Opinion
C. A. WC-2019-0445
06-10-2020
KRISTIN RILEY and MATTHEW RILEY v. THE NARRAGANSETT PENSION BOARD
For Plaintiff: Joseph F. Penza, Jr., Esq. For Defendant: Andrew H. Berg, Esq.
For Plaintiff: Joseph F. Penza, Jr., Esq.
For Defendant: Andrew H. Berg, Esq.
DECISION
TAFT-CARTER, J.
Before this Court for decision is the Amended Verified Complaint of Matthew Riley and his wife Kristin Riley (individually, Mr. Riley and Mrs. Riley, collectively, Plaintiffs) seeking reversal of a decision by the Narragansett Pension Board (Pension Board) revoking Mr. Riley's retirement pension and denying Mrs. Riley any interest in the pension as an innocent spouse, as well as compensatory damages, declaratory relief, injunctive relief, and attorney's fees. Jurisdiction is pursuant to G.L. 1956 §§ 36-10.1-5, 8-2-13, 9-30-1 et seq., and Super. R. Civ. P. 65.
I
Facts and Travel
The crux of this action concerns the substantive and procedural due process afforded to Plaintiffs during the pension revocation hearing.
Mr. and Mrs. Riley are residents of Narragansett. Am. Ver. Compl. ¶ 2. They are husband and wife. Id. Mr. Riley was employed as a police officer with the Narragansett Police Department for twenty-eight years and was a member of the Town of Narragansett's (Town) pension plan before his retirement in June 2017. Id. ¶ 6.
A federal grand jury indicted Mr. Riley on October 5, 2017. Id. ¶ 7. The one count indictment alleged that he violated 18 U.S.C. § 1470. Id. Pursuant to a plea agreement, Mr. Riley pled guilty to Count I of the indictment on March 15, 2019 and was sentenced to prison. Id. ¶ 8.
After Mr. Riley was sentenced, the Town sought to revoke his pension. The Acting Town Manager and Police Chief Sean Corrigan initiated the pension revocation process by signing and mailing an undated letter to Mr. Riley at the federal prison in Waymart, Pennsylvania. Def.'s Pre-Hr'g Statement Ex. B. The letter stated:
"You are hereby notified of a Pension Board meeting scheduled to take place on June 19th, 2019 at 0900 hrs. in the large board room at Town Hall, 25 Fifth Avenue, Narragansett, RI, 02882.
"The Town Council has authorized Solicitor Mark Davis to present a request of the pension board to enact the provisions of the Town Ordinance Sec. 58-36 entitled Benefits Forfeited (copy of ordinance enclosed). I encourage you to have legal representation present at the pension board meeting to speak on your behalf." Id.
The certified letter was stamped received by R. Mullen on May 24, 2019. Id.
The Pension Board met on June 19, 2019. At that meeting, the Pension Board scheduled a hearing for August 14, 2019 to consider the revocation of Mr. Riley's pension. As planned, the Pension Board convened on that date. This formal proceeding began without the implementation of rules of practice or procedure. The order of procedure, presentation of evidence, cross-examination, and general rules of conduct and protocol were never promulgated.
In fact, the fate of the Pension Board's decision was settled when the Acting Chairperson recognized Jill Lawler, a member of the Town Council. Councilwoman Lawler was permitted to address the Pension Board with respect to the expected outcome of Mr. Riley's pension revocation hearing. (Hr'g Tr. at 1:2-3, Aug. 14, 2019.) As a member of the Town Council, Ms. Lawler appoints and confirms the members of the Pension Board. She also approves any rules and regulations enacted by the Pension Board governing the Narragansett Pension Ordinance and pension revocation hearings. Councilwoman Lawler laid out her expectations of the Pension Board at the hearing. She reminded the Pension Board members that they were appointed by the Town Council and were expected to follow the law. Id. at 1:7-9. She relayed that the Town Council had previously discussed and decided the issue of Mr. Riley's pension; that the Pension Board members were aware of the Town Council's decision in support of the revocation; and that the Pension Board could not supersede that decision. Id. at 1:23-2:3. To Ms. Lawler, the case was clear. Mr. Riley was a convicted felon; as such, the law required that his pension be revoked. Id. at 1:11-14; 2:7-10.
At the conclusion of Councilwoman Lawler's oration, the Pension Board entered executive session to discuss "the job performance, character and physical or mental health of the person or persons in accordance with Rhode Island General Law 42-46-5(a)(1), Matthew Riley" and "any investigative proceedings regarding allegations of misconduct, either civil or criminal, in accordance with [§] 42-46-5(a)(4)." Id. at 2:16-23.
From the commencement of the hearing until its conclusion, issues of prejudice and bias, as well as procedure, practice and protocol were raised, discussed, and argued by Plaintiffs' counsel. The arguments advanced related to procedural and substantive issues. One such issue related to the Pension Board's failure to recognize Mrs. Riley's interest in her husband's pension. This issue was brought to centerstage when the Pension Board discussed the sequestration of nonparty witnesses. The Pension Board sought to sequester Mrs. Riley from the hearing as a nonparty. Id. at 5:17-19. The Pension Board based this position on its failure to recognize Mrs. Riley's status as a party pursuant to the innocent spouse doctrine. Despite the fact that the Pension Board did not recognize the innocent spouse doctrine, Mrs. Riley was allowed to remain to assist her counsel. Id. at 6:9-11; 11:4-5.
This issue of sequestration led to a discussion concerning Mrs. Riley's ability to introduce evidence regarding her status. Id. at 19:6-11; 20:24-21:17. The Pension Board dismissed her argument that she had a right to present evidence, stating that it was not in a position to exercise "equitable" powers and the innocent spouse rule did not apply to Mrs. Riley. Id. at 20:12-25.
Following this exchange, Pension Board member Barber raised several significant questions concerning potential due process deficiencies as well as the Pension Board's ability to hear the case objectively. Mr. Barber questioned the Pension Board's ability to decide this case impartially. In fact, he stated that, "I believe . . . that this needs to be heard by an impartial judicial officer . . . this Board I don't believe is unbiased." Id. at 14:5-8. Following these comments, the Pension Board was advised that the evidence is compelling and undisputed and that there "is only one conclusion that is something that you can deliberate. There is not a lot of gray area here. This ordinance is pretty black and white." Id. at 17:1-13 (emphasis added).
The Pension Board's failure to implement procedural and evidentiary protocols, as well as the importance thereof, was again highlighted when the Pension Board was unable to define the burden of proof that the Town would be required to meet. Id. at 24:3-6. The Pension Board was merely advised to "take the facts that are presented, you make a determination whether they are credible and reliable. If those credible and reliable facts meet the standards set forth in the ordinance then that should guide your findings." Id. at 25:9-13.
The function of the Assistant Solicitor during the hearing was also addressed. The question of whether he was to perform duties as an advocate for the Town or advisor to the Pension Board was discussed at length. Pension Board members Holland and DeLuca concluded that the Assistant Solicitor had dual roles. Id. at 26-28. Plaintiffs' counsel pointed out "that you cannot have the very same person who is presenting the case advising the Board. When I make an objection on a piece of evidence that he's trying to introduce, he then turns to you and gives you what his theory is. . . ." Id. at 27:21-28:1. At the conclusion of this debate, Pension Board member Holland summarized that "it's not a case," "[i]t's not a court of law," "[i]t's a hearing." Id. at 28: 2-3. The Pension Board would stay consistent with "past practice," there were no "rules written," and the ordinance did not require rules. Id. at 28:11-13, 17-18. Mr. Holland and the Assistant Solicitor insisted that Robert's Rules of Order would guide this formal proceeding. Id. at 24:3, 22.
The record of the proceeding is riddled with statements concerning the Pension Board's bias and partiality. At one point during the hearing, Plaintiffs' counsel pointed to extraneous evidence received by the Pension Board.
"MR. PENZA: Here's the problem, you have documents from the State Police. You shouldn't consider those because they are not in evidence yet. You have a statement by a councilperson for the Town. We're not going to consider those. You have an email from some taxpayer who-and I don't know, I haven't had a chance to read all of this-and we're not going to consider that. So when we talk about potential for bias here, I think it's staring us in the face. So I just raise that and would suggest that the panel is tainted before they even start to hear the case." Id. at 32:2-12.
Pension Board members admitted to receiving, reviewing, and considering evidence prior to the formal proceeding. Id. at 30:12-22. Pension Board member DeLuca reminded his fellow members that they had previously reviewed the evidence anticipated for this proceeding- including Major Fleming's memorandum to Colonel Manni describing aspects of the criminal case against Mr. Riley and the Acting Town Manager and Police Chief's memorandum to the Pension Board describing conduct unbecoming of an officer. Id. at 34:1-4, 7-12.
The hearing proceeded without order. Each and every step of the way Plaintiffs' counsel questioned and inquired about procedural matters. The Assistant Solicitor introduced evidence in support of the Town's position to revoke Mr. Riley's pension. Id. at 37:10-13. The Assistant Solicitor presented, and the Pension Board accepted, three items into evidence without testimony and over Plaintiffs' counsel's objection. Id. at 40:3-10. Those items included: a memorandum authored by Major Fleming of the Rhode Island State Police Department to his superior, Colonel Manni, examining the federal case that was brought against Mr. Riley; a memorandum from Chief Corrigan of the Narragansett Police Department to the Pension Board dated June 18, 2019; and a print-out from the federal court's PACER website, which was offered by the Assistant Solicitor as proof of Mr. Riley's conviction. Id. The Pension Board accepted Major Fleming's memorandum despite the fact that he would not be testifying. Id. at 39:1-2. As for the print-out of Mr. Riley's criminal conviction, the Assistant Solicitor advised the Pension Board that "as far as the conviction goes, that should be taken as judicial notice. It should be given conclusive weight." Id. at 52:14-16. It appears that at this point, the Town rested. Id. at 40:25-41:3.
The Pension Board next offered Plaintiffs' counsel an opportunity to present his case. Id. at 41:1-3. Before proceeding, however, counsel once again inquired about the nature and basis of the charges brought by the Town against Mr. Riley. Id. at 41:5-7; 12-19.
The inquiry was to no avail. The Pension Board suggested that counsel knew the basis for the revocation proceeding because he was present at the Pension Board's executive session on July 17, 2019 and was present for the parties' "discussions." Id. at 42:24-43:2, 24-25. Mr. Riley's counsel correctly reminded the Pension Board that his client received no formal charges. "I was not aware of the basis. Until I get a formal document charging my client, I don't know what the basis is." Id. at 43:16-18. The Town's position was, "Mr. Riley was given adequate notice." Id. at 45:25. While recognizing that Plaintiffs "technically weren't provided a letter saying there is going to be this meeting," id. at 46:13-16, the Town excused the lack of written notice because Plaintiffs' counsel "is aware and has notice of what the nature of this proceeding is and he had adequate information to prepare a very rigorous defense." Id. at 46:23-47:1.
Plaintiffs' counsel expounded on his objections to the items that the Assistant Solicitor offered, and the Pension Board accepted, into evidence. Id. at 48:13-18. Counsel specifically objected to Major Fleming's memorandum on the basis of bias, erroneous information, hearsay, and inability to cross-examine. Id. at 48:13-18; 49:1-5. Plaintiffs' counsel and the Assistant Solicitor debated about whether or not Major Fleming's memorandum constituted inadmissible hearsay. See id. at 49-54. Ultimately, the Assistant Solicitor advised the Pension Board that it was not bound by the Rules of Evidence and that it could consider the memorandum. See id. at 19-24.
After addressing these evidentiary issues, Plaintiffs' counsel examined Acting Town Manager and Police Chief Sean Corrigan. Id. at 56:10-57:22. The examination pertained to the memorandum that Chief Corrigan prepared specifically for the pension revocation proceeding. Id. at 56:15-19. Chief Corrigan explained that he "prepared [the memorandum] for this proceeding, having looked at the ordinance and the fact that it speaks to what would have occurred had the officer pled guilty and been sentenced while he was employed. . . ." Id. at 56:15-19. He further explained that he would have recommended termination had Mr. Riley still been employed at the time he was convicted. Id. at 57:10. He did, however, acknowledge that that decision could be overturned on appeal in accordance with the Law Enforcement Officers' Bill of Rights, G.L. 1956 § 42-28.6-13(i). Id. at 57:10-22.
At the conclusion of the hearing there were closing arguments. Plaintiffs' counsel identified various ambiguities contained in § 58-36 of the Town of Narragansett Pension Ordinance. Id. at 58:9-59:15. The Assistant Solicitor advised the Pension Board to:
"[R]ead the statute. It's saying if you find that this person is found guilty by the Board of misfeasance or malfeasance, I would suggest it certainly - I would suggest the conduct reaches malfeasance during service - and who, but for retirement, would have been discharged or removed shall not be entitled to the retirement allowance under this section. You've got the facts, you have the ordinance, and that should guide your consideration here." Id. at 63:13-21.
Before voting ensued, Pension Board member Barber, once again, expressed his concerns regarding Mr. Riley's right to due process.
"MR. BARBER: I was going to reiterate my point. Obviously, we have been told we are bound by ordinances. We took an oath to follow ordinances. I also took an oath to follow the Constitution of the United States, the Constitution of Rhode Island. I just want to put on the record I really do feel that this requires an impartial quasi or judicial process. I mean I can feel the bias from the Board members. I mean it's almost like Board members are testifying, and I feel that this process should have been a - where we sat, listened to evidence, evidence was put on the record, and the process also requires a written finding of fact and reason for unbiased decisions. And I don't believe that process is being followed here which will be how I'll determine my- and it's, just again, I'm asking the Board to consider that it's going to reflect my decision because do I feel that maybe it would be a different vote if I felt that an impartial person or judicial process was conducted and they advised us what that decision is. I understand your point as advising us what we should do, but I really feel that the due process is not being followed, and I mean it's being deprived or there's a chance that Mr. Riley is being deprived of property which requires due process under the United States Constitution and the Rhode Island Constitution."Id. at 75:16-76:15. The Assistant Solicitor opined that Mr. Riley had been provided adequate due process. Id. at 77:3-5.
Ultimately, without findings of fact or conclusions of law, the Pension Board voted five to one to revoke Mr. Riley's pension. Id. at 92:19-20. Furthermore, it voted unanimously to revoke Mr. Riley's pension as of the date of the hearing-August 14, 2019-as opposed to the date Mr. Riley began receiving his pension. Id. at 97:19-23.
The Ordinance
The Town's Retirement and Pension Ordinance is found in Article II of Chapter 58, Sections 58-21 through 58-43 of the Town Ordinances (Pension Ordinance). Pursuant to § 58-22 of the Pension Ordinance, the Town Council established the Pension Board to administer the Town's retirement and pension system.
A member is defined as an employee who is eligible for membership in the Town's pension plan. Section 58-21. A member is entitled to accrued benefits following completion of ten years of credited service to the Town.
Pursuant to § 58-36 of the Pension Ordinance (the Forfeiture Provision), the Pension Board has the authority to review a pension recipient's continuing eligibility after he or she retires. In this regard, any member who at or after retirement is found guilty by the Pension Board of "misfeasance or malfeasance during service with the town and who, but for retirement, would have been discharged or removed from such service [is not entitled to the continued receipt of the] retirement allowance." Section 58-36.
The Pension Ordinance, pursuant to § 58-22(i), further provides the Pension Board with the authority to adopt rules and regulations to carry out its functions under the Forfeiture Provision. As of September 2019, the Pension Board had not adopted any rules or regulations with respect to pension revocation hearings.
Superior Court
On August 27, 2019, Plaintiffs filed a Verified Complaint seeking this Court's review of the Pension Board's decision revoking Mr. Riley's pension and denying Mrs. Riley's interest in all or a portion of her husband's pension. Plaintiffs sought a preliminary and permanent injunction enjoining the Pension Board's revocation of Mr. Riley's pension until this Court had an opportunity to review its decision. Plaintiffs also sought compensatory damages, declaratory relief, and attorney's fees.
In their Amended Verified Complaint, Plaintiffs allege that the Pension Board violated the Open Meetings Act, G.L. 1956 §§ 42-46-4(a), 5(a). Am. Ver. Comp. ¶ 15. They failed to address these allegations in their briefs, however. Thus, the Court declines to discuss these alleged violations.
On September 18, 2019, the parties appeared before this Court to argue the issues raised in the Verified Complaint, with exception for the issue of attorney's fees. During that hearing, Plaintiffs urged this Court to reverse the Pension Board's decision; reinstate Mr. Riley's pension; declare the Forfeiture Provision unconstitutionally vague; and find that the Pension Board deprived Mr. Riley of his rights to substantive and procedural due process. The Pension Board argued that reversal was unwarranted; but argued in the alternative that should the Court find deficiencies in the Pension Board's decision, the Court should remand the matter for further proceedings.
On November 1, 2019, this Court granted Plaintiffs' request for a preliminary injunction and ordered that Mr. Riley's pension be reinstated retroactive to August 14, 2019-the date of the pension revocation hearing. The Court reserved its decision regarding the remaining issues raised in the Verified Complaint until the parties filed supplemental memoranda regarding the constitutionality of the Forfeiture Provision.
Plaintiffs filed an Amended Verified Complaint on January 30, 2020. In this six-count Complaint, Plaintiffs (1) request that this Court review the Pension Board's decision revoking Mr. Riley's pension and denying Mrs. Riley her right to all or a portion of the pension as an innocent spouse (Count I); (2) allege that the Pension Board violated Plaintiffs' right to due process (Count II); (3) request that this Court declare that (a) the Forfeiture Provision requires the misfeasance or malfeasance relate to one's employment and (b) Mrs. Riley is entitled to all or a portion of Mr. Riley's pension as an innocent spouse (Count III); (4) request that the Court preliminarily and permanently enjoin the Pension Board's decision until the Court renders a decision (Count IV); (5) request attorney's fees pursuant to G.L. 1956 § 42-92-1 et seq., the Equal Access to Justice for Small Businesses and Individuals Act (Count V); and (6) request a declaration that the Forfeiture Provision is unconstitutional and void for vagueness (Count VI).
II
Discussion
A
Procedural Due Process
The Fourteenth Amendment to the United States Constitution and article I, section 2 of the Rhode Island Constitution prohibit the State from depriving a person "of life, liberty, or property, without due process of law." In re Stephanie B., 826 A.2d 985, 993 (R.I. 2003). "'A claimant alleging a deprivation of due process rights must demonstrate that either a property or liberty interest clearly protected by the due process clause was divested . . . without [adequate] procedural safeguards.'" Id. (quoting Bradford Associates v. Rhode Island Division of Purchases, 772 A.2d 485, 490 (R.I. 2001) (citation omitted)). While it is true that everyone is entitled to an impartial and disinterested tribunal under the due process clause, administrative agencies have a presumption of honesty and integrity. Champlin's Realty Associates v. Tikoian, 989 A.2d 427, 443 (R.I. 2010). However, the presumption "may be overcome through evidence" of "'circumstances render[ing] the risk of unfairness intolerably high.'" Id. (quoting Kent County Water Authority v. State (Department of Health), 723 A.2d 1132, 1137 (R.I. 1999) (citation omitted)). Therefore, administrative agencies performing quasi-judicial functions have an obligation of impartiality on par with that of judges. Town of Richmond v. Wawaloam Reservation, Inc., 850 A.2d 924, 933 (R.I. 2004).
"Claims of due process violations are examined in two steps. First, a plaintiff must have a protected liberty or property interest . . . [T]hen . . . we inquire whether the procedures afforded were 'constitutionally sufficient.'" DiCiantis v. Wall, 795 A.2d 1121, 1126 (R.I. 2002) (internal citations and quotations omitted); see also Clukey v. Town of Camden, 894 F.3d 25, 33 (1st Cir. 2018). Due process therefore speaks to the requirement that "a person in jeopardy of serious loss [be given] notice of the case against him and [an] opportunity to meet it." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-72 (1951). "Notice and [an] opportunity to be heard are fundamental to due process of law," id. at 178, and "[w]hen we deny even the most degraded person the rudiments of a fair trial, we endanger the liberties of everyone." Id. at 179.
Here, Mr. Riley is entitled to the protections afforded under the constitution, despite his admission to this heinous crime. He has a protected property interest in his pension, the deprivation of which is entitled to constitutional protection. See Retirement Board of Employees' Retirement System of Rhode Island v. DiPrete, 845 A.2d 270, 290 (R.I. 2004). This deprivation designates Mr. Riley as a "person in jeopardy of [a] serious loss" entitled to "notice of the case . . . and [an] opportunity to meet it." Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (internal quotation omitted).
1
Notice
Plaintiffs argue that the Pension Board failed to provide them with adequate notice because it did not present Mr. Riley with a basis for revoking his pension. Pls.' Pre-Hr'g Statement at 1-2. Defendant, however, maintains that notice was sufficient. Def.'s Pre-Hr'g Statement at 2.
Notice requires a government actor to apprise an individual of its intent to deprive the individual of his life, liberty, or property, and the grounds supporting the intended deprivation. In an adequate notice, the government actor communicates specifically to the recipient the grounds supporting its decision to deprive the individual of his protected interest. See, e.g., In re Cross, 617 A.2d 97, 99 (R.I. 1992) (holding that notice regarding show-cause hearing was sufficient because the notice included a copy of the exact complaint lodged against the bail bondsman). Additionally, constitutionally adequate notice articulates the standard that the individual purportedly failed to meet and applies that standard to the individual's circumstances. See Avanzo v. Rhode Island Department of Human Services, 625 A.2d 208, 211 (R.I. 1993) (holding that notices terminating welfare recipients' benefits were insufficient because the notices did not specify how the recipients failed to meet eligibility criteria). General language or conclusory statements are insufficient to provide constitutionally adequate notice. See id. at 209-10; see also Flynn v. Rhode Island Department of Human Services, No. PC-93-2806, 1995 WL 941389, at *4 (R.I. Super. Jan. 26, 1995) (holding that notice terminating welfare benefits was insufficient because the notice did not advise the individual with any particularity regarding what led to a determination that she was no longer eligible for benefits). Boiled down, the process requires that notice give the individual such information that he can "discern the nature of the charges and [prepare an adequate defense]." Wood v. Pennsylvania, 411 A.2d 281, 283 (Pa. 1980).
Here, the undated letter sent to Mr. Riley, signed by Sean Corrigan, the Acting Town Manager and Police Chief, is constitutionally insufficient notice. The Court has no doubt that Chief Corrigan acted in good faith in preparing and mailing the letter; notwithstanding, he was not a member of the Pension Board and was not authorized to act on its behalf. In fact, Chief Corrigan was a witness. Therefore, this Court concludes that the letter that was mailed to Mr. Riley did not constitute sufficient legal notice.
Even if the Chief was authorized to provide notice, which he was not, the substance of the letter was constitutionally inadequate. On the most basic level, the letter fails to advise Mr. Riley of the basis for the Town's action. Furthermore, it fails to disclose the Town's intention to revoke his pension-a protected property interest. See DiPrete, 845 A.2d at 290. Rather, it states that the Solicitor is authorized to "enact" a provision of the ordinance. This general language, along with the enclosed ordinance, would lead any reasonable person to speculate about the actions contemplated by the Pension Board. See Avanzo, 625 A.2d at 209-10; see also Flynn, 1995 WL 941389, at *4.
Moreover, the letter does not state the charges or reasons for the Town's action and no burden of proof is provided. Thus, the letter does not provide any information that would allow Mr. Riley to prepare an adequate defense. Compare In re Cross, 617 A.2d at 99 (holding that bail bondsman was provided adequate notice by way of notice of show-cause hearing and copy of the complaint lodged against him) with Avanzo, 625 A.2d at 210 (holding that benefit termination notices sent to welfare recipients did not provide adequate notice because they were of a general, conclusory nature). In fact, the Pension Board never advised Mr. Riley of the charges or the regulation that he was alleged to have violated. The Pension Board lacked clarity with respect to the issue of notice. Pension Board member DeLuca stated that the Pension Board did not have the authority to issue charges. (Hr'g Tr. at 44:18-20, Aug. 14, 2019.) Pension Board member Holland believed that notifying Mr. Riley at an executive session that his pension status was being reconsidered constituted sufficient constitutional notification. Id. at 45:8-16.
The lack of notice or a statement of charges would lead any reasonable person to speculate or surmise. This cavity in the procedural due process afforded to Mr. Riley is well documented throughout the transcript of the pension revocation hearing. Plaintiffs' counsel repeatedly requested that the Pension Board articulate the specific charges against Mr. Riley. The Pension Board was unable to do so. The letter lacked clarity and particularity, leaving Mr. Riley without recourse or a basis to prepare a defense. See Flynn, 1995 WL 941389, at *4.
The letter lacked constitutional notice which is a fundamental element of due process. Therefore, this Court concludes that Mr. Riley was not provided adequate notice.
2
Opportunity to be Heard
Plaintiffs further argue that the Pension Board violated their due process rights because (1) the Pension Board was provided all of the evidence that it considered against Mr. Riley before the pension revocation hearing; (2) Plaintiffs' counsel was denied the opportunity to cross-examine Councilwoman Lawler regarding her statement to the Pension Board; (3) the Solicitor advised the Pension Board at the July 17, 2019 executive session that there was "no doubt" that Mr. Riley's pension should be revoked; (4) the Pension Board did not implement rules or regulations for the pension revocation hearing; (5) the Assistant Solicitor acted as a "prosecutor" by presenting the case against Mr. Riley and also acted as advisor to the Pension Board; (6) the Pension Board relied on inadmissible hearsay in revoking Mr. Riley's pension; and (7) the Pension Board did not make any findings of fact or conclusions of law.
A person in jeopardy of serious loss is entitled to an opportunity to "meet" the charges against him or her. Mathews, 424 U.S. at 348. Procedural due process "is not a technical conception with a fixed content unrelated to time, place and circumstances[, ]" but rather "is flexible and calls for such procedural protections as the particular situation demands." Id. at 334 (internal quotations omitted). Notwithstanding the need for flexibility, "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Id. at 333 (internal quotations omitted). The extent to which procedural due process must be afforded is influenced by the extent to which the individual "may be 'condemned to suffer grievous loss,' and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication." Goldberg v. Kelly, 397 U.S. 254, 263 (1970) (internal quotation omitted). The inquiry begins with considering the "precise nature of the governmental function involved as well as of the private interest that has been affected by governmental action." Id. (internal quotation omitted).
The Pension Board clearly has an interest in administering the Town's pension fund. In fact, § 58-22 of the Pension Ordinance provides that the Pension Board's duty is to "advise each applicant for benefits of all rights and options of the plan." Furthermore, the Pension Board is entrusted with adjudicating a member's continuing right to his or her pension when it determines that the member is guilty of "misfeasance or malfeasance during service with the town and who, but for retirement, would have been discharged or removed from such service. . . ." Section 58-36. Plaintiffs' interest in Mr. Riley's pension was affected by the Pension Board's revocation thereof.
To identify the "specific dictates of due process" warranted under the circumstances, the Court considers the three distinct factors outlined in Mathews and adopted by the Rhode Island Supreme Court in John J. Orr & Sons, Inc. v. Waite, 479 A.2d 721, 723-24 (R.I. 1984).
The Court first considers "the private interest that will be affected by the official action[.]" Mathews, 424 U.S. at 335. Here, the Pension Board affected Plaintiffs' private interest in the continued receipt of Mr. Riley's pension by revoking his pension. See id. at 340 (comparing petitioner's interest in continued benefits to petitioners in Goldberg, 397 U.S. at 263-64, Arnett v. Kennedy, 416 U.S. 134, 146 (1974), and Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 341-42 (1969)).
Next, the Court considers the "risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards[.]" Mathews, 424 U.S. at 335. In other words, the Court examines the "fairness and reliability of the existing pretermination procedures" and whether additional procedural safeguards would have value. Id. at 343. "Central to the evaluation of any administrative process is the nature of the relevant inquiry." Id.; compare Mathews, 424 U.S. at 339 (holding that the "elaborate character" of the Social Security Administration's administrative process to determine continuing eligibility for disability benefits wouldn't lead to the erroneous deprivation of benefits because the decision turned on unbiased medical reports) with Goldberg, 397 U.S. at 269 (holding that state welfare agency's process allowing written submission prior to deprivation of benefits was inadequate because the decision turned on questions of fact). "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." Goldberg, 397 U.S. at 269.
Although the dictates of procedural due process are flexible, there are guiding principles. The process should "permit the [individual] to mold his argument to the issues the decision maker appears to regard as important." Mathews, 424 U.S. at 335 (internal quotation omitted). Additionally, an impartial decision maker is essential. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719, 1721 (2018) (holding that statements made at an administrative hearing before the state commission for human rights "cast[ed] doubt on the fairness and impartiality" of the proceedings); see also Goldberg, 397 U.S. at 273; see also Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1279 (1975) ("An unbiased tribunal is a necessary element in every case where a hearing is required."). Furthermore, when the decision turns on questions of fact, an evidentiary hearing is required. Goldberg, 397 U.S. at 270. In Goldberg, the Supreme Court explained that:
"Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny." Id. (internal quotation omitted).
As for potential safeguards, the Court examines the potential value of an evidentiary hearing. Mathews, 424 U.S. at 322 (holding that the potential value of an evidentiary hearing was less than in Goldberg because the decision turned on "routine, standard, and unbiased medical reports," not questions of fact) (internal quotation omitted). In cases where benefit recipients have challenged proposed terminations "as resting on . . . misleading factual premises or on misapplication of rules or policies to the facts of particular cases" an "effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally" are important. Goldberg, 397 U.S. at 268.
In this case, the nature of the relevant inquiry arises from the Forfeiture Provision of the Pension Ordinance. A reasonable reading of the Forfeiture Provision would indicate that a hearing is required prior to the revocation of a public servant's pension benefit. Such a hearing would turn on questions of fact. See Goldberg, 397 U.S. at 268-69. As such, the Pension Board was required to provide Plaintiffs with an impartial evidentiary hearing and an opportunity to present their case and confront adverse witnesses before making its determination. Id. at 266.
Here, the Pension Board did not afford Mr. Riley with an orderly and impartial hearing. There was a complete lack of procedure and protocol. The record of the pension revocation hearing shows a chaotic and unorganized event. Furthermore, the record is replete with reasonable requests by Plaintiffs' counsel for an explanation of the Pension Board's protocol and procedures. It is riddled with statements by Pension Board members indicating their lack of knowledge of the nature and legal purpose of the hearing and its protocol. This chaos created a true risk of an erroneous deprivation of Plaintiffs' interest in Mr. Riley's pension. In addition, the Pension Board denied Mrs. Riley her opportunity to present evidence in support of her position. Contrary to their constitutional right to due process, Plaintiffs were not afforded the opportunity to effectively present their case.
On July 17, 2019, the Pension Board addressed Mr. Riley's pension at its regularly scheduled monthly meeting. (Hr'g Tr. at 35:13-19, Aug. 14, 2019.) Plaintiffs were not given notice of this meeting and were therefore foreclosed from participating in discussions. Id. Additionally, Pension Board members were provided potentially relevant documents for their review and consideration before the pension revocation hearing. Id. at 32:2-12. These documents were ultimately accepted into evidence, over Plaintiffs' counsel's objection, at the pension revocation hearing. Id. at 37:2-38:25.
Moreover, despite the fact that the Pension Board held a hearing on August 14, 2019, the Town failed to present a case to the Pension Board regarding Mr. Riley's purported misfeasance or malfeasance. Further troubling is the fact that the Assistant Solicitor performed conflicting roles. Most disturbing are the remarks made by various members of the Pension Board and Town officials indicating their bias against Mr. Riley. The pension revocation hearing was by no means impartial and was completely void of due process.
The Pension Board was predisposed in its conclusion to revoke Mr. Riley's pension. The pension revocation hearing was tainted from the start with Councilwoman Lawler's statement to the Pension Board. She told the members, "I wanted to remind you that the Town Council has already weighed in on this. My understanding from our other attorney is that you have been briefed. It's also my understanding that you're aware that you cannot supersede the Town Council." Id. at 1:23-2:3. The Councilwoman's statement is troubling. As a member of the Town Council, she has authority to appoint members of the Pension Board. The Town Council is the legislative branch of the Town and the policy maker. Her statement that the Town Council "has already weighed in on this" creates the illusion that the Town Council has authority to opine on the issue. Furthermore, her conclusion that the decision to revoke Mr. Riley's pension was "black and white" presumed that a hearing was not required. Id. at 2:8-9. Moreover, Plaintiffs' counsel was denied the opportunity to cross-examine Councilwoman Lawler, further impacting Plaintiffs' rights to defend their case. See Goldberg, 397 U.S. at 270; see also Harris v. City of Providence, No. 05-1247, 2006 WL 1148121, at *11 (R.I. Super. Apr. 27, 2006).
The remarks that various members of the Pension Board made during the pension revocation hearing further illustrate the animus that Pension Board members harbored against Mr. Riley. Pension Board member DeLuca's comments throughout the proceeding indicate a clear prejudice against Mr. Riley. He stated that members of the Pension Board were aware of the circumstances of the case, (Hr'g Tr. at 33:21-22, Aug. 14, 2019); the Town Solicitor, at the Pension Board's July meeting, instructed members of the Pension Board on how to carry out the Forfeiture Provision, id. at 35:7-25; there was discomfort among members of the Pension Board due to Mr. Riley's conviction, id. at 33:23-24; there was no need for argument or the interplay of witnesses, id. at 35:22-23; 36:24-25; and it was inconceivable that Major Fleming would lie in his memorandum to Colonel Manni, id. at 37:19-23. Twice Pension Board member Barber expressed his concern that the Pension Board was biased and was not providing Mr. Riley with adequate due process. Id. at 14:1-10; 75:16-76:15. Furthermore, the Assistant Solicitor instructed members of the Pension Board that it was "pretty clear what needs to be found." Id. at 15:10.
Furthermore, the evidence upon which the Pension Board relied in reaching its decision constituted inadmissible hearsay. At the pension revocation hearing, the Assistant Solicitor offered three exhibits into evidence-a memorandum by Major Fleming of the Rhode Island Police Department to Colonel Manni detailing the federal case against Mr. Riley; a memorandum from Acting Town Manager and Police Chief Sean Corrigan to the Pension Board regarding Mr. Riley's conviction; and a print-out from the federal PACER website offered as proof of Mr. Riley's conviction. Major Fleming's memorandum referenced numerous reports authored by persons other than Major Fleming. Neither Major Fleming nor the others whose reports were referenced in the memorandum were made available for Plaintiffs' counsel to cross-examine. See Harris, 2006 WL 1148121, at *11 (holding that administrative board improperly relied upon inadmissible hearsay and denied former police officer due process by not permitting her to confront adverse witness).
Moreover, the Pension Board failed to adopt any rules or regulations that would guide the pension revocation hearing. Pension Board member Holland insisted that Robert's Rules of Order applied. These rules, however, pertain to the order of meetings; they do not provide adequate guidance to the Pension Board to ensure that Plaintiffs are afforded a hearing in compliance with the dictates of due process. See Goldberg, 397 U.S. at 271 (explaining that a "decisionmaker's conclusion as to a recipient's eligibility must rest solely on the legal rules and evidence adduced at the hearing" and "[t]o demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on").
Finally, the Pension Board's decision revoking Mr. Riley's pension is not supported by findings of fact and conclusions of law. It is well settled that "'a municipal board, when acting in a quasi-judicial capacity, must set forth in its decision findings of fact and reasons for the actions taken.'" Kaveny v. Town of Cumberland Zoning Board of Review, 875 A.2d 1, 8 (R.I. 2005) (quoting Sciacca v. Caruso, 769 A.2d 578, 585 (R.I. 2001)). "Those findings must, of course, be factual rather than conclusional, and the application of the legal principles must be something more than the recital of a litany." Id. (citations omitted). After Mr. DeLuca restated his version of the events that led up to the pension revocation hearing, the Pension Board accepted his summary as its findings. The Pension Board did not make any conclusion as to what conduct rendered Mr. Riley guilty of misfeasance or malfeasance during his service with the Town.
The last prong of the Mathews test is consideration of the "[g]overnment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335. This interest includes the administrative, fiscal, and societal burdens "associated with requiring, as a matter of constitutional right, an evidentiary hearing[.]" Id. at 347. Although the government's interest "in conserving scarce fiscal and administrative resources is a factor that must be weighed," these factors are not of controlling weight. See id. at 348 ("Financial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision."). The record indicates that Mr. Riley's pension was the first pension subject to a revocation hearing under the Forfeiture Provision. Therefore, the Court is not concerned that the Pension Board will suffer extreme fiscal or administrative burdens by providing pension recipients evidentiary hearings prior to revoking pension benefits. Cf. id. In fact, that is expected.
It is evident that the Pension Board's decision was a foregone conclusion. The Pension Board was not impartial. There was no structure to the pension revocation hearing. Thus, Plaintiffs were not provided an adequate opportunity to meet the charges against Mr. Riley. While the Court recognizes that the action that Mr. Riley admitted to in his plea bargain involves crimes of the most serious magnitude, procedural due process is absolute and dependent on the merits of Mr. Riley's substantive criminal conviction. Goldberg, 397 U.S. at 254. The Pension Board should not have been an advocate. Barbara Realty Co. v. Zoning Board of Review of City of Cranston, 85 R.I. 152, 128 A.2d 342 (1957). The biased and haphazard proceeding created the risk that the Pension Board would erroneously deprive Plaintiffs of their interest in Mr. Riley's pension for which there is no cure. The Pension Board failed to have the necessary procedural safeguards in place. Thus, the Pension Board denied Plaintiffs their constitutional right to due process before revoking Mr. Riley's pension.
B
Void for Vagueness
In Count VI of their Amended Verified Complaint, Plaintiffs allege that the Forfeiture Provision is unconstitutional and void for vagueness. The Forfeiture Provision reads as follows:
"Any member who, at or after retirement, is found guilty by the pension board of misfeasance or malfeasance during service with the town and who, but for retirement, would have been discharged or removed from such service therefore shall not be entitled to a retirement allowance under this section. Notwithstanding the preceding sentence, such an employee shall not be deprived of the return of any balance of contributions not received as annuity payments, in accordance with section 58-24; neither shall any employee be deprived of any benefits after allocations have been made in accordance with termination of the plan." Pension Ordinance § 58-36.
This Court reviews questions of statutory interpretation de novo. State ex rel. City of Providence v. Auger, 44 A.3d 1218, 1226 (R.I. 2012) (citing Ruggiero v. City of Providence, 893 A.2d 235, 237 (R.I. 2006)). The Court employs the same rules of construction when interpreting a municipal ordinance as are applied when interpreting a statute. Id. Rules of strict construction are applied when interpreting a forfeiture provision that adversely affects the vested rights contained in a pension ordinance. Widdis v. Public Employee Retirement System, 568 A.2d 1227, 1233 ( N.J.Super. 1990). "[I]f an ordinance is clear and unambiguous, it should be enforced as written, with the words of the ordinance being given their plain and ordinary meaning." Auger, 44 A.3d at 1226 (citations omitted). "'This is particularly true where the Legislature has not defined or qualified the words used within the statute.'" D'Amico v. Johnston Partners, 866 A.2d 1222, 1224 (R.I. 2005) (quoting Markham v. Allstate Insurance Co., 116 R.I. 152, 156, 352 A.2d 651, 654 (1976)). However, when an ordinance is ambiguous, courts "'examine the entire statute to ascertain the intent and purpose of the Legislature.'" Retirement Board of Employees' Retirement System of the City of Providence v. Corrente, 174 A.3d 1221, 1232 (R.I. 2017) (citing Prew v. Employee Retirement System of Providence, 139 A.3d 556, 561 (R.I. 2016) (quoting Trant v. Lucent Technologies, 896 A.2d 710, 712 (R.I. 2006)).
A presumption that the enactment is constitutional is at the forefront of the Court's analysis when a party challenges the constitutionality of an ordinance. State v. v. Russell, 890 A.2d 453, 458 (R.I. 2006). Furthermore, the Court is required to “attach ‘every reasonable intendment in favor of . . . constitutionality' in order to preserve the [ordinance].” Gem Plumbing & Heating Co., Inc. v. Rossi, 867 A.2d 796, 808 (R.I. 2005) (citations omitted); see also Moreau v. Flanders, 15 A.3d 565, 574 (R.I. 2011). Thus, if possible, this Court will apply a limiting construction in lieu of declaring a statute or ordinance unconstitutional. See Skilling v. United States, 561 U.S. 358, 406 (2010); see also State ex rel. Town of Westerly v. Bradley, 877 A.2d 601, 606 (R.I. 2005). The moving party bears the burden of proving beyond a reasonable doubt that the ordinance is unconstitutional. Bradley, 877 A.2d at 605 (citing Rhode Island Insurers' Insolvency Fund v. Leviton Manufacturing Co., 716 A.2d 730, 734 (R.I. 1998)). “This Court approaches constitutional questions with great deliberation, caution, and even reluctance, and [ ] do[es] not declare a statute void unless [it] find[s] it to be constitutionally defective beyond a reasonable doubt.” Moreau, 15 A.3d at 573. Furthermore, this Court is mindful that its task is not to destroy a statute or ordinance, but to construe it. See Skilling, 561 U.S. at 415 (Scalia, Thomas, Kennedy, J., concurring).
A void for vagueness challenge may attack a statute on its face or as it is applied to an individual. Dailey v. City of Philadelphia, 417 F.Supp.3d 597, 617 (E.D. Pa. 2019). The standard used to determine vagueness turns on the nature of the statute itself. Fitzpatrick v. Pare, 568 A.2d 1012, 1013 (R.I. 1990). Criminal, quasi-criminal, and civil statutes and ordinances may be challenged as being void for vagueness. Sessions v. Dimaya, 138 S.Ct. 1204, 1226, 1228 (2018) (quasi-criminal civil deportation statute); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (quasi-criminal economic statute); Russell, 890 A.2d at 459 (criminal stalking statute).
Penal statutes and statutes implicating First Amendment rights may be challenged on their face. Kolender, 461 U.S. at 356. Civil statutes are examined in light of the facts at hand. Fonseca, 670 A.2d at 1240. Thus, "[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Village of Hoffman Estates, 455 U.S. at 495. "A vagueness challenge to a criminal statute is examined under a stricter standard than a statute that provides for civil penalties because the consequences of ambiguity in the civil context are much less severe." Russell, 890 A.2d at 460. "In determining whether a statute is unconstitutionally vague as applied to an accused, this Court considers the enactment in light of the facts. [This Court] will not indulge in hypothetical situations that would lead to absurd results." Id. at 458. Notwithstanding, although the United States Supreme Court "has sometimes 'expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe' . . . to acknowledge these truisms does nothing to prove that civil laws must always be subject to the government's emaciated form of review." Sessions, 138 S.Ct. at 1229 (internal quotation omitted).
Here, the Court examines the Forfeiture Provision as applied to Mr. Riley. The Forfeiture Provision is penal in nature as the consequences of revocation are confiscatory and have stigmatizing effects. Therefore, the Court will apply a heightened standard of review. See Sessions, 138 S.Ct. at 1229; see also Village of Hoffman Estates, 455 U.S. at 499.
1
Comparable Pension Revocation Acts
In the broad sense, Plaintiffs argue that the Forfeiture Provision is constitutionally deficient because it lacks specificity and standards. This deficiency is fatal, according to Plaintiffs, because it results in speculation as to what forbidden conduct will result in the forfeiture of a vested pension. To demonstrate this point, Plaintiffs direct the Court's attention to other state and municipal pension revocation acts, including: Section 36-10.1-1 et seq., the Rhode Island Public Employee Pension Revocation and Reduction Act; City of Warwick Code of Ordinances § 60-73, entitled "Honorable service; revocation or reduction of benefits of members committing crime related to public employment"; and City of Providence Code of Ordinances § 17-189.1, entitled "Revocation or reduction of retirement benefits of employees for dishonorable service."
Plaintiffs argue that these enactments contain detailed language regarding the specific events and conduct that trigger a pension revocation hearing. Pls.' Suppl. Mem. at 3. For instance, the Rhode Island Public Employee Pension Revocation and Reduction Act (RIPEPRRA) provides that the condition precedent to the reduction or revocation of a public employee's pension is the conviction of a crime related to the person's public employment. Id. at 4. The RIPEPRRA further enumerates the specific criminal offenses that will trigger the reduction or revocation of a public employee's pension. Id. Plaintiffs also submit that the language contained in the City of Warwick's pension revocation ordinance mirrors the triggering language and enumerated offenses contained in RIPEPRRA in that a pension revocation is triggered only if an individual "is convicted of or pleads guilty or nolo contendere to any crime related to his or her public employment." Id. Lastly, Plaintiffs highlight the level of specificity contained in the City of Providence's pension revocation ordinance to demonstrate that the Town Forfeiture Provision is lacking. Id. at 4-5. Plaintiffs argue that the City of Providence's pension revocation ordinance provides standards in that revocation is triggered when an individual commits one of the enumerated crimes linked to his or her public employment or commits any other misconduct constituting dishonorable service. Id.
Defendant argues that the Forfeiture Provision is not vague because it is only subject to one reasonable interpretation. Def.'s Suppl. Mem. at 2.
The void for vagueness doctrine is based on substantive due process, Brown v. Board of Education of City of Chicago, 84 F.Supp.3d 784, 791 (E.D. Ill. 2015), and stands for the maxim that "an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The doctrine emanates from the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution. L.A. Ray Realty v. Town Council of the Town of Cumberland, 698 A.2d 202, 210 (R.I. 1997); see also State v. Fonseca, 670 A.2d 1237, 1238 (R.I. 1996). It is applied to the states through the Fourteenth Amendment, which provides that "[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law." L.A. Ray Realty, 698 A.2d at 209. Similarly, article 1, section 2 of the Rhode Island Constitution states "[n]o person shall be deprived of life, liberty or property without due process of law. . . ." Because the due process clauses of the United States and Rhode Island Constitutions are virtually identical, the vagueness analysis is the same. See In re: GTE Reinsurance Co. Ltd., No. PB-10-3777, 2011 WL 1618317, at *19 n.27 (R.I. Super. Apr. 25, 2011) (citing Rhode Island Depositors Economic Protection Corp. v. Brown, 659 A.2d 95, 104 (R.I. 1995)).
There is a two-part analysis employed under this doctrine. First, the law must "be defined . . . with sufficient definiteness that ordinary people can understand what conduct is prohibited . . . ." Auger, 44 A.3d at 1233 (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)) (citations omitted). Additionally, the law must be defined "in a manner that does not encourage arbitrary and discriminatory enforcement." Id. Put simply, the doctrine requires that "a [] statute be declared void when it is 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" State v. Fonseca, 670 A.2d 1237, 1238 (R.I. 1996) (quotations omitted).
Vague laws are impermissible for two reasons.
"First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."Grayned, 408 U.S. at 108-09. A vagueness challenge therefore "draws on principles of procedural due process because vague statutes fail to provide affected individuals with adequate notice of procedural fairness." Mary Holper, Deportation for a Sin: Why Moral Turpitude is Void for Vagueness, 90 Neb. L. Rev. 647, 666 n.131 (2012); see also Moreau, 15 A.3d at 582.
Unlike the pension revocation acts referenced by Plaintiffs, the Town Forfeiture Provision does not tether a specific act by the public servant to the revocation of his or her pension. Rather, the condition precedent to revocation is a finding by the Pension Board that the public servant is guilty of misfeasance or malfeasance. Under the Forfeiture Provision, the act of misfeasance or malfeasance is not defined and does not trigger revocation; rather, the outcome turns on the Pension Board's finding that the public servant is guilty of some undefined act. It is true that a criminal conviction is clearly representative of a wrongful and unlawful act constituting malfeasance. However, unlike many pension revocation ordinances, a criminal conviction is not a triggering event under the Town Forfeiture Provision. See, e.g., Merlino v. Philadelphia Board of Pensions and Retirement, 916 A.2d 1231, 1235 (Pa. 2007) (holding that conviction for making a false statement to federal officers "represented the commission of a wrongful and unlawful act thereby constituting malfeasance in office and employment. . . .").
It is axiomatic that a law must be sufficiently definite in that it provides a "person of ordinary intelligence" with the information necessary to determine what conduct is prohibited. Auger, 44 A.3d at 1234; see also Fonseca, 670 A.2d at 1239. In other words, a law must "furnish the ordinary citizen 'with the information necessary to conform his or her conduct to the law.'" Auger, 44 A.3d at 1233 (internal quotation omitted). The sufficiency of fair notice is embodied in the requirement that a law be sufficiently definite. Moreau, 15 A.3d at 582. In other words,
"fair notice recognizes that it is not enough for the government to promulgate laws if those laws cannot easily be understood. It is impossible for citizens actually to fulfill their obligation to know the law when they cannot be sure what the promulgated law means . . . the principle of fair notice is designed to ensure that those who are constrained and sometimes burdened by legal rules know clearly what the rules mean." Textualism as Fair Notice, 123 Harv. L. Rev. 542, 549-51 (2009).
Here, the Forfeiture Provision fails to provide the criteria necessary for a member of the pension system to gage his or her liability thereunder. There are no benchmarks setting forth the actions or events that trigger enforcement of the Forfeiture Provision. Furthermore, the body tasked with enforcing its provisions has no rubric, guidelines, or procedural safeguards in place to prevent the arbitrary enforcement thereof. Our Supreme Court has recognized that "human language is a less than perfect medium" and that while we are: "[c]ondemned to the use of words, we can never expect mathematical certainty from our language." Auger, 44 A.3d at 1234 (citations omitted). However, a law that requires someone to engage in guesswork is unconstitutional. See Connally v. General Construction Co., 269 U.S. 385, 393 (1926) ("The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions.") Thus, the Forfeiture Provision, taken in its entirety, fails to pass constitutional muster because it is unclear what conduct would prompt a pension revocation hearing and subject a public servant to the revocation of his or her pension.
Furthermore, in the Town Forfeiture Provision, the acts of "misfeasance" and "malfeasance" are tied to the Pension Board's conclusion. The terms are not defined or guided by the acts of the member. Moreover, the terms do not constitute a catchall provision. The Town Forfeiture Provision is markedly different in this regard as compared to the pension revocation ordinance that was at issue in Dailey and § 17-189.1 of the City of Providence Code of Ordinances.
The pension revocation ordinance examined in Dailey used the phrase "malfeasance in office or employment" to describe but one of the instances that could give rise to the revocation of a public employee's pension. 417 F.Supp.3d. at 601. In Dailey, a court employee was terminated for using a credit card issued to the court to pay approximately $73,000 in personal debt. Id. at 603. After pleading guilty to felony theft by unlawful taking or disposition, the former employee applied for early retirement benefits. Id. The city's pension board, however, concluded that she was not eligible to receive a pension based on her conviction for felony theft. Id. The pension board based its decision on the city's Retirement Code, §§ 22-1302(1)(a)(.4) and (.5) which provided that:
"Notwithstanding any other provision of this Title, no employee . . . shall be entitled to receive any retirement or other benefit or payment of any kind except a return of contribution paid into the Retirement System, without interest, if such employee:
"(a) pleads or is finally found guilty, or pleads no defense, in any court, to any of the following:
. . . .
"(.4) Theft, embezzlement, willful misapplication, or other illegal taking of funds or property of the City, or those of any official agency of the City, or agency, engaged in performing any governmental function for the City or the Commonwealth;
"(.5) "malfeasance in office or employment;'"
Subsection (.4) unequivocally provides that a conviction for theft will disqualify a person from being eligible to receive a pension. The catchall provision, "malfeasance in office or employment," follows in subsection (.5). Ultimately, the Pennsylvania Supreme Court, examining subsections (.4) and (.5) of the pension revocation ordinance, held that the ordinance would not lead to conjecture-a person of common intelligence would not have to guess whether the theft of over $73,000 from one's public employer constituted "malfeasance in office or employment" resulting in the revocation of his or her pension. Id. at 618. Evidently, the court read the subsections in tandem and the explicit conduct identified in subsection (.4) assisted the court in determining whether the public servant's conduct fell under the scope of subsection (.5).
Similarly, § 17-189.1, the City of Providence's pension revocation ordinance, enumerates the types of conduct constituting dishonorable service that would subject a public employee to a pension revocation hearing. In pertinent part, § 17-189.1(b)(2) defines a "[c]rime related to his or her public employment" as:
"any of the following conduct, whether or not the conduct results in a criminal conviction:
"(a) Committing or aiding or abetting the commission of embezzlement of public funds;
"(b) Committing or aiding or abetting the commission of any felonious theft by a public employee from his or her employer;
"(c) Committing or aiding or abetting the commission of bribery in connection with, or involving, a public employee;
"(d) Committing or aiding or abetting the commission of any felony by a public employee who willfully, and with the intent to defraud, realizes or obtains, or attempts to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of power, rights, privileges, duties, or position of his or her public office or employment. . . ."
These enumerated provisions are followed by a catchall provision. The catchall provides that revocation may also result from "[a]ny other misconduct or crime which the board, by a majority vote, determines is 'dishonorable service,' after weighing and balancing the following factors . . . ." Section 17-189.1(b)(2)(e). The City of Providence's pension revocation ordinance, unlike the Town Forfeiture Provision, specifically delineates the types of conduct that would bring a public servant before the pension board. The enumerated crimes, as well as the catchall provision regarding dishonorable service, provide public servants with the necessary fair notice of what conduct is forbidden.
The City of Providence and City of Philadelphia ordinances outline specific types of conduct, followed by catchall provisions, that provide fair notice of the conduct that would bring an individual before a pension board for the forfeiture of his or her vested pension. Unlike the Town Forfeiture Provision, these ordinances link a specific wrongdoing to the revocation of one's pension. Here there is no such trigger, there is no such element.
2
Unconstitutionally Vague
Plaintiffs next point to three phrases contained within the first sentence of the Forfeiture Provision and argue that these phrases lack definiteness, thus inevitably leading to the arbitrary and discriminatory revocation of a public servant's pension. Plaintiffs specifically challenge the phrases: (1) misfeasance or malfeasance; (2) during service with the town; and (3) discharged or removed from service. Pls.' Suppl. Mem. at 5. Plaintiffs suggest that these phrases are so lacking in definiteness and standards therefore rendering the Forfeiture Provision unconstitutional and void for vagueness. Id. at 6-8.
Defendant, on the other hand, sets forth numerous arguments supporting the terms contained in the Forfeiture Provision. Defendant suggests that the Forfeiture Provision is not vague because it is only subject to one reasonable interpretation. Def.'s Suppl. Mem. at 2. According to Defendant, the terminable conduct need only occur during one's employment; in other words, the Forfeiture Provision does not require that the terminable conduct take place while the employee is working. Id. at 3. Furthermore, Defendant argues that interpreting the Forfeiture Provision to require that the terminable conduct take place while the individual is working would lead to absurd results not intended by the drafters of the ordinance. Id. Notwithstanding this temporal distinction, Defendant suggests that Plaintiffs cannot challenge the Forfeiture Provision as applied to Mr. Riley because his conduct satisfies both interpretations. Id. at 4. Defendant submits that Mr. Riley violated 18 U.S.C. § 1470 while he was employed by the Town and while he was "on duty." Id. at 4-5. Therefore, Defendant argues, under any suggested standard Mr. Riley's conduct would have led to his discharge. Id. at 2.
a
"Misfeasance or Malfeasance"
Plaintiffs argue that the terms misfeasance and malfeasance are, alone, unconstitutionally vague. Pls.' Suppl. Mem. at 5. In support of this argument, they cite Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Tornillo, the United States Supreme Court addressed the constitutionality of an ordinance that required newspapers that criticized political candidates to provide those candidates with free space to respond to the criticism. The Court analyzed the ordinance in the context of the void for vagueness doctrine as well as First Amendment protections for freedom of the press. Ultimately, the Court deemed the ordinance unconstitutional on First Amendment grounds, concluding that the ordinance "fail[ed] to clear the barriers of the First Amendment because of its intrusion into the function of editors." Id. at 258. In doing so, the Court did not declare the ordinance void for vagueness. Furthermore, it did not conclude, as Plaintiffs suggest, that the terms "misfeasance" or "malfeasance" were unconstitutionally vague.
Misfeasance and malfeasance are common law crimes. Dailey, 417 F.Supp.3d at 619. These crimes were abrogated, and courts now look to common usage and caselaw when applying these terms. See id. at 620. The term malfeasance, in relation to a pension forfeiture ordinance, has been defined by one court as "a wrongful or unlawful act, especially wrongdoing or misconduct by a public official." Id. at 608-09. This interpretation aligns with the legal definition of malfeasance. See Black's Law Dictionary 1145 (11th ed. 2019). Furthermore, when interpreting the term malfeasance, "[t]he focus is on 'the underlying illegal act, as opposed to the particular crime, [that] form[s] the basis for a forfeiture. . .'" Id. at 608 (internal quotation and citation omitted). Misfeasance, according to its common usage, has been defined as "[a] lawful act performed in a wrongful manner," Black's Law Dictionary 1197 (11th ed. 2019), or "the negligent or improper doing of an act." Narine v. Powers, 509 N.E.2d 905, 907 (Mass. 1987).
Though these common definitions provide notice that one's pension may be revoked on account of some wrongful act, or a lawful act performed in a wrongful manner, this Court is left wondering what kind of conduct would result in the revocation of a public servant's municipal pension under the Forfeiture Provision. See Baggett v. Bullitt, 377 U.S. 360, 371 (1964). In Redemske, the Illinois Supreme Court addressed a similarly problematic phrase: "taking an active part in a [political] campaign." Redemske v. Village of Romeoville, 406 N.E.2d 602, 607 (Ill.App.Ct. 1980). There, a public employee was terminated, and her pension was revoked, for riding in a political parade. Id. The court questioned whether a person of ordinary intelligence reading the relevant pension ordinance would understand that riding in a political parade could result in the revocation of one's pension. Id. Or, the court questioned, did the ordinance require something more, e.g., close involvement in or management of a political campaign? Id. The court concluded that the ordinance did not provide fair notice of its prohibitions. The municipality failed to "adopt an ordinance which clearly and specifically apprised its employees of which political activities on their part would be grounds for dismissal." Id. at 608.
Here, the Forfeiture Provision does not link the acts of misfeasance or malfeasance to the public servant's dishonorable service or public employment. Rather, the terms are attached to the Pension Board's unrestricted, subjective, and open-ended determination of misfeasance or malfeasance. Clearly, circumstances exist, as Plaintiffs raise, where this broad application could result in an arbitrary determination to revoke an individual's pension benefits.
The language contained in the Forfeiture Provision leaves an ordinary person wondering what kind of conduct-specifically, job related conduct or otherwise-could result in the revocation of his or her pension. The Forfeiture Provision leads to speculation-must the forbidden conduct relate to one's employment, or will non-employment related conduct subject the public servant to the revocation of his or her pension? See, e.g., Corrente, 174 A.3d at 1221 (addressing honorable service ordinance with respect to a city official who was convicted of extortion, bribery, and conspiracy); Dailey, 417 F.Supp.3d at 597 (revoking court employee's pension for "malfeasance in office or employment" for using court credit card to pay $73,000 of personal debt); Corvelli v. Board of Trustees, Police and Firemen's Retirement System, 617 A.2d 1189 (N.J. 1992) (revoking, partially, police chief's pension for punishing an officer unreasonably and stealing the officer's weapon); Priester v. Board of Appeals of Baltimore County, 165 A.3d 644 (Md.App. 2017) (revoking fire captain's pension for failure to render "honorable and faithful service" by sexually harassing female subordinates and one civilian while on duty); LePrince v. Board of Trustees, Teachers' Pension and Annuity Fund, 631 A.2d 545 (N.J.Super. 1993) (reducing school psychologist's pension for sexually assaulting a student, thereby "exploit[ing] his position of trust and confidence" as the school psychologist). Courts have refused to revoke an employee's pension when the employee's crime was unrelated to his or her employment. See Widdis, 568 A.2d at 1233 (citing Masse v. Public Employees Retirement System, 432 A.2d 1339 (1981)) and Procaccino v. State, Department of Treasury, Board of Trustees, Public Employees' Retirement System, 432 A.2d 1346 (1981)); see also T.J.M. v. Board of Trustees of Police & Firemen's Retirement System, 527 A.2d 883 ( N.J.Super. 1987).
b
During "Service with the Town"
Plaintiffs also argue that the phrase during "service with the town" renders the Forfeiture Provision unconstitutionally vague. According to Plaintiffs, this phrase makes the ordinance susceptible to multiple interpretations in that one must guess when the forfeiture inducing conduct takes place. Pls.' Suppl. Mem. at 7. Specifically, Plaintiffs argue that during "service with the town" could mean while the individual is employed by the Town or while the individual is working.
The phrase during "service with the town" modifies the words misfeasance or malfeasance. As such, it creates an ambiguity concerning whether the public servant's act must be related to his employment or an act either unrelated to his service or independent of his employment. Plaintiffs correctly point out that the phrase could have multiple meanings. See Connally, 269 U.S. at 393 (citation omitted) ("Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.").
Defendant provides no support for its position that the drafters of the Forfeiture Provision intended that an individual would be subject to its provisions merely by being employed by the Town when the prohibited conduct took place. The phrase during "service with the town" requires the person of ordinary intelligence to engage in guesswork. "[T]he question [cannot] be solved by resort to the established canons of construction that enable a court to look through awkward or clumsy expression, or language wanting in precision, to the intent of the Legislature. For the vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the Legislature meant one thing rather than another. . . ." Connally, 269 U.S. at 394. In this instance, the ordinary person (as well as this Court) would be required to engage in guesswork to decide what the drafters meant by the phrase during "service with the town." Thus, this phrase, too, renders the Forfeiture Provision unconstitutionally vague.
c
"Discharged or Removed from Service"
Lastly, Plaintiffs challenge the phrase "discharged or removed from service" as being unconstitutionally vague. Particularly, Plaintiffs argue that the phrase requires the Pension Board to "guess" whether someone who has retired would have been discharged or removed if still employed by the Town. Pls.' Suppl. Mem. at 8. In addition, Plaintiffs argue that the phrase invites arbitrary and discriminatory enforcement of the Forfeiture Provision by the Pension Board. Defendant argues that the Forfeiture Provision applies only to "terminable offense[s]" and the requirement of "evidence of a terminable act of misconduct eliminates the prospect of arbitrary enforcement of the Revocation Ordinance." Def.'s Suppl. Mem. at 6.
To satisfy the requirements of the due process clause, laws and regulations must provide specific standards which avoid arbitrary and discriminatory enforcement. 16B Am. Jur. 2d Constitutional Law § 968 (2020). "Laws that regulate persons or entities . . . must be sufficiently clear that those enforcing the law do not act in an arbitrary or discriminatory way." Beckles v. United States, 137 S.Ct. 886, 894 (2017) (internal quotations omitted).
An unconstitutionally vague law invites arbitrary enforcement if it "leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case." Id. (internal quotation omitted). Moreover, "it is well settled that a statute is unconstitutionally vague if it lacks explicit standards from its application and thus delegates power that enables enforcement officials to act arbitrarily with unchecked discretion." Fitzpatrick, 568 A.2d at 1013 (citation omitted).
Generally, a law that incorporates an objective standard will survive a void for vagueness challenge. For example, a law that provides some means of measurement provides an adequate standard to avoid arbitrary and discriminatory enforcement. See Auger, 44 A.3d at 1236 (holding that noise ordinance specifying impermissible dBA levels at certain times and from certain distances set forth an acceptable objective standard). A law that employs a reasonableness standard also passes constitutional muster. See id. at 1235 (citing numerous cases utilizing a reasonableness standard). Furthermore, a law that delineates factors for the decision maker will survive a void for vagueness challenge. See Ryan v. City of Providence, 11 A.3d 68, 75 (R.I. 2011) (discussing City of Providence pension ordinance that listed crimes that defined a failure to render honorable service); see also Moreau, 15 A.3d at 584 (holding that receivership statute that outlined five distinct factors regarding the fiscal well-being of a municipality provided "intelligible standards and principles" regarding the Department of Revenue's authority, sufficient to withstand a vagueness challenge).
Not only are standards important, but courts also examine the level of discretion granted to decision makers when analyzing a void for vagueness challenge. "A statute . . . is not void for vagueness 'merely because it allows for the exercise of some discretion.'" Priester, 165 A.3d at 656 (internal quotations omitted). However, a law may not grant decision makers unbridled discretion. See Papachristou v. City of Jacksonville, 405 U.S. 156, 168 (1972) (invalidating vagrancy law that gave police "unfettered discretion"). "Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" Kolender, 461 U.S. at 358 (internal quotation omitted). A standardless law that "furnishes a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure'" is bound to be declared void for vagueness. See Papachristou, 405 U.S. at 170 (internal quotation omitted).
Here, the Forfeiture Provision lacks standards, or factors, that the Pension Board could objectively consider in determining whether a public servant unfaithfully discharged his or her duties such as to trigger a pension revocation. The Pension Board was bestowed the power and ability to promulgate rules and regulations to govern pension revocation hearings. The Pension Board did not do so. Furthermore, the Forfeiture Provision does not provide any standard or burden of proof for the Town to meet and the public servant to challenge. "Although due process does not require 'impossible standards' of clarity, this is not a case where further precision in the statutory language is either impossible or impractical." Kolender, 461 U.S. at 361 (citation omitted).
The record of the pension revocation hearing is replete with testimony demonstrating that the Forfeiture Provision lacks the necessary standards and guidance. For example, the Assistant Solicitor could not articulate a standard of review for the Pension Board to apply. (Hr'g Tr. 62:12-21, Aug. 14, 2019.) He suggested that the Forfeiture Provision served to "deal with people who commit misconduct while in the employ and reflect poorly upon the Town" and "it also serves as a deterrent." Id. at 15-17. The concept of deterrence, however, is absent from the dictates of due process.
Statements made by various members of the Pension Board also show the subjective manner in which they enforced the Forfeiture Provision against Plaintiffs. Pension Board member Barber expressed his concern in this regard as follows:
"MR. BARBER: . . . I believe, in my opinion, that this needs to be heard by an impartial judicial officer, or however you want to say it, an impartial-this Board I don't believe is unbiased. I mean there's members that are protected-we've already had one member recuse himself."Id. at 14:5-10 (emphasis added). Pension Board member Barber expounded on his concerns further:
"MR. BARBER: I was going to reiterate my point. Obviously, we have been told we are bound by ordinances. We took an oath to follow ordinances. I also took an oath to follow the Constitution of the United States, the Constitution of Rhode Island. I just want to put on the record I really do feel that this requires an impartial quasi or judicial process. I mean I can feel the bias from the Board members. I mean it's almost like Board members are testifying, and I feel that this process should have been a - where we sat, listened to evidence, evidence was put on the record, and the process also requires a written finding of fact and reason for unbiased decisions. And I don't believe that process is being followed here which will be how I'll determine my- and it's, just again, I'm asking the Board to consider that it's going to reflect my decision because do I feel that maybe it would be a different vote if I felt that an impartial person or judicial process was conducted and they advised us what that decision is. I understand your point as advising us what we should do, but I really feel that the due process is not being followed, and I mean it's being deprived or there's a chance that Mr. Riley is being deprived of property which requires due process under the United States Constitution and the Rhode Island Constitution."Id. at 75:16-76:15.
Furthermore, the summary that Pension Board member DeLuca provided regarding the events leading to the pension revocation hearing is laced with remarks indicating his bias against Mr. Riley.
"MR. DELUCA: I wanted to point out one thing, Chairman, not to dispute your choice of words, but I do not know if we are anticipating Mr. Berg actually presenting a case. The case is before us. It started on June 2, 2017 when Mr. Riley applied for his pension. We received those documents. And at that time, we also considered what our-what we should be doing. We heard that he had been arrested. We knew nothing about the case at that point. We were advised that in the absence of any decision by a court of law, we are to treat the case as any other case. We voted to grant him his pension.
"It was noted, I believe in July of 2017, during the discussion that revocation was possible in the case of conviction of any sort of a crime. So we were aware of our circumstances. We were aware of the conditions under which we were working. There was a lot of discomfort on the part of the Board members, but we followed the rule, we followed our own ordinance, we followed the procedural law that is part of the case. Then we received a copy of Colonel Manni's memorandum-actually, it was Major Fleming's memorandum to Colonel Manni, describing some of the elements of the case I won't go into.
. . . .
"That was last year in April or May or June. In June, Chief Corrigan, acting as town manager, signed-as acting town manager and police chief, provided us with a memorandum also as it relates to conduct unbecoming of an officer, criminal conduct and other elements.
. . . .
"In June of this year, we considered the case again. Mr. Penza was in attendance. At that time he asked that we only discuss procedural aspects of things. We agreed that we were only talking about procedural aspects, and at that time a special meeting was scheduled for today.
"In July at our regular meeting we had an executive session at which we were advised by the solicitor, Mr. Davis, of the law, the town ordinances, the interpretation of how we should carry out the Town ordinances. He addressed the issue of our procedures and how we should follow through. He pointed out certain facts. We don't have to get into those right now. The only reason I wanted to go through that was to let you know and tell my colleagues here on the Board that I believe this is the case. I don't believe it needs to be argued. None of us are wearing a black robe up here. What we're doing is trying to make some sense of this travel.
"We acknowledged a year ago, two years ago, July of '17 that the pension that we voted to approve could be revoked if certain circumstances came about. Those circumstances did come back to some degree. That is why we're here. We're exercising the authority the Board has to reconsider an approval of a pension based on new information that, by the description of the court case that we received from Colonel Manni, indicates the pensionnaire admitted to certain facts that have affected and may be determinative of how this Board reviews the revocation application-revocation consideration. With that, I would say the need we have for having Mr. Berg here is to help us understand process, fill in the gaps, and to give us the guidance of his knowledge of State and local law, not to make the case."Id. at 33:7-34:4; 34:7-12; 35:7-36:15.
Moreover, the following statement by the Assistant Solicitor demonstrates how the Pension Board's decision was preordained:
"MR. BERG: You are the finders of fact here, and while you're an arm of the Town, you do have a fiduciary duty to Mr. Riley to weigh the evidence fairly and look at the code, what the code says about the basis for revoking the pension. I'm sure-I anticipate Mr. Penza will bring up what is the burden of proof here, and it's not clearly defined what the burden of proof is here. But I think you're going to find that, really, the evidence is undisputed and compelling and there really is only one conclusion that is something that you can deliberate. There is not a lot of gray area here. This ordinance is pretty black and white."Id. at 17:1-13 (emphasis added).
Finally, the Acting Chairperson permitted Councilwoman Lawler to address the Pension Board at the commencement of the hearing. Her inflammatory statement was not grounded in law or fact; it was based on her political agenda.
"MS. LAWLER: Thank you for letting me speak. Last November I took oath of office for the second time, and that oath of office was to maintain and make sure that I followed the laws of the Town of Narragansett. We appoint you, the Town Council, and we expect you to follow the law as well. This is a very difficult thing to be standing next to Mrs. Riley, speaking to you, but this is the law. The law is black and white; there is no gray here. He is a convicted felon; he admitted. We - the Pension Board in the past have denied a pension for a Town employee for stealing gas.
. . . .
"MS. LAWLER: I won't take much more time. I wanted to remind you that the Town Council has already weighed in on this. My understanding from our other attorney is that you have been briefed. It's also my understanding that you're aware that you cannot supersede the Town Council. So it's a tough decision. I know it's a colleague, it's a friend. It could have happened to any child. There's a young child out there that's changed. It could be anyone in our school system. I ask you that you take this into consideration. I know it's a very difficult decision to make today, but it's a black and white decision; there is no gray. Thank you for your time."Id. at 1:4-2:10.
The Pension Board's ad hoc decision-making process demonstrates with abundance the subjective nature of the proceeding. Pension Board member DeLuca chronicled two years of events that in his opinion justified revoking Mr. Riley's pension. Id. at 69-73. The Pension Board considered two memoranda, which constituted inadmissible hearsay, during the revocation hearing. It is worth noting that these memoranda had been provided to, and were considered by, the Pension Board before the revocation hearing. Id. at 71-72. Pension Board member Barber expressed his concern that "it's almost like Board members are testifying." Id. at 75:23-24. Pension Board member DeLuca thereafter asked the Assistant Solicitor to clarify the process that the Pension Board should follow. Id. at 76:23-25. The Assistant Solicitor responded that "due process had been served" and that it would later be up to a judge to review the Pension Board's decision. Id. at 77:2-22. Pension Board members Boruta and DeLuca debated about the appropriate interpretation of the term "malfeasance." Id. at 82:8-13. Following Pension Board member DeLuca's abbreviated recitation of the facts and travel of the case, as he saw them, the Pension Board voted five-to-one to revoke Mr. Riley's pension. Id. at 92:19-20. Clearly, there was no objective legal structure or meaning to the manner in which the Pension Board arrived at its decision to revoke Mr. Riley's pension.
Moreover, the phrase "discharged or removed from service" certainly led the Pension Board to enforce the Forfeiture Provision in an arbitrary and discriminatory manner, therefore depriving Plaintiffs of their right to due process. This conclusion was crystallized at the pension revocation hearing when the Acting Town Manager and Police Chief was cross-examined by Plaintiffs' counsel regarding Mr. Riley's termination. Chief Corrigan acknowledged that had Mr. Riley been employed by the Town at the time of his conviction, he could have been terminated in accordance with the Law Enforcement Officers' Bill of Rights, § 42-28.6-13. He acknowledged, however, that Mr. Riley's termination could have been overturned on appeal. Id. at 57:10-20. The Chief's testimony demonstrates how the phrase "discharged or removed from service" is uncertain, invites speculation, and is bound to lead to different constructions. See Connally, 269 U.S. at 395.
The record crystalizes the Court's conclusion that the Pension Board acted in a subjective, discriminatory, and arbitrary manner in enforcing the Forfeiture Provision against Mr. Riley. "Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.'" Papachristou, 405 U.S. at 170 (quoting Thornhill v. State of Alabama, 310 U.S. 88, 97-98 (1940)). This lack of standards and the Pension Board's unfettered discretion lead this Court to the inescapable conclusion that the Forfeiture Provision is unconstitutionally vague.
C
Review of the Pension Board's Decision
In Count I of their Amended Verified Complaint, Plaintiffs ask this Court to review the Pension Board's decision revoking Mr. Riley's pension and denying Mrs. Riley all or a portion of Mr. Riley's pension as an innocent spouse. Am. Ver. Compl. ¶ 52.
Section 36-10.1-5 of the Rhode Island General Laws entitled "Municipal employee pension revocation and reduction" gives this Court jurisdiction "to review any decisions, appeals, or other proceedings initiated pursuant to any municipal ordinance providing for the revocation or reduction of the pension of any municipal employee for circumstances constituting dishonorable service as defined by municipal ordinances." Nevertheless, § 36-10.1-5 fails to provide a standard to guide this Court's review of the Pension Board's decision. In Corrente, the Rhode Island Supreme Court held that the standard of review provided in the Administrative Procedures Act, § 42-35-15, applies in such cases. 174 A.3d at 1232. Therefore, this Court will apply the standard of review prescribed for administrative appeals to the instant action.
The Superior Court's review of an administrative decision is governed by § 42-35-15 of the Administrative Procedures Act. Section 42-35-15(g) reads as follows:
"(g) 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, inferences, 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 of 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." Section 42-35-15(g).
In conducting its review, this Court "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Center for Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 684 (R.I. 1998) (citations omitted). The Court must affirm the agency's decisions on questions of fact unless such decisions are "totally devoid of competent evidentiary support in the record." See Baker v. Department of Employment and Training Board of Review, 637 A.2d 360, 363 (R.I. 1994) (internal quotation omitted). Competent evidence is that which a reasonable mind might accept to support a conclusion. Newport Shipyard, Inc. v. R.I. Commission for Human Rights, 484 A.2d 893, 897 (R.I. 1984) (citation omitted). The Court "may reverse [the] findings [of the administrative agency] only in instances wherein the conclusions and the findings of fact are 'totally devoid of competent evidentiary support in the record,' or from the reasonable inferences that might be drawn from such evidence." Bunch v. Board of Review, Rhode Island Department of Employment and Training, 690 A.2d 335, 337 (R.I. 1997) (citations omitted). The Court is not bound by the agency's decisions of law and reviews these questions de novo. Arnold v. Rhode Island Department of Labor and Training Board of Review, 822 A.2d 164, 167 (R.I. 2003). Ultimately, issues of statutory interpretation are questions of law for which the Court is responsible. City of East Providence v. Public Utilities Commission, 566 A.2d 1305, 1307 (R.I. 1989).
Here, the Pension Board's decision affected Plaintiffs' substantial rights in that the Pension Board denied Plaintiffs their constitutional rights to due process. Moreover, the Pension Board denied Plaintiffs their right to confront and cross-examine adverse witnesses, based its decision on inadmissible hearsay, and failed to make adequate findings of fact and conclusions of law.
As discussed in Section A "Procedural Due Process," supra, the Pension Board failed in numerous regards to provide Plaintiffs with notice and a meaningful opportunity to be heard. Proceedings before administrative agencies are not exempt from the requirement that individuals be afforded their right to due process of law. Harris, 2006 WL 1148121, at *11 (quoting Isidore Silver, Public Employee Discharge and Discipline, § 7.1 at 7-4 (1990)).
Here, the Pension Board did not provide Plaintiffs with notice of the charges against Mr. Riley. The undated letter that was sent to Mr. Riley regarding the pension revocation hearing did not provide the grounds upon which the Town intended to revoke his pension. The Pension Board was unaware of the burden of proof that the Town was required to meet in presenting its case. Furthermore, the Pension Board did not adopt rules and regulations governing pension revocation hearings in accordance with § 58-22(i) of the Pension Ordinance.
Moreover, the Pension Board denied Plaintiffs the right to confront and cross-examine adverse witnesses. Plaintiffs' counsel's request to cross-examine Councilwoman Lawler following her inflammatory statement to the Pension Board was denied. In addition, the Pension Board accepted Major Fleming's memorandum regarding Mr. Riley's federal conviction into evidence despite the fact that the document was laden with hearsay and Major Fleming was not available to be cross-examined. "Although administrative agencies are not bound by the technical common law rules of evidence, they must observe the basic rules of fairness as to parties appearing before them . . . One of these basic rules of fairness is that in an adversary proceeding before an administrative board, the opportunity for reasonable cross-examination must be allowed." Id. at *13 (citation omitted). Additionally, the Pension Board based its decision on hearsay evidence consisting of Major Fleming's memorandum, Chief Corrigan's memorandum, and an uncertified print-out from the federal court's PACER website relating to Mr. Riley's criminal conviction. The Court acknowledges that the "[a]dmission of hearsay 'is not prejudicial when the evidence is merely cumulative and when [the] defendant's guilt is sufficiently established by other competent evidence.'" State v. Reyes, 671 A.2d 1236, 1238 (R.I. 1996) (quoting State v. Fortier, 427 A.2d 1317, 1325 (R.I. 1981)). The Pension Board's decision, however, is based solely on hearsay evidence, therefore violating Plaintiffs' constitutionally guaranteed due process. See Harris, 2006 WL 1148121, at *13; cf. Reyes, 671 A.2d at 1238.
Finally, the Pension Board failed to make findings of fact and conclusions of law supporting its decision. "[A] municipal board, when acting in a quasi-judicial capacity, must set forth in its decision findings of facts and reasons for the action taken." Sciacca, 769 A.2d at 585 (quotation omitted). Such findings are necessary so that such decisions may be susceptible to judicial review, and therefore the findings must be "factual rather than conclusional, and the application of the legal principles must be something more than the recital of a litany." Bernuth v. Zoning Board of Review of the Town of New Shoreham, 770 A.2d 396, 401 (R.I. 2001) (quotation omitted). Because the Pension Board failed to state its findings and conclusions, this Court is not obligated to scour the record to find evidence in support of its decision. Id.
Notwithstanding, the Court has conducted a thorough review of the record and concludes that the Pension Board's decision of August 14, 2019 revoking Mr. Riley's pension and denying Mrs. Riley any interest in her husband's pension is void of any competent evidence. Its decision was based upon unlawful procedure, was arbitrary and capricious, and violated Plaintiffs' constitutional rights to due process of law. Moreover, the Pension Board has no procedures or guidelines in place to govern pension revocation hearings. For these reasons, the Court reverses the Pension Board's decision revoking Mr. Riley's retirement pension and permanently reinstates the pension.
D
Declaratory Judgment
In Count III of the Amended Verified Complaint, Plaintiffs ask for a declaration regarding their rights under the Forfeiture Provision. Plaintiffs ask this Court to declare that for an individual's pension to be subject to revocation under the Forfeiture Provision, the misfeasance or malfeasance must be connected with the individual's job. Am. Ver. Compl. ¶ 65. In addition, Plaintiffs ask this Court to declare that Mrs. Riley is entitled to all or a portion of Mr. Riley's pension as an innocent spouse in accordance with DiPrete, 845 A.2d 270. Id. ¶¶ 67-68.
Rhode Island's Uniform Declaratory Judgments Act, § 9-30-1 et seq., empowers this Court to determine a party's rights as they are affected by a municipal ordinance An action for a declaratory judgment "is neither an action at law nor a suit in equity but a novel statutory proceeding. . . ." Newport Amusement Co. v. Maher, 92 R.I. 51, 53, 166 A.2d 216, 217 (1960). A trial court justice's decision to grant or deny declaratory relief is purely discretionary, see Woonsocket Teachers' Guild Local Union 951, AFT v. Woonsocket School Committee, 694 A.2d 727, 729 (R.I. 1997), and the trial justice's decision should remain undisturbed on appeal unless the court improperly exercised its discretion or otherwise abused its authority. Id.
1
Related to Employment
Plaintiffs urge this Court to exercise its powers under the Uniform Declaratory Judgments Act and declare that the Forfeiture Provision only applies in instances where the misfeasance or malfeasance committed by the public servant relates to his or her employment. As discussed in Section B, supra, entitled "Void for Vagueness," the Forfeiture Provision is unconstitutional and void for vagueness. As such, this Court need not declare that the Forfeiture Provision requires a public servant's misfeasance or malfeasance relate to or arise from his or her public employment.
2
Innocent Spouse
Plaintiffs argue that the Pension Board wrongfully failed to consider Mrs. Riley's interest in Mr. Riley's pension as an "innocent spouse" under DiPrete, 845 A.2d 270. Defendant did not respond to this argument in its Pre-Hearing Statement or its supplemental legal memorandum.
In DiPrete, the Rhode Island Supreme Court addressed whether the spouse of a former governor whose pension was revoked for dishonorable service was entitled to all or a portion of her husband's pension. The Court's inquiry arose under § 36-10.1-3(d) of the RIPEPRRA which provides a trial court justice with discretion to "order that some or all of the revoked or reduced" pension benefits "be paid to any innocent spouse . . . as justice may require."
Ultimately, the Court held that pension funds are marital property and an innocent spouse has a cognizable property interest in his or her spouse's pension. The Court's holding rested on principles of justice and the economic partnership theory of marriage:
"Law is an assemblage of rules developed through court rulings and legislative enactments. Justice, on the other hand, is based on the integral relationship between people and these rules.
"If justice is to be done, no court can overlook an innocent spouse's entitlement to retirement benefits based on his or her familial contributions and the economic partnership theory of marriage, which is firmly established in this state.
. . . .
"By failing to give adequate regard to the economic partnership theory of marriage and [the innocent spouse's] property interest in the benefits earned through her familial contributions, the trial justice improperly diluted the importance of justice in determining her rights to the revoked benefits." DiPrete, 845 A.2d at 290, 293 (citation omitted).
The Court noted, however, that this property interest is derivative in nature. Id. at 292. An innocent spouse's interest derives from his or her spouse's interest as a member of the retirement system. Id. Thus, "a public official's years of dishonorable service do have some relevance in determining an innocent spouse's interest in a revoked pension." Id. To that end, an innocent spouse cannot be denied his or her interest in the public official's pension based on service rendered before his or her criminal activity. Id. "Absent a showing of complicity, no person should be penalized for the criminal actions of the spouse." Id.
The holding in DiPrete makes it clear that Mrs. Riley has a cognizable property interest in her husband's retirement pension. The Pension Board did not provide Mrs. Riley with an opportunity to defend that interest before deciding to revoke Mr. Riley's pension. The Pension Board should have allowed Mrs. Riley an opportunity to present her case with respect to her interest in her husband's pension for the years of service that he rendered to the Town before he allegedly committed the acts of malfeasance that resulted in the forfeiture. Notwithstanding, this Court declines to declare that Mrs. Riley was entitled to all or a portion of her husband's pension because her interest is derivative, and this Court's decision reinstates Mr. Riley's pension.
E
Injunctive Relief
In Count IV of the Amended Verified Complaint, Plaintiffs ask for injunctive relief. Specifically, Plaintiffs ask this Court to reinstate Mr. Riley's pension while this matter is being decided by the Court. Am. Ver. Compl. ¶ 73.
The Court granted Plaintiffs' request for injunctive relief on November 1, 2019 reinstating Mr. Riley's benefits retroactive to August 14, 2019.
F Attorney's Fees
In Count V of the Amended Verified Complaint, Plaintiffs ask this Court to award them their attorney's fees in accordance with § 42-92-3, the Equal Access to Justice for Small Businesses and Individuals Act. Am. Ver. Compl. ¶ 79.
Pursuant to the parties' request made at oral argument on September 18, 2019, this Court reserves its decision with respect to attorney's fees until the parties have had an opportunity to present their arguments as to that issue.
III
Conclusion
After reviewing the entire record of the Matthew Riley pension revocation hearing of August 14, 2019, this Court concludes that the Pension Board violated Plaintiffs' rights to due process, thus affecting their substantial rights. This Court further concludes and declares that the Forfeiture Provision, as applied to Plaintiffs, is unconstitutionally vague. For these reasons, the Court reverses the Pension Board's decision revoking Mr. Riley's pension benefits and denying Mrs. Riley any entitlement thereto, and permanently reinstates Mr. Riley's pension.
Counsel shall submit the appropriate order for entry with this Court.