Opinion
C.A. No. 09A-09-001 MMJ.
Submitted: May 26, 2010.
Decided: July 15, 2010.
On Appeal from the Decision of the Council of the Town of Elsmere.
AFFIRMED.
Robert C. McDonald, Esquire, Wilmington, Delaware, Silverman McDonald Friedman, Attorney for Appellant Liam P. Sullivan.
Joseph S. Shannon, Esquire, Wilmington, Delaware, Marshall Dennehey Warner Coleman Goggin, Attorney for Appellee The Mayor and Council of the Town of Elsmere.
Edward M. McNally, Esquire, Wilmington, Delaware, Morris James LLP, Town of Elsmere Town Solicitor.
OPINION
The Town of Elsmere terminated Chief of Police, Liam P. Sullivan. Sullivan appealed the Council's decision. The Court holds that the termination decision must be affirmed.
FACTS
On June 15, 2008, Appellant Liam P. Sullivan was appointed the Chief of Police for the Town of Elsmere. On February 12, 2009, the Council held an Executive Session of the Mayor and Council. During the session, the Council provided Sullivan with a "list of concerns" and "questions regarding [Sullivan's] decisions. . . ."
During a meeting on June 11, 2009, the Council introduced Town Ordinance 509 which eliminated Chapter 48 of the Police Department's Rules and Regulations. Chapter 48 covered the investigation and disciplinary process concerning the Chief of Police. In its place, Ordinance 509 substituted 11 Del. C. § 9301. The Council enacted the ordinance on July 9, 2009.
Following the June 11, 2009 meeting, the Council moved into an Executive Session and provided Sullivan with a "Notice of Admonition" wherein the Mayor and the Council identified 21 specific deficiencies within the Department of Public Safety for which Sullivan was responsible. The Council informed Sullivan that the "Notice of Admonition" was to be considered a "final notice" following the initial notice of deficiencies given during the February 12, 2009 Executive Session. The following week, the Council placed Sullivan on administrative leave.
On July 13, 2009, the Town Solicitor sent a letter advising Sullivan that the Council had scheduled a hearing to determine whether Sullivan "should be terminated as Chief of Police of the Town of Elsmere." The letter specified that the grounds for termination may include, but were not limited to: (1) failure to follow policies and procedures; (2) failure to adopt proper policies; (3) failure to administer responses to inquiries; (4) failure to maintain proper personnel; (5) failure to follow Council directions; and (6) failure to report accurately to Mayor and Council.
The Council introduced Town Ordinance 510 on July 27, 2009 to establish the rules and procedures intended to govern Sullivan's due process hearing as required by the Charter of the Town of Elsmere. The ordinance was enacted on August 11, 2009.
Following a due process public hearing held on August 13, 2009, the Council concluded that, taken together, "the evidence [presented constituted] cause for termination of Chief Liam Sullivan in that he did not properly carry out his administrative responsibilities." The Council found:
1. Liam Sullivan was insubordinate by opposing a proposed charter amendment and his testimony as to why he opposed the charter amendment is not credible or a proper justification.
2. Liam Sullivan backdated a policy to pay sick leave to a departing officer who was not entitled to that payment and his explanation for why he did so is not credible.
3. Liam Sullivan failed to correct the 2009 defects of fiscal controls documented in December 2008 by the auditor.
4. Liam Sullivan adopted the policies of the Elsmere Police Department without council's approval, including some policies that were sloppy and contrary to the town charter, and his claim that these policies were not approved by him is not credible.
5. Liam Sullivan failed to appropriately respond to inquiries on a Request Tracker and his explanation that he did not understand his responsibilities is not a credible or justified excuse.
The Council's findings were unanimous, with the exception of Count 3, which the Council found by a vote of 5-2.
Prior to the hearing, Sullivan placed the following motions and objections into the record:
1. Motion to dismiss requesting that Chapter 48 of the Police Department's Rules and Regulation govern the proceedings in place of the newly enacted Town Ordinance 510;
2. Motion to call each and every member of the Council, including the Mayor witnesses in Sullivan's defense; 3. Motion to seek recusal of Council members Jaremchuk and Personti based on impartiality; and
4. Motion to dismiss for lack of proper notice.
The Council denied all of Sullivan's motions and objections.
Sullivan has appealed the Council's denial of his motions and objections, as well as the Council's final determination.
DISCUSSION Standard of Review
11 Del. C. § 9301 provides that "[n]o chief of police . . . shall be dismissed, demoted or otherwise removed from office unless there is a showing of just cause. . . ." The statute gives a removed police chief a right of appeal, but fails to provide a standard of review for an appellate court. The Delaware Supreme Court has held that, when reviewing the dismissal of a chief of police, as in any other appeal from an administrative agency decision, an appellate court shall determine "whether the factual findings are supported by substantial evidence on the record before the agency."
Vann v. Town of Cheswold, 945 A.2d 1118, 1121 (Del. 2008) (quoting Lehman Bros. Bank v. State Bank Comm'r, 937 A.2d 95, 102 (Del. 2007)).
"Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The Court must review the record to determine if the evidence is legally adequate to support the Council's factual findings. The Court does not "weigh evidence, determine questions of credibility or make its own factual findings." If the record lacks satisfactory proof in support of the Council's finding or decision, the Court may overturn the decision.
Histed v. E.I. DuPont deNemours Co., 621 A.2d 340, 342 (Del. 1993) (citing Olney v. Cooch, 425 A.2d 610, 614 (1981)).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Olney, 425 A.2d at 614.
Johnson, 213 A.2d at 66-67.
Regarding issues of statutory interpretation, the Superior Court will apply a de novo standard of review.
Vann, 945 A.2d at 1121.
During a meeting on July 9, 2009, the Council enacted Town Ordinance 509, eliminating Chapter 48 of the Police Department's Rules and Regulations. In its place, the Council substituted 11 Del. C. § 9301.
11 Del. C. § 9301 states that "[n]o chief of police . . . shall be dismissed, demoted or otherwise removed from office unless there is a showing of just cause . . . at a public hearing before the elected governing body of the jurisdiction."
The Council introduced Town Ordinance 510 on July 27, 2009 to establish the rules and procedures intended to govern Sullivan's due process hearing as required by the Charter of the Town of Elsmere. The ordinance was enacted on August 11, 2009. Town Ordinance 510 complies with the requirements of section 9301.
The Delaware Supreme Court has found that "the State and its political subdivisions are permitted to enact similar provisions and regulations, so long as the two regulations do not conflict." But "where [a] conflict exists between a state statute and a municipal ordinance, the statute must always prevail." Chapter 48 of the Police Department's Rules and Regulations would have required the Council conduct a disciplinary hearing in contravention of the governing State statute.
Cantinca v. Fontana, 884 A.2d 468, 473 (Del. 2005).
Id.
The Court finds that the Council properly enacted Town Ordinances 509 and 510 to comport with the requirements of 11 Del. C. § 9301. Therefore, the Court finds that the Town of Elsmere was not obligated to provide Chief Sullivan with additional or contradictory rights and procedures afforded to other law enforcement officers under Chapter 48.
2. Motion to call all members of Council, including the Mayor, as witnesses in Sullivan's defense
Sullivan argues that he was denied the opportunity to call and examine members of the Council who had first hand knowledge of the claims against him. According to Sullivan, a July 13, 2009 letter from the Town Solicitor indicated that the allegations against him "were being brought by the Council and that the Council was, in fact, the victim of the allegations." Sullivan argued that without the opportunity to question every member of the Council and the Mayor, the hearing would violate his due process right to present evidence in his defense. However, Sullivan has not outlined the specific justification for his request to call the members of the Council and the Mayor as witnesses.
The Court finds that without more, Sullivan has failed to establish a violation of his right to present evidence. Sullivan did not demonstrate, on the record, his specific purpose in calling every member of the Council and the Mayor as witnesses. He has not explained the particularized basis of his request, the subject of the witnesses' testimony, or why denial of the request impaired his ability to present his case.
In the criminal context, "although a criminal defendant has the right to call witnesses, the denial of this right violates Due Process only if the testimony is shown to be material." Here, with the exception of Councilman Jaremchuk, Sullivan has neither alleged nor established the materiality of the testimony of the Council and the Mayor. Therefore, the Court finds no error in the Council's denial of Sullivan's motion to call the other members of the Council or the Mayor as witnesses in his defense.
Butler v. State, 1998 WL 40217, at *2 (Del.).
The Court finds that Sullivan established that Jaremchuk's testimony would concern his possible bias against Sullivan which, if found, would have warranted the Councilman's recusal. However, the Court finds that the Council's denial is harmless error as discussed infra.
3. Motion to seek recusal of Council members Jaremchuk and Personti based on impartiality
According to Sullivan's testimony, he and Lieutenant Chris Workman met privately with two council members, John Jaremchuk and Joann Personti, following a Council meeting in December of 2008. During that private meeting, Jaremchuk asked Sullivan asked for a "special favor" regarding the employment of Jaremchuk's daughter's boyfriend, who had either applied or planned to apply for a position as an Elsmere police officer. Sullivan responded that he would "give him a good look." Sullivan testified that Jaremchuk repeated the request following another meeting.
Sullivan testified that on January 5, 2009, he notified Jaremchuk by telephone that the applicant's test score did not qualify him for a position at the Elsmere Police Department. Jaremchuk, according to Sullivan, accused Sullivan, in an expletive-laden tirade, of giving preference to the children of other police officers over Jaremchuk's candidate. Sullivan testified that Jaremchuk threatened Sullivan's position as police chief and repeatedly told Sullivan that he was "done here." At the conclusion of the conversation, Jaremchuk reminded Sullivan that Councilwoman Personti voted in conjunction with him.
At his hearing, Sullivan sought recusal of both Councilman Jaremchuk and Councilwoman Personti, based upon their lack of impartiality. The Council denied this motion. Sullivan argues that the Council's denial violated his due process right to a fair and impartial hearing.
In The Town of Cheswold v. Vann, the Delaware Supreme Court found that "[w]ithout specific evidence to the contrary, the presumption that the Town Council acted impartially must be applied." In the case sub judice, Sullivan's testimony regarding the possible bias of Council member Jaremchuk established a prima facie case of bias. The Town of Elsmere did not present any evidence in rebuttal. As a result, the Court finds error in the Council's refusal to direct that Councilman Jaremchuk recuse himself.
2007 WL 1201716 (Del.).
Vann II, 2007 WL 1201716, at *3.
However, Sullivan did not establish any bias or prejudice by Councilwoman Personti or the other members of the Council. Jaremchuk's warning that Personti would vote with him is not, standing alone, evidence of partiality. Jaremchuk's statement is not sufficient to rebut the presumption that Personti acted impartially.
See id.
The findings of the Council are supported by votes of 7 to 0 for Counts 1, 2, 4, and 5; and 5 to 2 for Count 3. The procedures for the due process hearing do not require a unanimous vote. Ordinance 510 requires that a motion "be made regarding the action to be taken in this matter."
The Charter of Elsmere provides that "motions shall be valid upon the affirmative vote of a majority of members of the Council present." The Charter also states that the "Chief of Police may be removed from office upon an affirmative vote of five (5) members of the sitting council voting in favor of removal. . . ." Even assuming Councilman Jaremchuk's vote was invalid, Counts 1, 2, 4, and 5 were found by a vote of 6 to 0. Only the vote on Count 3 (4 to 2) would fail to remove Sullivan. Therefore, the Court finds that the Town garnered sufficient votes to remove Sullivan from office on at least four out of five Counts.
4. Motion to dismiss for lack of proper notice
Section 9301(a)(2) provides that "no chief of police . . . shall be dismissed unless there is a showing of just cause and such person has been given notice in writing of the specific grounds for such dismissal and an opportunity to be heard."
The process due in employment termination cases is: (1) clear notice of the charges being considered; (2) a reasonable time interval to marshall facts and evidence to respond; (3) an explanation of the evidence supporting the charges; and (4) an opportunity to present the case in a manner that will allow the decision maker to weigh both sides.
Barber v. City of Lewes, 1997 WL 127951, at *13 (Del. Super.).
Clear Notice of the Charges Being Considered
Sullivan argues that the 19 specific allegations against him were not presented until the date of the hearing, August 13, 2009, despite his request for production of the rules, regulations, ordinances, and statutes he was alleged to have violated. As a result, Sullivan alleges that he was denied clear notice of the charges to be considered in violation of his right to procedural due process.On July 13, 2009, the Town Solicitor sent a letter notifying Sullivan that the grounds for his termination hearing might include, but were not limited to: (1) failure to follow policies and procedures; (2) failure to adopt proper policies; (3) failure to administer responses to inquiries; (4) failure to maintain proper personnel; (5) failure to follow Council directions; and (6) failure to report accurately to Mayor and Council. The letter included a short description of the nature of each allegation.
On July 31, 2009, Sullivan, through his counsel, responded to the Town Solicitor's letter acknowledging receipt of the July 13, 2009 letter. Sullivan broke down the July 13, 2009 letter into 19 specific allegations. Sullivan made detailed production requests based upon those allegations. The Court finds that the Town of Elsmere provided Sullivan with clear notice of the charges being considered against him.
A Reasonable Time Interval to Marshall Facts and Evidence to Respond
Sullivan does not claim any inability to gather facts and evidence in his defense. Sullivan was first provided with a "list of concerns" on February 12, 2009. On June 11, 2009, Sullivan again was provided with a list of 28 specific deficiencies. On July 13, 2009 the Town Solicitor notified Sullivan that a hearing had been scheduled and outlined 6 specific grounds for termination that would be decided at the hearing.
Although the Town Solicitor provided Sullivan with the specific exhibits to be submitted at the hearing on August 6, 2009, a week before the hearing, the prior notice the charges being considered against Sullivan provided ample time to gather facts and evidence for a defense. Additionally, Sullivan has not argued any detrimental effect as a result of the August 6, 2009 exhibit delivery.
Explanation of the Charges and Opportunity to Present Case
Sullivan has not challenged the Town's explanation of the evidence supporting the charges or alleged a lack of an opportunity to present his side of the case in a manner that would have allowed the Council to weigh both sides. After reviewing the record, the Court does not find error regarding either issue.
The Council's Findings 1. Insubordination
The Council and the Mayor, by a unanimous vote, found that Sullivan was insubordinate in his opposition to a proposed charter amendment and his testimony as to why he opposed the charter amendment was neither a credible nor proper justification. The amendment, Senate Bill No. 91, removed the fiscal responsibility for the Police Department from the Police Chief and placed it instead under the management of the Town Manager.
At the hearing, the Town Manager, John Giles, testified that Sullivan had called the State Senator sponsoring the Bill and asked if the senator would mind if Sullivan "contacted her colleagues and discussed with them his issues with this Bill and their concern with it." The Senator informed Giles that she was "not going to get involved in some argument between the Town and its Police Chief," and subsequently delayed the introduction of the Bill to the General Assembly.
Sullivan testified that he had a meeting with the Senator during which he asked the Senator to "table the charter for specific reasons," namely an ongoing confidential criminal investigation which might cause the Senator to get "mud [on] her face". Sullivan stated that he did not oppose the charter change, only the purpose for which it was being introduced — his failure to hire, as a police officer, the friend of a Council member.
On appeal from an administrative agency, "neither the Superior Court nor [the Supreme] Court is the trier of fact and neither tribunal has authority to weigh evidence, determine the credibility of witnesses or make independent factual findings." The Court will defer to the factual findings of the Council and its determination regarding the credibility of the witnesses. The Council determined that the testimony of the Town Manager was more credible than that of Chief Sullivan. The Court declines to overturn the Council's fact-finding decision.
State v. Dalton, 878 A.2d 451, 454 (Del. 2005) (citing Johnson, 213 A.2d at 66).
2. Sick Leave Policy
The Council and the Mayor, by a unanimous vote, found that Sullivan backdated a policy to pay sick leave to a departing officer, who was not entitled to that payment. Sullivan's explanation for why he did so was determined not to be credible.
Giles, the Town Manager, testified that shortly after October 28, 2008, the Town's payroll management contacted him about an $18,491.07 payout to an employee. The payroll management company notified Giles that the payout had been authorized. However, because it was an "unusual amount of money," the company decided to verify the payment. After being notified of the payment, Giles contacted Sullivan.
Sullivan thought Giles was "misreading an existing policy [regarding the payment of accumulated compensatory time to departing employees] or interpreting it incorrectly." But, according to Giles, Sullivan made no mention of a second compensated absences policy. Giles testified that at the time, the appropriate policy in effect was "Elsmere Bureau of Police personnel order 9 entitled `Sick Leave,'" dated October 4, 2005.
At the hearing, the Council heard testimony from Vincent Barbone, a partner of an auditing firm hired to conduct the Town of Elsmere's annual internal audit. Barbone testified about a compensated absences policy initialed by Sullivan that contradicted an existing policy. Barbone determined that the compensation "was not ratified by [the] Council." The second policy was dated October 1, 2008, at least four weeks prior to the Giles' conversation with Sullivan regarding the $18,491.07 payment.
During his testimony, Sullivan admitted that this second policy had been backdated, which allowed for the authorized $18,491.07 payment. Sullivan testified regarding his belief, at the time, that backdating such a policy was appropriate. Sullivan testified that, when the Council notified him that such a backdating could not be done, he rescinded the policy and requested a refund from the employee in question.
The Court finds that decision regarding Sullivan's credibility was within the purview of the Council. Sullivan, Giles, and Barbone's testimony established the existence of a backdated compensatory time policy, which resulted in an unauthorized payment to an employee. Therefore, the Court finds that the Council's decision that Sullivan backdated a policy to pay sick leave to a departing officer, who was not entitled to that payment, is supported by substantial evidence.
3. Defects of Fiscal Controls
The Council and the Mayor, by a vote of 5-2 found that Sullivan failed to correct a number of defects of fiscal controls documented in by the Town's auditor.
On December 2, 2008, an auditing company hired by the Town of Elsmere found a "material weakness" in the Town's internal financial controls. The Town's auditor found that "[d]ue to separate budget administration of the Police and the other Town Departments the possibility exists that the Town's funds may not be administered by individuals possessing the skill necessary to properly administer the Town's funds in compliance with Town policies, and state and federal laws." The auditor recommended that "all financial activity be monitored by the Finance Department. . . ."
During the hearing, on behalf of the auditing company, Barbone identified the "material weaknesses" found in the audit. From the Police Department, Barbone identified "the compensated absences policies and procedures . . . and [the lack of Police Department] oversight in regard to the financial disbursement of funds." Barbone testified that there was a lack of documentation regarding the employees with excessive carryovers as well as a lack of supervisor authorization regarding the approval or use of compensatory time.
On cross-examination, Sullivan established that the Police Department had "adopted the same system that . . . other departments in the Town used to keep track of compensated absences." However, Barbone testified that shortly after the implementation of the new system, the records were "in a disarray [and] approvals weren't being made."
During his testimony, Sullivan admitted that some errors were still being made but claimed that a significant number of errant policies and procedures had been implemented by the previous administration. Sullivan also testified that although he and Giles had prepared a report to comply with the auditor's findings regarding the disparate application of compensation benefits, the changes were delayed because the Council had refused to vote on the report. Sullivan argues that the facts show that he took immediate steps to correct the deficiencies of the prior administration but the Council frustrated any implementation of changes.
As the finder of fact, the Council determined that Chief Sullivan's corrective actions were insufficient in light of the deficiencies found in the auditor's report. During appellate review, the Court has no "authority to weigh evidence, determine the credibility of witnesses or make independent factual findings." The Court finds that the Council's decision to discount Sullivan's corrective action, when compared to the errors found by the auditor, is supported by substantial evidence.
Dalton, 878 A.2d at 454.
4. Adoption of Policies Without the Council's Approval
By a unanimous vote, the Council and the Mayor found that Sullivan adopted certain policies for the Elsmere Police Department without the Council's approval, including some policies that were sloppy and contrary to the Town Charter.
The auditor, Barbone, testified that Sullivan enacted the previously discussed policy — regarding the payment of compensatory time to an officer leaving his employ with the Police Department — without Council approval. Barbone audited Police Department promotions and determined that a number of officers were promoted in contravention of existing Police Department policies.
Sullivan argued at the hearing that the previous administration had promoted officers similarly and had enacted policies in a similar fashion, without the approval of the Council. Barbone replied that responsibility for the Police Department's policies lay with the head of the Department, and if the policies of the previous administration were incorrect or inaccurate, the current police chief bore responsibility for any failure to take corrective action. Barbone outlined specific examples where, in his opinion, Sullivan improperly promoted certain police officers.
Barbone also testified that the policy revisions of the previous administration, in contrast to Sullivan's revisions, did not impact the financial activity of the Town.
The evidence presented demonstrated that Sullivan had caused the Police Department to implement policies without the approval of the Council. These policies affected the financial activity of the Town. The Court finds that these Council findings are supported by substantial evidence.
See Olney, 425 A.2d at 614.
5. Failure to Appropriately Respond to Inquiries on Request Tracker
Finally, the Council found, by unanimous vote, that Sullivan failed to appropriately respond to inquiries on a Request Tracker and his explanation that he did not understand his responsibilities was not a credible or justified excuse.The Town of Elsmere allows its residents to communicate with any Town department through an internet based "Request Tracker." The Request Tracker permits residents to contact the Chief of Police directly by email. The Town provided Sullivan a password to access the emails submitted through Request Tracker. The former Chief of Police trained Sullivan regarding its usage.
Town Manager Giles testified that there was no record of Sullivan addressing the issues generated within Request Tracker, despite Sullivan's claims that he forwarded residents' emails to the proper personnel within his department. Without the proper records, Giles stated, the Council could not ensure that the residents' inquiries were appropriately handled. Therefore, Sullivan actions were inadequate despite any response Sullivan may have actually initiated.
Sullivan testified that he was not trained in the usage of Request Tracker. When confronted about his Department's lack of involvement regarding Request Tracker, Sullivan claimed he took subsequent corrective action to become familiar with the Request Tracker program. Giles testified, without objection from Sullivan, that "former Chief Strauss advised that [Sullivan] was trained in how to use [Request Tracker]." The Council elected to accept Giles' testimony over that of Sullivan. The Court finds that the Council's determination is supported by substantial evidence.
CONCLUSION
The Court finds that where a procedure enacted by the Delaware General Assembly contradicts a procedure prescribed by a town council, the statute controls. Council action in accordance with a State statute is proper.
Although Appellant demonstrated a prima facie basis for a finding of bias on the part of one Council member, the remaining votes in favor of termination were legally and procedurally sufficient. Bias of one member does not rebut the presumption of impartiality for the remaining Council members.
The Court also finds that Appellant has failed to establish any due process violation. Appellant presented no particularized basis for his request to call each and every member of the Council as a witness. The Council provided Appellant with clear notice of the charges being considered; a reasonable time interval to marshall facts and evidence to respond; an explanation of the evidence supporting the charges; and an opportunity to present the case in a manner allowing the decision maker to weigh both sides.
Finally, the Court holds that the factual findings of the Council for the Town of Elsmere are supported by substantial evidence on the record.
THEREFORE, the decision of the Mayor and Council for the Town of Elsmere, terminating the employment of Chief of Police Liam P. Sullivan, is hereby AFFIRMED.
IT IS SO ORDERED.