Labor & Employment Law

Nebraska Supreme court holds state trooper can be discharged based upon his off duty association with the KKK

State v. Henderson, ___N.W.2d___(Neb. Feb. 27, 2009), is an important First Amendment employment law case decided by the Nebraska Supreme Court. In a lengthy, well-written opinion, a divided Court held that a state trooper could be terminated because of his off duty association with the KKK notwithstanding the fact that an arbitrator earlier ordered reinstatement. Why? The arbitration award offended public policy and the plaintiff was a police officer. As the majority reasoned:

Taken as a whole, this authority evidences an explicit, well-defined, and dominant public policy of the State of Nebraska that is as old as the State itself: that the laws of Nebraska should be enforced without racial or religious discrimination.

But more importantly, this public policy incorporates, and depends upon, the public?s reasonable perception that the laws are being enforced without discrimination. And the Legislature?s determination in that regard makes sense.

Under our system of government, the duty of law enforcement can be performed effectively only with the consent of the vast majority of those citizens policed. Efficient law enforcement requires mutual respect, trust, and support. As the Supreme Judicial Court of Massachusetts has persuasively explained, ?One of the most important police functions is to create and maintain a feeling of security in communities. To that end, it is extremely important for the police to gain and preserve public trust, maintain public confidence, and avoid an abuse of power by law enforcement officials.?. . . ?The image presented by police personnel to the general public . . . ?also permeates other aspects of the criminal justice system and impacts its overall success.??

We agree, and we hold that Nebraska public policy precludes an individual from being reinstated to serve as a sworn officer in a law enforcement agency if that individual?s service would severely undermine reasonable public perception that the agency is uniformly committed to the equal enforcement of the law and that each citizen of Nebraska can depend on law enforcement officers to enforce the law without regard to race. We emphasize that this public policy is only implicated by behavior of the gravest nature. But we find that Henderson?s knowing and willing affiliation with the Ku Klux Klan is such behavior.

By contrast, the dissent found no public policy problem with reinstatement. The arbitrator found that the state trooper was fired because of his beliefs and that his job was not affected. Because of these and other factors, the dissent would defer to the arbitrator's decision.

The NY Court of Appeals reached the exact opposite conclusion [from the Nebraska majority] in State Correction Officers v. State, 94 N.Y.2d 321 (1999) where the Court upheld an arbitrator's decision ordering reinstatement of a correction officer for flying a Nazi flag from his home on the 55th anniversary of Hitler's declaration of war against the United States. The dissent would follow that decision.

For those historians out there, the majority decision also contains a very interesting review of the history of the Klan in Nebraska and else where in the United States.

We have not heard much about this decision. However, my guess is that we will shortly. It is a very important decision which involves several important public policies including the First Amendment right of Free Association, the hands off approach to arbitration and the states compelling interest in preventing violence.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on March 06, 2009 (boomark / email).