City of Duluth, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0404

City of Duluth,
Appellant,

vs.

Duluth Police Union, Local No. 807,
Respondent.

Filed September 3, 2019
Affirmed
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CV-18-1705

Susan K. Hansen, Madden Galanter Hansen, LLP, Bloomington, Minnesota; and

Steven B. Hanke, Deputy Duluth City Attorney, Duluth, Minnesota (for appellant)

James P. Michels, Alana Mosley, Rice, Michels & Walther, LLP, Minneapolis, Minnesota
(for respondent)

Susan L. Naughton, League of Minnesota Cities, St. Paul, Minnes ota (for amici curiae
League of Minnesota Cities and Minnesota Chiefs of Police Association)

Joseph A. Kelly, Kevin M. Beck, Rebecca Duren, Kelly & Lemmons, P . A . , S t . P a u l ,
Minnesota (for amici curiae Teamsers Local 320, Police Officers Federation of
Minneapolis, and Bloomington Police Officers Federation)

Isaac Kaufman, Brooklyn Center, Minnesota (for amicus curiae La w Enforcement Labor
Services, Inc.)

C h r i s t o p h e r K . W a c h t l e r , W a c h t l e r L a w O f f i c e , S t . P a u l , M i n n e s ota (for amici curiae
Woodbury Police Officers Association, Minnesota Conservation Officers Association, and
St. Paul Police Federation)

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Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Adam Huot, a Duluth police officer, was discharged from his employment following
a use-of-force incident. Respondent Duluth Police Union challenged the termination, and
the dispute was referred to arbitration. The arbitrator conclud ed that discipline was
warranted, but that termination was not, and awarded Huot reinstatement without back pay
or benefits. The city moved the district court for an order vac ating the award of
reinstatement, arguing that it was contrary to public policy. T he district court denied the
motion, and the city now appeals. We affirm.
FACTS
On the night of May 20, 2017, Adam Huot, a police officer in ap pellant City of
Duluth’s police department, responded, along with two fellow of ficers, to a pair of calls
regarding two men in the Duluth skywalk system. While respondin g to the first call, the
officers told the men to move along from a skywalk stairwell, a nd the men did so. The
officers responded to the second call at a private parking ramp, where they discovered that
the men had entered another part of the skywalk system. Huot, a ccompanied by the other
two officers, told the men to find somewhere else to go and tol d them that they would be
mailed tickets for trespassing. One of the men, B.H., responded , “What about disorderly
conduct and all that s---?” Huot said that disorderly conduct did not apply and told the men

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to walk away. B.H. then demanded, “I want to go to jail right f ---ing now!” Huot and
another officer cuffed B.H’s hands behind his back, but, as the officers were walking him
through the skywalk toward where the police cars were parked, B.H. fell to the ground and
said, “I ain’t gonna make it easy for you guys.”
Within ten seconds and without saying anything to B.H., Huot gr abbed the chain
connecting B.H.’s handcuffs and dragged him along the floor for about 100 feet through
the skywalk to an elevator. On t he way to the elevator, Huot dr agged B.H. through a
doorway, where B.H.’s head str uck the metal doorframe. One of t he other officers then
caught up with Huot and B.H. The officers helped B.H. to his fe et and, for the remainder
of the trip to the police cars, supported B.H. under his arms w hile he walked. Although
Huot called the other two officers later that night to discuss the incident, he did not report,
during his shift, the use of force to his supervisor.
The city concluded that Huot’s c onduct had violated the police department’s use-
of-force policy and its code of conduct. Based on those violati ons, Huot’s employment
with the police department was terminated. Huot is a member of respondent Duluth Police
Union, and the union challenged the termination pursuant to pro cedures defined by the
collective-bargaining agreement (CBA) between the city and the union. The dispute was
ultimately referred to binding arbitration. The arbitrator issued his order in June 2018.
The arbitrator ruled that Huot’s conduct was an unreasonable us e of force that
violated the department’s use-of-force policy and that Huot’s failure to promptly report the
use of force violated the department’s policy on reporting use of force. The arbitrator also
found that Huot had been involved in a prior use-of-force incident in which he repeatedly

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punched a man in the head in order to get the man to drop a sha rd of glass, even though
other officers were restraining the man. Huot received a one-da y disciplinary suspension
for that incident. Huot was also involved in two other incidents that were deemed not to be
use-of-force incidents. Huot received coaching, but not discipline, for those two incidents.
The arbitrator concluded that, though the incident at issue her e was “serious,” the
use of force was relatively minor compared to the other use-of- force incident, for which
Huot had received a one-day disciplinary suspension. The arbitrator observed that the one-
day suspension was Huot’s only prior discipline, and the arbitrator considered as mitigation
Huot’s nine years of service and the commendations he has received. The arbitrator stated
that Huot’s conduct in the incident at issue, in light of the f act that he had already been
trained and coached about use of force, caused “command staff to speculate” that he would
misuse force again if reinstated. The arbitrator continued, “The Arbitrator cannot find fault
with this speculation. [Officer] Huot and his career as a polic e officer is at a crossroad:
Either he takes control of his penchant for misusing vocal and physical force or he will be
fired: A third use of force violation would be his last.” While the arbitrator determined that
discipline was warranted, he ruled that, because the CBA calls for progressive discipline,
Huot’s conduct did not justify te rmination under the agreement. The arbitrator awarded
Huot “reinstatement but without back pay and benefits,” effecti vely determining that the
appropriate discipline was a 13-m onth unpaid suspension. The ar bitrator wrote,
“Termination revoked, the Arbitrator hopes to rivet in the Grievant’s mind the seriousness
of the matter and of his need to change. Another undersized sus pension will not do the
trick.”

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The city moved the district court for an order vacating the awa rd of reinstatement,
arguing that vacatur was required under the public-policy excep tion. The district court
denied the motion, reasoning that, while Huot’s conduct was contrary to public policy, the
arbitrator’s award did not violate any “well-defined public policy.”
The city appeals, arguing that the district court erred because the arbitrator’s award
violates a well-defined public policy.
D E C I S I O N
Judicial review of an arbitrator’s decision is “extremely narro w.” State, Office of
State Auditor v. Minn. Ass’n of Prof’l Emps. , 504 N.W.2d 751, 755 (Minn. 1993). The
arbitrator “is the final judge of both fact and law, including the interpretation of the terms
of any contract.” Id. at 754 (quoting Cournoyer v. Am. Tel. & Radio Co., 83 N.W.2d 409,
411 (Minn. 1957)). Courts thus lack the authority to review arbitrators’ awards for mistakes
of law or fact; review is only for fundamental flaws in the arbitration process. Id.; see Minn.
Stat. § 572B.23(a) (2108) (allowing vacation based on “corrupti on, fraud, or other undue
means,” a corrupt or impartial ar bitrator, a substantially prej udicial failure to allow one
party to fully present their case, action in excess of the arbi trator’s powers, absence of an
agreement to arbitrate, or lack of notice).
The United States Supreme Court has identified an exception to the general
principle against substantive re view of an arbitrator’s decisio n: the public-policy
exception. That exception is based on the principle that, “[a]s with any contract, . . . a court
may not enforce a collective-bargaining agreement that is contrary to public policy.” W.R.
Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic

6
Workers, 461 U.S. 757, 766, 103 S. Ct. 2177, 2183 (1983). But the public policy “must be
well defined and dominant, and is to be ascertained ‘by referen ce to the laws and legal
precedents and not from general considerations of supposed public interests.’” Id. (quoting
Muschany v. United States, 324 U.S. 49, 66, 65 S. Ct. 442, 451 (1945)). Further, the award
itself must create an “explicit conflict” with that public policy to justify application of the
exception. United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 43, 108 S. Ct. 364,
373 (1987). The Minnesota Supreme Court has emphasized that the analysis should focus
not on whether an employee’s cond uct was contrary to public pol icy but on whether the
award is contrary to public policy. City of Richfield v. La w Enf’t Labor Servs., Inc. , 923
N.W.2d 36, 41 (Minn. 2019); State Auditor, 504 N.W.2d at 757.1

1 There is some question about whether the public-policy exception applies in Minnesota.
The Supreme Court’s recognition of the power to vacate arbitrat ion awards rests on the
common-law doctrine that courts m ay not enforce contracts that require action that is
inconsistent with public policy. W.R. Grace, 461 U.S. at 766, 103 S. Ct. at 2183. And
federal common law is not b inding on Minnesota courts. See Hinckley Square Assocs. v.
Cervene, 871 N.W.2d 426, 430 (Minn. App. 2015) (finding the federal co mmon-law rule
requiring that artificial entities be represented by a licensed attorney persuasive, but not
binding, when considering whethe r Minnesota caselaw requiring c orporations to be
represented by an attorney extended to limited partnerships). T hough the Minnesota
Supreme Court has twice consider ed whether to vacate an arbitra tor ’ s a wa r d un de r t he
public-policy exception, it has not determined whether the exception exists in Minnesota.
See City of Richfield, 923 N.W.2d at 41 (“Assuming without deciding that a public-policy
exception permits courts to vacate arbitration awards, the facts here do not support applying
the exception.”); State Auditor, 504 N.W.2d at 758 n.9 (“While we refuse to invoke a public
policy exception in the present case, we express no opinion on whether we would adopt
s u c h a p u b l i c p o l i c y e x c e p t i o n o n a d i f f e r e n t s e t o f f a c t s . ” ) . This court recognized the
exception and applied it to vacate an arbitrator’s award in City of Brooklyn Center v. Law
Enf’t Labor Servs., Inc. , 635 N.W.2d 236 (Minn. App. 2001), review denied (Minn.
Dec. 11, 2001). But that case was decided before City of Richfield, so its continued validity
with regard to the public-policy exception is somewhat unclear. Nonetheless, we need not
determine whether the public-policy exception could allow for v acatur of an arbitrator’s

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A two-step process is used to evaluate whether an arbitrator’s award violates public
policy. First, courts determine whether the party challenging t he award has identified a
public policy that is “well defined and dominant” based on “law s and legal precedents.”
See Misco, 484 U.S. at 43-44, 108 S. Ct. at 373-74 (quotation omitted) (refusing to vacate
an arbitrator’s award because the public policy advanced by the challenger failed to meet
that standard). Second, if the party has identified a policy th at meets those standards, the
court examines whether the award itself is contrary to the poli cy. State Auditor , 504
N.W.2d at 758 (refusing to vacate an arbitrator’s award because the award was not contrary
to the well-defined and dominant public policy that was identif ied). Failure on either of
these steps defeats application of the public-policy exception.
In this case, the city has identified two public policies that it claims are violated by
the award reinstating Officer Huo t: a public policy against unn ecessary use of force by
police officers and a public policy against failure to report t he use of force by police
officers. We need not decide whether these public policies are well-defined and dominant
under the first step of the anal ysis if the arbitrator’s award is not contrary to the policies
under the second step.2 We turn to that question.

award in Minnesota because we conclude that any such exception would not apply under
these facts.

2 There is no dispute that there is a well-defined and dominant public policy against the
excessive use of force by police officers. Minn. Stat. § 609.06, subd. 1(1) (2018) (allowing,
as an exception from the prohibitions of the criminal code, public officers to use reasonable
force when officers reasonably believe it to be necessary in or der to carry out their legal
duties); Minn. Stat. §§ 609.224, subd. 1 (making it a misdemean or to intentionally inflict
bodily harm); .2231, subd. 8 (making it a gross misdemeanor to intentionally inflict
demonstrable bodily harm on a vulnerable adult) (2018); City of Minneapolis v. Police

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Unreasonable Use of Force
The city asserts that reinstating Huot would violate a public p olicy against the
unreasonable use of force. Under State Auditor, the fact that an employee’s past actions
violated a public policy does not necessarily mean that reinstatement of the employee will
violate that same public policy. 504 N.W.2d at 757-58. But the city argues that, in State
Auditor, the arbitrator specifically determined that the employee’s co nfession to
misconduct “implied an intention to reform and eliminated the r isk . . . of future similar
misconduct,” id. at 758, whereas, here, the arb itrator did not find that the ri sk of future
similar misconduct had been elim inated. In fact, according to t he city, the arbitrator’s
statements that he “cannot find fault with [the] speculation” o f command staff that Huot
would misuse force again, and the arbitrator’s description of H uot as having a “penchant

Officers’ Fed’n of Minneapolis , 566 N.W.2d 83, 89 (Minn. App. 1997) (“It is axiomatic
that there is a well-defined and dominant public policy against police officers using
excessive force.”); see also U.S. Const. amend. IV (prohi biting, among other things,
unreasonable seizures); 42 U.S.C. § 1983 (2012) (creating a civ il cause of action for
deprivation of civil rights); Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1871
(1989) (“Where . . . [an] excessive force claim arises in the c ontext of an arrest or
investigatory stop of a free citi zen, it is most properly chara cterized as one invoking the
protections of the Fourth Amendment . . . .”).
Whether there is a well-defined and dominant public policy requiring police officers
to report their use of force is less clear. The city’s argument that there is such a public
policy rests on two sources of law. The first is this court’s o pinion in City of Richfield v.
Law Enf’t Labor Servs., Inc., which was reversed by the supreme court. 910 N.W.2d 465,
475 (Minn. App. 2018), rev’d 923 N.W.2d 36 (Minn. 2019). The second is a Minnesota
Board of Peace Officer Standards and Training (POST) regulation that requires peace
officers to demonstrate that they are capable of self-regulatio n. Minn. R. 6700.1500,
subp. 3 (2017). It is not clear t hat a reversed case from this court and a single regulation
requiring “self-regulation” constitute a well-defined and dominant public policy relating to
the reporting of use of force. But we need not decide whether t here is a well-defined and
dominant public policy requiring the reporting of use of force. E v e n i f t h e r e i s , t h e
arbitrator’s award here does not violate it.

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for misusing vocal and physical force,” constitute a finding th at Huot is likely to misuse
force in the future. Thus, the city argues, reinstatement will violate public policy.
But the city overstates the arb itrator’s findings. While the ar bitrator recognized
command staff’s fear that Huot w ill misuse force again, he char acterized it as
“speculation.” And, while the arbitrator did not find fault wit h such speculation, he also
did not find that it was substantiated or that it was anything more than speculation. “A
refusal to enforce an award must rest on more than speculation or assumption.” Misco, 484
U.S. at 44, 108 S. Ct. at 374. Similarly, describing Huot as ha ving a “penchant” does not
constitute a prediction that he will continue to act accordingly; it merely recognizes Huot’s
past practices. Thus, the arbitrator’s “penchant” comment simil arly does not constitute a
finding that officer Huot will misuse force in the future.
These plain-language interpreta tions of the arbitrator’s findin gs are reinforced by
their context. The arbitrator in this case was asked two questi ons: was Huot’s termination
for “just cause,” and, “[i]f not, what is an appropriate remedy?” All of the statements relied
upon by the city to argue that the arbitrator found that Huot will misuse force in the future
appear in a section in which the arbitrator explains why he selected the disciplinary remedy
that he did—effectively, a 13-month unpaid disciplinary suspension. Thus, the arbitrator’s
statements are best understood n ot as asserting that Huot will misuse force again, but as
explaining why a 13-month unpaid suspension is necessary to ensure that he does not.
The city also analogizes to City of Brooklyn Center to argue that reinstating Huot
would violate the public policy against misuse of force because it would give him a unique
opportunity to continue to use unreasonable force. See 635 N.W.2d at 244. In City of

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Brooklyn Center, the terminated police officer had engaged in a ten-year pattern of stalking
and sexual harassment, shown by the complaints of more than 30 women and by the
testimony of 15 women who had ex perienced the officer’s conduct . Id. at 239-40. In
addition, the officer had not cha nged his behavior despite havi ng faced serious potential
consequences for it. Id. at 244 (observing that the officer had repeatedly engaged in sexual
harassment “despite attempted employment termination and a criminal prosecution”). The
situation in this case is quite different. Here, the officer misused force on one prior occasion
and, as discipline for it, received only a one-day paid suspension. Unlike the officer in City
of Brooklyn Center, whose pattern of misconduct appears to have convinced this court that
further misbehavior was almost c ertain, Huot has a much more li mited history of
unreasonable use of force.
In sum, even though Huot’s use of force was contrary to a publi c policy against
unreasonable use of force, the arbitrator’s award of reinstatement without back pay is not.
Failure to Report Use of Force
The city also argues that reinstating Huot is contrary to a pub lic policy against the
failure to report use of force. At arbitration, Huot stated tha t he intended to file a written
report the next day but had been put on administrative leave. T he arbitrator credited this
statement, finding that the only reporting policy that Huot violated was a requirement that
he report the incident to his supervisor during the shift. And the arbitrator did not find that
Huot had violated the reporting policy on any prior occasions. Thus, because this case
involves only a single incident of failure to report use of for ce, it is distinguishable from
City of Brooklyn Center and from this court’s opinion in City of Richfield (later reversed

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by the supreme court), both of which rely on the fact that the officer had previously failed
to report use of force and had been warned about those failures . City of Richfield , 910
N.W.2d at 476-77; City of Brooklyn Center, 635 N.W.2d at 243-44. In the absence of an
arbitral finding that an officer will continue to fail to meet reporting requirements or facts
that are so egregious as to present a fair comparison to City of Brooklyn Center, an award
of reinstatement does not violate a public policy favoring the reporting of use of force.
The arbitrator’s award does not violate either of the public policies asserted to exist
by the city.
Affirmed.