In April of 2009, an Alaskan State Trooper responded to a woman’s plea for help in connection with a possible domestic violence matter involving her husband; after the unnamed husband was arrested and taken away, some hours later, the trooper returned to have consensual sex with the woman. Sometime after that, the husband finds out about the encounter and reports the incident to his defense lawyer who in turn tells the prosecutor. Eventually, Colonel Audie Holloway calls for the trooper’s termination. The matter was ultimately argued before an Arbitration Judge who reinstated the trooper and the case was appealed to the Alaska Supreme Court. They affirmed the decision this week finding that the Arbitrator’s ruling did not violate “an explicit well-defined . . . public policy. . . prohibiting reinstatement” The question was not whether the trooper’s conduct violated public policy it was whether the arbitrator’s decision below did; the court found that it did not, in part because the arbitrator had the option of choosing termination over suspension. The court reasoned as follows:
“Engaging in sexual conduct with a victim shortly after responding to her call for help, even if consensual, is inappropriate behavior for a state trooper,” the justices wrote.
But because there’s no “zero-tolerance” public policy in Alaska that makes off-duty sex with a crime victim a firing offense, the court had to defer to the arbitrator’s conclusion that the trooper should have been disciplined but not fired.
The court referenced another case where a cop’s reinstatement was upheld where he had sex with a confidential informant while on duty and in uniform noting that the act was not criminal. The husband’s criminal charge was substantially reduced by the prosecutor.
OUR FREE OPINION
We agree with the appellate court’s conclusion that the trooper should not be fired; however, we are quick to add that the criminal case against the husband was indeed compromised by the trooper’s actions.