A04-2374

City of Duluth, petitioner,

Appellant,

vs.

Duluth Police Local,

Respondent,

The Duluth News Tribune,

a division of Northwest Publications, Inc.,

a Delaware corporation,

Intervenor.

Filed July 12, 2005

Affirmed

Hudson, Judge

St. Louis County District Court

File No. C6-04-600429

Bryan F. Brown, Duluth City Attorney, M. Alison Lutterman, Deputy City Attorney, 410 City Hall, Duluth, Minnesota 55802 (for appellant)

Thomas F. Andrew, Aaron R. Bransky, Brown, Andrew & Signorelli, P.A., 306 West Superior Street, Suite 300, Duluth, Minnesota 55802 (for respondent)

Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

The City of Duluth appeals from a district court order confirming an arbitration award that reinstated a police officer whom the city had discharged. Because the arbitrator did not exceed his powers, we affirm.

FACTS

After a complainant reported that a certain Duluth police officer had come into her apartment and assaulted her, the officer became subject to both criminal charges and the disciplinary procedures of his employer, appellant City of Duluth. A jury acquitted the officer of the criminal charges, but appellant discharged the officer.

Respondent Duluth Police Local, the officer’s collective-bargaining agency, filed a grievance on behalf of the officer. Pursuant to the collective-bargaining agreement between the parties, the matter went to arbitration. A polygraph examiner whom the officer had retained in connection with the criminal trial testified at the arbitration hearing. The examiner said he tested the officer and concluded that the officer was truthful when he answered “no” to questions about whether he had had any type of physical contact with the complainant on the day of the alleged abuse, whether he had touched and kissed the complainant as she claimed, and whether he was in the complainant’s apartment on the day of the alleged abuse.

Eight other witnesses testified for respondent and 16 witnesses testified for appellant, including another polygraph expert who had reviewed respondent’s expert’s procedure. Based on this testimony, the arbitrator issued an award sustaining the grievance and ordering the reinstatement of the officer. Appellant challenged this award in district court; the district court confirmed the award. Appellant now challenges this order, arguing that the arbitrator exceeded his powers and violated public policy by admitting polygraph testimony and using the wrong evidentiary standard.

D E C I S I O N

Standard of Review

Arbitration awards must be vacated only if arbitrators have clearly exceeded their powers. Wolfer v. Microboards Mfg., LLC, 654 N.W.2d 360, 365 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003). Courts assume arbitrators have not exceeded their powers unless there is a clear showing that they were unfaithful to their obligations. EEC Prop. Co. v. Kaplan, 578 N.W.2d 381, 383 (Minn. App. 1998), review denied (Minn. Aug. 31, 1998). When an award draws its essence from a collective-bargaining agreement and is derived from it in some rational manner, the district court may not vacate it. Ramsey County v. AFSCME Council 91, Local 8, 309 N.W.2d 785, 793 (Minn. 1981).

1. Admission of the Polygraph Testimony

Appellant argues that, by admitting polygraph testimony, the arbitrator violated section 39.4 of the collective-bargaining agreement, which provides that an arbitrator is “without power to make decisions contrary to or inconsistent with . . . laws and rules and regulations having the force and effect of law.” This language is “a standard clause in collective bargaining agreements . . . [that] merely means the arbitrator’s award must not call for the commission of an illegal act.” State, Office of State Auditor v. Minn. Ass’n of Prof’l Employees, 493 N.W.2d 591, 593 (Minn. App. 1992), aff’d 504 N.W.2d 751 (Minn. 1993). Appellant concedes that this decision is relevant and dispositive, but urges us to overrule it. Appellant offers no authority to support its view that this court has the authority to overrule a prior decision that has been affirmed by the supreme court. In fact, published decisions of this court acquire precedential value unless the supreme court grants review and does not affirm. State v. Collins, 580 N.W.2d 36, 43 (Minn. App. 1998), review denied (Minn. July 16, 1998).

Moreover, the arbitrator’s admission of polygraph testimony was not “contrary to or inconsistent with . . . law[,]” and, therefore, it did not violate section 39.4 of the collective-bargaining agreement. Citing State v. Anderson, 379 N.W.2d 70, 79 (Minn. 1985), appellant notes that polygraph evidence is inadmissible in criminal and civil trials because the results are inherently unreliable. But the proceeding here was an arbitration—not a criminal or civil trial. The holding in Andersonhas no bearing on an arbitration. Indeed, no law prohibits the introduction of polygraph testimony at arbitration hearings, which are not subject to the same evidentiary rules as courts of law. See LaFee v. Winona County, 655 N.W.2d 662, 665, n.1 (Minn. App. 2003) (usual rules of evidence do not apply in arbitration proceedings), review denied (Minn. Mar. 27, 2003). Moreover, an arbitrator has “broad authority to determine the admissibility of evidence.” Minn. State Patrol Troopers Assoc. v. State, Dep’t of Pub. Safety, 437 N.W.2d 670, 676–77 (Minn. App. 1989), review denied (Minn. May 24, 1989). Thus, appellant offers no credible support for its view that an arbitrator exceeds his or her authority by admitting polygraph evidence.

Appellant also claims that the arbitrator unfairly accepted the analysis of the officer’s polygraph expert and discounted the analysis provided by appellant’s polygraph expert, who claimed that the officer was deceptive. But the arbitrator found that

[appellant’s expert’s] opinion that the results of [the officer’s expert’s] examination were flawed and inaccurate is contrary to the opinion of two other polygraph examiners. As part of an accepted practice among polygraph examiners, [the officer’s expert] had [two] polygraphists for the Minnesota Department of Corrections conduct a “blind scoring” review of his charts. They independently concurred with [the officer’s expert’s] finding that [the officer] was truthful. It is clear from this evidence that credible weight must be given to the results obtained by [the officer’s expert] and two independent polygraph examiners rather than the sole opinion of [appellant’s expert].

Appellant does not challenge this finding.

Appellant does, however, challenge the finding that its expert “did not conduct an independent polygraph examination of [the officer] to ask the ‘right’ questions of [him.]” Relying on Minn. Stat. § 181.75, subd. 1 (2004) (providing that employers may not require employees to take polygraph tests), appellant argues that the hearing was fundamentally unfair because it could not legally ask the officer to take an adverse polygraph test. Thus, appellant claims it was “prevented from obtaining the very evidence the arbitrator ruled was needed in order to rebut [respondent’s] polygraph evidence.” Appellant’s argument is not without merit. But given the entire record, and the broad authority of arbitrators to determine the admissibility of evidence, we cannot say the arbitrator exceeded his authority by admitting the polygraph evidence.

Even if the arbitrator exceeded his powers in admitting the polygraph evidence, the award would not need to be vacated. See Minn. State Patrol Troopers, 437 N.W.2d at 677 (“[t]he issue then becomes whether, absent the evidence that must be suppressed as the product of an illegal search and seizure, sufficient evidence remains to warrant the arbitrator’s [decision]”). Here, ample evidence remains to support the arbitrator’s decision. Appellant does not challenge the findings that: (1) the complainant’s boyfriend said the apartment door was locked at the time she reported that the officer broke in; (2) the complainant’s neighbors said they did not hear her dog bark as usual when someone entered the apartment; nor did they hear any shouts or screaming that would have resulted from a sexual assault; (3) the complainant suffers from several mental illnesses that make her prone to hallucinate sexual assaults and unable to differentiate between hallucination and reality; (4) the complainant was on strong medications that could cause confusion; (5) the complainant has a history of making unsubstantiated accusations; (6) the complainant was under great stress because (a) the man with whom she had been living had recently gone to prison and his child, whose care the complainant had been providing, had been recently removed from complainant’s home and returned to the child’s biological mother; (b) the complainant had been diagnosed with cervical cancer; and (c) the complainant had been pregnant but lost the baby.

The arbitrator also noted that there were significant inconsistencies between what the complainant told her neighbors about the alleged attack and what she told her mother, her boyfriend, and others. The arbitrator also discredited one of complainant’s main witnesses, who testified that she saw the officer’s car pulling away from the scene around the time of the alleged assault. Noting that the witness had a bias against the police and this officer in particular—with whom the witness had several negative encounters involving her children—the arbitrator concluded that the witness had a motive to lie. On this record, we conclude that even if the polygraph testimony were excluded as erroneously admitted, ample evidence supports the arbitrator’s award.

Appellant also argues that the arbitrator violated public policy in admitting the polygraph testimony. “A court may set aside an arbitration award only if (1) the collective bargaining agreement contains terms which violate public policy, or (2) the arbitration award creates an explicit conflict with other laws and legal precedents.” State, Office of State Auditor, 504 N.W.2d at 756 (quotation marks omitted). Appellant claims the arbitrator’s admission of polygraph evidence violated Minnesota’s legal precedent of not admitting such evidence. But, again, Minnesota has no precedent of admitting, or not admitting, polygraph evidence in arbitrations: it is inadmissible only in court cases. See Anderson, 379 N.W.2d at 79. The arbitrator’s award, even if based in part on polygraph evidence, does not create a conflict with any law or legal precedent.

2. Evidentiary Standard

The arbitrator relied on “Department Policy and past practice of the parties,” as evidenced by another grievance procedure, to determine that “the appropriate standard of proof in this case is preponderance of the evidence.” The arbitrator also relied on Thompson v. City of Appleton, 366 N.W.2d 326, 328 (Minn. App. 1985) (quotation omitted), which states that “the evidence showing the existence of reasons for dismissal must be substantial.” Ultimately, the arbitrator found that

[appellant] has failed in its burden of proving by the preponderance of the evidence and the substantial evidence test in Thompson that [the police officer] was guilty of any wrongdoing with respect to [the complainant] on [the date of the alleged offense]. There is no substantial evidence that [the police officer] entered [the complainant’s] resident [sic] on [that date] without her permission and engaged in conduct of a sexual nature which was unsolicited by or permitted by [her].

Appellant argues that the appropriate standard is the preponderance-of-the-evidence standard and that the arbitrator committed reversible error by using the substantial evidence standard. But “[t]he preponderance of the evidence standard is a higher standard than the substantial evidence standard . . . .” City of Lake Elmo v. Metro. Council, 685 N.W.2d 1, 4 (Minn. 2004). Therefore, even if the arbitrator erred in using the substantial-evidence standard, the error worked to appellant’s advantage, because that standard of proof is lower.

Appellant has neither shown that the arbitrator exceeded his powers nor provided any other basis for vacating the award.

Affirmed.