Ramsey County District Court

File No. C3-96-12279

James P. Michels, Ann E. Walther, Best & Flanagan, P.L.L.P., 4000 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4331 (for appellant)

Hubert H. Humphrey, III, Attorney General, Steven M. Gunn, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

David M. Gross, 8323 Franklin Avenue West, St. Louis Park, MN 55426-1914; and Kathleen M. Milner, 1021 West Broadway, Minneapolis, MN 55411 (for amicus curiae Minnesota Civil Liberties Union)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Thoreen, Judge.

The Minnesota State Patrol Troopers Association (the association), on behalf of Francisco Rodriguez, appeals from the district court's affirmance of an arbitration award reducing Rodriguez's discharge from his job as a trooper to reinstatement without pay, following a 10-month suspension. The association claims that Rodriguez may not be disciplined, despite extensive negative publicity concerning his admitted involvement in group sexual activity with another trooper and a civilian (which activity resulted in criminal charges against both troopers), because his off-duty, consensual sexual activity is constitutionally protected. Even if we were to accept the association's argument that the right of privacy under the Minnesota Constitution extends to such conduct, the existence of a compelling state interest supports the imposition of discipline, and we affirm.

The chief of the Minnesota State Highway Patrol charged Rodriguez with violating General Order R-10-026, Conduct, Chapter 11:

CONDUCT: Members of the State Patrol shall conduct themselves in such manner, both on and off duty, that their behavior will not reflect adversely on the integrity of the organization. Members shall not conduct themselves in any manner which may be immoral, injurious to public welfare, or unbecoming an officer of the State of Minnesota.

Rodriguez admitted his involvement in the incident, although he asserted that the encounter was consensual. He was discharged and sought arbitration. While the matter was pending, Rodriguez was acquitted of criminal charges.

The arbitrator found that the state had just cause for discipline, but that reinstatement without pay for the period of suspension, rather than discharge, was the appropriate sanction. The arbitrator found that Rodriguez violated his oath to conduct himself "at all times in accordance with the highest moral standards" and to avoid committing "any act that will reflect discredit on the Minnesota State Patrol or any member thereof." Notwithstanding the acquittal, the arbitrator concluded that the conduct was immoral and unbecoming a state trooper, the presence of troopers at the hotel was conspicuous, the involvement of state troopers in the encounter was well known, and publicity generated by Rodriguez's conduct reflected adversely on the reputation and integrity of the state patrol.

The association petitioned the district court to vacate the arbitration award, arguing that the imposition of discipline for off-duty, consensual sexual conduct was unconstitutional, even if the admitted conduct resulted in substantial adverse publicity. The district court denied the petition, holding that the conduct was not constitutionally protected and that even if it were, compelling state interests support the imposition of discipline.

Ordinarily, a court is limited to determining whether the specific language of the agreement precludes the arbitrator's award. City of Bloomington v. Local 2828, AFSCME, 290 N.W.2d 598, 602 (Minn. 1980). Absent an agreement limiting the arbitrator's authority, the arbitrator is the final judge of both the law and the facts, including the interpretation of the terms of any contract. State Auditor, 504 N.W.2d at 754; see also Welch v. Buller, 481 N.W.2d 856, 858 (Minn. App. 1992) (courts are bound by the factual findings of arbitrator), review denied (Minn. May 15, 1992). Even if a court believes an arbitrator made an error of fact or law, an award may not be overturned unless the objecting party proves that the award exceeded the arbitrator's powers. Children's Hosp., Inc. v. Minnesota Nurses Ass'n, 265 N.W.2d 649, 652 (Minn. 1978).

Arbitrators, however, lack authority to decide constitutional issues. Courts have the sole jurisdiction to decide constitutional issues. County of Hennepin v. Law Enforcement Labor Servs. Inc., Local No. 19, 527 N.W.2d 821, 825 (Minn. 1995). The arbitrator and the district court in this case recognized this limitation on the arbitrator's authority and we, therefore, review de novo the district court's ruling on the constitutional issues. See State v. Greyeagle, 541 N.W.2d 326, 327 (Minn. App. 1995) (de novo standard of review applicable to constitutional issues).

The arbitrator was required to decide whether there was "just cause" for discipline under the agreement between the association and the state. The agreement does not define "just cause." The arbitrator adopted a reasonable meaning for the term in the context of this case, decided that there was just cause, and applied a remedy that does not conflict with the contract language. See State Auditor, 504 N.W.2d at 755 (where contract did not define "just cause" or limit available remedies, arbitrator was free to adopt reasonable definition and to fashion remedy which did not conflict with terms of agreement). Accordingly, we agree with the district court that the association failed to establish that the arbitrator exceeded his authority under the agreement.

The district court recognized that the right of privacy under the Minnesota Constitution protects certain fundamental decisions involving personal autonomy. See Women of Minnesota v. Gomez, 542 N.W.2d 17, 27 (Minn. 1995) (right under state constitution encompasses decision to terminate pregnancy); Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988) (right under state constitution encompasses right of committed patient to refuse intrusive medical treatment). But the district court concluded that Rodriguez's decision to engage in a sexual "fling" did not constitute an intimate and personal decision central to his personal dignity and autonomy and was not subject to constitutional protection "comparable" to that recognized in existing Minnesota case law. We decline to determine whether the right of privacy under the Minnesota Constitution extends to off-duty, consensual group sexual activity because we conclude, as did the arbitrator, that the state established a compelling interest in regulating Rodriguez's conduct that overrides any such privacy right. See In re Agerter, 353 N.W.2d 908, 915 (Minn. 1984) (intrusion into privacy for purposes of disciplinary proceedings may be warranted if sexual liaison is public knowledge and nature of conduct is likely to undermine public confidence in judicial system).

In order to avoid the conclusion that the state had a compelling interest in regulating Rodriguez's conduct that overrides any constitutional right to engage in the conduct, the association asserts repeatedly that the arbitrator found that Rodriguez's conduct did not adversely affect his ability to perform his duties. A careful reading of the arbitrator's thoughtful and thorough decision, however, belies that assertion. The arbitrator cited the trooper's good record and the willingness of others to continue working with Rodriguez when explaining why the sanction should be reduced from discharge to suspension, but did not hold that the incident had no effect on Rodriguez's ability to perform his job. In fact, the arbitrator found that the state established "a meaningful nexus" between the conduct of Rodriguez, which damaged the state patrol, and the interests of the state patrol in maintaining public confidence. The district court accepted that finding and agreed, as we do, that the conduct had an "open and obvious negative impact" on public perception of, and confidence in, all state troopers.

The nexus between Rodriguez's conduct and the negative impact on his job is not, as the association maintains, based solely on extensive media coverage. Even without media coverage, others in the hotel were aware of the presence of the troopers, a trooper who left the hotel room before the incident saw the civilian on the bed and saw Rodriguez touch her and unfasten her undergarments, and many others learned of the group encounter within hours of its occurrence. Thereafter, the involvement of the troopers in the incident became widely known through statements of the investigating police department and the ensuing criminal proceedings.

We agree with the arbitrator and the district court that discipline is warranted because Rodriguez's admitted conduct demonstrated his appalling lack of judgment concerning appropriate conduct[3]

Hubert H. Humphrey, III, Attorney General, Steven M. Gunn, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

David M. Gross, 8323 Franklin Avenue West, St. Louis Park, MN 55426-1914; and Kathleen M. Milner, 1021 West Broadway, Minneapolis, MN 55411 (for amicus curiae Minnesota Civil Liberties Union)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Thoreen, Judge.

The Minnesota State Patrol Troopers Association (the association), on behalf of Francisco Rodriguez, appeals from the district court's affirmance of an arbitration award reducing Rodriguez's discharge from his job as a trooper to reinstatement without pay, following a 10-month suspension. The association claims that Rodriguez may not be disciplined, despite extensive negative publicity concerning his admitted involvement in group sexual activity with another trooper and a civilian (which activity resulted in criminal charges against both troopers), because his off-duty, consensual sexual activity is constitutionally protected. Even if we were to accept the association's argument that the right of privacy under the Minnesota Constitution extends to such conduct, the existence of a compelling state interest supports the imposition of discipline, and we affirm.

The chief of the Minnesota State Highway Patrol charged Rodriguez with violating General Order R-10-026, Conduct, Chapter 11:

CONDUCT: Members of the State Patrol shall conduct themselves in such manner, both on and off duty, that their behavior will not reflect adversely on the integrity of the organization. Members shall not conduct themselves in any manner which may be immoral, injurious to public welfare, or unbecoming an officer of the State of Minnesota.

Rodriguez admitted his involvement in the incident, although he asserted that the encounter was consensual. He was discharged and sought arbitration. While the matter was pending, Rodriguez was acquitted of criminal charges.

The arbitrator found that the state had just cause for discipline, but that reinstatement without pay for the period of suspension, rather than discharge, was the appropriate sanction. The arbitrator found that Rodriguez violated his oath to conduct himself "at all times in accordance with the highest moral standards" and to avoid committing "any act that will reflect discredit on the Minnesota State Patrol or any member thereof." Notwithstanding the acquittal, the arbitrator concluded that the conduct was immoral and unbecoming a state trooper, the presence of troopers at the hotel was conspicuous, the involvement of state troopers in the encounter was well known, and publicity generated by Rodriguez's conduct reflected adversely on the reputation and integrity of the state patrol.

The association petitioned the district court to vacate the arbitration award, arguing that the imposition of discipline for off-duty, consensual sexual conduct was unconstitutional, even if the admitted conduct resulted in substantial adverse publicity. The district court denied the petition, holding that the conduct was not constitutionally protected and that even if it were, compelling state interests support the imposition of discipline.

Ordinarily, a court is limited to determining whether the specific language of the agreement precludes the arbitrator's award. City of Bloomington v. Local 2828, AFSCME, 290 N.W.2d 598, 602 (Minn. 1980). Absent an agreement limiting the arbitrator's authority, the arbitrator is the final judge of both the law and the facts, including the interpretation of the terms of any contract. State Auditor, 504 N.W.2d at 754; see also Welch v. Buller, 481 N.W.2d 856, 858 (Minn. App. 1992) (courts are bound by the factual findings of arbitrator), review denied (Minn. May 15, 1992). Even if a court believes an arbitrator made an error of fact or law, an award may not be overturned unless the objecting party proves that the award exceeded the arbitrator's powers. Children's Hosp., Inc. v. Minnesota Nurses Ass'n, 265 N.W.2d 649, 652 (Minn. 1978).

Arbitrators, however, lack authority to decide constitutional issues. Courts have the sole jurisdiction to decide constitutional issues. County of Hennepin v. Law Enforcement Labor Servs. Inc., Local No. 19, 527 N.W.2d 821, 825 (Minn. 1995). The arbitrator and the district court in this case recognized this limitation on the arbitrator's authority and we, therefore, review de novo the district court's ruling on the constitutional issues. See State v. Greyeagle, 541 N.W.2d 326, 327 (Minn. App. 1995) (de novo standard of review applicable to constitutional issues).

The arbitrator was required to decide whether there was "just cause" for discipline under the agreement between the association and the state. The agreement does not define "just cause." The arbitrator adopted a reasonable meaning for the term in the context of this case, decided that there was just cause, and applied a remedy that does not conflict with the contract language. See State Auditor, 504 N.W.2d at 755 (where contract did not define "just cause" or limit available remedies, arbitrator was free to adopt reasonable definition and to fashion remedy which did not conflict with terms of agreement). Accordingly, we agree with the district court that the association failed to establish that the arbitrator exceeded his authority under the agreement.

The district court recognized that the right of privacy under the Minnesota Constitution protects certain fundamental decisions involving personal autonomy. See Women of Minnesota v. Gomez, 542 N.W.2d 17, 27 (Minn. 1995) (right under state constitution encompasses decision to terminate pregnancy); Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988) (right under state constitution encompasses right of committed patient to refuse intrusive medical treatment). But the district court concluded that Rodriguez's decision to engage in a sexual "fling" did not constitute an intimate and personal decision central to his personal dignity and autonomy and was not subject to constitutional protection "comparable" to that recognized in existing Minnesota case law. We decline to determine whether the right of privacy under the Minnesota Constitution extends to off-duty, consensual group sexual activity because we conclude, as did the arbitrator, that the state established a compelling interest in regulating Rodriguez's conduct that overrides any such privacy right. See In re Agerter, 353 N.W.2d 908, 915 (Minn. 1984) (intrusion into privacy for purposes of disciplinary proceedings may be warranted if sexual liaison is public knowledge and nature of conduct is likely to undermine public confidence in judicial system).

In order to avoid the conclusion that the state had a compelling interest in regulating Rodriguez's conduct that overrides any constitutional right to engage in the conduct, the association asserts repeatedly that the arbitrator found that Rodriguez's conduct did not adversely affect his ability to perform his duties. A careful reading of the arbitrator's thoughtful and thorough decision, however, belies that assertion. The arbitrator cited the trooper's good record and the willingness of others to continue working with Rodriguez when explaining why the sanction should be reduced from discharge to suspension, but did not hold that the incident had no effect on Rodriguez's ability to perform his job. In fact, the arbitrator found that the state established "a meaningful nexus" between the conduct of Rodriguez, which damaged the state patrol, and the interests of the state patrol in maintaining public confidence. The district court accepted that finding and agreed, as we do, that the conduct had an "open and obvious negative impact" on public perception of, and confidence in, all state troopers.

The nexus between Rodriguez's conduct and the negative impact on his job is not, as the association maintains, based solely on extensive media coverage. Even without media coverage, others in the hotel were aware of the presence of the troopers, a trooper who left the hotel room before the incident saw the civilian on the bed and saw Rodriguez touch her and unfasten her undergarments, and many others learned of the group encounter within hours of its occurrence. Thereafter, the involvement of the troopers in the incident became widely known through statements of the investigating police department and the ensuing criminal proceedings.

We agree with the arbitrator and the district court that discipline is warranted because Rodriguez's admitted conduct demonstrated his appalling lack of judgment concerning appropriate conduct[1] for a married state trooper staying at a hotel at state expense while attending official training. Rodriguez's lack of judgment set in motion a chain of events that brought disrepute to the state patrol. Although the eventual result of Rodriguez's conduct was not inevitable, neither was it unforeseeable.

We conclude that the district court did not err in holding that Rodriguez may be disciplined for conduct that violated his oath of office and the arbitrator did not exceed his authority in imposing the reduced sanction of suspension.

The association moves to strike two documents contained in the state's appendix. The documents were submitted to the arbitrator, but they were not presented to the district court. We have not considered these documents in arriving at our decision.

Affirmed; motion to strike denied.

12/3/97

[ Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

]¹ The argument of amicus curiae that disciplining Rodriguez for such conduct constitutes the impermissible establishment of religion in violation of the First Amendment is unsound. The conclusion that Rodriguez's conduct was immoral and unbecoming a police officer is not dependent on the precepts of any religion. Irrespective of religious belief, a reasonable person could find that the conduct at issue here, which included adultery and casual group sex while attending a law enforcement conference and staying in a hotel at government expense, was immoral and unbecoming.