Thursday, March 12, 2009

Nebraska S. Ct. Upholds Vacatur of Arbitration Award Reinstating State Trooper Who Was a Klan Member

Gavel_tThe case is State v. Henderson, and it would make a great exam question, raising labor law and First Amendment issues. Robert Henderson, a veteran Nebraska state trooper joined the Knights Party, an organization affiliated with the Ku Klux Klan, in 2004. Internal Affairs discovered this, and Henderson was fired. His union filed a grievance on his behalf and took the matter to arbitration. The arbitrator ordered him reinstated, finding that his constitutional rights were violated and that the state lacked just cause for firing him. The state petitioned to vacate the award, and a Nebraska trial court agreed. The Nebraska Supreme Court just upheld that order, adopting the public policy exception to enforcememnt of arbitral awards and finding that the award violated public policy.

The Nebraska Supreme Court avoided deciding the constitutional issue (so the officer might be entitled to damages), and instead only analyzed whether reinstating the officer would violate public policy. The court described the long and violent history of the Klan and noted that the Knights Party and other Klan groups purposely chose to affiliate themselves with that history, even if their membership materials state that the movement is nonviolent. The court also analyzed the public policy of the State of Nebraska, noting that since 1867 the state's motto expressed on the state seal has been "Equality Before the Law." The court found a dominant and clear public policy in racial equality. A particularly forceful expression of that public policy as it relates to law enforcement is the state's racial profiling act, and the court quoted at length from the testimony in favor of that legislation:

“we must admit that there is a perception, and I use the word perception loosely because actually, it’s more than a perception, that some officers are engaging in racial profiling, and this has created resentment and distrust of the police, particularly in communities of color.” . . .  As the introducing senator explained,

Nebraska has always been a diverse state with an immigrant background. Our heritage and disposition has been that of being inclusive and accepting [in] nature. This is one of the greatest traits of our state. That’s why I believe it’s important to present an open, fair law enforcement image for our state. . . . The problem that we have, regardless of whether there’s racial profiling existing in Nebraska or not, [is that] we have the perception of unfairness. Because of that perception, many people who are stopped for a legitimate reason may think that they’re being stopped [or] targeted due to their race. We need to collect data to determine whether the racial profiling does exist in our state, and to remove the perception of unfairness that we have.

Noting that efficient law enforcement requires mutual respect and trust and that the entire justice system depends on the the public perception of police, the court held that reinstating an officer who had joined a white supremacist organization would severely undermine public perception in the state's commitment to enforce the law equally without regard to race.

We also note that Henderson’s membership in the Knights Party is consistent with a long-established Ku Klux Klan strategy of recruiting and publicizing the membership of law enforcement officers. The Ku Klux Klan has historically enrolled or enlisted the support of law enforcement officers, to stave off indictment when victims of violence, “having recognized law enforcement officials among their assailants, understandably believed prosecution futile.” Consistent with that strategy, Henderson’s continued service as a sworn employee of the State Patrol would directly advance the interests of the Ku Klux Klan by fostering the perception that some citizens of Nebraska do not enjoy the same protection by law enforcement as others.

Thus, the court upheld the vacatur. One justice dissented on the grounds that the arbitrator essentially made a factual finding that the state had not shown any actual disruption in law enforcement caused by Henderson's belief in the hearing before the arbitrator, and had not provided enough credible evidence of future disruption in working relationships. That fact finding, that Henderson's membership in the Knights party had not and would not interfere with his job, foreclosed the court from finding that his reinstatement would frustrate law enforcement efforts in the view of the dissenting justice.

I have to agree with the majority on this one and further suggest that Henderson's discharge would not violate the First Amendment. First, under current law, where public safety is concerned, it is very likely that the state would not have to show any actual disruption, but a likelihood of future disruption would be enough. And it is likely there would be future disruption. Internal affairs was informed by someone about Henderson's activities, which suggests that it was only a matter of time before others found out about them. Once his affiliation became public, it would seem inevitable that his working relationships would become strained and that members of the public would view the department negatively. This seems one of those situations in which the interests of the state would outwiegh the interests of the individual. In any event, this is an important decision in the arbitral award/public policy and public employee speech/association contexts.

MM

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