Alaska Police Standards Council v. Parcell , 2015 Alas. LEXIS 40 ( 2015 )

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THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA POLICE )
STANDARDS COUNCIL, )
) Supreme Court No. S-15364
Appellant, )
) Superior Court No. 1JU-12-00728 CI
v. )
) OPINION
LANCE PARCELL, )
) No. 6999 – April 17, 2015
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Louis J. Menendez, Judge.
Appearances: Kathryn R. Vogel, Assistant Attorney General,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Appellant. Stephen F. Sorensen, Simpson,
Tillinghast, Sorensen, & Sheehan, P.C., Juneau, for
Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
The level of deference we afford to an underlying decision often is key to
the resolution of an appeal, and this case makes that point crystal clear. A police
officer’s employment was terminated for abuse of alcohol, sexually offensive remarks
made to two female officers, and alleged dishonesty during the subsequent police
investigation. An arbitrator concluded that terminating the officer’s employment was an
excessive penalty and ordered the officer’s reinstatement. The superior court affirmed
the arbitration decision and we affirmed the superior court based on the deference that
must be given to an arbitration decision. However, the Alaska Police Standards Council
revoked the officer’s police certificate after concluding that the officer was not of good
moral character and was dishonest. The superior court reversed the decision to revoke,
substituting its judgment for the Council’s. But because the Council’s decision, like that
of the arbitrator, is entitled to deference, we reverse the superior court’s decision and
affirm the Council’s decision to revoke the officer’s police certificate.
II. FACTS AND PROCEEDINGS
This is the second time the underlying facts of this case have come before
us. In 2006 the Airport Police and Fire Department of the Alaska Department of
Transportation terminated Lance Parcell’s employment for harassing conduct and
evasiveness during the Department’s subsequent review. In State v. Public Safety
Employees Ass’n (PSEA 2010)1 we affirmed a superior court decision refusing to vacate
a labor arbitrator’s decision to reinstate Parcell.2
The Alaska Police Standards Council subsequently revoked Parcell’s police
certificate, but the superior court on appeal reversed the Council’s decision. The Council
now appeals from the superior court’s decision.
In PSEA 2010 we introduced most of the relevant factual background:
[Parcell] had been employed as an officer with the
Department for approximately four years when he was
terminated on August 24, 2006. The termination was based
on two events that occurred in May 2006 while [Parcell] was
1
235 P.3d 197(Alaska 2010).
2
Id. at 203.
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working at the Alaska Law Enforcement Academy in Sitka,
Alaska and on [Parcell’s] conduct during the subsequent
investigation.
On May 5, 2006, [Parcell] and two other training
officers went to a bar in Sitka, and [Parcell] became
extremely intoxicated. While at the bar, [Parcell] slid toward
a female officer on a couch and made inappropriate sexual
remarks, telling her “that he wanted to make her come, that
he could make her scream, [and] that he could push her
buttons.” The female officer told him to stop, but he repeated
the comments several times. Because [Parcell] was too
intoxicated to walk home that night, another officer drove
him home. When they returned to the Academy, [Parcell]
vomited outside and then, after the hallways were cleared of
recruits, he was helped into an Academy building to a room
where he could sleep. [Parcell] apologized to the female
officer in person the following day and by email several days
later. [Parcell] stated during the internal investigation and to
the arbitrator that he does not remember making these
inappropriate remarks to the female officer.
On the evening of May 17, 2006, [Parcell] stared at
another female officer while they were watching television
and later sent her unwelcome text messages in which he
invited her to “go on a beer run,” “go out and have fun,” and
join him in the room where training officers are allowed to
sleep to “talk to him if she wanted.” She told him to stop
sending the messages, but he continued to do so. The
following morning, [Parcell] sent the officer an email calling
her his “sexy new friend,” telling her she had “a great [a]ss”
and “very nice tits,” and stating that he wanted to see her
nipple rings. The female officer wrote an email expressing
her anger with his behavior, and [Parcell] subsequently sent
her an email apology. [Parcell] testified at arbitration that he
was up all night drinking prior to sending the email, a fact
supported by the female officer’s statement during the
investigation that she smelled alcohol on [Parcell] when she
saw him that morning.
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Following these events, another officer filed a
complaint regarding [Parcell’s] behavior. Upon receiving the
complaint, Lauri Burkmire, Chief of the Department, initiated
an administrative inquiry, assigning a lieutenant to conduct
witness interviews and a site visit. In his report, the
lieutenant “concluded that [Parcell’s] conduct violated . . .
Department rules relating to unbecoming conduct, courtesy,
sexual harassment, private conduct and truthfulness, immoral
conduct (deception), and harassment” and identified “eight
instances in which he felt [Parcell] had been less than truthful
in the investigation.”
After reviewing the report, Chief Burkmire sent
[Parcell] a letter directing him to attend a meeting on August
18, 2006 to discuss “inconsistencies in your claims and your
honesty regarding this matter.” She reminded [Parcell] of his
obligation to be honest and warned that failure to do so could
result in his dismissal. [Parcell] attended the meeting with his
representative from [the Public Safety Employees
Association] and, according to the arbitrator, admitted that he
had not been honest in his interview with the lieutenant. At
arbitration, [Parcell] testified that his dishonesty in his
interview during the investigation was limited to
downplaying the extent of his drinking. Chief Burkmire
terminated [Parcell] several days after their meeting.
[Parcell] testified at arbitration that immediately
following his termination, he enrolled in an outpatient
alcoholic treatment program, which he successfully
completed in eight months. At the time of his testimony
before the arbitrator, he claimed he had been sober for fifteen
months. He acknowledged that his remarks on May 5 and his
email of May 18 were “inappropriate and rude,” admitted that
he had “failed to uphold the high standard of his profession,”
and stated that he was “very ashamed of his behavior.”[3]
3
Id. at 199-200 (internal footnote omitted).
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The parties in this case stipulated to these facts and they are quoted verbatim in the
Council’s decision.
After the Department terminated Parcell the Public Safety Employees
Association filed a grievance on his behalf, and the matter eventually went to arbitration.4
The arbitrator found, in relevant part, that: (1) Parcell’s behavior was “totally contrary
to [his] professional responsibility,” “sexually offensive,” and “as far over the line as one
could imagine”; and (2) “although the Department did not establish that [Parcell] had
lied, it did prove that he ‘was evasive, misleading and not forthcoming’ in the
investigatory process.”5 By only “the slimmest margin” the arbitrator found that Parcell
should be reinstated. The Department then moved in the superior court to vacate the
arbitration decision, but the superior court denied the Department’s request.
The Department appealed to this court and in PSEA 2010 we affirmed the
superior court’s decision, noting the “deferential standard” afforded arbitration
decisions, which was “key to the decision we reach[ed].”6 And we explained that “[i]f
we were reviewing this case in the first instance, or under a less deferential standard, we
likely would not have reached this conclusion.”7
While Parcell’s employment matter was progressing, the Alaska Police
Standards Council independently sought to revoke Parcell’s police certificate. The
revocation proceedings were stayed pending resolution of the employment matter, but
after our PSEA 2010 decision the Council served Parcell with its “Third Amended
Accusation” and resumed the revocation proceedings. The thrust of the Council’s
4
Id. at 200.
5
Id. (alteration in original).
6
Id. at 201.
7
Id. at 202.
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position was that because Parcell lacked good moral character and was dishonest,
revocation of Parcell’s certificate was appropriate.
A hearing officer was appointed, but Parcell and the Council agreed that an
evidentiary hearing was unnecessary and stipulated to the facts noted in our PSEA 2010
decision. The hearing officer found that the Council did not meet its burden in proving
that: (1) Parcell had been discharged for cause;8 or (2) Parcell is not a person of good
moral character.9 The hearing officer therefore concluded that revocation of Parcell’s
police certificate was unwarranted, stating that “[p]er the stipulation of the parties,
Parcell’s conduct was egregious, rude, and grossly offensive” but not sufficient to
establish a lack of good moral character.
The Council disagreed with the hearing officer’s proposed decision and
pursued revocation.10 Parcell provided the Council additional evidence to establish his
good moral character. The Council issued a written decision evaluating whether Parcell:
(1) had been terminated for conduct that “would cause a reasonable person to have
substantial doubt about [his] honesty, fairness, and respect for the rights of others and for
8
See 13 Alaska Administrative Code (AAC) 85.110(b)(3) (2014) (requiring
revocation when an officer “has been discharged . . . from employment as a police officer
in this state or any other state or territory for cause for conduct that would cause a
reasonable person to have substantial doubt about an individual’s honesty, fairness, and
respect for the rights of others”).
9
See 13 AAC 85.110(a)(3) (providing for discretionary discharge when an
officier “does not meet the standards in 13 AAC 85.010(a) or (b)”); 13 AAC
85.010(a)(3) (requiring that a person hired as a police officer “is of good moral
character”).
10
AS 44.62.500 allows agencies to adopt hearing officer decisions, but an
agency is not required to adopt a hearing officer’s decision and “may decide the case
upon the record, including the transcript, with or without taking additional evidence, or
may refer the case to the same or another hearing officer to take additional evidence.”
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the laws of this state”;11 and (2) is not of “good moral character.”12 In addition to the
evidence of Parcell’s inappropriate sexually offensive remarks, the Council considered
the evidence that he had been dishonest during the department’s subsequent
investigation, stating:
Parcell “was evasive, misleading, and not forthcoming”. . .
[and t]he agreed upon facts, the arbitrator decision, superior
court order, and Supreme Court opinion leave no room to
debate that [the Department chief and investigating officer]
are of the opinion that Parcell was dishonest in eight specific
instances during the administrative investigation. Parcell’s
engaging [in] the dishonest behavior renders him unable to
effectively perform the duties of a law enforcement officer in
connection with making applications to the court —
including search and arrest warrant applications, and court
testimony.
The Council concluded that Parcell “is not a person the citizens of our great
State of Alaska can entrust with private personal information, the lives and safety of
themselves and their loved ones, and be counted on to do the right things for the right
reasons” and that his “dishonesty significantly and substantially impairs his ability to
perform the responsibilities of a law enforcement officer.” The Council revoked
Parcell’s certificate. Parcell appealed to the superior court.
The superior court concluded that the Council’s moral character
determination was not entitled to deference because good moral character “is a standard
eligibility requirement in professions serving the public” so its meaning “is not one
11
13 AAC 85.110(b)(3).
12
13 AAC 85.110(a)(3) (“The council will, in its discretion, revoke a . . .
certificate upon a finding that the holder . . . does not meet the standards in
13 AAC 85.010(a) or (b).”); 13 AAC 85.010(a)(3) (“A participating police department
may not hire a person as a police officer unless the person . . . is of good moral
character.”).
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unique to the Council.” The court agreed with the hearing officer’s statement that a
person lacking good moral character has character flaws “that are ingrained, lasting, or
causing consistent behavioral or decision making problems.” The court then summarized
various certificate-revocation decisions from other jurisdictions involving police officers
who had behaved more egregiously than Parcell. It faulted the Council for not
considering the good aspects of Parcell’s character, including his employment for four
years before the May 2006 incidents, his maintaining sobriety since the incidents, and
that he “was actively engaged in the community, and had the support of his local
[r]abbi.” Finally, the court concluded that the Council’s interpretation of “good moral
character” was unreasonable.
The superior court also reviewed the Council’s finding that Parcell had been
dishonest. The court concluded that the finding was not supported by substantial
evidence and disagreed that Parcell’s conduct “would be considered exculpatory
information in cases in which he is involved, such that the arbitrator’s findings would
preclude Parcell from performing his duties as a police officer.”
The Council appeals.
III. STANDARD OF REVIEW
“Where the superior court is acting as an intermediate court of appeals, we
directly review the agency decision. Questions of fact are reviewed for substantial
evidence. Questions of law involving agency expertise are reviewed using the
reasonable [or rational] basis test . . . .”13 We have explained that:
[T]wo circumstances generally call for rational basis review:
(1) “where the agency is making law by creating standards to
13
West v. Municipality of Anchorage, 174 P.3d 224, 226 (Alaska 2007)
(internal footnotes omitted) (citing Thoeni v. Consumer Elec. Servs., 151 P.3d 1249,
1253 (Alaska 2007); State v. Pub. Safety Emps. Ass’n, 3 P.3d 409, 413 (Alaska 2004)).
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be used in evaluating the case before it and future cases,” and
(2) “when a case requires resolution of policy questions
which lie within the agency’s area of expertise and are
inseparable from the fact’s underlying the agency’s
decision.”[14]
“Where questions of law do not involve agency expertise, the appropriate standard of
review is ‘substitution of judgment . . . .’ ”15 “We review an agency’s application of its
own regulations for whether the agency’s decision was ‘arbitrary, unreasonable, or an
abuse of discretion.’ ”16
IV. DISCUSSION
A. It Was Error To Apply The Substitution Of Judgment Standard To
The Council’s Decision On Good Moral Character.
Noting the “primary public interest that applicants meet minimum standards
for employment as police officers”17 the legislature created the Alaska Police Standards
Council.18 The Council may “establish minimum standards for employment as a police
officer” 19 and the Council may establish mandatory qualifications for police officers
“including minimum age, education, physical and mental standards, moral character,
14
W. States Fire Protection Co. v. Municipality of Anchorage, 146 P.3d 986,
989 (Alaska 2006) (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987)).
15
Alaska Exch. Carriers Ass’n v. Regulatory Comm’n of Alaska, 202 P.3d
458, 460 (Alaska 2009) (quoting Tesoro Alaska Petroleum Co., 746 P.2d at 903).
16
Id. at 461 (quoting Griffiths v. Andy’s Body & Frame, Inc., 165 P.3d 619,
623 (Alaska 2007)).
17
AS 18.65.130.
18
AS 18.65.140.
19
AS 18.65.220.
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and experience.”20 If an applicant satisfies the Council’s mandatory qualifications, then
“[t]he [C]ouncil shall issue a certificate evidencing satisfaction of the requirements.”21
But if a police officer fails to continue to satisfy the Council’s standards, the Council
may revoke the officer’s certificate.22
The Council has adopted regulations establishing grounds for mandatory
revocation 23 and grounds for discretionary revocation.24 The Council may in its
discretion revoke an officer’s certificate if the officer is not “of good moral character.”25
In its regulations the Council has defined good moral character as:
the absence of acts or conduct that would cause a reasonable
person to have substantial doubts about an individual’s
honesty, fairness, and respect for the rights of others and for
the laws of this state and the United States; for purposes of
this standard, a determination of lack of “good moral
20
AS 18.65.240(a) (emphasis added).
21
AS 18.65.240(b).
22
AS 18.65.240(c).
23
13 AAC 85.110(b) (requiring revocation for conviction of a felony,
conviction of specific misdemeanors, use, possession, or sale of controlled substances,
and “discharge[] . . . as a police officer . . . for conduct that would cause a reasonable
person to have substantial doubt about an individual’s honesty, fairness, and respect for
the rights of others and for the laws of this state”).
24
13 AAC 85.110(a) (granting the Council discretion to revoke a certificate
for falsification or omissions in a certificate application, for discharge or resignation
under threat of discharge for reasons that adversely affect the officer’s ability to perform
duties, and for failure to meet the basic standards for police officers).
25
See 13 A AC 85.110(a)(3) (providing for discretionary revocation when an
officer “does not meet the standards in 13 AAC 85.010(a) or (b)”); 13 AAC 85.010(a)(3)
(explaining that a department may not hire a person as an officer unless the person “is
of good moral character”).
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character” may be based upon all aspects of a person’s
character . . . .[26]
We must determine the amount of deference owed to the Council’s
application of its regulations. The Council’s Third Amended Accusation included two
counts for revocation: (1) mandatory revocation under 13 AAC 85.110(b)(3) — due to
Parcell’s discharge from the Department; and (2) discretionary revocation under 13 AAC
85.110(a)(3) — due to Parcell’s lack of good moral character. In its Final Decision the
Council concluded that discretionary revocation was appropriate because Parcell was not
of good moral character.27
The superior court concluded that the Council’s moral character
determination was not entitled to deference because moral character “is a standard
eligibility requirement in professions serving the public” and “not one that requires the
Council’s specialized knowledge or technical expertise.” The superior court further
noted that “courts frequently consider character” and that “while the Council may be
26
13 AAC 85.900(7).
27
The Council also concluded that mandatory revocation was appropriate
because Parcell was:
discharged from employment as a police officer “for conduct
that would cause a reasonable person to have substantial
doubt about an individual’s honesty, fairness, and respect
forth [sic] rights of others and for the laws of this state and
the United States or that is detrimental to the integrity of the
police department where the police officer worked . . . .”
The superior court held that the Council waived mandatory revocation and that our
decision in PSEA 2010, affirming the arbitrator’s decision that Parcell not be discharged
for cause, precludes revocation under 13 AAC 85.110(b)(3). Parcell briefed this
decision, but the Council limited its appeal to discretionary revocation. We therefore do
not address the court’s decision on mandatory revocation under 13 AAC 85.110(b)(3).
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experienced in determining good moral character, that determination does not inherently
call for the Council’s expertise.” Substituting its judgment for the Council’s, the court
concluded that “[t]he term ‘lacking in moral character’ should then generally refer to
flaws in one’s character that are engrained, lasting or causing consistent behavioral or
decision making problems.”
Substitution of judgment is not the proper standard of review in this case.
The Council correctly argues that the revocation decision based on the determination that
Parcell lacked good moral character was a policy determination involving agency
expertise, properly reviewed for a rational or reasonable basis. “The rational basis test
may be appropriate even when interpreting commonly used words, if there are technical
and policy reasons to defer to the administrative agency, and especially if the legislature
has granted the agency broad discretion.”28
The legislature created the Council to “establish minimum standards for
employment as a police officer.”29 And the legislature gave the Council discretion when
making revocation decisions.30 We therefore defer to the Council’s reasonable
interpretation and application of its regulations.
B. The Council Reasonably Determined That Parcell Was Not Of Good
Moral Character.
Relying on the facts that Parcell was “a person who engaged in behavior
‘totally contrary to his professional responsibility,’ ‘sexually offensive,’ and ‘as far over
the line as one could imagine’ ” and that Parcell was “ ‘evasive, misleading and not
28
W. States Fire Protection Co. v. Municipality of Anchorage, 146 P.3d 986,
989 (Alaska 2006).
29
AS 18.65.220.
30
See AS 18.65.240(c) (“The council may deny or revoke the certificate of
a police officer who does not meet the standards adopted under (a)(2) of this section.”).
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forthcoming’ in the investigatory process” the Council determined that Parcell was not
of good moral character.31
Parcell argues that “there must be a pattern of behavior to show the lack of
good moral character and not one isolated incident.” In support of his argument Parcell
cites cases from other jurisdictions,32 but he fails to point to any precedent or clear
statement establishing that this is the law in Alaska. We are not persuaded that a single
transgression or incident of misconduct, no matter how egregious, never will be
sufficient to support a reasonable determination that a police officer is not of good moral
character. And in this case the Council relied on two separate incidents, as well as
Parcell’s evasive behavior during the subsequent investigation.
Parcell echoes the superior court’s notation of “the Council’s apparent
failure to consider ‘all aspects’ of Parcell’s character as permitted by the definition of
good moral character under 13 AAC 85.900(7).” In order to show his good moral
character Parcell submitted evidence to the Council that he had completed alcohol
treatment and maintained his sobriety, was actively involved in his community, and that
he received his local rabbi’s support. The Council’s decision did not explicitly mention
31
The Council also determined that Parcell’s evasive behavior during the
Department’s investigation would be subject to a mandatory Brady disclosure and that
this would limit Parcell’s ability to effectively perform his duties as a police officer. See
Brady v. Maryland, 373 U.S. 83, 86-88 (1963) (requiring disclosure of exculpatory
information); see also Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the
reliability of a given witness may well be determinative of guilt or innocence,
nondisclosure of evidence affecting credibility falls within [the] general [Brady] rule.”
(quoting Nupue v. Illinois, 360 U.S. 264, 269 (1959)) (internal quotation marks
omitted)). We do not address the Brady issue because it is not necessary for our
resolution of this case.
32
See, e.g., Albert v. Fla. Dep’t of Law Enforcement, Criminal Justice
Standards & Training Comm’n, 573 So. 2d 187 (Fla. Dist. App. 1991); Cuff v. Dep’t of
Pub. Safety Standards & Training, 198 P.3d 931 (Or. 2008).
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this evidence of Parcell’s character, but that does not mean the Council did not consider
it33 — the Council had no obligation to list all aspects of Parcell’s character in its
decision. Even if the Council’s decision could have said more, our review is limited to
determining whether the Council’s decision was reasonable.
Parcell finally argues that in his employment case the arbitrator and this
court “did not conclude th[at] Parcell was dishonest” and that we have previously held
that Alaska “does not have [an] explicit, well-defined and dominant public policy that
requires police officers to be completely honest.”34 Parcell correctly notes that in his
employment case the arbitrator concluded that Parcell’s “conduct fell short of lying,” but
the arbitrator’s findings that Parcell admitted lying on one occasion and that Parcell was
evasive during the subsequent investigation support the Council’s conclusion that Parcell
was dishonest. And the fact that there is no legal requirement to terminate a police
officer’s employment for minor acts of dishonesty does not limit the Council’s discretion
to revoke that officer’s certification.
The stipulated facts establish that Parcell’s harassing conduct was beyond
offensive and inappropriate and that Parcell then was evasive during the Department’s
review. The Council concluded, based on these specific facts, that Parcell did not have
the moral character required of a police officer in Alaska. There is no evidence in the
record that the Council considered inappropriate facts or failed to consider relevant facts.
33
See 13 AAC 85.900(7) (“[A] determination of lack of ‘good moral
character’ may be based upon a consideration of all aspects of a person’s character.”).
34
See State v. Pub. Safety Emps. Ass’n (PSEA 2011), 257 P.3d 151, 161
(Alaska 2011) (“While Alaska’s laws are explicit in favoring an honest police force, they
are not explicit in requiring a policy of absolute zero tolerance toward any dishonest by
law enforcement officials, no matter how minor.” (Emphasis in original.)).
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In PSEA 2010, when ultimately affirming the arbitrator’s decision to
reverse Parcell’s termination, we expressly noted that “[i]f we were reviewing this case
in the first instance, or under a less deferential standard, we likely would not have
reached this conclusion.”35 The Council was reviewing the case in the first instance and
came to a different conclusion than the arbitrator in the employment case, and here we
again review the decision under a deferential standard of review. We conclude that the
Council’s revocation decision was reasonable.
V. CONCLUSION
The judgment of the superior court is REVERSED and the Council’s
revocation of Parcell’s police certificate is AFFIRMED.
35
235 P.3d 197, 202 (Alaska 2010).
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