Post by KC on Oct 13, 2006 19:07:04 GMT -5
OMAHA, Neb. -- A fired state trooper's link to a white supremacist group has placed Nebraska in the middle of a debate over individual rights and ensuring police fairness.
An arbitrator ruled in August that Officer Robert Henderson should get his job back, but officials at the State Patrol and capitol promise to fight, setting the stage for a courtroom battle this month in Lincoln. Both sides filed briefs in the court case on Friday.
The state should prevail, said Mark Potok, director of the Intelligence Project, which has been tracking hate groups since 1981.
"The law is clear on this," Potok said. "He can be fired for this."
Yet arbitrator Paul J. Caffera cited several court rulings that say public employees and law enforcement officers don't have to give up their Constitutional rights when they accept the job. He also faulted the State Patrol's internal investigation and said the agency didn't follow its contract.
James Pasco, executive director of the Fraternal Order of Police, the nation's largest union of law enforcement officers, acknowledged that the standard for a police officer's conduct is different from other public employees.
"But at the same time, there has to be fairness and recognition that police officers don't check their constitutional rights at the door," Pasco said.
A secret State Patrol investigation found that Henderson had joined the Knights Party, which has ties to the Ku Klux Klan. Henderson acknowledged his membership to investigators and admitted posting messages on the group's members-only Web site.
He later resigned from the group and apologized to the State Patrol's commander.
Nebraska Attorney General Jon Bruning filed suit to overturn Caffera's ruling and a hearing is set for Oct. 13.
"The state of Nebraska has no interest in allowing an avowed racist to be a member of the State Patrol," Bruning said.
Vincent Valentino, who represents both Henderson and the State Troopers Association of Nebraska, said Bruning's lawsuit undermines the arbitration process and the union contract.
"The question is now that we have an arbitration order that favors Bob Henderson, are they going to uphold it, or are they going to tear up our contract?" Valentino said.
Caffera noted that in Henderson's more than 18 years of work on the State Patrol only one complaint was filed by a "minority citizen," and that was determined to be unfounded.
"The grievant may have personal philosophies that would disgust many citizens of Nebraska," Caffera wrote, "nevertheless, he has well-hidden those beliefs and they have not interfered with his impartial enforcement of the law."
It's hard to convince a judge to overturn an arbitrator's order, said Richard Moberly, an assistant law professor at the University of Nebraska-Lincoln, and the standards in Nebraska law make it even more "difficult."
"Once an arbitrator makes a decision in a case like this, it's generally upheld by courts," said Moberly, who teaches employment law.
State law sets specific circumstances to overrule an arbitrator, such as bias exceeding authority.
Bruning said he doesn't care about the odds and pledged to "fight this to the end."
But regardless of how the Constitutional questions in Henderson's case are settled, procedural problems the arbitrator identified in the original investigation could still negate Henderson's firing.
Investigators failed to notify Henderson he was being investigated, as the union contract requires, and missed a deadline to either complete the investigation or apply for an extension. And administrative subpoenas were used to gather some evidence even though State Patrol procedures call for those to be used only in criminal investigations.
"It is hard to conceive of another investigation taking so long to produce so little evidence of alleged misconduct," Caffera said.
Valentino said many people fail to realize that the Klan issue is not the whole story of Henderson's case.
"You've got contract violations in there that I think are perhaps more egregious than the first amendment issues," Valentino said.
But Bruning said the contract issues are just a red herring. He said the normal investigative procedures spelled out in the union contract are designed for looking into an incident has already happened, not ongoing conduct.
And Bruning said the investigator couldn't notify Henderson because he was trying to catch the trooper posting comments to the Knights Party site.
"The bottom line here is not union contracts and it's not due process," Bruning said. "Nebraskans need to have confidence that their officers are working for the public interest."
According to Caffera's ruling, the case had its origins in 2003, when Henderson's wife left him for a Hispanic man. Henderson is white.
In October, a patrol captain was notified by the Kansas Bureau of Investigation that a Nebraska law officer may have joined a Web site "affiliated with the Ku Klux Klan."
One of the person's postings -- signed "White Knight in Ne" -- appeared to discuss an incident Henderson was involved in. Investigators later confirmed Henderson was posting as the "White Knight in Ne."
The Web site's sponsor, the Knights Party of Harrison, Ark., is run by Thomas Robb. Caffera described the Knights Party as an attempt to "cloak the 'friendlier face' of the Knights Party from its ultimate corporate parent, Robb's faction of the KKK."
Instances of police officers having ties to the Ku Klux Klan surface about once a year.
"It's quite rare these days," Potok said.
Caffera said Henderson could be assigned to duties where his past would not be disruptive. Bruning bristled at the notion.
"Cleaning the toilets would be too good for him," Bruning said. "He will not have a badge or carry a gun again."
www.siouxcityjournal.com/articles/2006/10/08/news/nebraska/87f58febcbe1096086257201000e50f2.txt
An arbitrator ruled in August that Officer Robert Henderson should get his job back, but officials at the State Patrol and capitol promise to fight, setting the stage for a courtroom battle this month in Lincoln. Both sides filed briefs in the court case on Friday.
The state should prevail, said Mark Potok, director of the Intelligence Project, which has been tracking hate groups since 1981.
"The law is clear on this," Potok said. "He can be fired for this."
Yet arbitrator Paul J. Caffera cited several court rulings that say public employees and law enforcement officers don't have to give up their Constitutional rights when they accept the job. He also faulted the State Patrol's internal investigation and said the agency didn't follow its contract.
James Pasco, executive director of the Fraternal Order of Police, the nation's largest union of law enforcement officers, acknowledged that the standard for a police officer's conduct is different from other public employees.
"But at the same time, there has to be fairness and recognition that police officers don't check their constitutional rights at the door," Pasco said.
A secret State Patrol investigation found that Henderson had joined the Knights Party, which has ties to the Ku Klux Klan. Henderson acknowledged his membership to investigators and admitted posting messages on the group's members-only Web site.
He later resigned from the group and apologized to the State Patrol's commander.
Nebraska Attorney General Jon Bruning filed suit to overturn Caffera's ruling and a hearing is set for Oct. 13.
"The state of Nebraska has no interest in allowing an avowed racist to be a member of the State Patrol," Bruning said.
Vincent Valentino, who represents both Henderson and the State Troopers Association of Nebraska, said Bruning's lawsuit undermines the arbitration process and the union contract.
"The question is now that we have an arbitration order that favors Bob Henderson, are they going to uphold it, or are they going to tear up our contract?" Valentino said.
Caffera noted that in Henderson's more than 18 years of work on the State Patrol only one complaint was filed by a "minority citizen," and that was determined to be unfounded.
"The grievant may have personal philosophies that would disgust many citizens of Nebraska," Caffera wrote, "nevertheless, he has well-hidden those beliefs and they have not interfered with his impartial enforcement of the law."
It's hard to convince a judge to overturn an arbitrator's order, said Richard Moberly, an assistant law professor at the University of Nebraska-Lincoln, and the standards in Nebraska law make it even more "difficult."
"Once an arbitrator makes a decision in a case like this, it's generally upheld by courts," said Moberly, who teaches employment law.
State law sets specific circumstances to overrule an arbitrator, such as bias exceeding authority.
Bruning said he doesn't care about the odds and pledged to "fight this to the end."
But regardless of how the Constitutional questions in Henderson's case are settled, procedural problems the arbitrator identified in the original investigation could still negate Henderson's firing.
Investigators failed to notify Henderson he was being investigated, as the union contract requires, and missed a deadline to either complete the investigation or apply for an extension. And administrative subpoenas were used to gather some evidence even though State Patrol procedures call for those to be used only in criminal investigations.
"It is hard to conceive of another investigation taking so long to produce so little evidence of alleged misconduct," Caffera said.
Valentino said many people fail to realize that the Klan issue is not the whole story of Henderson's case.
"You've got contract violations in there that I think are perhaps more egregious than the first amendment issues," Valentino said.
But Bruning said the contract issues are just a red herring. He said the normal investigative procedures spelled out in the union contract are designed for looking into an incident has already happened, not ongoing conduct.
And Bruning said the investigator couldn't notify Henderson because he was trying to catch the trooper posting comments to the Knights Party site.
"The bottom line here is not union contracts and it's not due process," Bruning said. "Nebraskans need to have confidence that their officers are working for the public interest."
According to Caffera's ruling, the case had its origins in 2003, when Henderson's wife left him for a Hispanic man. Henderson is white.
In October, a patrol captain was notified by the Kansas Bureau of Investigation that a Nebraska law officer may have joined a Web site "affiliated with the Ku Klux Klan."
One of the person's postings -- signed "White Knight in Ne" -- appeared to discuss an incident Henderson was involved in. Investigators later confirmed Henderson was posting as the "White Knight in Ne."
The Web site's sponsor, the Knights Party of Harrison, Ark., is run by Thomas Robb. Caffera described the Knights Party as an attempt to "cloak the 'friendlier face' of the Knights Party from its ultimate corporate parent, Robb's faction of the KKK."
Instances of police officers having ties to the Ku Klux Klan surface about once a year.
"It's quite rare these days," Potok said.
Caffera said Henderson could be assigned to duties where his past would not be disruptive. Bruning bristled at the notion.
"Cleaning the toilets would be too good for him," Bruning said. "He will not have a badge or carry a gun again."
www.siouxcityjournal.com/articles/2006/10/08/news/nebraska/87f58febcbe1096086257201000e50f2.txt