THE CASE OF TROOPER KKK

Based on State of Nebraska v. Henderson (2009) 277 Neb. 240

[It is February 21, 2006.Martin Collins and Janice Perez,internal affairs investigators for the Nebraska State Patrol, are in Collins' office meeting with Allison Washington, a union official with the State Law Enforcement Bargaining Council, who is there to represent Robert Henderson, a 23-year veteran trooper who has been under investigation for alleged ties to an organization affiliated with the Ku Klux Klan.]

Martin:Let's get right down to business, Allison.On November 1, 2005, I was first informed that Trooper Henderson might be participating in online discussions of a members-only Web site associated with the Ku Klux Klan.We immediately started an investigation and learned that Trooper Henderson joined the Klan in 2004, the year after his wife left him for a Hispanic man.In June of 2004, Trooper Henderson paid a $35 membership fee to join the Knights Party, which he has admitted in our investigation is the same as the Klan.

Allison:I am aware of the investigation, Martin.

Martin:Then I know you also are aware that the application that Trooper Henderson completed said that "The Knights Party is always looking for good men and women to associate with and work toward White Christian Revival."You also are aware, because we sent you a copy, of the letter he received from the Knights Party National Director welcoming Trooper Henderson to the party.It said in part:"The Knights prides itself on being the most professional and active pro-white movement in America and we also have Klansmen and Klanswomen throughout the world.Across the nation we are recognized as the most devoted and experienced movement in the struggle for White rights, White Pride, and White Power!"

Janice:Along with the welcoming letter, Trooper Henderson received a membership card that said:"I pledge my loyalty.I will work for the preservation and protection of the White race."

Allison:I am aware all of this, guys.What else have you found?

Janice:Well, we followed up on the tip that led us to start the investigation and we learned that Trooper Henderson was indeed participating in the online chat rooms under the name "White Knight in Nebraska."For example, on September 20, 2005, Trooper Henderson posted a message that his Captain had told him to back off after he told a black anchor at a local news station, who recently had been hired, to leave Trooper Henderson's fiance, who also works at the station, alone.His fiance had complained to Trooper Henderson about the anchor."Over my 23 years in my job, this sort of thing has been getting worse, not only at work, but also with suspects.Whites are losing their rights slowly.It's sad.I pray about it.I hope my prayers are answered."

Martin:And then there is this post from later that day:"Can someone put me in touch with others in the Omaha, Nebraska area that have the same beliefs that I do?I especially would like to know other law enforcement people as we would have a lot in common.God Country and Race."

Allison:Well, I have news for you.He resigned his membership in that organization yesterday.I have proof of that.

Martin [sarcastically]:Oh, that's a big surprise.He knew we would be meeting with you to announce the conclusion of our investigation and our planned course of action.

Janice:And his sudden resignation does not erase what he did in joining that group.We have to take action.

Allison:Just a minute.I know you're not planning to discipline him for his joining that group and posting those messages on his own time.He does have a constitutional right to freedom of speech and freedom of association as a public employee.The civil service rules that apply to Trooper Henderson say that his activities could only be grounds for discipline if they "impaired the operation or efficiency of the State Patrol or the employee."You cannot show that his conduct caused any actual harm to the agency's ability to maintain discipline, good order within the ranks, or some actual reduction in the State Patrol's ability to perform its function.It would be one thing if these activities affected the way he has done his job, but they didn't.

Martin:How could you possibly know that?

Allison:Well, while you have been conducting your investigation, we have been conducting an investigation of our own.The antagonism that Trooper Henderson seems to feel toward non-white racial groups has never reared its head on the job.In fact, I defy you to identify a single instance on the job where the Trooper's actions exhibited any hatred, anger, disgust, or discrimination towards any minority group.Indeed, according to your own data here at the State Patrol, Henderson has conducted traffic stops in a race-neutral manner.

Janice:Look, Allison.You cannot dispute that Trooper Henderson willingly joined the Knights Party, knowing he was effectively joining the Ku Klux Klan.In joining, he endorsed a point of view that was completely opposed to the principles of Nebraska law he was bound by oath to enforce.He provided direct financial support for the Ku Klux Klan's racist activities.And, as a law enforcement officer, Trooper Henderson's membership has provided the Klan with valuable publicity and propaganda.Really now.Would you seriously have us put him back on patrol knowing what you know?

Allison:Not necessarily.You have some flexibility in what you do with him.You could assign him to the supply division.You could assign him to communications.You could even have him cleaning out desks for three or four years if you wish to do that.The one thing you cannot do is throw away Trooper Henderson's nearly quarter of a century of service because of what he once said and what he once joined, where there is no evidence any of it has affected, or will affect, his ability to do his job.

Martin:I disagree.We have made the decision to fire him.I know you'll probably file a grievance and fight us on this.That's your right and his.But the State of Nebraska was founded only a year or two after the Ku Klux Klan.We were admitted to the Union on March 1, 1867 upon the "fundamental condition" imposed by Congress that "there shall be no denial of the elective franchise, or of any other right, to any person, by reason of race or color."Trooper Henderson's continued presence on the State Patrol undermines the faith every Nebraskan has in this most fundamental of our founding principles and would severely undermine the reasonable public perception that the agency is uniformly committed to the equal enforcement of the law.He's out.

Allison:. . .For now.

[They exit.]

What's the legal question?

Who do you agree with the employer or the employee why, explain. Who wins?