AUGUST 25, 2008
LINCOLN (AP) — Attorneys for a Nebraska state trooper fired for joining a group with ties to the Ku Klux Klan have another chance to argue that he should still be on the force.

In March, the state Supreme Court listened to their arguments and those from state attorneys who say Robert Henderson should have been fired. The high court then said it wanted more information before making a decision, and asked the two sides to appear again.

This time the lawyers will focus on four key questions related to courts oversight of arbitration decisions. The hearing is Sept. 3.

“Courts have the authority — and obligation — to scrutinize contracts and arbitration awards for compliance with public policy,” Assistant Attorney General Tom Stine wrote in his brief filed in the case.

He was responding to the court’s question of whether courts have limited powers to review collective bargaining agreements involving government employers.

Henderson’s attorney, Vincent Valentino of York, argues that arbitrators, not judges, have the final say.

“An arbitrator’s decision must be upheld unless the arbitrator has exceeded his authority or engaged in fraud or dishonesty,” Valentino wrote in the legal argument he submitted to the state Supreme Court.

Henderson was dismissed in early 2006 after patrol officials discovered he had joined a racist group and posted messages on its Web site.

Henderson, who was a trooper for 18 years, told an investigator he joined the Knights Party — which has described itself as the most active Klan organization in the United States — in June 2004 to vent his frustrations about his separation with his wife, who left him for a Hispanic man.

He posted four messages to the Knights’ web site, according to the investigator’s report.

Arbitrator Paul Caffera later overturned Henderson’s firing. He said Henderson was entitled to his First Amendment rights of free speech and that the state violated the state troopers‘ contract, in part when it fired Henderson “because of his association with the Knights Party … and the Ku Klux Klan.”

Caffera ordered the patrol to reinstate Henderson within 60 days and pay him his back wages.

But the state appealed that decision and won in Lancaster County District Court, where a judge ruled Henderson violated the state’s public policy against discrimination.

Henderson then appealed that decision to the state Supreme Court.

One of the four questions the high court has asked the two sides to answer is what importance Henderson’s former role as a trooper has in deciding if a so-called “public policy exception” can be used by courts to decide whether an arbitrator’s ruling can be overturned.

Stine argues that because of troopers’ high public profile and power over the public they have special responsibility to act in a way that garners respect and support from residents.

“While in the unique capacity,” as a trooper, “he intentionally joined an organization with ties to the Ku Klux Klan and took the following personal pledge: I pledge my loyalty I will work for the preservation and protection of the white race,” Stine wrote in his brief.

The effectiveness of law enforcement, “depends…on the respect and trust of the community and on the perception in the community that it enforces the law fairly, evenhandedly and without bias.”

Valentino agreed that officers are in a position of power and must be held to a higher moral standard than other professions.

“But the arbitrator’s award in this case allows reassignment of Henderson to a position which does not involve contact with the public.”
SOURCE:  Sioux City Journal:   http://www.siouxcityjournal.com

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