Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

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

State v. Public Safety Employees Association (7/29/2011) sp-6586, 257 P3d 151

        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


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC