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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Public Safety Employees Association (5/2/2014) sp-6903

State v. Public Safety Employees Association (5/2/2014) sp-6903

         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-14701  

                            Appellant,                  )  

                                                        )        Superior Court No. 3AN-11-04522 CI  

         v.                                             )  

                                                        )        O P I N I O N  

PUBLIC SAFETY EMPLOYEES                                 )  

ASSOCIATION,                                            )        No. 6903 - May 2, 2014  

                                                        )  

                            Appellee.                   )  

                                                        )  



                   Appeal from the Superior Court of the State of Alaska, Third
  

                                      

                   Judicial District, Anchorage, Mark Rindner, Judge.
  



                   Appearances:    William Milks, Assistant Attorney General,
  

                                          

                   and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for
  

                                       

                   Appellee.      Stephen   F.   Sorensen,   Simpson,   Tillinghast,
  

                   Sorensen & Sheehan, P.C., Juneau, for Appellee.
  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and
  

                                                

                   Bolger, Justices.
  



                   FABE, Chief Justice.
  

                   MAASSEN, Justice, with whom STOWERS, Justice, joins,
  

                                                  

                   dissenting.
  



I.       INTRODUCTION  



                   An Alaska state trooper was discharged for having consensual sex with a  

                                                                                                            



domestic violence victim the morning after assisting in the arrest of the victim's husband.  



The Public Safety Employees Association (PSEA), the labor organization that represents  

                                                                                                      


----------------------- Page 2-----------------------

                           

the Alaska State Troopers, filed a grievance under its collective bargaining agreement  



                                       

with the State of Alaska.  The matter went to arbitration.  The arbitrator ordered that the  



trooper be reinstated with back pay after a three-day suspension, concluding that the  



                     

State did not have just cause to discharge the trooper.  The superior court upheld the  



                                                  

arbitrator's  order  of  back  pay  but  decided  that  it  could  not  enforce  the  ordered  



                                                                                                                  

reinstatement because the Alaska Police Standards Council had by this point revoked the  



                                                                

trooper's police certificate.  The State now appeals, arguing that the arbitrator committed  



                                    

gross error and that the arbitrator's order is unenforceable as a violation of public policy.  



                                                         

                    The keys to this appeal are the level of deference we accord the arbitrator  



and  the  very  limited  nature  of  the  public  policy  exception.    The  State  and  PSEA's  



collective bargaining agreement provided for binding arbitration to resolve employee  



                                                                                                               

grievances regarding disciplinary actions.  We generally will not disturb the results of  



a binding arbitration, even where we would reach a different conclusion were we to  



review  the  matter  independently.    Because  no  statute,  regulation,  or  written  policy  



                                                                                                

prohibited supervisors from engaging in progressive discipline of the trooper, in lieu of  



                                                                                            

discharging him for his misconduct, the arbitrator's decision to impose discipline rather  



than uphold the termination does not violate any explicit, well-defined, and dominant  



                                                                              

public  policy.    Because  the  arbitrator's  award  is  neither  unenforceable  nor  grossly  



                                                                                          

erroneous, we affirm the superior court's decision to uphold the arbitration award in part.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    The following facts are based on the record, the arbitration decision, and  



                                                                             

the opinion of the superior court.  "[W]e give great deference to an arbitrator's decision,  



                                                               -2-                                                         6903
  


----------------------- Page 3-----------------------

                                              1  

                                   

including findings of . . . fact."   The Trooper-Grievant was discharged on November 2,  



2009.  The discharge was based on misconduct that occurred in April 2009, a little over  



                                                                                                                       

a year after the Trooper-Grievant first entered the trooper training academy and less than  



                                                               

two months after he started his position as a state trooper.  The Trooper-Grievant entered  



                                                                                                      

the trooper academy as a recruit in February 2008, undergoing four months of "training  



                                                                                                              

in a variety of subjects including Criminal Code, Domestic Violence, First Aid, Handgun  



                                                                        

Radar, Search & Seizure, Handgun, and Traffic Stops."  Following field training and the  



completion  of  his  probationary  period,  the  Trooper-Grievant  was  promoted  to  the  



position of Alaska State Trooper in March 2009.  



                                                                                                  

                    In April 2009 the Trooper-Grievant engaged in the misconduct that led to  



                                                                 

this case.  At the time, he was 24 years old. On April 19 the Trooper-Grievant responded  

                                                        2   Trooper C had been dispatched to victim M.H.'s  

                                                                            

to a request by Trooper C for backup.  



house after another trooper, Trooper G, asked the dispatch center to request a welfare  



check on M.H.  Trooper G, who was an acquaintance of M.H., had received calls from  



                                                                                                          

her that day possibly indicating that there was a domestic disturbance at her house and  



that she needed assistance.  



                                                                                               

                     When Trooper C arrived at M.H.'s house, M.H. appeared to be afraid of  



her  husband,  J.H.    The  husband  was  intoxicated  and  became  physically  aggressive  



                                                                                                   

toward Trooper C, who then called for backup.  Upon his arrival, the Trooper-Grievant  



aided  Trooper  C  in  restraining  J.H.  and  in  transferring  him  to  Trooper  C's  car.  



Trooper  C  interviewed  M.H.,  who  reported  that  J.H.  had  not  struck  her  but  had  



          1         State v. Pub. Safety Emps. Ass'n, 235 P.3d 197, 201 (Alaska 2010) (                                  PSEA  



2010).  



          2         To protect the victim's privacy and the confidentiality of personnel records  

                                                                               

under  AS  39.25.080(a),  we  do  not  identify  the  victim,  her  husband,  or  the  troopers  

involved in the incident.  



                                                               -3-                                                         6903
  


----------------------- Page 4-----------------------

                                                                           

threatened her verbally and put her in fear.  M.H. reported that J.H. was upset about her  



                                                                                          

receiving phone calls from Trooper G, and M.H. noted that J.H. believed she was being  



unfaithful  to  him.    The  Trooper-Grievant  was  present  for  portions  of  Trooper  C's  



interview with M.H.  



                    After Trooper C finished interviewing M.H., he asked the Trooper-Grievant  



                                                                  

to go over a pamphlet on domestic violence and victim's rights with her while Trooper C  



                                                                                       

interviewed M.H.'s daughter in another part of the house. According to testimony by the  



                                                          

Trooper-Grievant and M.H., "[M.H.] flirted with [the Trooper-Grievant] as he read her  



                                                                                                           

the victim's rights information."  M.H. asked the Trooper-Grievant for his personal cell  



                                                                                                             

phone number, but he refused to provide it to her.  Meanwhile, Trooper C arrested J.H.  



and charged him with assault on both M.H. and Trooper C.  



                          

                    At the end of his shift, at approximately 1:00 a.m., the Trooper-Grievant  



returned home and went to sleep.  At about 5:30 a.m., the Trooper-Grievant woke up,  



                                                                                                                

obtained M.H.'s cell phone number from his trooper notebook, and sent a text message  



to M.H.  The Trooper-Grievant told M.H. that he could give her his personal phone  



number now that he was off duty.  M.H. called the Trooper-Grievant, and after some  



discussion  the  Trooper-Grievant  drove  to  her  house  in  his  personal  car  and  out  of  



uniform, arriving at about 6:00 a.m.  According to the arbitrator's findings, when the  



                                                                           

Trooper-Grievant arrived, "M.H. was still upset.  She expressed her feeling that she was  



           

'done  with'  her  marriage."    M.H.  and  the  Trooper-Grievant  proceeded  to  have  



consensual sex.  



                                            

                    M.H. later told J.H. about her sexual encounter with the Trooper-Grievant.  



                                                     

J.H. told his defense attorney, who in turn told the assistant district attorney.  The District  



                                                                                                             

Attorney's Office investigated, and both M.H. and the Trooper-Grievant confirmed that  



                                       

the  encounter  had  taken  place.    Ultimately  the  charge  of  assault  on  Trooper  C  was  



dropped and the charge of assault on M.H. was reduced to harassment.  The District  



                                                               -4-                                                         6903
  


----------------------- Page 5-----------------------

Attorney's Office made these decisions based on several considerations, including the  



Trooper-Grievant's sexual encounter, M.H. and J.H.'s reconciliation, and the fact that  



M.H. was not a cooperative witness.  The arbitrator found that there was evidence that  



                  

the  sexual  encounter  had  a  "minimal"  impact  on  the  District  Attorney's  charging  



decisions.  



                                                                                                            

                    The State conducted an administrative investigation of the incident, during  



                                                                        

which the Trooper-Grievant remained on duty.  The investigating officer concluded that  



                                                                           

the Trooper-Grievant had violated sections of the Department of Public Safety Operating  



                                        

Procedure  Manual.    The  Trooper-Grievant's  supervising  officer,  Captain  Dennis  E.  



Casanovas,  recommended  suspension  rather  than  termination.    Captain  Casanovas  



                                                                                                               

recognized that the Trooper-Grievant had been progressing well despite his young age  



                                                                       

and lack of prior law enforcement experience.  In forming his recommendation, Captain  



Casanovas  relied  on  both  his  extensive  previous  experience  as  an  investigation  



coordinator and his personal knowledge of the Trooper-Grievant's work capabilities.  



But the Director of the State Troopers, Colonel Audie Holloway, overruled Captain  



Casanovas and decided to discharge the Trooper-Grievant.  The resulting termination  



                                                                        

letter  informed  the  Trooper-Grievant  that  he  had  violated  the  Operating  Procedure  



                                                                                                                3  

Manual  sections  101.010(B),  101.020(G),  101.070(A),  and  101.070(B).     The  letter  



          3         The      Department           of     Public       Safety      Operating          Procedure         Manual  



section 101.010(B) provides that "[t]he standards of conduct set out in this chapter do                   

not prohibit every possible act that constitutes unacceptable behavior.  Conduct that  

shocks the conscience or that violates generally recognized standards of professional  

                                                            

behavior  is  forbidden."    Operating  Procedure  Manual  section  101.020(G),  which  

concerns "Canons of Police Ethics" with regard to private conduct, provides:  



                    The law enforcement officer shall be mindful of his special  

                    identification by the public as an upholder of the law.  Laxity  

                                                                                     

                    of  conduct  or  manner  in  private  life,  expression  of  either  

                                                                                                               (continued...)  



                                                               -5-                                                         6903
  


----------------------- Page 6-----------------------

stated that "despite your knowledge of this woman's vulnerable condition after her recent  



domestic violence victimization, you put yourself, this agency, the District Attorney's  



                                                                                

Office  and  the  criminal  prosecution  of  this  case  in  jeopardy  by  surrendering  to  the  



                                   

temptations of a sexual encounter."  The letter also characterized the Trooper-Grievant's  



conduct as "shocking" and "a discredit" to the Department of Public Safety.  



          B.        Proceedings  



                                                                                                               

                    Following the termination, both the Trooper-Grievant and the State sought  



further action.  The Trooper-Grievant filed a grievance challenging his discharge under  



          3(...continued)  



                    disrespect for the law or seeking  to gain special privilege,  

                                                                            

                    reflects unfavorably upon the police officer and the police  

                                                                            

                    service.  The community and the service require that the law  

                                                                                                   

                    enforcement officer lead the life of a decent and honorable  

                                                                

                    man.    Following  the  career  of  a  policeman  gives  no  man  

                                                                

                    special perquisites.  It does give the satisfaction and pride of  

                                                                          

                    following         and      furthering        an     unbroken         tradition       of  

                    safeguarding the American republic.  The officer who reflects  

                                                                                            

                    upon  this  tradition  will  not  degrade  it.    Rather  he  will  so  

                    conduct his private life that the public will regard him as an  

                                 

                    example of stability, fidelity, and morality.  



Operating Procedure Manual section 101.070(A) provides:  



                    Employees shall conduct themselves at all times, both on and  

                                                                                             

                    off duty, in such a manner as to reflect most favorably on the  

                                                                                     

                    Department.  Conduct unbecoming an employee shall include  

                    that which brings the Department into disrepute, or reflects  

                           

                    discredit upon the employee as a member of the Department,  

                                                                                  

                    or  that  which  impairs  the  operations  or  efficiency  of  the  

                    Department or employee.  



Operating  Procedure  Manual  section  101.070(B)  provides  that  "[e]mployees  shall  

conduct  their  personal  and  business  affairs  in  a  manner  that  does  not  discredit  or  

              

otherwise bring the department into disrepute or compromise the employee's ability to  

                               

perform his or her duties."  



                                                              -6-                                                        6903
  


----------------------- Page 7-----------------------

his union's collective bargaining agreement, and the dispute proceeded to arbitration.4  



While  the  arbitration  was  in  process,  the  State  sought  revocation  of  the  Trooper- 



Grievant's  basic  police  certificate  from  the  Alaska  Police  Standards  Council,  the  



regulatory and quasi-judicial body charged with establishing minimum selection and  



                                                       5  

                                                          This certificate is a requirement for every state  

training standards for police officers.                                                                         



            6  

trooper.   



                    In December 2010 the arbitrator issued her decision.  She found that the  



                                                    

Trooper-Grievant had "engaged in unprofessional conduct and showed poor judgment."  



                                                                            

Yet she also found that the State had not fulfilled its duty to inform the Trooper-Grievant  



about the parameters of acceptable behavior.  The arbitrator noted that past instances of  



sexual misconduct had not resulted in terminations, that just cause required consistent  



                                                         

disciplinary action, and that the State must inform troopers if the policy has shifted to  



zero-tolerance.  Finally, the arbitrator determined that the Trooper-Grievant's conduct  



did not rise to the level of egregious behavior and that the principles of progressive  



discipline thus required the opportunity for rehabilitation.  Finding that the Trooper- 



Grievant  had  not  been  discharged  for  just  cause,  the  arbitrator  ordered  that  he  be  



reinstated with back pay and converted his discharge to a three-day suspension.  



          4         See AS 23.40.210(a) ("The agreement shall include a grievance procedure     



which shall have binding arbitration as its final step."); AS 23.40.200(a)(1), (b).  



          5         See    AS      18.65.130;        AS      18.65.220;         AS     18.65.240;         see    generally  

                                                                               

DEPARTMENT  OF  PUBLIC   SAFETY ,  History ,   ALASKA   POLICE  STANDARDS  COUNCIL,  

http://dps.alaska.gov/apsc/history.aspx (last visited Mar. 21, 2014).  



          6         See 13 Alaska Administrative Code (AAC) 85.010(b)(3)(A) (2012) ("A  



participating police department may not hire as a police officer a person . . . who . . . has  

                                                                                   

had the person's basic certification revoked . . . .").  



                                                             -7-                                                        6903
  


----------------------- Page 8-----------------------

                                                                                                             

                     In January 2011 the State filed a complaint in superior court to vacate the  



                                                                                     

arbitration  award.    Before  the  superior  court  case  could  be  resolved,  however,  an  



                                                                                                                          

administrative law judge heard the police certificate revocation action and issued his  



decision on April 12, 2011.  The Police Standards Council had proposed two grounds  



                                                                                                                            

for revocation:  (1) lack of good moral character under 13 AAC 85.110(a)(3), and (2) a  



                                                                                                         

discharge "for cause for inefficiency, incompetence, or some other reason that adversely  



                               

affects  the  ability  and  fitness  of  the  police  officer  to  perform  job  duties  or  that  is  



detrimental to the reputation, integrity, or discipline of the police department" under  



13 AAC 85.110(a)(2).  



                     The administrative law judge determined that the Police Standards Council  



had  a  valid  basis  to  revoke  the  Trooper-Grievant's  police  certificate.    But  the  



                                                                                                      

administrative  law  judge  found  the  first  of  the  council's  two  proposed  grounds  for  



revocation, lack of good moral character, to be unfounded.  The administrative law judge  



found  that  revocation  was  in  fact  warranted  on  the  second  ground,  which  allows  



                                          

revocation of a certificate for an officer who has been discharged on one of the grounds  



                                                         7  

                                                            On May 6, 2011, the Police Standards Council  

contained in 13 AAC 85.110(a)(2). 

voted to revoke the Trooper-Grievant's certificate.8  



           7         The   administrative   law   judge   found   that    the   arbitrator's   order   of  



reinstatement did not preclude the State from revoking the Trooper-Grievant's license           

based on the original discharge.                    13 AAC 85.110(f) provides that "[a] personnel action  

or  subsequent   personnel  action  regarding  a  police  officer  by  the  police  officer's  

employer, including a decision resulting from an appeal of the employer's action, does        

not  preclude  the  council  from  revoking  the  police  officer's  basic,  intermediate,  or  

advanced certificate under this section."  



           8         The Trooper-Grievant appealed the revocation to superior court, but  moved  



                                                                                      

to dismiss the appeal in July 2011.  The superior court accordingly dismissed the appeal  

in August 2011.  



                                                                  -8-                                                            6903
  


----------------------- Page 9-----------------------

                    On May 9, 2011, the State filed a motion, asking  the  superior court to  

                                                                                                         



vacate the arbitration award because it was contrary to public policy and because it  

                                                                                                                    



resulted from gross error.  The superior court asked the parties to provide supplemental  

                                                                      



briefing on the effect of the Police Standards Council's revocation.  In its supplemental  



                                                             

briefing, the State argued that because a basic certificate is a requirement to be an Alaska  



                                                           

State  Trooper,  the  Trooper-Grievant  could  not  be  lawfully  reinstated  and  thus  the  



arbitration award could not be enforced.  



                    Superior Court Judge Mark Rindner concluded that the arbitration award  



        

was not the result of gross error.  The superior court additionally determined  that the  



                                                                                                            

award could not be vacated under the public policy exception to the enforcement of  



arbitration  awards  "because  the  State  does  not  have  an  explicit,  well  defined,  and  



dominant public policy that prohibits employing a person as an Alaska State Trooper  



who  has  a  consensual  sexual  encounter  with  a  crime  victim."    The  superior  court  



                                                                                                       

nevertheless held that it could not fully enforce the arbitration award, given that requiring  



reinstatement "would violate the regulatory requirement that the [Trooper-Grievant] have  

                                          9  The superior court stated that it would only "enforce the  

a basic [police] certificate."    



Award to the extent it can be consistent with Alaska law."  The superior court ordered  

                                                                                           



"that the portions of the arbitrator's award providing for the payment of lost wages and  

                                                       



benefits  after  May  6,  2011  [when  the  Police  Standards  Council  revoked  his  police  

                               



certificate] and for the reinstatement of the former employee are not enforced."  The  

                                                                                                                            



superior court upheld the part of the award granting back pay between the date of the  

                                                

Trooper-Grievant's termination and the date that his certificate was revoked.10  



          9         The superior court noted that "courts will not enforce contractual terms that       



directly violate legislation or regulations promulgated under valid legislation."  



          10        The superior court also stated that "it may not necessarily agree with the  

                                                                                            

                                                                                                               (continued...)  



                                                               -9-                                                             6903  


----------------------- Page 10-----------------------

                   The State appeals, arguing that (1) the arbitration award should be vacated  



                                       

in full as contrary to public policy and (2) in the alternative, the arbitration award should  



be vacated in full for gross error.  



III.	    STANDARD OF REVIEW  



                   We articulated the relevant standard of review in PSEA 2010 :  



                                   

                            We review de novo the superior court's decision to  

                   confirm the arbitration award.  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.  Thus, we give great  

                   deference to an arbitrator's decision, including findings of  

                  both fact and law.  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. We will not vacate such an award  

                   merely   because   we   would   reach   a   different   decision  

                   ourselves.  This deferential standard is key to the decision we  

                                                                                  

                                    [11] 

                   reach today.  



IV.	     DISCUSSION  



                                                                                                            

         A.	       The Arbitration Award Is Not Unenforceable As A Violation Of Public  

                   Policy.  



                   The State argues that the arbitration award should be vacated as contrary  



to public policy "because it is in conflict with the Alaska Police Standards Council's  



decision  to  revoke  the  trooper's  police  certification,  and  because  the  nature  of  the  



                          

trooper's conduct undermines the public's interests in a police force that acts to protect  



         10(...continued)  



arbitrator's decision or find that it would have ruled in the same manner had this been  

                  

a case of first impression."  



         11        235 P.3d 197, 201 (Alaska 2010) (internal quotation marks and citations  



omitted).  



                                                         -10-	                                                   6903
  


----------------------- Page 11-----------------------

                 

the public and the integrity of the criminal justice system."  In essence, the State contends  



that  reinstatement  violates  public  policy  because  the  Trooper-Grievant's  underlying  



                                                                              

conduct was repugnant and because that conduct violated the public policy requiring  



                                                                                             

"that law enforcement officers act with the primary purpose of protecting the public in  



general and crime and domestic violence victims in particular" and "that officers be  



                                                        

persons of integrity and high moral character."  But the correct question is not whether  



                                                     

the  Trooper-Grievant's  conduct  violated  public  policy;  rather,  it  is  whether  the  



                                   

arbitration  award  of  reinstatement  with  back  pay  itself  violates  an  "explicit,  well- 



                                                         12  

defined, and dominant public policy."                        Although we cannot disagree with the State that  



                                                                                                  

the Trooper-Grievant's conduct was censurable, we also cannot overturn an arbitrator's  



                                                                   

decision if that decision does not violate an explicit, well-defined, and dominant public  



                                                                                                

policy.  We therefore must affirm the superior court's decision to uphold the arbitrator's  



award in part.  



                                                                                                       

                     1.	      PSEA   2011            and   Alaska's   public   policy   exception   to   the  

                               enforcement of arbitration awards  



                     In PSEA 2011 we considered as a matter of first impression whether to  



                                                                                                              13  

adopt a public policy exception to the enforcement of arbitration awards.                                         We decided  



                                                                                                                

to recognize this exception, holding that it applied where enforcement of the arbitration  



          12        See State v. Pub. Safety Emps. Ass'n, 257 P.3d 151, 161 (Alaska 2011)              



(PSEA 2011).  



          13        Id. at 155-56.  While the question of a public policy exception to arbitration  

                                                                            

awards had been raised in prior cases, this court did not previously have the opportunity  

                           

to reach the issue, either finding that the issue had not been properly raised below or  

                                                                                                                       

deciding the case on other grounds.  See PSEA 2010, 235 P.3d at 203; Alaska Pub. Emps.  

Ass'n v. State, Dep't of Envtl. Conservation , 929 P.2d 662, 667 (Alaska 1996).  



                                                               -11-	                                                        6903
  


----------------------- Page 12-----------------------

                                                                                                                      14  

                                                                           

decision " 'would violate an explicit, well defined, and dominant public policy.' "                                       In  



                                                      

formulating this definition, we drew on the United States Supreme Court's approach to  



                                                                                                 15 

                                                                                                     The public policy  

the public policy exception to the enforcement of arbitration awards. 



                                    

exception derives from the common-law principle that a court may refuse to enforce  



                        16  

illegal contracts.          Accordingly, we noted in PSEA 2011  that this formulation of the  



          14       PSEA 2011 , 257 P.3d at 158 (quoting PSEA 2010 , 235 P.3d at 203).  This  



court laid out three "common principles," drawn from other jurisdictions, that should be  

                                                             

used in the public policy exception analysis:  



                    (1) the public policy exception to labor arbitration disputes  

                   involving  public  employees  in  positions  of  public  trust  is  

                                   

                   most clearly applicable where a statute or regulation compels  

                   the termination (or prevents the hiring) of an employee for  

                   committing the relevant misconduct; (2) the relevant inquiry  

                                                                          

                   is whether the arbitrator's decision to reinstate the employee  

                                                                       

                   violates public policy, not whether an employee's conduct  

                   does,  so  statutes  or  regulations  that  merely  prohibit  the  

                   conduct   are   insufficient   to   support   the   public   policy  

                    exception;  and  (3)  a  court  should  be  particularly  vigilant  

                                                                        

                   where the employee's misconduct was in the performance of  

                   his or her duties and directed toward the public, and could  

                   therefore undermine confidence in public institutions that rely  

                   upon the public's trust.  



Id. at 162.  



          15       See id. at 156 (citing E. Associated Coal Corp. v. United Mine Workers of  



Am., Dist. 17 , 531 U.S. 57, 67 (2000)).  



          16  

                                                                          

                   See W.R. Grace & Co. v. Local 759, Int'l Union of United Rubber, Cork,  

                                                             

Linoleum & Plastic Workers of Am. , 461 U.S. 757, 766 (1983) (citing Hurd v. Hodge ,  

334 U.S. 24, 34-35 (1948)) (holding enforcement of collective bargaining agreement  

would not violate public policy requiring obedience to court decisions or policy favoring  

                                                                                                     

voluntary compliance with Title VII of the Civil Rights Act of 1964).  



                                                            -12-                                                      6903
  


----------------------- Page 13-----------------------

                                                                                                                                                     17  

                                                                                                                                

exception is consistent with our previous holdings on the unenforceability of contracts. 



In Pavone v. Pavone , we adopted the Restatement (Second) of Contracts  178 in its  

                                        



                                                                                                                             18  

analysis of the public policy exception to the enforcement of contracts.                                                         This section  



                                  

of the Restatement provides:  "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  



                                                        19  

the enforcement of such terms."                              



                       The United States Supreme Court has made clear that the public policy  



exception to the enforcement of arbitration awards must be narrow and that the public  

                              



policy   at issue "must be explicit, well defined, and dominant . . . [and] [i]t must be   



ascertained  by  reference  to  the  laws  and  legal  precedents  and  not  from  general  

                                                    



                                                                              20  

considerations of supposed public interests."                                      In addition, the Supreme Court warned  

                                                  



courts to "approach with particular caution pleas to divine further public policy" in a  

                                                                                             

field  in  which  other  political  branches  have  already  created  a  regulatory  regime.21  

                                                                        



Following  the  United  States  Supreme  Court's  approach,  the  test  we  adopted  in  



PSEA 2011 "establish[es] a high hurdle for the vacatur of arbitration awards" due to this  

                                                                                               



            17         PSEA 2011 , 257 P.3d at 158-59.  



            18         Id.   at 159 (discussing Pavone v. Pavone , 860 P.2d 1228, 1231 (Alaska  



 1993)).  



            19         RESTATEMENT (SECOND) OF CONTRACTS   178(1) (1981).  



            20         E. Associated Coal Corp. , 531 U.S. at 62 (quoting Muschany v. United  



States, 324 U.S. 49, 66 (1945)) (emphasis added) (internal quotation marks omitted).  



            21         Id.  at 63 (upholding arbitration order to reinstate truck  driver who tested  



positive for drugs).  



                                                                        -13-                                                                  6903
  


----------------------- Page 14-----------------------

court's  "longstanding  recognition  of  Alaska's  'strong  public  policy  in  favor  of  

arbitration.' "22  



                   We emphasized in PSEA 2011 that "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  



                                                                         23  

                                                                             In applying this rule to the facts  

insufficient to support the public policy exception." 



                                                   

of PSEA 2011 , where an arbitrator reinstated a trooper who had lied about performing  



                                                                                                 24 

                                                                                                    we provided the  

a prohibited maneuver at an out-of-state motorcycle training program, 



following analysis:  



                   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  

                                                                               [25] 

                   lied as the Trooper did in the present case.  



         22        PSEA 2011 , 257 P.3d at 160 (quoting Baseden v. State, 174 P.3d 233, 237  



(Alaska 2008)); see also AS 23.40.210(a) ("The agreement shall include a grievance  

procedure which shall have binding arbitration as its final step."); AS 23.40.200(a)(1),  

                                                                                               

(b).  



         23        PSEA 2011 , 257 P.3d at 162 (emphases added); see also E. Associated Coal  

                                                                                           

Corp., 531 U.S. at 62-63 ("[T]he question to be answered is not whether [the grievant's]  

                                    

drug use itself violates public policy, but whether the agreement to reinstate him does  

                                                                                             

so."); City of Boston v. Boston Police Patrolmen's Ass'n, 824 N.E.2d 855, 861 (Mass.  

                                                                                         

2005)  (citing  City  of  Lynn  v.  Thompson,  754  N.E.2d  54,  62-63  (Mass.  2001))  ("To  

prevail,  the  city  must  therefore  demonstrate  that  public  policy  requires  that  [the  

grievant's] conduct, as found by the arbitrator, is grounds for dismissal, and that a lesser  

                                                                                                                 

sanction would frustrate public policy.").   



         24        See PSEA 2011, 257 P.3d at 153.  



         25        Id. at 161.  



                                                          -14-                                                     6903
  


----------------------- Page 15-----------------------

We  ultimately   characterized  the  question  as  being  whether  there  is  a  "categorical  



requirement  in  Alaska  public  policy  for  the  termination  of  officers  who  engage  in  



                                                         26  

relatively minor forms of dishonesty."                        



                                                             

                    In this case, the question is not whether the Trooper-Grievant's conduct is  



against  public  policy.    Rather,  the  relevant  inquiry  is  whether  a  decision  to  use  



                                                          

progressive discipline and to continue the employment of a trooper who has engaged in  



                                                     

this type of sexual misconduct is a violation of an explicit, well-defined, and dominant  



public policy.  



                                   

                    Focusing selectively on language from PSEA 2011 , the dissent contends  



that our formulation of the public policy exception to the enforcement of arbitration  



                                                   

awards requires that we  make  a  broader inquiry than we do here.  The dissent calls  



                                                                             

attention to provisions in the Restatement  that we cited in PSEA 2011  as part of our  



                                                                                                        27  

general  discussion  of  whether  to  adopt  the  public  policy  exception.                                  Of  particular  



importance to the dissent are Restatement provisions suggesting that in some contexts  



                                              

a court may hold an arbitration award unenforceable even where no explicit public policy  



                             28  

requires that result.            



                                                                                

                    But in focusing on our reference to these provisions of the Restatement , the  



                                                                         

dissent ignores the overall thrust of PSEA 2011.  As we observed then, the Restatement  



provides "both general guidelines for determining unenforceability on public policy  



grounds and more specific guidelines for making this determination in various commonly  



          26        Id.
  



          27
       Dissent at 38-40 (quoting RESTATEMENT (SECOND) OF CONTRACTS  178(1)  



(1981)).  



          28        Id.  



                                                             -15-                                                        6903
  


----------------------- Page 16-----------------------

                              29  

                                                                                             

recurring contexts."             Our express holding in PSEA 2011 was that "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  



                                                              30  

recurring context of arbitration awards."                         We established this high bar for vacatur of  



                                                            

arbitration  awards  to  incorporate  the  "special  public  interest  in  the  enforcement  of  



arbitration decisions . . . given our longstanding recognition of Alaska's strong public  



                                                31  

policy  in  favor  of  arbitration."                  Only  taken  out  of  context  can  the  portions  of  the  



                                                          

Restatement  cited in PSEA 2011  on which the dissent focuses suggest that we favor  



                                                                                     

substantial  latitude  in  vacating  arbitration  awards  on  the  basis  of  our  own  ideas  of  



                          

desirable public policy.  We clearly recognized in PSEA 2011 the special importance of  



arbitration,  and  we  consequently  strictly  limited  the  scope  of  review  of  arbitration  



awards.  Our decision today corresponds with that limited review.  



                    2.	       The reinstatement of the Trooper-Grievant is not unenforceable  

                              as a violation of Alaska public policy.   



                                      

                    We  begin   by  considering  whether  there  is  "legislation  specifically  

                                                                                          32  In our analysis, we "look  

prohibiting enforcement of the promise or contractual term." 



to the entire body of law in the State of Alaska for evidence . . . to determine . . . public  

                                                                                                                     

policy."33  The State does not point to any law or regulation that specifically prohibits the  



          29	       PSEA 2011 , 257 P.3d at 159.  



          30	  

                    Id. at 160 (internal quotation marks omitted).  



          31  

                    Id. at 159-60 (internal citations and quotation marks omitted).  



          32  

                                                                                            

                    Id. at 160 (quoting Pavone v. Pavone , 860 P.2d 1228, 1231 (Alaska 1993))  

(internal quotation marks omitted).  



          33        Id. (omissions in original) (quoting Luedtke v. Nabors Alaska Drilling, Inc. ,  



768 P.2d 1123, 1132 (Alaska 1989)) (internal quotation marks omitted).  



                                                              -16-	                                                        6903
  


----------------------- Page 17-----------------------

                                                                        

employment or reinstatement of a trooper who has engaged in sexual misconduct when  



that trooper still has a police certificate.  Rather, the State focuses on five sources of  



                                                                                            

authority that it argues justify the public policy exception and prohibit the Trooper- 



Grievant's  conduct:    (1)  the  Alaska  Constitution;  (2)  case  law;  (3)  statutes  and  



regulations; (4) the Department of Public Safety's Operating Procedures Manual; and  



                                                                                                        34  

(5) PSEA 2011 's principles of public trust and heightened vigilance.                                        But the State's  



focus is misguided.  Again, the relevant inquiry is not whether the officer's conduct  



                                                                                     

violated public policy but rather whether the arbitrator's award violates an explicit, well- 



                                                         35  

                                                                                                           

defined, and dominant public policy.                         The public policies cited by the State do not  



                                                                                        

compel termination.  And the State has not directed us to any public policy that would  



                                                     

have compelled the termination of a trooper for the misconduct at issue at the time of the  



                                                                                                       

arbitration.    Indeed,  the  State  clearly  had  the  authority  -  and  it  was  in  fact  the  



                                                                    

recommendation of the Trooper-Grievant's supervisor - to use progressive discipline  



                        

rather  than  to  discharge  the  Trooper-Grievant.    No  statute  or  internal  regulation  



          34        In addition, the State claims that the Alaska Police Standards Council's  



"decision  to  revoke  the  Trooper-Grievant's  certification  reaffirms  that  reversing  the  

officer's  discharge  was  contrary  to  public  policy."    After  the  arbitrator  ordered  

                                        

reinstatement, the council revoked the Trooper-Grievant's certification based on the  

underlying "discharg[e] for conduct that adversely affected his ability and fitness to act  

                                                               

as a police officer, and that [was] detrimental to the reputation and integrity of the Alaska  

                                                                             

 State  Troopers."    According  to  the  State,  the  certificate  revocation  shows  that  the  

arbitrator's decision to reverse the discharge violated public policy.  But this argument  

                                                                                             

is somewhat circular. Because the certificate revocation was based on the discharge that  

                                                                                            

the  arbitrator  found  lacked  just  cause,  it  is  difficult  to  see  how  it  can  supply  the  

justification for rejecting the arbitrator's decision.  



          35        See PSEA 2011, 257 P.3d at 162.  



                                                               -17-                                                        6903
  


----------------------- Page 18-----------------------

                                                                                           36  

prohibited  the  use  of  progressive  discipline  in  this  case.                               Because  the  collective  

bargaining  agreement  provided  for  binding  arbitration,37  the  arbitrator  also  had  the  



authority to impose progressive discipline.  The arbitrator's order of reinstatement after  



suspension, therefore, cannot be characterized as a violation of public policy.  



                               a.        Alaska's Constitution  



                                                                                 

                    The State cites article I, sections 1, 12, and 24 of the Alaska Constitution.  



Article I, section 1 provides that all persons are "entitled to equal rights, opportunities  



                                                              

and protection under the law." Article I, section 12 states that "[c]riminal administration  



                                                                                                                           

shall be based upon the following:  the need for protecting the public . . . [and] . . . the  



                                                                                                                         

rights of victims of crimes."  Article I, section 24 provides that "[c]rime victims . . . shall  



                                                                                                                  

have the following rights . . . the right to be reasonably protected from  the accused  



through the imposition of appropriate bail or conditions of  release by the court . . .  



                                    

[and] . . . the right to be treated with dignity, respect, and fairness during all phases of the  



                                                                                                

criminal and juvenile justice process."  But these constitutional provisions do not evince  



the requisite explicit, well-defined, and dominant public policy to terminate a trooper for  



the specific conduct in this case.  



          36        Counsel for the State acknowledged that there is no statute or regulation   



specifically  prohibiting  reinstatement  of  a  trooper  who  has  engaged  in  this  type  of  

misconduct when the trooper still has the requisite police certificate.  Rather, counsel  

                                                                                                             

claimed that the relevant public policy is the trooper's basic duty to protect the public,  

                                        

based on a combination of constitutional, statutory, and regulatory principles.  



          37  

                                                      

                    See AS 23.40.210(a) ("The agreement shall include a grievance procedure  

which shall have binding arbitration as its final step.").  



                                                               -18-                                                         6903
  


----------------------- Page 19-----------------------

                             b.        Case law  



                                                                                                               38  

                                                                                                                     Jones ,  

                   Next  the  State  relies  on  our  decision  in  Jones  v.  Jennings .  



                                                                                          

however, involved the State's interest in public disclosure of alleged police misconduct  



                                                                              39  

including  assault,  battery,  and  false  imprisonment.                            And  our  decision  addressed  



               

privilege and the officer's right to privacy, not the public policy exception in the context  



                                40  

                                    Our statement that there is a public interest in "insur[ing] that  

of arbitration awards. 



police behavior conforms to the code of conduct required of a democratic society" does  

                                                                                         

not constitute an explicit, well-defined, or dominant public policy.41  The State also cites  



                      42  

to PSEA 2010 .            But our brief commentary on the State's public policy argument in  



PSEA 2010 is not sufficient evidence of an explicit public policy that applies to the  

                                                                   

allowable discipline in this case.43  



                             c.        Statutes and regulations  



                    The State cites statutes and regulations concerning the Department of Public  



                                                                                        

Safety's Council on Domestic Violence and Sexual Assault and minimum standards for  



                                                                                                 

employment as a police officer.  The State points to AS 18.66.010, which establishes the  



                                              

Council on Domestic Violence and Sexual Assault.  The mandate of the council includes  



          38        788 P.2d 732 (Alaska 1990).
  



          39       See id. at 733-35.
  



          40       See id. at 735-39.
  



          41       Id. at 739; see PSEA 2011 , 257 P.3d at 160 (concluding that Jones  did not  



establish a public policy against reinstatement of a dishonest police officer).  



          42        235 P.3d 197, 203 (Alaska 2010).  



          43       See id.  



                                                            -19-                                                       6903
  


----------------------- Page 20-----------------------

planning and coordinating services for domestic violence victims.44  The State argues that  



                        

AS 18.66.010 is an example of how "[t]he State's strong public policy requiring the  



protection of crime victims is evident in our state's commitment to preventing domestic  



                       

violence."    It  is  true  that  this  statute  expresses  the  State's  public  policy  of  aiding  



                                         45 

                                                                                         

domestic violence victims.                   Yet the statute does not give any indication that reinstating  



                                                                                                               46  

                                                                                                                   As such, the  

a trooper who has engaged in sexual misconduct is against public policy. 



statute is insufficient to invoke the public policy exception.  



                     The State also notes statutory and regulatory provisions that allow it to  



establish minimum standards for police officers and revoke the certificate of an officer  



                                                      47  

who does not meet these standards.    Alaska Statute 18.65.240(c) merely provides 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," including the  



qualification of moral character.  (Emphasis added.)  The legislature's use of "may"  



                                                                                                                   

rather than "shall," in conjunction with the State's past use of progressive discipline of  



troopers  who  engaged  in  sexual  misconduct,  indicates  that  there  is  no  absolute  



                                                                                

requirement for the discharge of troopers who have engaged in this type of misconduct.  



                                                                                                                           

                     In addition, the State cites 13 AAC 85.110(b)(3), which provides that the  



                                                                              

State shall revoke the certificate of an officer who was discharged "for conduct . . . that  



                     

would cause a reasonable person to have substantial doubt about an individual's honesty,  



          44        See AS 18.66.010.  



          45        See id. (establishing the Council on Domestic Violence and Sexual Assault   



to "provide for planning and coordination of services to victims of domestic violence or     

sexual assault . . . and to provide for crisis intervention and prevention programs").  



          46        See id.  



          47        See, e.g., AS 18.65.130; AS 18.65.240(c); 13 AAC 85.100(a), (b); 13 AAC  



85.110(a)(2), (3).  



                                                               -20-                                                          6903
  


----------------------- Page 21-----------------------

fairness, and respect for the rights of others and for the laws of this state and the United  



 States or that is detrimental to the integrity of the police department where the police  



                            

officer worked."  In PSEA 2011 we concluded that while this same regulation "strongly  



suggests  that  it  is  the  policy  of  the  State  of  Alaska  not  to  employ  dishonest  police  



                       

officers . . . it is unclear whether the regulation means to prohibit the employment of  



                                                                                                                                   48  

                                                                 

police officers who have been dishonest to any degree or under any circumstance." 



                                                                                                 

 Similarly, these requirements do not make clear whether the regulation categorically  



                                                                                                                                   49  

                                                                                    

prohibits the employment of troopers who engaged in consensual sexual misconduct. 



                     The dissent takes up the argument where the State leaves off, contending  

                                                                                                    



that 13 AAC 85.110(b)(3) is "more than sufficient" as an expression of public policy to  

                                                               



                                                                          50  

justify disturbing the arbitrator's decision here.                             We cannot agree.  If a court could  

                             



reject an arbitration decision simply because it concludes that the conduct at issue falls  

                                                         



into the broad categories of undesirable behavior described in 13 AAC 85.110(b)(3), the  

                                                                            



court would owe an arbitrator's decision little deference.  There are countless acts that  

                                                                                          



are  not  grounds  for  termination  -  much  less  mandatory  termination  -  but  that  

                                                                                                                         



nevertheless might be "detrimental to the integrity of the police department" or might be  

                                                                                  



matched with one of the other generalities found in 13 AAC 85.110(b)(3).  Under the  

                                  



           48        PSEA 2011 , 257 P.3d 151, 161 (Alaska 2011).  



           49        We  also  note  that  the  Alaska   Police  Standards  Council  did  not  base  



revocation of the Trooper-Grievant's police certificate on this provision.  Rather, the  

council revoked his police certificate under 13 AAC 85.110(a)(2), which provides that  

                                                                         

the  council  will,  in  its  discretion,  revoke  a  certificate  if  the  officer  "has  been  

discharged  . . . for cause  for inefficiency, incompetence, or some  other  reason  that  

                                                                                                                    

adversely affects the ability and fitness of the police officer to perform job duties or that  

                                                  

is detrimental to the reputation, integrity, or discipline of the police department where  

the police officer worked."  



           50        Dissent at 42.  



                                                                -21-                                                         6903
  


----------------------- Page 22-----------------------

                                                                                              

dissent's view, a court should be empowered to reject an otherwise valid arbitration  



                                                                                                                             

award solely on the basis that the conduct at issue could reasonably fit into one of those  



catch-all categories.  



                                         

                      This view would make nonsense of our statement in PSEA 2011 that the  



                                                                                                    

public policy exception does not permit a court to reject an arbitration decision merely  



                                                                                                        51  

because  the  court  might  have  decided  the  case  differently.                                            In  that  case  it  was  



                                                                                   

undisputed that the officer lied to his superiors - conduct that we did not hesitate to call  



                                                                   52  

                                                                                                                     

"unworthy of an Alaska state trooper."                                 The officer's lying would  almost certainly  



cause a reasonable person to have substantial doubt about the officer's honesty.  Given  



                                                                                                                    

the  nature  of  the  conduct  about  which  the  officer  lied  -  carrying  out  a  prohibited  



                                                                                                          

motorcycle stunt - a reasonable person would likely also have substantial doubt about  



                      

the officer's respect for the law.  The integrity of the police department would reasonably  



be in question as well.  Yet we declined to overturn the arbitrator's reinstatement of the  



                                                                                            53  

                                                                                                          

officer because the gross error standard sets a higher bar.                                     If 13 AAC 85.110(b)(3) were  



                                         

an expression of public policy sufficient to reject an arbitration decision, the gross error  



standard would be meaningless; a court could invalidate arbitration awards far more  



freely than that standard allows.  



                      The  dissent  further  argues  that  by  finding  general  statements  such  as  



                                                                                           

 13 AAC 85.110(b)(3) insufficient, we now require the other branches of government to  



           51         As we wrote in             PSEA 2011 , "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. . . . 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."  257 P.3d at 165.  



           52         Id. at 166.  



           53         Id.  



                                                                     -22-                                                               6903
  


----------------------- Page 23-----------------------

draw unrealistically precise lines beyond which misconduct is intolerable as a matter of                             



                     54  

                         But while we require more from the State than the vague directives at  

public policy.                   



issue here, we do not demand the "luminous detail" that the dissent suggests will now  

                  

be needed.55  The State does not have to detail precisely the forms that sexual misconduct  

                                                                                                         



may take or the circumstances in which it could take place.  It does not have to define in  

                                                                                                                    



advance all the ways that employees may misbehave.  But if the State wishes to bar  

                    



categorically the reinstatement of officers discharged for sexual misconduct, it must  



                                             

make a policy to that effect.  In the absence of such a policy, this court will not disturb  



a duly reached arbitration award.  



                               d.        Internal regulations  



                    The State cites the Department of Public Safety's Operating Procedures  



                                                                                       

Manual.  In particular, the State highlights sections that prohibit behavior that "shocks  



the conscience or that violates generally recognized standards of professional behavior"  



                                                   

or  that  "brings  the  Department  into  disrepute  .  .  .  or  .  .  .  impairs  the  operations  or  



efficiency of the Department."  



                    The State's argument, though, is contradicted by our holding in PSEA 2011 ,  



                                                                                  

where the State relied on a section of the Operating Procedures Manual that requires  



employees to respond truthfully to their superiors and to questioning during official  



                      56  

                            While  we  recognized  the  requirements  laid  out  by  the  Operating  

investigations.                                                                                    



Procedures  Manual,  we  explained  that  "the  Manual  says  nothing  about  the  kind  of  



                                                                                                               

informal  investigation  during  which  the  Trooper  lied,  and  in  general  stops  short  of  



          54        Dissent at 42-43.  



          55        Id. at 43.  



          56        See PSEA 2011, 257 P.3d at 161.  



                                                               -23-                                                             6903  


----------------------- Page 24-----------------------

discussing the consequences of dishonesty."57  Again, the Operating Procedures Manual  

                                                                                                  



sections at issue in this case do not clearly concern circumstances similar to the Trooper- 

                                                  



Grievant's misconduct.  And more importantly, these Operating Procedures Manual  



sections do not dictate disciplinary consequences for this type of misconduct.  Because  



                 

no internal regulation prohibited the State from imposing discipline short of termination  



in response to the misconduct, it was also within the arbitrator's discretion to order  



reinstatement and discipline of the Trooper-Grievant.   



                   e.        The principles of public trust and heightened vigilance  



                                                               

                   One of the considerations that we discussed in PSEA 2011 is that the court  



"should   be   particularly   vigilant   where   the   employee's   misconduct   was   in   the  



                                        

performance of his or her duties and directed toward the public, and could therefore  



                                                                                                            58 

                                                                                                                The State  

undermine confidence in public institutions that rely upon the public's trust." 



argues that the Trooper-Grievant's misconduct falls within this category of cases and  



thus warrants special scrutiny.  PSEA responds that the State has not terminated other  



troopers whom PSEA alleges have engaged in similar misconduct.  



                                                     

                   We acknowledge  that the underlying conduct in this case involved the  



                                                                            

trooper's duties to the public.  But the public policy exception still requires an explicit,  



well-defined,  and  dominant  public  policy  even  in  a  case  involving  a  trooper's  



performance of duties directed toward the public.  For example, other courts have held  



that  the  public  policy  exception  applied  in  cases  of  police  officers'  inappropriate  

                                                                            59 and misconduct involving false  

behavior with a minor boy in violation of state statute 



          57       Id.  



          58       Id. at 162.  



          59       See Police Officers Labor Council v. City of Wyoming                          , No. 258843, 2006  



                                                                                                         (continued...)  



                                                           -24-                                                      6903
  


----------------------- Page 25-----------------------

                                                  60  

                                                       

arrests, false charges, and perjury.                  And even before we recognized the public policy  



                                                         

exception, we reversed an arbitrator's award of reinstatement of a public employee who  



                                                                                         

was discharged for a serious crime, having been convicted of a felony involving violation  



                      61  

                                 

of public trust.          But in the case before us, the public policy exception does not apply  



because although the Trooper-Grievant's misconduct was censurable, the arbitrator's  



                                                                                                        

order reinstating him does not violate any explicit, well-defined, and dominant public  



policy.  



                    We  recognize  that  while  arbitrations  in  this  type  of  case  often  involve  



egregious employee misconduct that may affect public safety, reinstatements in such  



                                                                     62  

                                                                           In  particular,  courts  have  upheld  

cases  are  not  always  against  public  policy. 



          59(...continued)  



WL 2000136, at *1-2 (Mich. App. July 18, 2006) (concluding that the arbitration order  

                                                    

of  reinstatement  was  contrary  to  a  Michigan  statute  prohibiting  a  person  from  

encouraging a child to engage in delinquent acts and a police regulation).  



          60        See City of Boston v. Boston Police Patrolmen Ass'n, 824 N.E.2d 855, 861  



(Mass. 2005) ("The question to be answered is not whether [the officer's conduct] itself  

                                                                                                           

violates public policy, but whether the agreement to reinstate him does so.") (citations  

                                                     

omitted) (quoting E. Associated Coal Corp. v. United Mine Workers of Am., Dist. 17 , 531  

                                                                 

U.S. 57, 62-63 (2000)).  



          61        See Alaska State Emps. Ass'n/AFSCME Local 52 v. State, 74 P.3d 881  



                       

(Alaska 2003) (reversing reinstatement where employee was discharged upon revelation  

of felony conviction for theft of public funds).  



          62        See  City  of  Worcester  v.  Worcester  Vocational  Teachers  Ass'n,  No.  



                                                                                         

981686B, 1999 WL 1336075, at *1, *3-4 (Mass. Super. Ct. March 3, 1999) (upholding  

                             

arbitrator's  award  to  reinstate  school  guidance  counselor  despite  alleged  sexually  

                                                                                               

harassing comments and physical contact with a student); City of Cleveland v. Cleveland  

                                        

Police Patrolman's Ass'n , No. 76181, 2000 WL 573195, at *1, *3-4 (Ohio App. May 11,  

2000) (affirming arbitrator's reinstatement of police officer convicted of domestic assault  

even though a federal statute prohibited persons convicted of misdemeanor domestic  

                                                                                                           (continued...)  



                                                             -25-                                                       6903
  


----------------------- Page 26-----------------------

reinstatement of law enforcement officers who had consensual sex with a witness or  



                63  

                                                                       

informant.          For example, in an unpublished decision, an Ohio appellate court upheld  



                                                    

an arbitrator's reinstatement of a deputy sheriff who had been discharged for initiating  



                                                                           

and then engaging in consensual sexual conduct with a confidential informant while on  



                                                                                                      

duty and in uniform because the act was not criminal and there was no statute or case law  



                                 64  

                                                     

mandating discharge.                Similarly, the Michigan Court of Appeals upheld an arbitrator's  



                                                                                                        

reinstatement of a police officer who had "engaged in an improper consensual act of a  



                                                                                                           

sexual nature with the complaining witness after responding to her call for assistance and  



                       65  

                                       

while on duty."            In that case, after the officer had an on-duty sexual encounter with the  



                                                                                                               

individual who had called for assistance, the officer failed to note his visit in his log book  



          62(...continued)  



violence from possessing firearms).  



          63        See, e.g., Bureau of Maine State Police v. Pratt , 568 A.2d 501, 505-06 (Me.   



1989) (holding that arbitrator's reinstatement of officer who had sexual encounter with      

witness and then possibly perjured himself on the topic did not violate public policy);  

City of Lincoln Park v. Lincoln Park Police Officers Ass'n, 438 N.W.2d 875, 876 (Mich.  

App. 1989) (holding that enforcement of arbitrator's order to reinstate the police officer  

                                                                                 

did not violate public policy even though the officer had engaged in consensual sexual  

conduct with a complaining witness after responding to her call for help); Monroe Cnty.  

                         

Sheriff v. Fraternal Order of Police, No. 869, 2002 WL 31170168, at *1 (Ohio App.  

Sept. 25, 2002) (upholding arbitrator's order to reinstate the deputy sheriff who had  

                                            

engaged in consensual sexual conduct with confidential informant while in uniform and  

                                                                                                               

on duty).  



          64        See Monroe Cnty. Sheriff, 2002 WL 31170168, at *1, *7 (noting that the  



                                                                                                             

conduct  could  be  seen  as  "an  abuse  of  power"  but  nonetheless  upholding  the  

reinstatement of the deputy sheriff because there was no clearly defined public policy  

prohibiting employment of the deputy sheriff).  



          65        Lincoln Park Police Officers Ass'n , 438 N.W.2d at 876.  



                                                               -26-                                                         6903
  


----------------------- Page 27-----------------------

                                                     66  

and failed to file an incident report.                   In response to questions the following day, the  

                                               67   But because the arbitrator's reinstatement was based  

                                                          

                                           

officer lied about the sexual act.  



on the collective bargaining agreement and the penalty of discharge was optional, the  

court affirmed the arbitrator's order to reinstate the officer.68  



                    In sum, although the question of the public policy exception may arise more  



frequently when employee conduct affects the public trust, the award will fall into the  



                                                              

exception only if the award itself violates an explicit, well-defined, and dominant public  



policy.  All of the State's sources support the conclusion that Alaska has a policy to  



                                                                          

protect victims and prohibit sexual misconduct.   But the question is not whether the  



                                                                                                      

Trooper-Grievant's misconduct violated public policy; it is whether it is against Alaska's  



                                                                                                              

public policy to use a progressive disciplinary sanction such as suspension for a trooper  



                                                                

who engaged in this misconduct. The State has not pointed to any explicit, well-defined,  



                                                                            

and dominant public policy requiring termination, rather than suspension, as the only  



                                                                                                                      

proper discipline for a trooper's consensual and non-criminal sexual misconduct. In fact,  



                                    

as the arbitrator found, incidents of sexual misconduct often have been punished with  



                                                               69  

disciplinary sanctions short of termination.                       The discipline and reinstatement of such  



a trooper, therefore, is not a violation of public policy.  



          66        See id.  



          67        See id.  



          68        See id. at 877.  



          69        See  PSEA  2010 ,    235  P.3d  197,  201-03  (Alaska  2010)  (upholding  



arbitrator's order  for  reinstatement and suspension of officer who had harassed a fellow  

officer at a law enforcement academy).  



                                                             -27-                                                       6903
  


----------------------- Page 28-----------------------

         B.	       The  Arbitrator  Did  Not  Commit  Gross  Error  In  Concluding That  

                           

                   There Was Not Just Cause To Discharge the Trooper-Grievant.  



                   The State also claims that the arbitrator's decision constituted gross error.  

                                                                                          



We  have  defined  gross  error  as  "only  those  mistakes  which  are  both  obvious  and  



                 70  

significant."        Because we conclude that the arbitrator did not commit gross error, we  



affirm the superior court's decision to uphold the arbitrator's award.  



                   1.	      The arbitrator did not commit gross error in interpreting the  

                            collective bargaining agreement.  



                   The  State  first  challenges  the  arbitrator's  interpretation  of  the  term  



"egregious misconduct."  The collective bargaining agreement provides the following  



definition:  "Egregious misconduct which may result in discharge includes, but is not  



limited  to,  gross  disobedience  or  insubordination,  dishonesty,  chemical  or  alcohol  



                                                                                                               

intoxication at the workplace, physical misconduct, criminal conduct, abusive or lewd  



behavior, or abandonment of duties." (Emphasis added.)  Relying on this definition, the  



arbitrator explained that "[e]gregious behavior that warrants summary discharge includes  



                                                                                                                

extremely serious behavior such as stealing, striking a foreman, persistent refusal to obey  



a legitimate order and dishonesty.  Less serious infractions of plant rules or of proper  



conduct such as insolence, call for some milder penalty aimed at correction."  



                   The  State  argues  that  the  arbitrator  committed  gross  error  because  she  



allegedly  used  her  own  definition  of  egregious  misconduct  instead  of  the  definition  



provided by the collective bargaining agreement.  PSEA responds that "[i]t is clear that  



                                          

throughout her decision [the arbitrator] was applying the correct standard set out in the  



                                                                                                   

Collective Bargaining Agreement as she discussed in great length and in detail the level  



         70  

                           

                   Pub. Safety Emps. Ass'n, Local 92 v. State , 895 P.2d 980, 984 (Alaska  

1995) (quoting City of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska 1981)) (internal  

quotation marks omitted).  



                                                          -28-	                                                      6903  


----------------------- Page 29-----------------------

                                                                                                  

of misconduct by the Grievant and similar acts of misconduct by other Troopers."  PSEA  



is correct.  



                                                                     

                    While arbitrators must adhere to the plain language of the contract, "[a]  



                                                                                     

mere ambiguity in the opinion accompanying an award, which permits the inference that  



                                                                                    

the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the  



            71  

                                                     

award."         In addition, "as long as the arbitrator is even arguably construing or applying  



the contract and acting within the scope of his authority, that a court is convinced he  



                                                                                                     72  

committed serious error does not suffice to overturn his decision."    The arbitrator has  



                                                                                                    

broad authority to interpret the collective bargaining agreement:  "The labor arbitrator's  



                                                                                         

source of law is not confined to the express provisions of the contract, as the industrial  



                                                    

common law - the practices of the industry and the shop - is equally a part of the  



                                                                                              73  

collective bargaining agreement although not expressed in it."                                    And "if the arbitrator's  



                                                                              74  

                                                                                   Here, we need only ask whether  

construction is plausible, it must not be disturbed." 



          71         United Steelworkers of Am. v. Enter. Wheel & Car Corp.                             , 363 U.S. 593, 598  



(1960).  



          72         United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38 (1987);  



see also United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581-82  

                                                                                                                  

(1960); Manville Forest Prods. Corp. v. United Paperworkers Int'l Union , 831 F.2d 72,  

                                                                                                

76 (5th Cir. 1987) (approving of the use of past practice "to resolve ambiguities and gaps  

                                                  

in written collective bargaining agreements").   



          73         Warrior & Gulf Nav. Co., 363 U.S. at 581-82; see also Manville Forest  



Prods. Corp. , 831 F.2d at 75.   



          74  

                                                                                     

                    Bhd. of Locomotive Eng'rs & Trainmen v. United Transp. Union , 700 F.3d  

891, 902 (6th Cir. 2012); see also Loveless v. E. Air Lines, Inc., 681 F.2d 1272, 1278  

                                                                                                 

n.14 (11th Cir. 1982) ("An arbitrator may be able to discern a latent ambiguity in a  

                                                                                      

contract based upon his examination of past practice or bargaining history even though  

no ambiguity appears on the face of the contract.  The arbitrator might then be able to  

resolve the latent ambiguity by resort to permissible sources of extrinsic evidence.").  



                                                               -29-                                                         6903
  


----------------------- Page 30-----------------------

the  arbitrator's  construction  of  the  collective  bargaining  agreement  constitutes  an  



                                                 75  

"obvious and significant" mistake.                   We conclude that the arbitrator's construction was  



not gross error.  



                   In   her   decision,   the   arbitrator   interpreted   the   collective   bargaining  



agreement  definition  to  determine  whether  the  Trooper-Grievant's  misconduct  was  



                                                                                                    

serious  enough  to  constitute  "[e]gregious  misconduct"  warranting  discharge.    The  



arbitrator relied on Captain Casanovas's testimony and the Trooper-Grievant's "honest  



and forthright and sincere[]" responses during the hearing to assess the seriousness of his  



                                                                                 

conduct, reasoning that "[w]hy a grievant did what he or she did inevitably relates to the  



                                                                                                

gravity of the misconduct."  The arbitrator found that "[t]here is no evidence to indicate  



that [the Trooper-Grievant's] behavior could not be corrected," concluding that, "[b]ased  



on  the  State's  disciplinary  approach  in  similar  situations,  this  type  of  conduct  has  



                                         

warranted an opportunity to correct the behavior."  Accordingly, the arbitrator expressly  



disagreed  with  Colonel  Holloway's  interpretation  of  "[e]gregious  misconduct"  and  



                             

determined that the Trooper-Grievant's "unprofessional conduct" and "poor judgment"  



did not rise to the level of "[e]gregious behavior . . . warrant[ing] summary discharge"  



under the collective bargaining agreement.  



                   Again,  our  standard  for  reviewing  an  arbitrator's  decision  is  "very  



                  76                                               77 

deferential."         We review only for gross error.                   And because the arbitrator analyzed  



                                                                

whether the Trooper-Grievant's misconduct rose to "[e]gregious misconduct which may  



                                                                                                          

result  in  discharge"  under  the  collective  bargaining  agreement  and  the   State's  



          75       See Pub. Safety Emps. Ass'n, Local 92, 895 P.2d at 984.  



          76       See PSEA 2010, 235 P.3d 197, 202 (Alaska 2010).  



          77       See id.  



                                                           -30-                                                        6903  


----------------------- Page 31-----------------------

                    

disciplinary  practices  in  cases  of  sexual  misconduct,  we  cannot  conclude  that  the  



arbitrator's analysis was gross error.  



                    Moreover,  we  have  held  that  "an  arbitrator's  'use  of  a  well-reasoned  

alternative  definition'  of  just  cause  'would  not  alone  constitute  gross  error.'  "78  



                                                                                                                  79  

                                                                                                          

Therefore, the arbitrator was not bound by this court's definition of just cause.                                     Under  



                                                                                                          80  

our definition of "just cause," the termination would have been affirmed.                                     But because  



we apply a deferential standard of review and because the arbitrator analyzed whether  



the  Trooper-Grievant's  misconduct  rose  to  "[e]gregious  misconduct"  warranting  



discharge,  we  conclude  the  arbitrator's  interpretation  of  the  collective  bargaining  



agreement was not gross error.  



                    2.	       The  arbitrator  did  not  commit  gross  error  in  the  disparate  

                              treatment analysis.  



                                                                                                                   

                    The State challenges the arbitrator's disparate treatment analysis.  First, the  



                                                           

State argues that the disparate treatment analysis was inappropriate because it could lead  



                                                                                                               

to toleration of police officer misconduct.  Second, the State claims that the "record  



                                                                                   

evidence did not support the arbitrator's conclusion" for several reasons:  (1) some of the  



cases were from the 1990s; (2) many of the  cases involved greater discipline than a  



                

three-day suspension; and (3) the cases involved less severe misconduct that did not  



          78        PSEA 2011 , 257 P.3d 151, 163 (Alaska 2011) (quoting                           Alaska State Emps.  



Ass'n/AFSCME Local 52 v. State , 74 P.3d 881, 884 (Alaska 2003)).  



          79	       See id.  



          80  

                           

                    We  defined  "just  cause"  for  discharge  as  "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  Employees  Ass'n/AFSCME  Local  52,  74  P.3d  at  883-84  (quoting Manning  v.  

Alaska  R.R.  Corp. ,  853  P.2d  1120,  1125  (Alaska  1993))  (internal  quotation  marks  

omitted).  



                                                             -31-	                                                      6903
  


----------------------- Page 32-----------------------

                                      

mirror the misconduct in this case.  Finally, the State contends that the arbitrator failed  



to explain how the three-day suspension is consistent with past disciplinary action and  



that the record does not provide support for the propriety of this penalty.  



                     In raising the concern of employer leniency toward misconduct, the State  



                                                                                                81  

                                                                                                            

relies on PSEA 2011 and decisions from other jurisdictions.                                         But while we cautioned  



                                                                                                        

in PSEA 2011  that the "disparate treatment doctrine should not operate as a one-way  



                                                                                                                

ratchet toward the acceptance of increasingly unethical behavior," we also noted that "it  



                                                                                                                          

was not gross error for the arbitrator to have taken a different approach from the one we  

                             82    Reasoning  that  the  State  cannot  "deviate  from  the  negotiated  

may  have  taken."                                                                        



agreement  by  implementing  zero  tolerance  for  an  offense  that  has  previously  been  



                                                                                                                        

addressed  through  progressive  discipline,"  the  arbitrator  concluded  that  if  the  State  



                                                                                                                       

decides to implement a new zero-tolerance policy for sexual misconduct, it must provide  



notice to its employees.  



                                                                                                                

                     The  State  also  attempts  to  distinguish  the  other  cases  relied  on  by  the  



arbitrator as involving less severe misconduct or more serious punishments.  We will  

vacate the arbitrator's award only if there was an obvious and significant mistake.83  



Here,  the  arbitrator  analyzed  a  number  of  cases  varying  in  specific  misconduct  and  



severity.  The State terminated the trooper in only one out of the eight cases involving  



           81        See, e.g., Town of Bloomfield v. United Elec. Radio & Mach. Workers of   



Am. , 916 A.2d 882, 885 (Conn. Super. Ct. 2006),                              rev'd on other grounds, 939 A.2d 561  

(Conn. 2008); City of Boston v. Boston Police Patrolmen's Ass'n                                        , 824 N.E.2d 855, 862  

n.9 (Mass. 2005).  



           82        PSEA 2011 , 257 P.3d at 165.  



           83        See PSEA 2010, 235 P.3d 197, 201 (Alaska 2010).  



                                                                  -32-                                                            6903
  


----------------------- Page 33-----------------------

                               84  

                                                    

sexual misconduct.                 The State imposed less severe discipline in all other instances of  



sexual misconduct, including:  a trooper's inappropriate sexual contact in the trooper  



           

office while on duty; sexual harassment of and an inappropriate personal relationship  



                                                                                   

with the trooper's supervisee; a trooper instructor's signing a woman's breast at a bar in  



                                                                                                                 

front of trooper recruits; a trooper's inappropriate sexual advances; a trooper's sexual  



relationship with a nineteen-year-old intoxicated woman while the trooper was supposed  



to  investigate  her  criminal  complaint  of  sexual  abuse  by  her  stepfather;  a  trooper's  



                                                                                                                         

extramarital "sexual relationship with an adult female from the village while on a village  



                                                                                                           

visit on official travel for the Department"; and a trooper's "sexual relationship with the  



                                                                                                      

daughter of a murder victim during an ongoing investigation."  And in the only case of  



                                         

sexual  misconduct  that  resulted  in  a  termination,  there  were  allegations  of  both  



                                                                         85  

inappropriate sexual conduct and dishonesty.                                 Moreover, the record reviewed by the  



                                           

arbitrator suggests that the State still uses progressive discipline, including short periods  



                                                                         

of suspension, in cases of sexual misconduct.  The arbitrator did not commit an obvious  



and significant error in her analysis.  



                                                                    

                     Finally, the State claims that the arbitrator failed to explain why the three- 



                                                                                                     

day suspension is consistent with the past disciplinary actions.  But the arbitrator relied  



on Captain Casanovas's testimony and recommendation of a disciplinary suspension,  



which was based on his extensive experience with administrative investigations.  The  



arbitrator  further  explained  that,  based  on  her  findings,  progressive  discipline  was  



                                                                                                 

appropriate because it was possible for the Trooper-Grievant to rehabilitate himself.  The  



           84        An arbitrator later reinstated the trooper, finding that the State did not bear   



its burden in proving that the alleged misconduct had occurred.  However, the relevant     

facts here concern the State's initial disciplinary action, not the arbitration award.  



           85  

                                                            

                     In that sole termination case, an arbitrator found the State did not have just  

cause for termination and ultimately reinstated the trooper.  



                                                                  -33-                                                            6903
  


----------------------- Page 34-----------------------

arbitrator noted that Captain Casanovas recommended suspension rather than termination  



after  "carefully  weigh[ing]  .  .  .  his  knowledge  of  the  [Trooper]-Grievant's  work  



progression  .  .  .  and  .  .  .  the  likelihood  of  the  [Trooper]-Grievant's  correcting  his  



behavior."    The  arbitrator's  reliance  on  the  testimony  of  Captain  Casanovas,  who  



supervised the Trooper-Grievant and had personal knowledge of the Trooper-Grievant's  



                                                                                    86  

work capabilities, does not meet our standard for gross error.                          



V.       CONCLUSION  



                  The Trooper-Grievant's misconduct was extremely serious and offensive.  



If we had been deciding this case it is likely that we would have concluded that under  



                                     

Alaska law, the State had "just cause" to discharge the Trooper-Grievant.  Engaging in  



                                                                                                     

sexual  conduct  with  a  victim  shortly  after  responding  to  her  call  for  help,  even  if  



consensual, is inappropriate behavior for a state trooper.  But we may "not vacate . . . an  



                                                                                                87  

award merely because we would reach a different decision ourselves."                                Because there  



is   no   explicit,   well-defined,   and   dominant   public   policy   in   Alaska   prohibiting  



reinstatement of a law enforcement officer who has engaged in off-duty consensual  



sexual misconduct, and because the arbitrator did not commit gross error, we AFFIRM  

                                                                



the superior court's decision to uphold the arbitrator's award in part.  



         86       The State also contends that "[t]he arbitrator failed to take into account the  



critical importance of public trust in the State Troopers," but that argument is subsumed  

                                                                                    

within our public policy discussion.  See supra Part IV.A.2.e.  



         87       PSEA 2010 , 235 P.3d at 201.  



                                                         -34-                                                      6903  


----------------------- Page 35-----------------------

MAASSEN, Justice, with whom STOWERS, Justice, joins, dissenting.  



                    I respectfully dissent.  I would hold that a contractual arbitration remedy  



                                                   

requiring that a state trooper  be  reinstated after his commander has,  with very good  



                   

reason, lost confidence in the trooper's judgment, moral character, and effectiveness as  



a law enforcement officer violates Alaska public policy.  I recognize that the public  



                                                                                                                       

policy exception to the enforcement of arbitration awards is sparingly applied.  But the  



                                                                                                    

court today  requires an  unrealistic degree of precision  from  the codes of acceptable  



conduct that other branches of government are entitled to expect their employees to  



follow.  



                                                               

                    The arbitrator found in this case (and the court appropriately defers to its  



                                                                                                        

findings) that the Trooper-Grievant was called to the home of M.H. to provide backup  



                                                                                 

for another trooper, Trooper C, who was investigating a report of domestic violence; that  



                                                                                                 

M.H.'s husband, because he believed M.H. was being unfaithful to him with yet another  



                                                                                                                       

state trooper (Trooper G), had "threatened her and placed her in fear"; that it was the  



                                                                                                     

Trooper-Grievant's duty to read and explain to M.H. her rights as a victim of domestic  



violence while Trooper C interviewed another witness in another part of the house; that  



                                                          

the troopers arrested M.H.'s husband and took him to jail; that early the next morning  



                                           

the Trooper-Grievant, now off-duty, texted M.H. and provided her with his personal  



telephone number; that after talking with M.H. on the telephone he returned to her home  



                                                                                          

out of uniform at 6:00 a.m., where he found her to be "still upset" and "feeling that she  



was  'done  with'  her  marriage";  and  that  the  Trooper-Grievant  and  M.H.  then  had  



                                                                                                    

consensual  sex  in  her  home,  while  her  husband  was  in  jail  on  charges  that  he  had  



                                                              -35-                                                         6903
  


----------------------- Page 36-----------------------

assaulted her the night before because of jealousy prompted by her suspected adultery  

with a state trooper.1  



                           The court also accepts that the fact of this sexual encounter became known                      



to the husband and his defense attorney, and that it had some impact, albeit "minimal,"             



on the district attorney's decision to drop an assault charge based on the husband's  



                                                                                           

encounter with Trooper C and to reduce to  harassment the assault charge involving  

M.H.2  



                           The court also recites the governing police standards of conduct alerting  



officers that "every possible act that constitutes unacceptable behavior" cannot be spelled  



                                                                                         

out  explicitly;  that  "[c]onduct  that  shocks  the  conscience  or  that  violates  generally  



recognized  standards  of  professional  behavior  is  forbidden";  and  that  how  officers  



conduct themselves in their professional and private lives, "both on and off duty," is  



                                                                                                                3  

                                                                                                                                        

subject to the same high standards of honor and decency.                                                           The court quotes the resulting  



termination letter to the Trooper-Grievant stating that "despite your knowledge of this  



                                                                                                                                                               

woman's vulnerable condition after her recent domestic violence victimization, you put  



                            

yourself, this agency, the District Attorney's Office and the criminal prosecution of this  



                                                                                                                         

case  in  jeopardy  by  surrendering  to  the  temptations  of  a  sexual  encounter"  and  



                                                                                                                                             

characterizing the Trooper-Grievant's conduct as "shocking" and "a discredit" to the  

Department of Public Safety.4  



              1            Op. at 3-4.  



             2            Id. at 5.  



             3            Id. at 5, n.3.  



             4            Id. at 5-6.  



                                                                                   -36-                                                                            6903
  


----------------------- Page 37-----------------------

                     The court further acknowledges that Alaska's constitution, statutes, and  



                                                                                                     

regulations "support the conclusion that Alaska has a [public] policy to protect victims  



                                                       5  

and  prohibit  sexual  misconduct."     It  concludes,  however,  that  none  of  these  legal  



sources articulates "an explicit, well-defined, and dominant public policy" that would bar  



reinstatement of the Trooper-Grievant despite his reprehensible conduct.  



           A.  The Court Too Narrowly Defines Its Role In Identifying Public Policy.  



                                                                                                                              

                     I begin my legal analysis, as the court does, with a recitation of the three  



"common principles" that our precedent requires us to consider:  



                                                                              

                     (1) the public policy exception to labor arbitration disputes  

                                                                                          

                     involving  public  employees  in  positions  of  public  trust  is  

                     most clearly applicable where a statute or regulation compels  

                     the termination (or prevents the hiring) of an employee for  

                                                                                  

                     committing the relevant misconduct; (2) the relevant inquiry  

                                                                               

                     is whether the arbitrator's decision to reinstate the employee  

                                                            

                     violates public policy, not whether an employee's conduct  

                     does,  so  statutes  or  regulations  that  merely  prohibit  the  

                     conduct   are   insufficient   to   support   the   public   policy  

                     exception;  and  (3)  a  court  should  be particularly  vigilant  

                     where the employee's misconduct was in the performance of  

                     his or her duties and directed toward the public, and could  

                     therefore undermine confidence in public institutions that rely  

                                                           [6] 

                     upon the public's trust.  



                                                                                                

That the public policy exception is "most clearly applicable where a statute or regulation  



                                                                                               

compels the [employee's] termination" necessarily means that the exception may also  



                                                       

apply,  though  less  "clearly"  so,  where  a  statute  or  regulation  does  not  compel  the  



           5         Id. at 27.  See also id. at 18 ("Article I, section 24 provides that '[c]rime   



victims . . . shall have . . . the right to be treated with dignity, respect, and fairness during             

all phases of the criminal and juvenile justice process.' ");                                 id. at 20 ("It is true that [AS  

18.66.010] expresses the State's public policy of aiding domestic violence victims.").  



           6  

                                       

                     Op. at 12, n.14 (quoting State v. Pub. Safety Emps. Ass'n , 257 P.3d 151,  

162 (Alaska 2011) (PSEA 2011)) (emphasis added).   



                                                                  -37-                                                             6903
  


----------------------- Page 38-----------------------

termination.    This  is  consistent  with  the  Restatement  law  from  which  we  drew  our  



                                                                                                                                 7  

                                                      

guiding principles.  In PSEA 2011 , relying on our earlier decision in Pavone v. Pavone ,  



we highlighted the Restatement's recognition that  



                                                                                   

                    [o]nly  infrequently  does  legislation,  on  grounds  of  public  

                                                                    

                    policy, provide that a [contract] 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  

                                                                                   [8] 

                    nothing explicitly about unenforceability.  



                    We elaborated on this point in PSEA 2011 by reciting more extensively, and  



approvingly, from the same Restatement comment:  



                                                                          

                    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  

                                                                                                        [9] 

                    public interest in the enforcement of the particular term.  



          7         860 P.2d 1228, 1231 (Alaska 1993).  



          8         257  P.3d  at 159          (emphasis   added)  (quoting  Pavone ,  860  P.2d  at  1231  



(quoting RESTATEMENT (SECOND) OF CONTRACTS  178(2) cmt. b (1981))).  



          9         Id. at 159 n.38 (quoting RESTATEMENT (SECOND) OF CONTRACTS  178(2)  

                              

cmt. b (1981)).  



                                                              -38-                                                         6903
  


----------------------- Page 39-----------------------

                                                                                                      

And we explicitly stated in PSEA 2011  that our decision in that case was "consonant  



with the general guidance offered in Pavone" and with the Restatement principles on  



                                           10  

which Pavone was decided.                        



                     Because of this express sourcing of our guiding principles, endorsed in  



                   11  

                                                                   

PSEA 2011 ,           I cannot read PSEA 2011 as requiring in every case that there be explicit  



                

direction  from  the  executive  or  legislative  branch  that  the  specific  conduct  at  issue  



                                                                                                                   

prohibits hiring or reinstatement.  Rather, in that broad middle ground  of "doubtful  



cases"  between  those  in  which  "unenforceability  is  plain"  and  those  in  which  "the  



                                                  

contravention is so trivial that it plainly does not preclude enforcement," we are expected  



                                            12 

                                                                                                

to do "a careful balancing,"                   keeping in mind that in those "doubtful cases" there is  



                                                                                               

unlikely to be any express legislative or regulatory direction. The court operating in that  



                                                                                                    

middle  ground  must  rely  instead  on  its  own  historical  ability  to  derive  the  relevant  



                                                            

"explicit, well-defined, and dominant public policy" "either from its own perception of  



           10        Id. at 159-60.  



           11        Today's  opinion  faults  my  analysis  for  relying  too  heavily  on  the  



Restatement principles we endorsed in PSEA 2011 .  Op. at 15-16. We expressly adopted  

                                                                                                      

the test of Restatement  178 in Pavone , holding that in future cases, when faced with  

                                                                              

ambiguous public policy, "we will apply the factors listed in subsections 2 and 3 of  

                                                                   

[Restatement] section 178 to determine whether the term should be enforced." 860 P.2d  

                                                                                                                          

at 1232.  These sections do not even apply unless "there is no legislation specifically  

                                                                     

prohibiting enforcement of the promise or contractual term."  Id. at 1231.  In PSEA 2011  

                                                                                                                 

we stated that the public policy exception to the enforcement of arbitration awards that  

                                                                                                

we were adopting was consistent with Pavone .  PSEA 2011 , 257 P.3d at 158-59.  The  

basic principles about the unenforceability of illegal contracts should not apply in only  

                                                                    

a watered-down version in the context of public employee arbitration awards, where the  

                                                                

public interest in judicial review is considerably greater than it is with private contracts.  

                                                                                                  



           12        PSEA 2011 , 257 P.3d at 159 n.38 (quoting RESTATEMENT  (SECOND) OF  



CONTRACTS   178 cmt. b (1981)).  



                                                                -39-                                                          6903
  


----------------------- Page 40-----------------------

                             

                                                                              

the need to protect some aspect of the public welfare or from legislation that is relevant  



                                                                                                          13  

to that policy although it says nothing explicitly about unenforceability."                                     



          B.	  Public Policy Requires That The Trooper-Grievant Not Be Retained .  



                                                                                                          

                   Blinkered to the breadth of the allowable inquiry, the court today looks for  



                                                                          

-  and fails to find -  "any explicit, well-defined, and dominant public policy requiring  



termination,  rather  than  suspension,  as  the  only  proper  discipline  for  a  trooper's  



                                                                         14  

                                                                                    

consensual and non-criminal sexual misconduct."                              But while the phrase "consensual  



and non-criminal sexual misconduct" is useful shorthand for discussion purposes, it  



omits everything that establishes the gravity of the Trooper-Grievant's misconduct:  sex  



by a responding officer with a distraught domestic-violence victim within hours of the  



alleged crime, likely leaving her in a more vulnerable position when the encounter came  



            

to light (particularly as her husband's anger stemmed in the first place from her alleged  



unfaithfulness with another trooper), damaging the State's prosecution of the husband  



for the crime of domestic violence, damaging the State's prosecution for the assault on  



Trooper C, and damaging the Trooper-Grievant's future effectiveness as a witness.  



                                                                                       

                   As noted above, the court today agrees that the sources of authority on  



                                                                   

which the State relies "support the conclusion that Alaska has a [public] policy to protect  



                                                            15  

                                                                                                       

victims and prohibit sexual misconduct."                        I would go a step further:  I believe one of  



          13       Id. at 159 (quoting RESTATEMENT (SECOND) OF CONTRACTS  178 cmt. b  



(1981)).  



          14        Op. at 27.  



          15       Id.  See also id.  at   18 ("Article I   ,  section 24 provides that '[c]rime victims  



. . . shall have . . . the right to be treated with dignity, respect, and fairness during all  

phases  of  the  criminal  and  juvenile  justice  process.'  ");  id.  at  20  ("It  is  true  that  

[AS  18.66.010]  expresses  the  State's  public  policy  of  aiding  domestic  violence  

victims.").  



                                                            -40-	                                                      6903
  


----------------------- Page 41-----------------------

those sources, 13 AAC 85.110(b), supports the conclusion that a police officer who                                                       



violates that public policy in a clearly serious way should no longer be employed.  That   



regulation provides:  



                                     The  council  shall  revoke  a  basic,  intermediate,  or  

                         advanced  certificate  upon  a   finding  that  the  holder  of  the  

                         certificate.  .  .  (3)  has  been  discharged,  or  resigned  under  

                        threat of discharge, from employment as a police officer in  

                        this state or any other state or territory for conduct that would  

                                                                                              

                         cause a reasonable person to have substantial doubt about an  

                                                                                                                        

                         individual's honesty, fairness, and respect for the rights of  

                         others and for the laws of this state and the United States or  

                                                    

                        that is detrimental to the integrity of the police department  

                                                                                     [16] 

                        where the police officer worked.  



Discussing this regulation in PSEA 2011 , we acknowledged that it "strongly suggests  



that it is the policy of the State of Alaska not to employ dishonest police officers," but  



we  concluded  that  it  was  "unclear  whether  the  regulation  means  to  prohibit  the  



                                                                                                                         

employment of police officers who have been dishonest to any degree or under any  



                            17  

                                                                                                                      

circumstance."                   I believe this to be a slight misconstruction of the regulation and one  



                                                                          

we are mistaken to carry forward.  The regulation is indeed very clear that it means to  



                                                                                                                                            

prohibit  the  employment  of  police  officers  who  have  been  dishonest  (or  who  have  



                                                                                                                                     

engaged in sexual misconduct or the exploitation of domestic violence victims or the  



                                                                                                 

misuse of their official position) to some degree and under some circumstances; that is,  



             

where the conduct, whatever it is, "would cause a reasonable person to have substantial  



                                                                                                                       

doubt about an individual's honesty, fairness, and respect for the rights of others and for  



                                                                    

the laws of this state and the United States or that is detrimental to the integrity of the  



                                                                                                 

police department where the police officer worked."  A "reasonable person" standard is  



            16           13 AAC 85.110(b).  



            17           257 P.3d at 161.  



                                                                            -41-                                                                           6903  


----------------------- Page 42-----------------------

                                                                                             18  

common in the law and presumed to be generally understood.                                        I find the regulatory  



language to be more than sufficient to satisfy the Restatement's guiding principles for  



determining  public  policy,  particularly  the  instruction  that  in  "doubtful  cases"  we  



                              

conduct a "careful balancing" of the interests in favor and against enforcement of the  



          19  

                                                                                                             

award.        One of those interests, poignant under the facts of this case, we highlighted in  



                                                        

PSEA 2011 :  that we "be particularly vigilant where the employee's misconduct was in  



the performance of his or her duties and directed toward the public, and could therefore  



                                                                                                                   20  

undermine confidence in public institutions that rely upon the public's trust."                                         



                    The court today concludes that just as there are gradations of dishonesty  



that public policy will tolerate in its police officers, so too there are gradations of sexual  



misconduct and the exploitation of victims of domestic violence.  That may well be true.  



But as the guiding principles in the Restatement and Pavone instruct us, it is unrealistic  



to expect other branches of government to have identified the factual context of every  



                                                                                                    

possible instance of misconduct, to have ranked them, and to have drawn precisely the  



          18        "The reasonable person standard is a hallmark of the Anglo-American legal  



system," which "assures that 'the person of  ordinary intelligence [has] a reasonable  

                                                                     

opportunity to know what is prohibited, so that he may act accordingly' "; it "also serves  

                                                                                      

to prevent any ad hoc and subjective application by police officers, judges, juries, or  

                                                                                                        

others  empowered  to  enforce  [the  standard]."    Twp.  of  Plymouth  v.  Hancock,  600  

                                                                                   

N.W.2d 380, 383 (Mich. App. 1999) (quoting  Grayned v. City of Rockford, 408 U.S.  

                                                                                                                    

104, 108-09 (1972)).  See also Stevens v. Matanuska-Susitna Borough, 146 P.3d 3, 10-11  

(Alaska App. 2006) (quoting City of Beaufort v. Baker, 432 S.E.2d 470, 474 (S.C. 1993))  

                                                                                                         

("The objective 'reasonable' test is used in many  areas  of the law as an appropriate  

                                                                                      

determinant of liability and thus a guide to conduct.");  City of Madison v. Baumann, 470  

                                                                                           

N.W.2d 296, 302 (Wis. 1991) ("The reasonable-person standard is one that has been  

relied upon in all branches of the law for generations.").  



          19  

                                                                 

                    PSEA 2011 , 257 P.3d at 159 n.38 (quoting RESTATEMENT  (SECOND) OF  

CONTRACTS  178(2) cmt. b (1981)).  



          20        Id. at 162.  



                                                             -42-                                                        6903
  


----------------------- Page 43-----------------------

                                                                                                                     

line at which the misconduct becomes intolerable as a public policy matter.    Every  



                                                              

instance of potential misconduct need not be predicted in luminous detail before we can  



                                                                             

find "an explicit, well-defined, and dominant public policy" against it.  The Department  



of Public Safety has done what it reasonably could be expected to do by emphasizing,  



                                

time and again, how important it is that police officers act with dignity and respect both  



                           21  

                               There seems little room for debate that the conduct at issue here is  

on and off the job.                                                                                                    



such as "would cause a reasonable person to have substantial doubt about [the officer's]  



                                                                                                                      

honesty, fairness, and respect for the rights of others and for the laws of this state and the  



                               

United States"; and it cannot reasonably be disputed that the conduct "is detrimental to  



                                                                                                            22  

the integrity of the police department where the police officer worked."                                        The court  



today is unwilling to say so.   



                                                                          

                    I believe it should.  To summarize:  It violates Alaska public policy when  



                                                                         

police officers engage in sexual misconduct and the exploitation of domestic violence  



                                                                                                                

victims; the Trooper-Grievant's misconduct in this case, in violation of that policy, was  



serious and reprehensible; and 13 AAC 85.110(b) directs, in language that is sufficiently  



clear,  that  an  officer  who  engages  in  serious  misconduct  in  violation  of  compelling  



          21        See, e.g., AS 18.65.130 (establishing minimum standards for employment  



as a police officer); AS 18.65.240(c) (providing that the Alaska Police Standards Council  

                                                                                 

may  revoke  the  certificate  of  a  police  officer  who  fails  to  meet  moral  character  

standards); 13 AAC 85.100(a), (b) (listing justifications for denying police certificates);  

                                                               

13 AAC 85.110(a)(2), (3) (delineating implementation of revocation authority, including  

discretionary revocation for actions detrimental to the reputation or integrity of the police  

                                                                      

department); Department of Public Safety Operating Procedures Manual (prohibiting  

behavior that "shocks the conscience or that violates generally recognized standards of  

professional behavior" and that "brings the Department into disrepute").  



          22        13 AAC 85.110(b).  



                                                             -43-                                                       6903
  


----------------------- Page 44-----------------------

public policy not be retained.  Necessarily, an arbitration decision  requiring  that the  



officer be retained under those circumstances is itself in violation of public policy.  



              I would therefore vacate the arbitrator's award.  



                                           -44-                                     6903
  

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