooper's "personal experience operating motorcycles." Upon arrival at
the program, the Trooper was informed of a rule against "horseplay" such as performing
1 Because "we give great deference to an arbitrator's decision, including
findings of . . . fact," State v. Pub. Safety Emps. Ass'n, 235 P.3d 197, 201 (Alaska 2010)
[hereinafterPSEA 2010], the following account relies heavily on the Decision and Award
of Arbitrator Thomas Angelo. We also defer to the practice of the parties in not using
the Trooper's proper name.
-2- 6586
----------------------- Page 3-----------------------
"burnouts" with a motorcycle.2 It was later discovered that a student had performed a
burnout with one of the motorcycles.
At first when the Trooper was asked individually and during a group
meeting if he knew who performed the burnout, he denied any involvement. But
eventually he admitted that he was responsible. The letter of termination states that the
Trooper's dishonesty placed the Alaska State Troopers in a bad light and subjected other
class members to questioning. The arbitrator's decision notes that the Trooper testified
that the burnout was inadvertent, but admitted the allegations against him were correct.
The Trooper explained that his initial silence was the result of being scared, and that it
took him a while to realize he had to confess.
After the Trooper was removed from the motorcycle program, he returned
to Alaska. Despite knowing of the Trooper's dishonesty, the State returned the Trooper
to work and kept him involved in the processing of cases for several months. In
November 2005, the Trooper received an evaluation that rated him at acceptable levels
for the evaluation year ending on August 15, 2005, and recommended a merit increase.
The arbitrator reported that the Trooper was initially told that his misconduct at the
training would not result in anything more than a minor suspension.
During the months after the training incident, several complaints of
misconduct were made against the Trooper. PSEA argued to the arbitrator that after the
Trooper returned from the training class, the State engaged in a deliberate effort to
discredit him. The complaints included that the Trooper erased a citizen's videotape
2 In colloquial usage, a "burnout" is "the act of burning the rear tyre caused
by the wheel spinning quickly with the motorcycle stationary." MOTORCYCLE
DIRECTORY, available athttp://www.motorcycledirectory.co.uk/dictionary/burnout.html.
Common in racing, the maneuver is used before the race "to heat the rubber to produce
better traction during the race." BILL HOLDER, MOTORCYCLE RACING 75 (Brompton
Books 1994). It can "produce towers of thick, white smoke." Id.
-3- 6586
----------------------- Page 4-----------------------
containing evidence, spoke to the citizen in an unprofessional manner, then denied to a
superior that he spoke to the citizen unprofessionally, until being confronted with a
recording of his words; refused to investigate a burglary promptly, then "neither
confirm[ed] nor den[ied]" to a superior that he told the victim the investigation would be
"on my time, not yours"; concluded too quickly that a reported assault was without merit;
failed to properly investigate alleged vandalism at a school bus yard; and failed to
properly investigate or explain another alleged assault.
In December 2005, the Deputy Director of the troopers discussed the
complaints of misconduct with the Trooper and PSEA. In January 2006, the Deputy
Director terminated the Trooper and issued a letter of termination explaining his action.
The letter referred to several written corrective actions that occurred before the training
incident and two that occurred after it. But the letter focused above all on the Trooper's
"dishonesty," especially the Trooper's "pattern of clear and deliberate deceptive conduct"
at the training program. The Deputy Director found that a "thread" of dishonesty "ran
through each of the issues discussed at the December 2005 meeting."
B. Proceedings
Following the Trooper's termination, PSEA filed a grievance on behalf of
the Trooper, as provided for under the Collective Bargaining Agreement between PSEA
and the State. After the grievance was denied, PSEA invoked arbitration. By stipulation
of the parties, the arbitrator addressed the following issues: "Was there just cause under
the collective bargaining agreement to terminate [the Trooper]? If not, what is the
remedy?"
The arbitrator, unlike the Deputy Director, explicitly rejected that "a pattern
of dishonesty had been established." "There is no pattern of dishonesty shown by the
other incidents," the arbitrator concluded, holding that the State lacked just cause to
terminate the Trooper:
-4- 6586
----------------------- Page 5-----------------------
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 toward 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 warranted. This is because the doctrine of
disparate treatment is a well-accepted aspect of the just cause
doctrine. . . .
I do not find that the State met its responsive burden.
. . . .
. . . [A]s I cannot discern any apparent reason for the
State to treat [the Trooper] differently than other even more
experienced troopers, I must conclude that discharge was too
harsh when measured by the disparate treatment doctrine.
(Footnote omitted.)
On April 23, 2008, the State filed a complaint to vacate the arbitrator's
award with the superior court. After PSEA filed an answer and counterclaim, and the
State filed its reply, the parties held a status conference at which they "agreed that the
matter would be resolved through briefing and argument." Superior Court Judge Craig
Stowers ordered the parties to prepare summary judgment motions. On December 1,
2009, after reviewing the parties' arguments, the superior court denied the State's Motion
for Summary Judgment and upheld the arbitrator's decision.
The superior court held there to be "an identifiable public policy in Alaska
not to reinstate a dishonest trooper," but noted that "further questions have to be
answered. What degree of dishonesty is sufficient? And does the State waive its public
policy stance when it keeps the trooper on active duty, subsequently rates the trooper's
performance as acceptable, and gives him a merit increase?" The superior court noted
that the Trooper's "single incidence of dishonesty is relatively minor," and concluded:
-5- 6586
----------------------- Page 6-----------------------
This Court does not find the arbitrator's decision to
have been gross error under the facts and circumstances of
this case. The Court specifically expresses its understanding
that, but for the State's actions in allowing the Trooper to
remain on active duty, and giving the positive performance
evaluation and merit increase, this outcome would be very
different.
The State now appeals. Both of the issues presented by the State for review
solely concern the Trooper's intentional dishonesty at the training program.
III. STANDARD OF REVIEW
The standard of review in the present case is the one we articulated in PSEA
3
2010 :
We review de novo the superior court's decision to
confirm the arbitration award.2 "Both the common law and
Alaska statutes evince a strong public policy in favor of
arbitration. In order to encourage parties to pursue
arbitration, Alaska courts have a policy of minimizing their
interference with arbitration decisions."3 Thus, we give great
deference to an arbitrator's decision, including findings of
both fact and law.4 We will only vacate an arbitration award
arising out of a collective bargaining agreement where it is
the result of gross error - those mistakes that are both
obvious and significant.5 We will not vacate such an award
merely because we would reach a different decision
[ ]
ourselves. 4
_______________________________________________
2 State v. Alaska Pub. Emps. Ass'n, 199 P.3d 1161, 1162
(Alaska 2008) (citing Baseden v. State, 174 P.3d 233, 237
(Alaska 2008)).
3 235 P.3d 197.
4 Id. at 201 (citing Pub. Safety Emps. Ass'n, 732 P.2d at 1093).
-6- 6586
----------------------- Page 7-----------------------
3 Baseden, 174 P.3d at 237 (internal citations and
quotation marks omitted).
4 See Alaska State Emps. Ass'n/AFSCME Local 52 v.
State, 74 P.3d 881, 882-83 (Alaska 2003); Butler v. Dunlap,
931 P.2d 1036, 1038 (Alaska 1997).
5 Alaska Pub. Emps. Ass'n, 199 P.3d at 1162-63 & n.10;
Baseden, 174 P.3d at 238. The standards for vacating an
arbitration award set forth in Alaska's Arbitration Act, AS
09.43.120, "do not apply to a labor-management contract
unless they are incorporated into the contract by reference."
AS 09.43.010; see also Dep't of Pub. Safety v. Pub. Safety
Emps. Ass'n, 732 P.2d 1090, 1093 n.5 (Alaska 1987).
IV. DISCUSSION
A. The Arbitrator's Award Is Not Unenforceable As A Violation Of
Public Policy.
The State's primary argument on appeal is that "the public-policy exception
to the usual deference given to arbitration decisions should be applied in this case."
Because "[t]he public's interest in maintaining honesty in Alaska's law enforcement
officers is paramount," it would violate public policy to enforce the "reinstatement of a
Trooper . . . [who] intentionally lied multiple times in an attempt to cover up his own
misconduct."
PSEA argues, in response, that "the public policy exception . . . should be
narrowly construed," and that we should be concerned only "with the lawfulness of
enforcing the award." In this case, PSEA argues, the State has failed to bear its "burden
of proving that illegality or conflict with public policy is clearly demonstrated."
Neither the State nor PSEA disputes any of the arbitrator's factual findings.
The arbitrator found with regard to the motorcycle training that the Trooper
was asked individually and during a group meeting if he was
aware of the person who did the burnout. The [Trooper]
-7- 6586
----------------------- Page 8-----------------------
repeatedly denied involvement but eventually admitted to his
Sergeant that he was responsible. . . . The [Department's]
termination letter asserts that the [Trooper's] failure to be
truthful placed the State in a bad light and subjected other
class members to questioning. The [Trooper] testified the
burnout was inadvertent and admitted these allegations are
correct. He explained that his initial silence was the result of
being scared and it took him a while to realize he had to
confess to his wrongdoing.
The parties agreed that the Trooper "engaged in dishonest behavior when he failed to
timely acknowledge that he was responsible for mishandling a training motorcycle." The
arbitrator agreed, but noted that the Trooper showed "no pattern of dishonesty" outside
of the training incident.
1. The public policy exception to the enforcement of arbitration
awards
We have not previously recognized the existence of a public policy
exception to the enforcement of arbitration awards. In 1996, the State argued that an
arbitrator's reinstatement of a demotedpublic employee was unenforceable as a violation
of public policy.5 But we disposed of the case on other grounds and did not address the
State's argument.6 In 2003, we vacated an arbitrator's reinstatement of a terminated
public employee, where the employee worked in a position of "public trust" and was
convicted of felony theft of public money.7 But we based our decision on the arbitrator
5 Alaska Pub. Emps. Ass'n v. State, Dep't of Envtl. Conservation, 929 P.2d
662, 667 (Alaska 1996).
6 Id.
7
Alaska State Emps. Ass'n/AFSCME Local 52, 74 P.3d at 882, 883-86.
-8- 6586
----------------------- Page 9-----------------------
having committed gross error in her application of her chosen standard of "just cause,"8
not on the reinstatement being unenforceable as against public policy.
More recently, in PSEA 2010, the State advocated the "adoption of a
judicially created exception to enforcing arbitration decisions where doing so would
violate an 'explicit, well defined, and dominant' public policy."9 We noted in dicta that
the State's argument was "compelling," but refrained from reaching the issue because the
State did not raise it before the arbitrator or the superior court.10 In the present case, the
State properly raised the issue of the public policy exception in its complaint to vacate
the arbitrator's award and in its opening brief on appeal. The present case thus offers an
appropriate occasion to adjudicate the issue left unreached in PSEA 2010.
a. The U.S. Supreme Court's articulation of the public
policy exception to arbitration awards
The U.S. Supreme Court first recognized the applicability of the public
policy exception to the enforcement of arbitration awards in W.R. Grace & Co. v. Local
Union 759.11 In that case, the Court imported the public policy exception from general
8 Id. at 885.
9 235 P.3d at 203 (quoting E. Associated Coal Corp. v. United Mine Workers
of Am., Dist. 17, 531 U.S. 57, 62-63 (2000) (declining to vacate under public policy
exception an arbitration decision reinstating a truck driver who twice tested positive for
marijuana)).
10 Id.
11 461 U.S. 757 (1983); see also United Paperworkers Int'l Union v. Misco,
Inc., 484 U.S. 29, 33-34, 44-45 (1987) (upholding arbitrator's reinstatement of employee
discharged for alleged possession of marijuana on company property). Misco notes that
the general doctrine that courts may refuse to enforce contracts that violate public policy
derives from the basic notion that no court will lend its aid to
one who founds a cause of action upon an immoral or illegal
(continued...)
-9- 6586
----------------------- Page 10-----------------------
contract law. "As with any contract," the Court stated, "a court may not enforce a
collective bargaining agreement that is contrary to public policy."12 If the enforcement
of an arbitrator's interpretation of a contract "violates some explicit public policy, we are
obliged to refrain from enforcing it."13 "Such a public policy, however, must be well
defined and dominant, and is to be ascertained 'by reference to the laws and legal
precedents and not from general considerations of supposed public interests.' "14
The U.S. Supreme Court reaffirmed this approach in a 2000 decision
upholding an arbitrator's reinstatement of an employee who failed a drug test.15 Quoting
from W.R. Grace & Co., the Court concluded: "We cannot find in . . . any . . . law or
legal precedent an 'explicit,' 'well defined,' 'dominant' public policy to which the
arbitrator's decision 'runs contrary.' "16 The Court also clarified that "[i]n considering
this claim, we must assume that the collective-bargaining agreement itself calls for [the
11 (...continued)
act, and is further justified by the observation that the public's
interests in confining the scope of private agreements to
which it is not a party will go unrepresented unless the
judiciary takes account of those interests when it considers
whether to enforce such agreements.
Id. at 42.
12 W.R. Grace & Co., 461 U.S. at 766.
13 Id.
14 Id. (quoting Muschany v. United States, 324 U.S. 49, 66 (1945)).
15 E. Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S.
57 (2000).
16 Id. at 67 (quoting W.R. Grace & Co., 461 U.S. at 766).
-10- 6586
----------------------- Page 11-----------------------
employee's] reinstatement,"17 "because both employer and union have granted to the
arbitrator the authority to interpret the meaning of their contract's language . . . . They
have 'bargained for' the 'arbitrator's construction' of their agreement."18
b. Other state courts' application of the public policy
exception in analogous labor arbitration cases
Other state courts have followed the U.S. Supreme Court in adopting a
public policy exception to the enforcement of arbitrators' reinstatements of employees
discharged for misconduct. In fact, "[i]t has become increasingly common for parties
seeking to vacate arbitration awards to argue that the award should be vacated on the
grounds that enforcement of the award would violate public policy. This trend has been
most pronounced in labor arbitrations, particularly when employers challenge awards
17 Id. at 61.
18 Id. at 61-62. As the Court has long recognized, "[t]he general rule is that
competent persons shall have the utmost liberty of contracting and that their agreements
voluntarily and fairly made shall be held valid and enforced in the courts." Twin City
Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356 (1931). The Court also noted:
The meaning of the phrase "public policy" is vague and
variable; courts have not defined it, and there is no fixed rule
by which to determine what contracts are repugnant to it. The
principle that contracts in contravention of public policy are
not enforceable should be applied with caution and only in
cases plainly within the reasons on which that doctrine rests.
Id. at 356-57. "Primarily it is for the lawmakers to determine the public policy of the
state." Id. at 357.
-11- 6586
----------------------- Page 12-----------------------
reinstating discharged employees."19 "Not surprisingly, awards reinstating law
enforcement personnel are often challenged on public policy grounds."20
In its briefing before the superior court, the State pointed to a Washington
Court of Appeals case in which the court vacated an arbitrator's reinstatement of a
Sheriff's Deputy who was terminated based on 29 instances of misconduct, including
"lack of candor."21 The Washington Court of Appeals concluded that the Deputy's
"proven record of dishonesty prevents him from useful service as a law enforcement
officer. To require his reinstatement to a position of great public trust in which he cannot
possibly serve violates public policy."22
But by the time the State filed its brief before this court, the Supreme Court
of Washington had reversed the court of appeals's decision, holding that "[e]ven if we
were to agree that the arbitrator's decision was not good public policy and thought [the
Deputy's] reinstatement distasteful, the County has failed to cite any explicit, well
defined, and dominant public policy that requires vacating this award."23
The other cases cited by the State as persuasive authority for vacating the
reinstatement of a dishonest police officer involved substantially more egregious
19 Tracy Bateman Farrell, Annotation, Vacating on Public Policy Grounds
Arbitration Awards Reinstating Discharged Employees - State Cases, 112 A.L.R.5TH
263 (2003) (collecting and analyzing "state cases in which it has been argued that an
arbitration award reinstating a discharged employee should have been vacated on public
policy grounds").
20 Id.
21 Kitsap Cnty. Deputy Sheriff's Guild v. Kitsap Cnty., 165 P.3d 1266, 1267-
68 (Wash. App. 2007), rev'd, 219 P.3d 675, 679-80 (Wash. 2009) (adopting "the narrow
public policy exception to enforcing arbitration decisions").
22 Id. at 1271.
23 219 P.3d at 680.
-12- 6586
----------------------- Page 13-----------------------
misconduct than the dishonesty alleged in the present case. In City of Boston v. Boston
Police Patrolmen's Ass'n, the Massachusetts Supreme Court vacated the reinstatement
of a police officer who insulted the occupants of a double-parked car, arrested two of
them for disorderly conduct, handcuffed one to a wall and threatened him with violence,
needed to be physically restrained by a sergeant, filed a "knowingly untrue" incident
report alleging assault by the occupants of the car, then "carried forward his deliberately
distorted version of the event" during the department's two-year internal investigation.24
To have "falsely arrested two individuals on misdemeanor and felony charges, lied in
sworn testimony and over a period of two years about his official conduct, and
knowingly and intentionally squandered the resources of the criminal justice system on
false pretexts,"25 is misconduct of a different order of magnitude than the Trooper's
dishonesty in the present case.
Similarly, in Town of Bloomfield v. United Electric Radio & Machine
Workers of America/Connecticut Independent Police Union Local No. 14, which was
later reversed on other grounds, a superior court in Connecticut vacated the reinstatement
of a police officer where "the arbitrators found [the officer] was untruthful in the
statements he made during the course of his internal affairs interviews."26 According to
the arbitrators, the officer "conducted a seriously flawed investigation and attempted to
cover up his incompetence by fabricating the testimony of key witnesses."27 "The panel
also found that [the officer] had not only been untruthful during the internal affairs
24 824 N.E.2d 855, 857-59 (Mass. 2005).
25 Id. at 861.
26 916 A.2d 882, 883, 887 (Conn. Super. 2006), rev'd, 939 A.2d 561 (Conn.
2008).
27 Id. at 884 (internal quotation marks omitted).
-13- 6586
----------------------- Page 14-----------------------
investigation and disciplinary proceedings, but he was also untruthful in his testimony
before the arbitration panel."28 Again, this is dishonesty on a significantly different scale
than the dishonesty of the Trooper in the present case.29
In a more closely analogous case, a Florida District Court of Appeal upheld
the arbitrator's reinstatement of the dishonest police officer. City of Tallahassee v. Big
Bend Police Benevolent Ass'n involved a police lieutenant who "lied to his chief
regarding the existence of a romantic relationship with another police officer."30 The
court found "without merit appellant's argument that the arbitrator's decision to reinstate
a police officer . . . constitutes a violation of Florida public policy that police officers
have good moral character."31
In any case, comparisons to other jurisdictions can only go so far.
"American courts differ in their application of the public policy exception,"32 and the
28 Id.
29 In its reply brief, the State cites two similarly distinguishable cases: Town
of S. Windsor v. S. Windsor Police Union, 677 A.2d 464, 466-67 (Conn. App. 1996)
(vacating arbitrator's reinstatement of police officer who on three occasions revealed
identity of informant to woman he believed to be drug dealer), and City of Bridgeport v.
Bridgeport Police Dep't Emps. Local 1159, 1994 WL 198091, at *7-11 (Conn. Super.
Ct., May 16, 1994) (vacating reinstatement of officer who stole items from store he was
assigned to protect and then lied about doing so during official investigation).
30 710 So. 2d 214, 215 (Fla. Dist. App. 1998); see also Dep't of Cent. Mgmt.
Servs. v. Am. Fed'n of State, Cnty. & Mun. Emps., 584 N.E.2d 317, 318, 323 (Ill. App.
1991) (upholding arbitrator's reinstatement of parole officer who made false statements
to Department of Housing and Urban Development, because reinstatement was not
unenforceable as violation of Illinois public policy).
31 Big Bend Police, 710 So. 2d at 215.
32 City of Richmond v. Serv.Emps. Int'l Union, Local 1021, 118 Cal. Rptr. 3d
315, 323 (Cal. App. 2010) ("[C]ase law on [the] public policy exception to arbitral
(continued...)
-14- 6586
----------------------- Page 15-----------------------
preceding cases rely on analyses of state law to determine the existence and nature of a
public policy. What is at issue in the present case is the public policy of the State of
Alaska. We turn now to an analysis of that policy.
2. The reinstatement of the Trooper in this case is not
unenforceable as a violation of Alaska public policy.
Following a path taken by the U.S. Supreme Court and many other state
jurisdictions, we now endorse the State's long-standing suggestion and adopt the
"exception to enforcing arbitration decisions where doing so would violate an 'explicit,
well defined, and dominant' public policy."33
We note at the outset that the exception is consistent with the rules that we
have previously adopted for determining the unenforceability of contracts in general. In
a 2006 decision holding that a settlement agreement was unenforceable on grounds of
public policy because it violated a statutory prohibition, we reaffirmed our earlier
32 (...continued)
finality 'is not just unsettled, but also is conflicting and indicates further evolution in the
courts[.]' " (quoting 2 JAY E. GRENIG, ALTERNATIVE DISPUTE RESOLUTION § 24:19 (3d
ed. 2005))).
33 PSEA 2010, 235 P.3d 197, 203 (Alaska 2010) (quotingE. Associated Coal
Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62-63 (2000)).
-15- 6586
----------------------- Page 16-----------------------
analysis of the general public policy exception inPavone v. Pavone.34 There, we adopted
the Restatement (Second) of Contracts, section 178,35 which states:
A promise or other term of an agreement is unenforceable on
grounds of public policy if legislation provides that it is
unenforceable or the interest in its enforcement is clearly
outweighed in the circumstances by a public policy against
the enforcement of such terms.[36]
The Restatement goes on to list various factors that weigh in favor of and
against the enforcement of a term.37 Though Pavone dealt with a legislative prohibition
on the enforcement of a promise, it quoted the Restatement's recognition that
34 Jimerson v. Tetlin Native Corp., 144 P.3d 470, 472 (Alaska 2006) (citing
Pavone v. Pavone, 860 P.2d 1228, 1231 (Alaska 1993)). Our first analysis of the
potential unenforceability of terms in a contract that violate public policy appeared in
Inman v. Clyde Hall Drilling Co., 369 P.2d 498 (Alaska 1962), which states:
[W]e start with the basic tenet that competent parties are free
to make contracts and that they should be bound by their
agreements. In the absence of a constitutional provision or
statute which makes certain contracts illegal or
unenforceable, we believe it is the function of the judiciary to
allow men to manage their own affairs in their own way. As
a matter of judicial policy the court should maintain and
enforce contracts, rather than enable parties to escape from
the obligations they have chosen to incur.
Id. at 500 (citation omitted).
35 Pavone, 860 P.2d at 1231; see also McKnight v. Rice, Hoppner, Brown &
Brunner, 678 P.2d 1330, 1334 (Alaska 1984) ("To determine whether an agreement is
inoperative on grounds of public policy requires that a balance be struck between the
public policy interest against enforcement and interests favoring enforcement." (citing
RESTATEMENT (SECOND) OF CONTRACTS § 178 (1981))).
36 RESTATEMENT (SECOND) OF CONTRACTS § 178(1) (1981).
37 Id. § 178(2)-(3).
-16- 6586
----------------------- Page 17-----------------------
[o]nly infrequently does legislation, on grounds of public
policy, provide that a term is unenforceable. When a court
reaches that conclusion, it usually does so on the basis of a
public policy derived either from its own perception of the
need to protect some aspect of the public welfare or from
legislation that is relevant to that policy although it says
nothing explicitly about unenforceability.[38]
Our decision today is consonant with the general guidance offered in
Pavone. "A court's refusal to enforce an arbitrator's award under a collective-bargaining
agreement because it is contrary to public policy is a specific application of the more
general doctrine, rooted in the common law, that a court may refuse to enforce contracts
that violate law or public policy."39 The Restatement itself contains both general
guidelines for determining unenforceability on public policy grounds40 and more specific
38 Pavone, 860 P.2d at 1232 (quoting RESTATEMENT (SECOND)OF CONTRACTS
§ 178 cmt. b (1981)). This comment to the Restatement continues:
In some cases the contravention of public policy is so grave,
as when an agreement involves a serious crime or tort, that
unenforceability is plain. In other cases the contravention is
so trivial as that it plainly does not preclude enforcement. In
doubtful cases, however, a decision as to enforceability is
reached only after a careful balancing, in the light of all the
circumstances, of the interest in the enforcement of the
particular promise against the policy against the enforcement
of such terms. . . . Enforcement will be denied only if the
factors that argue against enforcement clearly outweigh the
law's traditional interest in protecting the expectations of the
parties, its abhorrence of any unjust enrichment, and any
public interest in the enforcement of the particular term.
RESTATEMENT (SECOND) OF CONTRACTS § 178 cmt. b (1981).
39 United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 42 (1987).
40 RESTATEMENT (SECOND) OF CONTRACTS §§ 178-85 (1981).
-17- 6586
----------------------- Page 18-----------------------
guidelines for making this determination in various commonly recurring contexts, such
as promises involving restraint of trade, impairment of family relations, or commission
of a tort.41 The specific rules distill from the general ones the features that have shown
themselves to be most relevant in a specific context.
Similarly, reviewing arbitration awards by determining whether there is an
"explicit, well-defined, and dominant" public policy against enforcement reflects how
the general Restatement rules operate in the recurring context of arbitration awards. By
establishing a high hurdle for the vacatur of arbitration awards, the test incorporates into
its structure the "special public interest in the enforcement"42 of arbitration decisions that
will be present in every case of arbitration review, given our longstanding recognition
of Alaska's "strong public policy in favor of arbitration."43
Having adopted the "explicit, well-defined, and dominant" public policy
exception to the enforcement of arbitration awards, we now turn to the analysis of Alaska
law in order to discern the relevant public policies in the present case. We have
previously stated that we will "look to the entire body of law in the State of Alaska for
evidence . . . to determine . . . public policy."44 Following Pavone, we begin by asking
whether there is "legislation specifically prohibiting enforcement of the promise or
41 Id. §§ 186-99.
42 Id. § 178(2).
43 Baseden v. State, 174 P.3d 233, 237 (Alaska 2008) (quoting Univ. of Alaska
v. Modern Constr., Inc., 522 P.2d 1132, 1138 (Alaska 1974)) (internal quotation marks
omitted).
44 Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1132 (Alaska
1989).
-18- 6586
----------------------- Page 19-----------------------
contractual term."45 The State offers no argument in its briefing that there exists a law
specifically prohibiting the reinstatement of a dishonest police officer. Instead, the State
cites the following four categories of Alaska law as support for its contention that there
is an explicit, well-defined, and dominant public policy in Alaska against enforcing the
arbitrator's award.
(i) Alaska's Constitution : Without further argument, the State cites the
general and abstract language from the Alaska Constitution providing "equal rights,
opportunities and protection under the law," guaranteeing due process of law, and
protecting the rights of crime victims.46 Later, the State suggests that these constitutional
guarantees are "premised on a criminal justice system that affords honesty and integrity
to the public it serves."
(ii)Precedent: The State then cites our decision inJones v. Jennings, where
we referred to the importance of "fostering the public's trust in those charged with
enforcing the law" and the need to ensure "that police behavior conforms to the code of
conduct required of a democratic society."47 But that case involved allegations that the
conduct of police officers constituted assault and battery and false imprisonment, not
dishonesty.48 The State also cites an even less directly related case in which we
emphasized the importance of punishing attorneys who misappropriate client funds, in
order to maintain the public's confidence in the justice system.49
45 Pavone v. Pavone, 860 P.2d 1228, 1231 (Alaska 1993).
46 Alaska Const. art. I, §§ 1, 7, 24.
47 788 P.2d 732, 738-39 (Alaska 1990) (internal quotation marks omitted).
48 Id. at 733.
49 In re Buckalew, 731 P.2d 48, 55 (Alaska 1987). The State also cites a 1984
(continued...)
-19- 6586
----------------------- Page 20-----------------------
(iii) Statutes and Regulations: The State quotes from statutory provisions
granting the Alaska Police Standards Council the power to set minimum standards for
employment as a police officer,50 including "moral character" standards.51 "A person
may not be appointed as a police officer" unless he or she meets meet these standards.52
According to the regulations in effect in 2005, "good moral character" is defined as "the
absence of acts or conduct that would cause a reasonable person to have substantial
doubts about an individual's honesty, fairness, and respect for the rights of others and for
the laws of the state and the nation."53 A police officer must also "attest and subscribe
to the law enforcement Code of Ethics," which includes the pledge to be "[h]onest in
thought and deed in both my personal and official life."54 By regulation, the Alaska
Police Standards Council "shall revoke a . . . certificate upon a finding that the holder of
the certificate" "has been discharged or resigned under threat of discharge, for cause
49 (...continued)
decision from a Connecticut superior court. But out-of-state decisions carry little weight
in determining the public policies of Alaska.
50 AS 18.65.220.
51 AS 18.65.240(a).
52 Id.
53 13 Alaska Administrative Code (AAC) 85.900(7) (2005). Of the five
"indicia of a lack of good moral character" laid out in the regulation, two involve
dishonesty: first, "conduct involving moral turpitude, including dishonesty, fraud, deceit,
or misrepresentation"; and second, "intentional deception or fraud, or attempted
deception or fraud in an application, examination, or other document for securing
employment, eligibility, or certification." Id. The latter emphasizes the gravity of being
dishonest in a document for securing employment, eligibility, or certification.
54 13 AAC 85.040(b)(5) (2005).
-20- 6586
----------------------- Page 21-----------------------
relating to dishonesty or misconduct, from employment as a police officer in this state
or any other state or territory."55
The latter regulation strongly suggests that it is the policy of the State of
Alaska not to employ dishonest police officers. But it is unclear whether the regulation
means to prohibit the employment of police officers who have been dishonest to any
degree or under any circumstance.
(iv) Internal Regulations: Finally, the State notes that the Department of
Public Safety's Operating Procedures Manual requires that "[e]mployees responding to
superiors or to questions posed during official investigations shall truthfully answer all
questions specifically directed and narrowly related to the scope of employment and
operations of the Department that may be asked of them."56 But the Manual says nothing
about the kind of informal investigation during which the Trooper lied, and in general
stops short of discussing the consequences of dishonesty.
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. Alaska Statute 18.65.240(c) states that the Alaska Police
Standards Council "may . . . revoke the certificate of a police officer who does not meet
the standards adopted under (a)(2) of this section," (emphasis added) including the moral
character standard. The use of "may" instead of "shall," along with the State's past
55 13 AAC 85.110(b) (2005).
56 STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, OPERATING
PROCEDURES MANUAL 101.050.
-21- 6586
----------------------- Page 22-----------------------
instances of lenience toward police officers who were dishonest, discussed below,
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.
In light of our adoption of the "explicit, well-defined, and dominant" public
policy exception to the enforcement of arbitration awards, we now affirm the superior
court. We hold that the State has failed to carry its burden of showing the existence of
an explicit, well-defined, and dominant public policy against enforcing the arbitrator's
award in this case. While Alaska's laws are explicit in favoring an honest police force,
they are not explicit in requiring a policy of absolute zero tolerance toward any
dishonesty by law enforcement officials, no matter how minor. Nor are Alaska's laws
well-defined in specifying where, precisely, to draw the line between categorically
unacceptable dishonesty and dishonesty that does not require termination. To the extent
that Alaska's laws would permit the termination of a police officer for relatively minor
acts of dishonesty, this policy is not dominant, because the State has shown lenience for
minor acts of dishonesty in the past, as we will describe in greater detail below.
We will only intervene in the bargained-for labor agreement between the
State and PSEA on public policy grounds where the arbitrator's award violates an
explicit, well-defined, and dominant public policy. That is not the case here.
It would be unwise to attempt to define in advance the outer limits of the
enforceability of labor arbitration awards. The judicially created public policy exception
to labor arbitration awards is a fact-specific, contextually sensitive doctrine and therefore
well suited to development through the common law mode of adjudication. Only in the
light of concrete cases will the precise contours of the public policy exception become
visible.
-22- 6586
----------------------- Page 23-----------------------
But because we recognize that uncertainty has costs in the context of the
judicial review of arbitration awards, we offer the following guidance. In the present
case, none of the sources of law cited by the State clearly sets out a public policy as to
the minimal consequences that must follow when law enforcement officers commit minor
acts of dishonesty that are not directly related to their duties to the public, that are not
directed toward superiors in their chain of command, and that do not arise in the context
of a formal investigation. If these factors had been sufficiently different - in particular,
if the Trooper had lied to a superior within the scope of a formal investigation directly
related to his duties to the public - our public policy analysis would likely have reached
a contrary result. Even PSEA's attorney acknowledged during oral argument that such
a case would be materially different than the present one.57
We emphasize the following common principles from our review of the
case law of other jurisdictions: (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
57 Specifically, PSEA's attorney stated that if the arbitrator had found that the
Trooper was dishonest when he was dealing with the public, or was abusing his role,
"then I don't think we would even be here. Because PSEA is not going to . . . stand and
argue that a police officer who abuses his authority and . . . violates the public trust
should be employed. As a union we're not going to stand here and argue that that is
something this court should allow."
-23- 6586
----------------------- Page 24-----------------------
and directed toward the public, and could therefore undermine confidence in public
institutions that rely upon the public's trust.
B. The Arbitrator Did Not Commit Gross Error In Concluding That
There Was Not Just Cause To Discharge The Trooper.
The State makes several arguments under the heading of gross error. We
address each of the arguments in turn, ultimately affirming the superior court's
determination that the arbitrator did not commit gross error.
1. The arbitrator did not commit gross error by reinstating a
dishonest trooper to a position of public trust.
The State's argument here rests on the analogy between the present case and
our decision in Alaska State Employees Ass'n/AFSCME Local 52 v. State,58 where we
vacated an arbitrator's decision because we concluded that "the arbitrator committed
gross error in applying the standard she chose" for evaluating just cause.59 In that case,
the State terminated an administrative clerk employed by the Child Support Enforcement
Division (CSED) of the Alaska Department of Revenue after discovering that she had
pled guilty to felony theft of public money.60 The clerk had access to a database
containing "personal information about parents, including Social Security numbers, bank
account numbers, and other sensitive, private information."61
We vacated an arbitrator's reinstatement of the employee because the
arbitrator's findings established that the clerk had been convicted of felony theft of public
money, "that the [clerk] had access to confidential information and held a position of
58 74 P.3d 881 (Alaska 2003).
59 Id. at 884.
60 Id. at 881.
61 Id. at 881-82.
-24- 6586
----------------------- Page 25-----------------------
trust with CSED," and that a personnel hiring rule allowed the State to disqualify
applicants solely based on a felony conviction that could be relevant to the performance
of anticipated duties.62 "Given the arbitrator's findings," we held "that the arbitrator
committed gross error in determining that the termination was not for just cause."63
The present case is distinguishable: The Trooper was convicted of no
crime, and the arbitrator employed a different and apparently far more strict test of just
cause, as described in greater detail below. Under that standard, it was not gross error
for the arbitrator to conclude the State lacked just cause to terminate the Trooper. Also,
we have already refused to extend the reasoning of Alaska State Employees
Ass'n/AFSCME Local 52 to an arbitrator's reinstatement of a grievant who "has not been
convicted of a felony and is not alleged to have engaged in felonious conduct."64
2. The arbitrator did not commit gross error in the disparate
treatment portion of his just cause analysis.
As a preliminary matter, the State notes that the arbitrator in this case did
not apply the "just cause" standard established by this court in Manning v. Alaska
Railroad Corp.65 But we have also explicitly held that an arbitrator's "use of a
62 Id. at 885.
63 Id.
64 PSEA 2010, 235 P.3d 197, 201 (Alaska 2010).
65 " '[J]ust cause' for discharge is one which is not for any arbitrary,
capricious, or illegal reason and which is one based on facts (1) supported by substantial
evidence and (2) reasonably believed by the employer to be true." Alaska State Emps.
Ass'n/AFSCME Local 52, 74 P.3d at 883-84 (quotingManning v. Alaska R.R. Corp., 853
P.2d 1120, 1125 (Alaska 1993)).
-25- 6586
----------------------- Page 26-----------------------
well-reasoned alternative definition" of just cause "would not alone constitute gross
error."66
The State then suggests that "[t]he arbitrator's failure to present a legally-
supported and well-reasoned just cause analysis, in and of itself, may constitute gross
error." It is true that the arbitrator does not spell out the elements of his approach to just
cause nor cite to any precedent. The closest the arbitrator comes to articulating his just
cause standard is to note that "the doctrine of disparate treatment is a well-accepted
aspect of the just cause doctrine." PSEA argues that the reference to disparate treatment
shows that the arbitrator was applying a seven-factor test that is widely accepted in the
arbitration community, and that includes disparate treatment as one of its elements.67 A
recent opinion by the Washington Court of Appeals supports the conclusion that the
seven-factor test is in fact widely used.68
But even if the arbitrator was using the seven-factor test instead of Alaska's
just cause doctrine, and even if the seven-factor test is not, in fact , as widely used as
PSEA suggests, the arbitrator's choice of another just cause doctrine was not gross error.
As the Court of Appeals of Ohio concluded, "[i]f either party wanted a more specific
definition of 'just cause,' it could have bargained for it. But [i]n the absence of an
express provision to the contrary, it [is] for the arbitrator to determine the meaning of
66 Id. at 884.
67 The Alaska State Employees Association made a similar argument in
Alaska State Emps. Ass'n/AFSCME Local 52. Id. at 886. We noted the existence of the
seven factors but refrained from reaching the issue of whether the arbitrator had relied
on them. Id.
68 See City of Seattle, Seattle Police Dep't v. City of Seattle, Pub. Civil Serv.
Comm'n, 230 P.3d 640, 644 (Wash. App. 2010) ("[T]he 'seven tests' analysis articulated
by labor arbitrator Carroll R. Daugherty in 1964 [is] now widely used to guide
arbitrations under collective bargaining agreements.").
-26- 6586
----------------------- Page 27-----------------------
'just cause.' "69 The State cites to no provision of the Collective Bargaining Agreement
containing a definition of just cause different from the one used by the arbitrator.
The State next argues that the arbitrator's disparate treatment analysis was
insufficiently reasoned or supported to justify his conclusions. The arbitrator recognized
that the Trooper's misconduct "is typically viewed as warranting termination," but based
his decision to reinstate largely on the disparate treatment doctrine. The arbitrator
reasoned that "[i]f 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 toward
similarly situated employees, its action would be sustained." But the State did not
restrict the Trooper's work assignments. Its response to the Trooper's admitted
dishonesty "was to return the [Trooper] to work and keep him involved in the processing
of cases for several months. In doing so it undermined its own asserted reasons for his
discharge: that it could not tolerate anything less than a wholly honest trooper."
The State even gave the Trooper "an evaluation that rated him at acceptable
levels . . . and recommended a merit increase." In addition, the State failed to show the
Trooper deserved "more serious discipline" for his misconduct than "other even more
experienced troopers." Because of the State's failure to rebut the affirmative defense of
disparate treatment, the arbitrator concluded "that discharge was too harsh when
measured by the disparate treatment doctrine."
The State attempts to demonstrate that the arbitrator's conclusion was gross
error by distinguishing between past disciplinary incidents and the incidents used to
support the Trooper's termination in this case. The State argues that the more
experienced troopers who received less severe punishments for their dishonesty were
only accused of dishonesty, notfound to be dishonest as the Trooper was. There is some
69 Piqua v. Fraternal Order of Police, 924 N.E.2d 876, 887 (Ohio App. 2009)
(internal quotation marks omitted).
-27- 6586
----------------------- Page 28-----------------------
merit to the State's claim. The disciplinary investigation in the record that is most
analogous to the present case deals with a trooper who made unwanted sexual advances
toward a woman, including "[giving] her some panties and engag[ing] in sexually
suggestive conversations with her." When asked by the investigating officer whether he
had given the woman any gifts, including garments, the trooper said "no." The
investigating officer found it unsettling that the trooper had "been less than forthcoming
and honest in [his] responses," and noted that the trooper's responses "to a Supervisor's
questions" were "misleading or evasive." On a review of the case, a higher-ranking
officer stated: "I find that . . . [the investigating officer] had reasonable grounds to arrive
at his conclusion that you were deceptive with him during your meeting," and "I support
[the investigating officer's] findings." The higher-ranking officer added that "[i]f viewed
in a negative light, the facts that I reviewed would in fact support a finding that you
intentionally lied to your supervisor in response to his direct and clear questions."
The State is thus correct to say that the trooper in this earlier investigation
was not technically found to have intentionally lied. But he was found to have been
deceptive, misleading or evasive, and less than forthcoming and honest, and on review
an officer concluded that the facts would have supported finding him to have
intentionally lied. Yet despite the fact that the trooper in the earlier case was apparently
more experienced than the Trooper in the present case, he received only a reprimand,
while the Trooper in the present case was terminated. In light of these circumstances, it
was not gross error for the arbitrator to conclude that the Trooper here received disparate
treatment.
-28- 6586
----------------------- Page 29-----------------------
3. The arbitrator did not commit gross error in ordering
reinstatement because the Trooper will be unable to testify.
The State argues that the arbitrator committed gross error in ordering
reinstatement because the Trooper's discipline for dishonesty will negate his ability to
testify, which is an integral part of his duties. According to the State, the U.S. Supreme
Court's decision in Brady v. Maryland70 requires that "evidence of this Trooper's
discipline for dishonesty must be disclosed to the defense when this Trooper is a
prosecution witness in a criminal case." "Because the Trooper will have a record of
discipline for dishonesty, his ability to serve as a credible and trustworthy witness will
be seriously jeopardized."
But PSEA disputes the State's argument on multiple, largely factual
grounds. "[T]he State has not offered any evidence in the arbitration, in the Superior
Court, or now, that troopers who have a record of discipline for dishonesty have been
unable to testify regarding their role in arrests and investigations, nor that such troopers
have been precluded from useful service as a law enforcement officer." And arguments
are waived on appeal if they are inadequately briefed.71 It is unclear from the State's
briefing how its argument regarding Brady relates to an analysis of the arbitrator's
decision for gross error. The State never makes clear how the arbitrator's decision
constitutes an obvious mistake underBrady, or how this mistake relates to the arbitrator's
just cause analysis. If the State intends us to apply a higher standard of scrutiny to the
arbitrator's factual findings regarding the Brady issue than the deferential standard we
apply to the arbitrator's other factual findings, it has not said so. The State's argument
is waived.
70 373 U.S. 83 (1963).
71 Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010).
-29- 6586
----------------------- Page 30-----------------------
V. CONCLUSION
We emphasize that nothing in this opinion should be taken as a precedent
for excusing or minimizing the significance of even minor acts of dishonesty by law
enforcement officers and other employees in positions of public trust. If we had stood
in the arbitrator's place, we may well have determined that under Alaska's doctrine of
"just cause," the State did have just cause to terminate the Trooper.72 Lying - even
temporarily - to cover up one's misbehavior should be recognized as conduct unworthy
of an Alaska state trooper.
We are also deeply troubled by the arbitrator's suggestion that the State's
past lenience toward minor dishonesty requires it to be permanently lenient. There is
merit to the State's argument that the arbitrator's "application of the disparate treatment
doctrine in this situation allows for perpetuation of dishonesty." Under the arbitrator's
reasoning, if the State shows lenience regarding some misconduct when it first arises,
then the State may be condemned to tolerate the misconduct permanently as a result of
the disparate treatment doctrine. But surely the State should be free to heighten its
enforcement of ethical standards. The disparate treatment doctrine should not operate
as a one-way ratchet toward the acceptance of increasingly unethical behavior.
Arbitrators should consider that when an instance of discipline presents
itself as lenient, it offers as much of a precedent for harsher future treatment as it does
for a repetition of the lenience. In the earlier incident involving the trooper who made
inappropriate sexual advances, the reviewing officer explicitly noted that "I feel that the
72 As noted above, in Alaska a "just cause" for discharge is "one which is not
for any arbitrary, capricious, or illegal reason and which is one based on facts (1)
supported by substantial evidence and (2) reasonably believed by the employer to be
true." Manning v. Alaska R.R. Corp., 853 P.2d 1120, 1125 (Alaska 1993) (quotingBraun
v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d 140, 142 (Alaska 1991) (internal
quotation marks omitted)).
-30- 6586
----------------------- Page 31-----------------------
Department was quite gracious to you. . . . The Department gave you the benefit of the
doubt in reviewing this event and in taking discipline to correct your actions." By
definition, lenience implies that a more severe punishment could also have been
appropriate. Thus the earlier incident provides a precedent for the appropriateness of
harsher treatment for a subsequent offense, perhaps including the punishment the Trooper
in the present case received.
But we are bound by the gross error standard, and it was not gross error for
the arbitrator to have taken a different approach from the one we may have taken. "A
court may not vacate an arbitrator's interpretation of a collective bargaining agreement
in favor of its own merely because it finds its own to be better reasoned."73 It is not an
obvious mistake to reject as disparate treatment the termination of a trooper primarily for
conduct that is arguably less egregious than that for which another trooper received only
a reprimand.
Because there is no explicit, well-defined, and dominant public policy in
Alaska against the reinstatement of a law enforcement officer who has engaged in
relatively minor dishonesty, and because the arbitrator did not commit gross error in
determining that the State lacked just cause to terminate the Trooper, we AFFIRM the
superior court's upholding of the arbitrator's decision.
73 Dep't of Pub. Safety v. Pub. Safety Emps. Ass'n, 732 P.2d 1090, 1093
(Alaska 1987).
-31- 6586
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
