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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