Opinion
No. PC 98-5961.
July 9, 1999
Appeal from the Superior Court of Providence County.
DECISION
This case is before the Court on appeal from a November 2, 1998 decision of a Hearing Committee empaneled pursuant to the Law Enforcement Officers' Bill of Rights, G.L. 1956 (1995 Reenactment) § 42-28.6-1 et seq. Jurisdiction is pursuant to § 42-28.6-12 (1995 Reenactment).
Facts/Travel
This matter arises out of actions taken by Robert Morris, Chief of Police for the City of Woonsocket, discharging Officer Girard from his position on the Woonsocket Police Department. The facts leading up to the Chief's actions are essentially those found by the Hearing Committee and contained in and supported by the record.
On May 12, 1998 the Chief brought departmental charges against Officer Girard. Additional charges were brought on August 12, 1998. As a result of these charges, Chief Morris dismissed Girard from the Woonsocket Police Department, with loss of all benefits. Girard requested and was granted a hearing before the Hearing Committee. In compliance with statutory requirements, the Committee was comprised of three active law enforcement officers, one selected by the Chief of the Woonsocket Police Department, one selected by Officer Girard, and the third selected by mutual assent of the first two. G.L. § 42-28.6-1.
On May 12, 1998, Officer Girard was charged with violation of the following rules and Regulations of the Woonsocket Police Department:
1. Unlawful Use of Drugs;
2. Prohibited Places;
3. Consorting with Criminals and Unsavory Characters;
4. Commission of a Crime — smoking crack cocaine;
5. Conduct Unbecoming a Police Officer;
6. Conduct Tending to Cast Disrepute Upon the Department;
7. Disobedience of a Lawful Order;
8. Disobedience of any Department Rule or Regulation Specifically 203.3 Weapons, Badge, Identification Card.
On August 12, 1998, Officer Girard was additionally charged with:
1. Gross Inefficiency; Neglect of Duty;
2. Disobedience or Violation of any Department Regulation, Rule, Instruction or Memorandum.
Hearings were held on five days between September 1, 1998 and October 9, 1998. After said hearings, a majority of members of the Committee found Girard guilty of 1) violating the rules and regulations of the Woonsocket Police Department by consorting with criminals and unsavory characters; 2) conduct unbecoming a police officer; 3) tending to cast disrepute upon the Woonsocket Police Department; and 4) gross inefficiency and neglect of duty. After deliberations, the majority of the Committee concurred with the City's recommended penalty, specifically dismissal from the Woonsocket Police Department. Thereafter, Officer Girard brought the instant appeal.
Plaintiff, Girard, moved this Court to remand the matter to the Hearing Committee for consideration of additional evidence. The City filed an objection. The matter was heard on March 22, 1999, at which time the motion was denied. On April 6, 1999, Plaintiff's counsel renewed the Motion for Remand and submitted an Affidavit with exhibits along with a transcript of an August 13, 1998 hearing. After due consideration, this motion was also denied.
Law Enforcement Officers' Bill of Rights
The Law Enforcement Officers' Bill of Rights is the exclusive remedy for permanently appointed law enforcement officers subject to proposed disciplinary action. City of Pawtucket v. Ricci, 692 A.2d 678 (R.I. 1997) (citing City of East Providence v. McLaughlin, 593 A.2d 1345 (R.I. 1991)). Under the provisions of the act, an officer facing departmental charges may request a hearing before a Hearing Committee composed of three active law enforcement officers. G.L. §§ 42-28.6-1 and 42-28.6-4. The Hearing Committee is riot bound by the recommendations of the officer's departmental superiors. The Committee has great discretion to modify in whole or in part the recommended sanctions presented by the charging authority. Culhane v. Denisewich 689 A.2d 1062 (RI. 1997) (citing State Department of Environmental Management v. Dutra, 121 R.I. 614 (R.I. 1979)). Section 42-28.6-12 states that, for the purpose of this section, the Hearing Committee shall be deemed an administrative agency.
Although not a state agency within the meaning of the Administrative Procedures Act (A.P.A), R.I.G.L. § 42-35-1 et seq., Hearing Committee under the Officers' Bill of Rights statute possesses quasi-judicial authority similar to that exercised by state agencies under the A.P.A. In re Denisewich, 643 A.2d 1194 (R.I. 1994). The Law Enforcement Officers' Bill of Rights statute provides the exclusive remedy for permanently appointed law enforcement officers who are under investigation and subject to disciplinary action. City of East Providence v. McLaughlin, 593 A.2d 1345, 1348 (R.I. 1991). An officer facing departmental charges may request a hearing before a Hearing Committee which then is empowered to sustain, modify, or reverse the complaint or charges of the investigating authority. § 42-28.6-11. The hearing panel is not bound by any pre-hearing recommendation of punitive measures made by the charging authority, but may take any action as is appropriate under the circumstances. Lynch v. King, 120 R.I. 868, 391 A.2d 117 (1978).
Standard of Review
Appeals from all decisions rendered by the Hearing Committee shall be to the Superior Court in accordance with §§ 42-35-15 and 42-35-15.1 of the General Laws. R.I.G.L. 1956 § 42-28.6-12 (Reenactment 1995). The review is both limited and highly deferential; it shall be confined strictly to the record.
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, interferences, conclusions, or decisions are:
1) In violation of constitutional or statutory provisions;
2) In excess of the statutory authority of the agency;
3) Made upon unlawful procedure;
4) Affected by other error or law;
5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Consorting With Criminals and Unsavory Characters
In its decision, the Committee found, in a vote of two to one, that the City sustained the charge of consorting with criminals and unsavory characters. The Committee did not find sufficient evidence to support the fact that Officer Girard had smoked or used crack cocaine, so their ruling on this charge was limited to their finding that he was present at a time when drugs, to wit: crack cocaine was being used.
On appeal, Officer Girard argues that the Committee abused its discretion when finding him guilty of this charge. In support, Girard cites Darveau's testimony and witness statement in which she said that Girard had no knowledge that drugs were delivered to her on April 15. "It was unreasonable to premise the termination of Officer Girard upon his mere presence at the scene of drug usage and purchase. This is especially true when the Hearing Committee acknowledged that there was no proof that the appellant himself had in fact used drugs." Brief of the Appellant, Paul Girard, 4-5.
At the hearing, the Committee first heard testimony from Officer Patricia Iadevaia. Officer Iadevaia testified that on April 15, 1998, she witnessed a delivery of what turned out to be crack cocaine from a Ms. Kathleen Solina to Pauline Darveau, Officer Girard's fiancée. This delivery occurred in a Burger King parking lot in Providence. Girard had accompanied her to the parking lot and was sitting in the car at the time of said delivery. He was armed with his personal firearm.
Darveau also testified about this incident, stating that on April 15, she and Girard went to Burger King in order to meet with Solina because Solina was repaying $20.00 she earlier borrowed from Darveau. Darveau testified that she was "shocked" to receive the crack cocaine instead of money. Darveau was adamant and repetitive in her testimony that "Mr. Girard's reputation, long term reputation, his 15 years with the force has been against drugs. . . . I was not there to buy crack cocaine because everything Paul stands for and has stood for is against drugs." Bill of Rights Hearing Transcript, September 1, 1998 at 68, 69.
In direct contravention of Ms. Darveau's protestations was the testimony of Ms. Catherine Solina, one of Darveau's "acquaintances." Solina testified that she, Darveau and Girard had used cocaine together at her apartment.
A: "She [Darveau] and her fiancée [Girard] came to my apartment and gave me $100. I called my drug dealer and took the $100, went and got the cocaine and brought it back to the apartment."
* * *
Q: "Is it your testimony that Mr. Girard was at your apartment on Park Avenue in Cranston?"
A: "Yes, sir."
* * *
Q: "And who was present in your apartment aside from yourself?
A: "My neighbors. * * * Leo and Sandy Violet."
* * *
Q: "What happened when they [Girard and Darveau] first came into your apartment?"
A: "The first comment was about what kind of pipe I was using to smoke the coke."
Q: "Who made that comment?"
A: "Paul did. * * * He asked me if I had a soda bottle and he would show me how to make a water pipe, make it smoother to breathe from."
Transcript at 81-84 (September 1, 1998).
Solina's neighbor, Leo Violet, corroborated Solina's testimony that Girard was present in the apartment while drugs were being used.
Q: "And you saw Officer Girard, Ms. Solina and his girlfriend Paula or Pauline in Ms. Solina's apartment?"
A: "Yes."
Q: "And can you tell us what they were doing in the apartment?"
A: "Well, we were sitting around talking and Cathy was smoking cocaine."
Q: "Cathy?"
A: "Yep, my wife and her. * * * Cathy, my wife and me. * * * Before they came."
Q: "What happened when they came?"
A: "When they came, they came in, they sat down, she offered Pauline some cocaine, which I believe she smoked, I believe I saw that."
* * *
Q: "You distinctly remember that she was smoking; you can't say for certain whether he was smoking?"
A: "No, I can't say for certain."
* * *
Q: "But you are sure that cocaine was being used at the time?"
A: "I'm positive about it, yes."
Q: "You are sure that he was there?"
A: "I'm positive of that too."
Id. at 128-131.
After evaluating the testimony,
"[t]he majority of the Board felt the testimony of Kathleen Solina and Pauline Darveau, who are admitted users of cocaine, and the testimony of Mr. Violet putting Officer Girard in the apartment with himself, Solina, Darveau and others allegedly smoking crack cocaine, as well as being in the presence of Pauline Darveau on April 15, 1998 when she was arrested with crack cocaine . . . was sufficient evidence to satisfy the preponderance of the evidence on this charge." Decision at 2-3.
After reviewing the entire record, this Court finds sufficient testimonial evidence to support the Committee's finding and that the Committee's decision on this issue was neither arbitrary nor in excess of its authority.
Conduct Unbecoming a Police Officer
As to this charge, conduct unbecoming an officer, the panel believed that Officer Girard's conduct could be viewed as adversely affecting his credibility and ultimately, his effectiveness as a police officer. Additionally, it was believed that this conduct would bring disrepute to the entire Police Department. Accordingly,
"[t]he Board in a majority decision, two to one with Lieutenant Minke dissenting, found the City sustained this charge by a fair preponderance of the evidence finding Mr. Girard guilty as charged based on the testimony of Patrolman Patricia Iadevaia and Patrolman Anthony Hampton of the Providence Police Department who placed Officer Girard at the parking lot of a Burger King Restaurant on Thurbers and Eddy Avenue in Providence during the commission of a crime.
This was further substantiated by Officer Girard's testimony stating that he had been with Pauline Darveau and Kathleen Solina on this date."
Decision at 3-4.
Girard based his appeal of this guilty finding on the same protestations made for the aforementioned charges. Once again, having reviewed the entire record, paying particular attention to the testimony upon which the Committee relied, this Court concludes that there is sufficient reliable evidence to support this finding.
Tending to Cast Disrepute Upon the Woonsocket Police Department
This charge, tending to case disrepute upon the Woonsocket Police Department, also arises from Girard's presence, in a civilian capacity, at the April 15, 1998 delivery of cocaine by Solina to Girard's fiancée. The same testimony supporting the aforementioned charges was also relied upon in the Committee's decision to sustain the instant charge.
"The Board finds that the City of Woonsocket did sustain this charge finding Officer Girard guilty of violating such where unrefuted testimony by a Providence Police Officer that placed Officer Girard at the scene of a drug buy by his girlfriend Pauline Darvean."
Again, based on a review of the entire record, the Court finds no error in the Committee's decision.
Gross Inefficiency and Neglect of Duty
Officer Girard was given notice of the three previously discussed charges on May 12, 1998. The charge of gross inefficiency and neglect of duty was brought in August of the same year. The notice of this charge states that "[o]n diverse dates between March 1994 and March 1998 you [Girard] were in charge of all drugs confiscated by the Woonsocket Police Department. A subsequent inventory of the evidence room revealed that there are 215 bags of cocaine, 99.5 grams of cocaine, and 48 vials of crack unaccounted for and never recorded as destroyed." On appeal, Girard argues that "while it is uncontroverted that Officer Girard was serving as the Evidence Officer, the record does not demonstrate any degree of integrity in the system of drug evidence preservation such that it is reasonable to conclude that the missing drug evidence, if it is actually "missing," is the fault, negligence or otherwise, of Girard." Brief of Appellant, 8.
At the hearing, the Committee heard testimony from:
1) Commander Beausoleil, who ordered an inventory of the evidence room;
2) Officer Wood, who conducted the inventory and determined that there was narcotic evidence missing;
3) Officer Leclare who, after taking over Officer Girard's desk, discovered a small quantity of narcotic evidence;
4) Lieutenant Gallant and Officer Lemoine who, on two different occasions, placed Officer Girard in the police station at times when he was either supposed to be out on sick leave or not scheduled to work;
5) Lieutenant Gallant, who placed Officer Girard in a room adjoining the evidence room at 3:00 a.m. on March 29, 1998.
Commander Beausoleil, in part, testified that he and Officer Girard had many conversations about the importance of maintaining the integrity of the evidence room.
Q: "Did you ever have any discussions with Officer Girard concerning the integrity of the evidence room, that is, having people in the evidence room?"
A: "We discussed it on a couple occasions. It was actually a mutual concern that we didn't want people down there who didn't belong there."
* * *
Q: "Can you give us an idea as to what exactly was discussed? I mean, who brought the issue to whom?"
A: "Actually, I think he may have brought it up to me, that he was concerned that since he's responsible for the evidence room, he wanted to make sure that the integrity was maintained and unauthorized people didn't go in there. We never had any — you know, if you are asking if I ever gave him any type of direct order, no, but we had discussed it."
According to Beausoleil, one of the other officers brought to his attention that Pauline Darveau, an unauthorized civilian, had been present with Girard in the computer/evidence area on several occasions. Girard was in charge of not only the evidence room, but also the computer system. On cross examination, it was made clear that the evidence room and the neighboring computer room are separate areas. Darveau often presented herself at the station to lunch with Girard in the computer room. This was not a prohibited area.
On direct examination, Beausoleil also testified that he became concerned when he was notified that Girard was in the station at times when he was not scheduled to be working, and, in fact, was supposed to be out on vacation or sick leave.Transcript, September 21, 1998, 143-44. On cross examination, Beausoleil admitted that on at least one occasion Girard said to him, "this job is a two-man job. We should have one Evidence Officer and one Computer Systems Officer." Id. at 151.
Q: "Now, were you aware while Officer Girard was working in the capacity of Evidence Officer/Computer Systems Manager that he would come in during hours other than his normally assigned work hours to check the computer system?"
A: "I knew that he stopped in from time to time, yes."
Q: "And you didn't find anything unusual about that, did you?"
A: "No, not at that time, no."
According to the Commander's later testimony, after Girard's dismissal, the station did, in fact, separate the Evidence Officer and Computer Systems Officer jobs into two separate positions. From this testimony alone, it is possible to conclude that the amount and nature of work and maintenance required to adequately perform these jobs required unscheduled appearances in the station.
Also of great interest to this Court is the following exchange between Commander Beausoleil and Committee Member Lt. Harry Minke cited by the appellant in his memorandum:
Lt. Minke: "One question Commander. Can those keys [to the evidence room] be duplicated?"
Commander Beausoleil: "They are not supposed to be duplicatable keys, but they are the keys that say on there "do not duplicate." I can't swear to 100 percent certainty that if you went to a locksmith, that they wouldn't duplicate them. They are not supposed to." Transcript, September 1, 1998, at 91.
This testimony indicates that the evidence room was not necessarily secure. In fact, there were at least three other known officers who also had keys.
The Committee also heard testimony from Officer Luke Gallant. This officer testified that he saw Officer Girard in the police station during the early morning hours on a shift that Girard was not on active status. According to Gallant, Girard went down to the evidence/computer room and Gallant followed some time later. Gallant testified that he was following directions included in a memorandum issued by Commander Beausoleil which requested that officers notify him if Girard was seen in his office or in the station at times other than when he was supposed to be working.
When he arrived at Girard's office, Gallant knocked on the door. He testified that he did not get a response for about three to five minutes. When Girard did come out of the office and Gallant asked him what he was doing, "[h]e replied in essence that he was there to get his check. He was looking for his check. He was up and couldn't sleep. He went to get a cup of coffee and since he was in the city he wanted to pick up his check."Transcript, 84.
Q: "Is there any kind of general order that states an Officer can't go into the Police Station on any other shift other than his own?"
A: "Absolutely not."
Q: "When you went downstairs and you banged on the door . . . and it was three to five minutes before you had a response, you banged on it a second time. When Officer Girard finally opened the door did you ask him what took him so long?"
A: "No"
Q: "Did you ask him what he had been doing in there?"
A: "Yes."
Q: "What did he say?"
A: "Looking for his check."
The Committee relied on Gallant's account to support the conclusion that Girard was likely responsible for the missing narcotic evidence. However, there was no convincing testimony to contradict Girard's alternative explanation that he was suffering from insomnia and stopped in to the station in order to get his check.
Finally, the Committee heard testimony from Officer Tony R. Wood, who was temporarily assigned to the evidence room in January, 1998. The purpose of his assignment was to assist Officer Girard with the operation of the evidence room. On June 18, 1998, Wood and another officer inventoried the drug section of the evidence room and found a large amount of evidence missing. In the two to three months prior to this inventory, Wood testified he had performed two "drug destructions." Transcript, Sept. 9, 1998. By the time this inventory was made, Officer Girard had already been out of work for two months.
Based on the cumulative testimony of these witnesses, a majority of the Committee felt that "the evidence, though circumstantial, overwhelmingly [met] the burden of a fair preponderance of the evidence presented to find Girard guilty of this charge." Decision at 8. In this Court's opinion, however, the Committee's conclusion regarding Girard's guilt on this charge constitutes too great a leap of faith. The circumstantial evidence is questionable at best and there are several other conclusions which can be drawn from the same facts. The seriousness of this charge warrants more conclusive evidence to support a guilty finding. For this reason the Committee's decision on this charge is reversed on the ground that it was arbitrary and capricious.
Remand for Specific Findings Regarding Appropriate Sanction
Section 42-28.6-12 states that "appeals from all decisions rendered by the Hearing Committee shall be to the superior court in accordance with §§ 42-35-15 and 42-35-15.1 of the General Laws. Section 42-35-15(g) explicitly provides that the Court may remand the case for further proceedings, or it may reverse . . . the decision."
In the instant matter, this Court finds that the Committee's decision regarding consorting with criminals and unsavory characters; conduct unbecoming an officer; and tending to cast disrepute on the Department is supported by substantial evidence. However, based on the evidence presented at the hearing, the court is not satisfied with the Committee's decision as to Girard's gross inefficiency and neglect of duty. Therefore, this last finding is hereby reversed.
It is clear from the thirteen-page decision that after making the determination of guilt on four of the ten charges brought against Officer Girard, the Hearing Committee deliberated the matter of what, if any, penalty should be sanctioned. It is equally clear that the Committee took great pains to weigh the grievous nature of the violations against the Officer's tenure with the City in an attempt to impose an appropriate sanction which would "maintain the integrity of the Woonsocket Police Department as well as transform what the majority of the Committee felt was improper conduct on behalf of the Officer in an effort to have the Officer become a contributing member of the Police Department." Decision at 11. The majority concluded that "based on the violations which were sustained by the evidence which was brought out through the hearing that this Officer could no longer perform those duties entrusted to him as a sworn member of the Woonsocket Police Department." Id. at 11-12.
In having reversed one of the four charges against Officer Girard, this Court looked to the Committee's decision to determine what, if any, impact this reversal would have on the ultimate sanction issued against the Officer. It is unclear from the language of the decision what impact each violation, taken individually, had upon the ultimate sentence. Granting great deference to the judgment of the Committee, this Court feels bound to remand this matter for reconsideration and specific written findings regarding the appropriate sanction for the remaining three guilty findings.
Counsel is directed to submit an appropriate order for entry remanding the case for further determination consistent herewith. Either party, if aggrieved by further decision of the Hearing Board, may apply directly to this Court for further review on the issue of the appropriateness of the sanctions imposed.