Court on October 1, 2018, on Plaintiff s motion to vacate an arbitration award.

Transcription

1 STATE OF MINNESOTA COUNTY OF ST. LOUIS City of Duluth, DISTRICT COURT SIXTH JUDICIAL DISTRICT Court File No. 69DU-CV vs. Plaintiff, COURT S ORDER Duluth Police Union, Local 807, Defendant. The above-entitled matter came before the undersigned Judge of District Court on October 1, 2018, on Plaintiff s motion to vacate an arbitration award. Attorney Susan Hansen appeared on behalf of the City of Duluth, along with Police Chief Mike Tusken. Attorney James Michels appeared on behalf of the Defendant. The Court has heard the arguments of counsel, reviewed the submissions of the parties, reviewed the entire record, and is fully advised. Based on the foregoing, the Court hereby issues the following: ORDERS: 1. The Plaintiff s motion to vacate the June 22, 2018 arbitration award is hereby denied. 1

2 2. The attached Memorandum of Law is incorporated herein by reference. BY THE COURT: Honorable Eric L. Hylden Judge of District Court MEMORANDUM OF LAW This case is before the Court on Plaintiff s motion to vacate an arbitration award. The central question presented to the Court is whether the arbitrator s decision to reinstate Duluth Police Officer Adam Huot (hereinafter, Officer Huot) violates public policy. While this would not be the Court s decision, operating on its own, under the current state of the law, the arbitrator s decision does not violate public policy. It is anticipated that the Minnesota Supreme Court will, in the near future, provide further guidance on this issue in the City of Richfield case infra, but this Court must make a decision now, and based on its understanding of the law, the motion to vacate the arbitration award must be denied. The Court accepts, as it must, the facts contained in the June 22, 2018 arbitration award of Arbitrator Mario F. Bognanno. Those show that Officer Huot 2

3 was a nine-year employee of the Duluth Police Department. On May 20, 2017, Officer Huot, along with two other officers, had an encounter with two individuals, including Brandon Houle. As a result of this encounter, Mr. Houle was handcuffed and was being led through the Duluth skywalk system to a police car. Along the way, Mr. Houle determined that he would not continue walking, and he laid down on the floor. Without talking to Mr. Houle or the other officers, Officer Huot then picked up the handcuff chain and used it to drag Mr. Houle down the skywalk and through a doorway. Along the way, Mr. Houle s head hit a door post. Officer Huot admitted during the arbitration that his actions were a mistake, that he was not tolerant, and that he should have talked to Mr. Houle and given him a chance to get up. He acknowledged that the whole incident exceeded the level of force demanded by the circumstances and violated Duluth Police Department Policy Section on the use of force. In addition, he admitted he failed to promptly notify his supervising lieutenant of the incident. After a review, Officer Huot was terminated from the Duluth Police Department, based on violation of the use of force policy and the code of conduct. The code of conduct, Policy 323, allows for discharge for, among other things, (g) unreasonable and unwarranted violence to a person encountered or a person under arrest, and (n) any conduct that any employee knows or reasonably should 3

4 know is unbecoming a member of the department or that is contrary to good order, efficiency, or morale, disgraceful or that tends to reflect unfavorably upon the department or its members. Pursuant to the collective bargaining agreement between the City of Duluth and Duluth Police Union Local 807, a grievance was filed concerning Officer Huot s termination. At arbitration over this grievance, the union argued that termination was excessive and that other alternatives would suffice as discipline. The city argued that it had just cause for termination based on the subject incident alone, but that in addition, other incidents in Officer Huot s past, training provided before and after those incidents, and the loss of confidence by the department s command staff in Officer Huot justified dismissal. In the end, Arbitrator Bognanno recognized that Officer Huot s use of force was unreasonable, but decided that discharge was too stringent a penalty. The arbitrator therefore determined that the termination was not for just cause and required the city to reinstate Office Huot as a police officer, but without back pay and benefits. The Plaintiff City of Duluth has now brought this motion to vacate the arbitration award on the basis that the award violates public policy. Arbitration is favored in the law. See City of Brooklyn Ctr. v. Law Enforcement Labor Services Inc., 635 N.W.2d 236, 241 (Minn. App. 2001). 4

5 Judicial review of an arbitration award is extremely narrow in scope and the binding nature of arbitration is favored in the law. See State, Office of State Auditor v. Minnesota Ass n of Prof l Employees, 504 N.W.2d 751, 755 (Minn. 1993). Indeed, Minnesota law contains only six statutory grounds for vacating an arbitration award. See Minn. Stat. 572B.23. There exists an additional ground upon which to grant a motion to vacate an arbitration award if the arbitration award violates some well-defined and dominant public policy. State Auditor, 504 N.W.2d at 756. An arbitration award may be set aside on public policy grounds only if: (1) the collective bargaining agreement contains terms that violate public policy, or (2) the arbitration award creates an explicit conflict with other laws and legal precedents. Id. The court is to analyze whether or not enforcement of the arbitration award violates public policy, not whether or not the conduct of the grievant violates public policy. Id at 757. This last point is significant to this Court s decision. That is, it is clear to the Court that Officer Huot s conduct violates public policy, but the standard the Court must apply is whether the arbitrator s decision, under the collective bargaining agreement, to choose a form of discipline less than termination violates public policy. A discussion of the cases on this topic is illuminating. 5

6 State of Minnesota, Office of the State Auditor v Minnesota Ass n of Prof l Employees, 504 N.W.2d 751 (hereinafter State Auditor), is a 1993 decision from the Minnesota Supreme Court. In it, the court grappled with the question of what should be done with unionized employees of the state auditor s office who had been caught falsifying expense reports. After an investigation, the state auditor discharged three of the employees. Union representatives filed a grievance and demanded arbitration for one of the employees. The arbitrator determined that while there was just cause to discipline the employee, there was no just cause to discharge him. The arbitrator reinstated the employee with no back pay. The district court vacated the arbitrator s decision, finding that there was an explicit, well-defined and dominant public policy favoring the proper accounting for public funds. The Court of Appeals reversed, holding that the arbitrator s award did not conflict with the public policy, and that Minnesota had not expressly adopted a public policy exception to the general rule that courts defer to arbitration awards. See State Auditor v Minnesota Ass n of Prof l Employees, 493 N.W.2d 591 (Minn. App. 1992). The Minnesota Supreme Court defined its issues as follows: Whether Minnesota should recognize a public policy which would justify vacating an arbitrator s award, and, if so, whether the arbitrator s award in this case reinstating 6

7 [the employee] should be vacated because it violated that public policy. State Auditor, 504 N.W.2d 751, 755. The court recognized the public policy exception and provided a conclusion that echoes strongly to our present case. The court stated: Under the facts of this case, while [the employee s] conduct would appear to violate a well-defined and dominant public policy against the embezzlement of state funds by public employees, we cannot automatically conclude that the arbitrator s award reinstating [the employee] violates that public policy. Rather, in evaluating the arbitrator s award under a public policy exception, courts must focus not on the grievant s conduct but on whether the enforcement of the award would violate some well-defined and dominant public policy. Although we believe that this state has a strong public policy against the embezzlement of state funds and that [the employee s] conduct would have provided sufficient grounds for an arbitrator to find just cause for discharge, we recognize that the parties bargained for the arbitrator s interpretation of the contract and that even our strong disagreement with the result does not provide sufficient grounds for vacating the arbitrator s award. Id. at [Emphasis in original.] This decision of the Minnesota Supreme Court looms large for our case. That is, this Court would have no difficulty condemning the excessive use of force, particularly within the cultural context of this case. That, however, is not the Court s charge. Rather, it is the question of whether the bargained-for arbitration award reinstating the employee without back pay (almost the identical outcome in the State Auditor case) violates some public policy. 7

8 The next case involving the public policy exception is City of Minneapolis v Police Officers Federation of Minneapolis, 566 N.W.2d 83 (Minn. App. 1997). In that case, the City of Minneapolis had discharged an officer for use of excessive force in his duties. The officer and the City of Minneapolis had been found liable in a federal civil suit arising out of a particular incident. Following that jury verdict, the officer was first suspended and then terminated from the Minneapolis Police Department. The officer filed grievances, which proceeded to arbitration. The arbitrator upheld the suspension but reinstated the officer to his position. The City then went to district court, asking to vacate the arbitrator s award on the basis that the arbitrator exceeded his authority and the reinstatement violated welldefined and dominant public policies. The district court denied the City s motion and confirmed the arbitrator s award, finding that there was no well-defined and dominant public policy requiring automatic discharge of a police officer who was found to have used excessive force by a civil jury. The Minnesota Court of Appeals affirmed the district court decision. The court states: Here, the city has failed to present any well-defined, dominant public policy that prohibits police officers found to have used excessive force from being reinstated to the police force. It is axiomatic that there is a well-defined and dominant public policy against police officers using excessive force. However, as the district court concluded, there is no well-defined public policy stating that an officer must automatically be discharged if he or she is involved in an excessive force situation. 566 N.W.2d at 89. 8

9 Next, the Court of Appeals decided City of Brooklyn Center v Law Enforcement Labor Services, Inc., 635 N.W.2d 236 (Minn. App. 2001), review denied December 11, This case involved a police officer terminated by his employer for engaging in an egregious and longstanding pattern of sexual harassment. As with the other cases, this one went to arbitration. The arbitrator concluded that some of the alleged conduct was time barred and that the rest, while serious, did not warrant termination. The officer was reinstated to his position without back pay. The city brought the case to the district court, alleging that the award was against public policy. The district court denied the city s motion to vacate the award and confirmed the arbitrator s decision. The Court of Appeals noted: The public policy exception is therefore narrowly defined, and a court may set aside an arbitration award only if (1) the labor agreement contains terms which violate public policy, or (2) the arbitration award creates an explicit conflict with other laws and legal precedents. State Auditor, 504 N.W.2d at 756. Thus, the relevant inquiry is not whether [the employee s] conduct violated some public policy but rather whether the arbitrator s decision to reinstate [the employee] violates public policy. [Citations omitted] In effect, we must analyze the matter as though the labor agreement contractually calls for [the employee s] reinstatement. City of Brooklyn Center v Law Enforcement Labor Services, 635 N.W.2d at

10 The Court of Appeals goes on to review public policies to prevent sexual harassment and federal court decisions analyzing that issue. In the end, the court states: Recognizing the strong and clear public policy against sexual harassment, the affirmative duty of employers to implement that policy, and the unique opportunity of a police officer with a lengthy history of violations of that policy to continue to commit similar violations, we hold that the arbitrator s decision under the extreme facts of this case violated public policy and must be vacated. Id. 635 N.W.2d at 244. The final published appellate decision in Minnesota is City of Richfield v Law Enforcement Labor Services, Inc., 910 N.W.2d 465 (Minn. App. 2018), review granted June 19, In that case, the City of Richfield terminated an officer for excessive use of force, failure to report the use of force, and violating his training. A grievance procedure led to arbitration, finding that the officer s use of force was not excessive or unreasonable and the failure to report the use of force did not constitute misconduct. The arbitrator s award reinstated the officer to his position with three days of unpaid suspension. In the Court of Appeals, the City of Richfield did not challenge the finding that the officer s use of force was not excessive, but instead argued that an arbitration award reinstating an officer who failed to report his use of force after prior discipline for the same sort of conduct violates public policy. In the end, the Court of Appeals states: 10

11 because it: We agree that [the officer s] repeated failure to report his use of force makes him a serious risk to public safety and the interest of the public must be given precedence over the arbitration award reinstating him. We agree that the [the officer s] repeated failure to report his use of force shows that he is unable to self-regulate in the manner that the POST [Police Officer Standards and Training] standards require; thus, reinstating [the officer] conflicts with the public policy that the POST standards establish. The court concludes that the arbitration award violates public policy interferes with the RPD s legal obligation to establish and enforce minimum standards of conduct for its police officers. Specifically, it interferes with the clear public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force. Further, the arbitration award interferes with the public policy against police officers using excessive force because the only way a city and police department can successfully uphold that public policy is if they are given the opportunity to review occasions involving the use of force. With this legal precedent in mind, we can look at the arguments made here. The Plaintiff asserts there are well-defined and dominant public policies against the use of force and against the failure to report use of force by police officers. The Court agrees that the City of Minneapolis and City of Richfield cases, as stated above, explicitly say so. The City goes on to say that it has an affirmative duty to enforce those public policies under: (1) the Minnesota Public Employment Labor Relations Act (PELRA) which states, in Minn. Stat. 179A.01(a), that labor relations of public 11

12 employees are subject to a paramount right of the citizens to keep inviolate the guarantees for their health, education, safety, and welfare; (2) the Minnesota Police Officer Standards and Training (POST) standards; (3) civil liability under 42 U.S.C. 1983; and (4) Minn. Stat , which requires law enforcement agencies to establish and enforce a written policy governing the use of force. While the Court agrees that these are all good reasons to establish and enforce a policy on the use of force by police officers, this does not go to the question of whether the arbitrator s award violated a well-defined and dominant public policy in this case. The fact remains that the parties specifically bargained for the opportunity to challenge disciplinary decisions. The portion of the PELRA statute cited above states a general policy that public employee rights are subordinate to the rights of Minnesota citizens to health, education, safety, and welfare, but that is certainly not a well-defined public policy. It reads more like a mission statement, put on the front end of a very detailed statute. The existence of the POST board standards are similar in that they are included under a description of the purpose of the standards, which are, of course, general in nature rather than well-defined. The City s argument regarding 1983 actions is not well taken in light of the City of Minneapolis case indeed, in that case, the civil suit had already happened, with a large award made against the city. Even at that point, the 12

13 Court of Appeals was unwilling to find that as a basis for a well-defined and dominant public policy. Ultimately, this Court believes that the combined decisions of the State Auditor case and the City of Minneapolis case compel the Court s conclusion here. While the world s (and our state s) culture surrounding the use of force by police has certainly changed since those 1993 and 1997 cases, this Court feels bound by stare decisis. In particular, the Supreme Court s admonition cited above, that, We recognize that the parties bargained for the arbitrator s interpretation of the contract and that even our strong disagreement with the result does not provide sufficient grounds for vacating the arbitrator s award. State Auditor, 504 N.W.2d at 758. The City of Minneapolis case states it most succinctly: There is no well-defined public policy stating that an officer must automatically be discharged if he or she is involved in an excessive force situation. City of Minneapolis, 566 N.W.2d at 89. The Court believes it cannot stray from this precedent. While the City of Richfield case would certainly seem to provide cover for another decision, the Court has three thoughts: (1) A decision from the Minnesota Court of Appeals, no matter how well reasoned, does not overcome the precedent of a Minnesota Supreme Court decision on the same subject. (2) The parties here have had 25 13

14 years since the State Auditor decision came out to renegotiate terms of the collective bargaining agreement with regard to police use of force. That is, these parties could have specified in their collective bargaining agreement that any use of force is automatic grounds for termination. They have not, the Court suspects, because the facts of each case must be examined to determine appropriate discipline. Under those circumstances, the Court has difficulty finding a welldefined and dominant public policy that should overturn this arbitrator s decision. (3) Any changes to the case law, to reflect cultural knowledge gained over the last two-plus decades, must come from the Minnesota Supreme Court. For all of these reasons, the Court must deny Plaintiff s motion. If the Minnesota Supreme Court decision is issued in the City of Richfield case within the time for appeal from this final order, and either party felt it would be beneficial to re-argue the case in light of that decision, this Court would welcome a motion for reconsideration. E.L.H. 14