Alaska Employment Law

The state Department of Transportation fired an airport police officer after finding that he had engaged in sexually crude conduct toward a fellow officer, and had been dishonest in the resulting investigation.   After PSEA grieved, Arbitrator Harry MacLean sustained the finding of misconduct (though he said the officer had been crude but hadn’t engaged in sexual harassment, and that he had evaded rather than lied), but ordered DOT to reinstate the officer, though without the intervening sixteen months of back pay.   As mitigation, the arbitrator pointed to the grievant’s earlier, better conduct; less severe discipline imposed on other employees with similar instances of misconduct;  the fact that the misconduct was off-duty and, in part, off-site, etc.

Superior Court Judge Mark Rindner confirmed the award, and the State appealed.

The Alaska Supreme Court, per Justice Fabe, unanimously affirmed, finding no gross error in the reinstatement order.   But it’s clear the result could have been quite different, under other circumstances.

The Court, at several instances in the opinion, suggests strongly that it would have imposed a harsher penalty if it were “reviewing this case in the first instance, or under a less deferential standard.”  The Court also strongly implies that it would have reversed the arbitrator on two other grounds if the State had not waived the issues: 1) Whether an employer may penalize sexual harassing conduct that doesn’t reach the Title VII or Title 18 threshold (bec. not pervasive, severe, etc.) (the arbitrator said No, and State counsel told the Supreme Court that the error was harmless); and 2) Whether Alaska public policy bars reinstatement of a dishonest police officer (the State didn’t argue the issue to either the arbitrator of the Superior Court).

State v. PSEA, Op. No. 6485 (Alaska June 25, 2010).

Williams Milks, AAG, represented the State.   Stephen Sorensen, of Simpson, Tillinghast & Sorensen, represented the union.  Both counsel practice in Juneau.