Friday, July 5, 2013

Take This Job (and Give It Back to Me)


Turnley v. Town of Vernon, 2013 VT 42

Two issues animate today’s decision from the SCOV.  The first concerns how a municipality conducts a quasi-adjudicative hearing.  The second deals with the broad, but elevated standard for terminating a police officer. 

The facts of this case are simple.  Police Chief received an e-mail from the State Police in August notifying him that a low-level sex offender was moving into town.  Chief handed the e-mail off to an administrator to file and apparently thought nothing further of it.  Chief was not required by law to report this new resident to the public or to the rest of the town administration. 

In October, Chief received another e-mail from the state about the Town’s newest resident.  Soon after, the Chief was asked twice by local officials about the offender, and twice the Chief stated that the first he had heard of this was through the October e-mail.  Once the members of the Selectboard learned of the August e-mail, they were not happy and brought charges to have Chief terminated for lying to them.  A hearing before the Selectboard was called.  The Board called witnesses who reported the discrepancy between Chief’s August notification and his October statements.  The Selectboard, which acted as prosecutor and judge found the Chief guilty of giving “false testimony” and voted to terminate him from his position under 24 V.S.A. § 1932. 


Chief appealed this termination to the trial court, on limited review under Rule 75.  The trial court reversed the Town’s decision and ordered the Chief re-instated.  Town appealed, and the issue came to the SCOV.

As we have discussed in prior summaries, Rule 75 is the rule that allows courts to review administrative decisions where there are no appeal rights granted.  On a Rule 75 appeal, a court does not look to the merits of the case but simply whether the board followed the right standards and procedures. 

This can led to courts holding their noses and validating some fairly raucous behavior, and it puts substantial limits on the court’s ability to review the merits of the decision. 

But what Town forgets in today’s case is the first principle of Rule 75.  A board seeking the higher standard of review through Rule 75 must conduct itself in the same elevated manner as a court does.  As the SCOV puts it, “to the extent the Board seeks to enjoy the deference accorded to a quasi-judicial body, it must comply with the requirements imposed on other judicial organs.”

In this vein, the Town committed two fatal errors.  First, its decision to act as both prosecutor and judge undermined its credibility.  Lesson to towns seeking to prosecute employment issues: segregate these roles.  If you do not have a town manager or administrator to investigate and prosecute, then have the town attorney do it and hire separate counsel for the board.  Or appoint one member of the Board to act as investigator/prosecutor and have that individual recused from any final vote.  In other words, act like a court, not Judge Dredd. 

Second, and more important to the SCOV’s analysis, is the Board’s failure to find that the Chief intentionally lied about his knowledge of the sex-offender.  The Board made a finding that the Chief gave “false testimony,” but the Chief was not under oath on either occasion and there was no finding that the Chief intentionally lied about his knowledge.  False testimony requires two elements that are not here: 1) that the person was under oath, and 2) that they purposefully gave incorrect testimony. 

The difference is important.  We all make mistakes, and we all treat questions differently.  If a friend asks me where I was last night, I might tell him that I was at home omitting the trip to the grocery store, liquor store, and creemee stand because either I forgot about them or because I considered them superfluous to my answer.  If I am a witness called to testify in a case about my whereabouts on the night in questions, you can be sure that I will spend the time to give a thorough and complete answer.  The idea is that we hold people to a higher standard when they are under oath testifying in a formal proceeding, and what is false for one forum is not necessarily false for another. 

Because the Town never found that the Chief purposefully mislead the Board or gave knowingly false statements, there is no “false testimony” or purposefully false statements to the Board, and the findings are improper and do not support the conclusion of termination.  For this reason alone, the SCOV affirms the trial court and its reversal and order of reinstatement.

The SCOV then switches tracks to review the standard for terminating a police officer under Vermont law.  By statute a police officer can only be terminated if she “become[s] negligent or derelict in the officer’s official duty, or is guilty of conduct unbecoming an officer.” 

This is a somewhat baffling standard because its language is not quite general (such as “good cause”) and not quite specific (what does negligent or derelict in official duty actually mean?).  The SCOV, no doubt suspecting that the Town will be revisiting this issue in the near future, offers some discussion. 

The SCOV agrees that intentional misrepresentations and dishonesty by the Chief to the Selectboard would likely constitute conduct unbecoming an officer.  Yet, the SCOV sounds a note of caution that such a conclusion must be grounded in specific findings, supported by evidence that the Chief did, in fact, lie or was dishonest. 

The SCOV also opines on the standard for unbecoming conduct at some length.  Much of this is dicta because it is not binding, but for those that deal with this statute on a regular basis it is a welcome gloss on the level of conduct that qualifies for dismissal.  The takeaway is that this standard gives a town broad discretion so long as the conduct negatively impacts the officer’s ability or the public’s perception of the officer’s ability to do police work.


So the issue is remanded to the Town to either try to salvage or to try to settle.  No doubt, the Chief will be looking for his golden parachute, and given the way the Town bobbled the first hearing, they will be more likely to offer one the second time around.

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