One of the few exceptions to the rule that arbitration is final and binding is known as the “public policy” doctrine. Under the doctrine, if an arbitrator’s award violates a clearly articulated and dominant public policy, a court will refuse to enforce it.
When applying the public policy doctrine, courts – from the United States Supreme Court to federal and state courts around the country – have been careful to distinguish between cases where the employee’s conduct violates public policy and those where the arbitrator’s award does. This distinction is particularly important in termination cases. Courts are quick to stress that when reviewing an arbitrator’s opinion that reduces a termination to a suspension or some other disciplinary sanction that the public policy question is whether the order of reinstatement violates public policy. In other words: Does the public policy command that the only possible sanction for the employee’s offense is termination?
In a case involving Seattle Police Officer Adley Shepherd, the Washington Court of Appeals turned these principles on their ear. Shepherd was fired after the Department determined that he violated the Department’s use of force policies by punching a handcuffed woman in the face, causing a fracture of her orbital bone. A three-member disciplinary review board (DRB), chaired by a neutral arbitrator, upheld the finding that Shepherd had violated the Department’s policies.
However, the DRB reduced Shepherd’s termination to a 15-day suspension, finding that the seriousness of Shepherd’s offense was mitigated by the fact that Shepherd used force reflexively after the woman, who was resisting arrest, kicked him two seconds earlier causing “stinging pain” and that Shepherd’s “patience was being tried.” The DRB also observed that Shepherd was insistent he did nothing wrong, and several of his co-workers agreed with him.
The DRB was strongly influenced by testimony regarding the training that Shepherd received. A training officer testified that an officer who is physically assaulted is trained to respond with sufficient force to subdue the subject, “which is exactly what Officer Shepherd did here.” The DRB noted that the City “did not present evidence that cast doubt on the veracity of the training officer’s testimony that Officer Shepherd was trained to respond to an assault with the immediate use of measured force.”
In the end, the DRB held that “there is no reason to believe that Officer Shepherd does not respect Department policy, and it is quite possible, if not probable, that a lengthy suspension will tell him that he always has to think about and utilize options that involve the least amount of appropriate force under the circumstances. He also should be motivated by the fact that a subsequent offense involving the improper use of force could result in discharge.”
The Court overturned the DRB’s decision, citing the public policy doctrine. The Court began with a lengthy recitation of the various statutes, court opinions, and rules that excessive force by police was improper. To overturn the DRB’s decision, though, the Court had to deal with the Supreme Court’s decision in Eastern Associated Coal Corp. v. United Mine Workers of America, Dist. 17, 531 U.S. 57 (2000), where an arbitrator reinstated a truck driver who failed a drug test even though the driver was subject to a series of federal laws requiring random drug testing of truck drivers.
In ultimately concluding that the regulatory regime did not express an explicit, dominant, and well-defined policy against reinstatement of workers who use drugs, the Supreme Court observed that “the Act’s remedial aims are complex” and that the Act says that “rehabilitation is a critical component of any testing program.”
The Washington Appeals Court’s solution was to upend the central question in the public policy doctrine. The question, the Court found, was not whether there was a public policy mandating termination of employees who engage in particular behavior but rather whether there is a public policy that “expressly prioritizes rehabilitation of officers who use excessive force.” Finding no such policy, the Court overturned the DRB’s decision and upheld Shepherd’s termination.
The Court also disputed the DRB’s consideration of mitigating factors such as the victim’s assault on Shepherd, the testimony of the training officer and Shepherd’s work record. The Court found that some of the circumstances the DRB considered as mitigating were not properly considered as mitigating. In essence concluding that a finding of excessive use of force forbids the consideration of mitigating circumstances, the Court held that the DRB’s factual and legal conclusions were “not sacrosanct” and disagreed with the DRB’s consideration of mitigating circumstances.
The Court’s decision seems a radical departure from not only the public policy doctrine writ large but also decisions from the United States and State of Washington Supreme Courts on what the doctrine means. The degree of departure suggests that the next stop in the litigation will be the Washington Supreme Court.
City of Seattle v. Seattle Police Officer’s Guild, 2021 WL 1247946 (Wash. Ct. App. 2021).
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