Las Vegas POA

Public Policy And At-Will Employment

Written on 03/03/2021
Will Aitchison

Detective Brandon Potts worked for the Devils Lake Police Department in North Dakota. North Dakota has no statewide collective bargaining laws, and many public safety officers are considered “at-will” employees who can be terminated at the will of the employer. Employees who are at-will have no job security rights and typically can only sue to overturn their termination if the termination violates public policy. As Potts recently learned, it is extraordinarily difficult to bring a successful public policy lawsuit.

In February 2019, the Department terminated Potts after a July 2018 incident where, while attempting to arrest a suspect, Potts’s service weapon discharged, striking the suspect in the head, resulting in the suspect’s death. Potts sued Devils Lake for wrongful termination, alleging his termination was against the public policy that law enforcement officers should be able to act in self-defense.

The North Dakota Supreme Court dismissed Potts’ lawsuit. The Court held that the at-will doctrine allows “an employer the right to terminate an at-will employee with or without cause. Although at-will employees generally may be discharged at any time for any reason, we have recognized limited public policy exceptions to the at-will presumption if employees establish they were terminated in retaliation for complying with a clear public policy. For example, we have held that public policy prohibited an employer from discharging an employee in retaliation for honoring a subpoena.

“Potts acknowledges that this Court has never addressed whether self-defense is a public policy exception to the at-will employment doctrine. Potts contends North Dakota’s constitution and statutes provide sufficiently clear public policy to support an exception to the at-will employment doctrine. In support of his argument for a public policy exception, Potts relies on: (1) N.D. Constitution Art. I, § 1 which states, ‘All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty’; (2) N.D.C.C. § 12.1-05-03, ‘providing justification for using force on another person in self-defense’; (3) N.D.C.C. § 12.1-05-02(1), ‘Conduct engaged in by a public servant in the course of the person’s official duties is justified when it is required or authorized by law’; and (4) N.D.C.C. § 12.1-05-07(2)(a),(b), ‘providing deadly force is justified when it is expressly authorized by law or used in lawful self-defense, if such force is necessary to protect the actor or anyone else against death, serious bodily injury, or the commission of a felony involving violence.’

“Potts brought this matter to the courts and not the Legislature. He has asked the judiciary to recognize a public policy exception to at-will employment for law enforcement officers acting in self-defense. We do not believe that public policy is sufficiently clear under North Dakota law.

“While the statutes provide for the justification of certain conduct undertaken in self-defense, they also make clear that it is a defense to criminal prosecution. There also are limitations on what conduct may be justified as self-defense and the amount of force allowed, which are dependent on the circumstances when force is used.

“Applying our constitutional and statutory self-defense provisions to law enforcement officers acting in the course of official duties depends on the circumstances in each case. Under current law, that fact-dependent application does not supply a clear right for us to recognize an exception to at-will employment. Instead, the Legislature is better equipped to decide whether to recognize any such specific exception to at-will employment.”

Potts v. City of Devils Lake, 2021 WL 99712 (N.D. 2021).

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