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Supreme Court orders police officer reinstated.

Byline: Barbara L. Jones

In an opinion with implications for all public employees, the Minnesota Supreme Court ruled that a Richfield police officer will regain his job. Minnesota Supreme Court reversed the Court of Appeals and upheld an arbitration award reinstating him after he was fired for failure to report his use of force.

The unanimous Supreme Court ruled on Wednesday, Feb. 13 in City of Richfield v. Law Enforcement Labor Services, Inc., that enforcing the arbitration award does not violate a well-defined and dominant public policy. Justice Anne McKeig wrote the opinion.

"The factual findings of the arbitrator, findings that we give deference to, do not support overturning the arbitration award on the basis of a rarely used public-policy exception," McKeig wrote.

Use of force reporting

Nathan Kinsey was discharged for failing to report his use of force and violating other policies. He had been disciplined about reporting use of force in previous years.

Kinsey pushed and slapped a Somali driver in October 2015 in an incident that was recorded. Kinsey omitted the physical encounter in his notes about the incident, and his supervisors weren't aware of it until the video circulated online.

He was not criminally charged, but he was fired in 2016 after an internal investigation found he violated departmental procedure, and had been counseled before about reporting issues related to use of force.

A Bureau of Criminal Apprehension investigation resulted in no charges but an internal investigation showed a violation of department policies, and Kinsey was fired effective April 14, 2016.

The union challenged the discharge under its collective bargaining agreement.

An arbitrator directed that he be reinstated, though with a three-shift unpaid suspension, saying his failure to report the shove was a lapse in judgment and not meant to conceal anything. Kinsey remained off the force while the city appealed.

The District Court upheld the arbitration award but the Court of Appeals reversed. It held that reinstating Kinsey would interfere with a public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force.

The Court of Appeals also held that "the arbitration award interferes with the public policy against police officers using excessive force" because cities and police departments need to be able to "review occasions involving the use of force" to effectively prevent such incidents.

Ruling not against public policy

Case law establishes that a public-policy exception to the finality of arbitrations was created by courts as an extension of the contract doctrine allowing courts to abrogate private contracts that are contrary to public policy.

Although the narrow public-policy exception exists, judicial review of arbitration decisions is generally extremely limited, the court said. The Minnesota Supreme Court has considered a request to vacate an arbitration award under the public-policy exception only once, in State Auditor v. Minn. Ass'n of Prof'l Emps., 1993, and declined to vacate the arbitration award under the exception in that case. There, the court said a court may set aside an arbitration award only if (1) the collective bargaining agreement contains terms which violate public policy, or (2) the arbitration award creates an explicit conflict with other laws and legal precedents.

Although the employee's conduct may have violated public policy, it is another matter to conclude that the arbitrator's award reinstating the employee violates a well-defined and dominant public policy, wrote McKeig.

The union argued that the Court of Appeals focused unduly on Kinsey's conduct rather than on enforcement of the arbitration award, and reinstatement of Kinsey does not violate any public policy. The Supreme Court agreed.

"It is difficult to conclude that the arbitration award violates public policy given the finding that excessive force was not used. Kinsey's failure to report does not provide a basis for applying the public-policy exception because the arbitrator found that, even though Kinsey should have reported the incident, the city's policy was not clear on that question," wrote McKeig.

The court acknowledged that "many observers would find Kinsey's actions disturbing." But the statute requires arbitration and the city's contract with the union gives the arbitrator the authority to determine just cause for termination, the court concluded.


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Publication:Minnesota Lawyer
Date:Feb 14, 2019
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