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Alaska Police Stds. Council v. Parcell

Supreme Court of Alaska

April 17, 2015

ALASKA POLICE STANDARDS COUNCIL, Appellant,
v.
LANCE PARCELL, Appellee

Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Louis J. Menendez, Judge. Superior Court No. 1JU-12-00728 CI.

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.

OPINION

Page 883

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 vacatea 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 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

Page 884

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.
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 ...

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