BY MARTHA STODDARD
Omaha World-Herald, March 4, 2008
LINCOLN — Nebraska's public policy against racism should bar reinstating a state trooper who joined a group affiliated with the Ku Klux Klan, a state attorney told the Nebraska Supreme Court on Tuesday.
Private citizens are free to think what they want and free to join racist groups, Assistant Attorney General Thomas Stine told the court. But the state has the right to set terms of employment for state troopers.
"The public policy of the state is, it's not OK to espouse those racist ideologies and be a member of our State Patrol," Stine said.
He said the state's policy against racism allows the court to overturn a binding arbitration ruling in the trooper's favor and to uphold the firing of Robert E. Henderson.
Henderson's lawyer challenged that argument.
"We're talking about free thought, free association and freedom of speech. I know public employees give up some rights, but they don't give up the right to think," Vincent Valentino said.
The Supreme Court made no immediate ruling.
After an internal investigation confirmed that Henderson had joined the Klan-affiliated Knights Party and posted messages to an online discussion group for party members, he was fired in March 2006.
But an independent arbitrator from New York ruled in August 2006 that the 18-year patrol veteran should be reinstated.
Attorney General Jon Bruning appealed that decision, and Lancaster County District Judge Jeffre Cheuvront upheld Henderson's firing.
The judge said reinstating Henderson would violate "well-defined and dominant public policy" of Nebraska.
Henderson appealed Cheuvront's decision.
During Tuesday's arguments, Supreme Court Judge Kenneth Stephan noted that Nebraska law does not provide for a public policy exception to a binding arbitration decision. Ordinarily, courts have little power to challenge such rulings if the arbitrator is impartial and qualified.
Supreme Court Judge William Connolly also sounded skeptical.
"Does the theory of public policy trump freedom of speech and association?" Connolly asked. Later, he said, "This public policy (exception) could be an unruly horse that might take us anywhere."
Henderson's attorney, Valentino, made similar points.
He said a public policy exception, if one were allowed, should not be used against a man who had not treated anyone differently because of their race and who was not involved with the Knights Party, other than to pay a membership fee and post four messages on a Web site it operated.
Valentino also said accepting the lower court's decision could open the door for future challenges to binding arbitration decisions.
Supreme Court Judges John Wright and John Gerrard questioned Valentino about the nature of the Knights Party and its ties to the KKK.
Wright asked whether the patrol would have a valid interest in keeping a member of that group off its payroll, knowing that a trooper's job involves dealing with racial minorities.
Henderson told a patrol investigator in 2006 that he joined the Knights Party, which describes itself as the oldest, largest and most-active Klan organization in America, because his wife had left him for a Hispanic man.
Henderson told the investigator the Knights Party gave him an avenue to vent his frustrations. He joined the group in June 2004 and resigned from it the day before his State Patrol disciplinary hearing in 2006.
Henderson also faces possible loss of his law enforcement certification. A complaint is pending before the Nebraska Crime Commission, but the case was put on hold until the Supreme Court rules, said Mike Behm, commission executive director.