2013 VT 42


Turnley
v. Town of Vernon (2012-098)
 
2013 VT 42
 
[Filed 21-Jun-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 42

 

No. 2012-098

 

Kevin Turnley


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windham Unit,


 


Civil Division


 


 


Town of Vernon


October Term, 2012


 


 


 


 


Katherine
  A. Hayes, J.


 

Sharon L. Annis
of McCarty & Buehler, P.C., Brattleboro, for Plaintiff-Appellee.
 
John T. Leddy and Kevin J. Coyle
of McNeil, Leddy & Sheahan,
P.C., Burlington, for
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.   The Town of Vernon appeals the superior
court’s reversal of its decision to fire police chief
Kevin Turnley.  The Town Selectboard
determined that the chief made inaccurate statements when asked at public
meetings about when he learned of a low-level sex offender’s residence and
about why he did not inform the community.  Because the Board failed to
make expressly the findings necessary to support its action, we affirm the
superior court’s judgment.  
¶ 2.            
The Board’s allegations center on two separate occasions in October 2009
when the chief responded to questions about his knowledge of a low-level sex
offender’s residence in the town.  The record reveals the following. 
At some time in October after the alleged misrepresentations, the Board sent an
undated letter to the chief, accusing him of
dereliction and conduct unbecoming an officer.  The Board informed the
chief that his employment was terminated immediately and that it had scheduled a hearing as required by 24 V.S.A. §
1932(a).   The letter specified, in relevant part:
The Selectboard
has concluded that you have been derelict in your official duty, and that you
are guilty of conduct unbecoming an officer, in that you knowingly and
deliberately made false statements to the Board and to the public at two public
meetings concerning your knowledge related to a potential public safety issue,
in particular, the residence in the Town of Vernon of a registered sex
offender.
¶ 3.            
At the hearing, the Board reiterated the charges it outlined in the
letter and called a series of witnesses to describe the chief’s receipt of an
e-mail from the state Department of Public Safety regarding the relocation of a
sex offender and the chief’s subsequent public statements.  The Board
introduced a copy of an August 13, 2009, e-mail addressed to the chief and
advising him that a man with a conviction for “criminal sexual misconduct with
a minor” had moved into the town.  A police administrator testified that
the chief gave her a copy of the e-mail on August 14 and asked her to place it
in the so-called “offender’s book.”  The administrator did not herself
have access to the e-mail account that received the notification.  The
e-mail did not provide any details regarding the offender’s previous address or
whether he was subject to any ongoing correctional supervision.  Blake
testified that the e-mail’s contents did not require community
notification.  See 13 V.S.A. §§ 5411, 5411a (regarding sex-offender
registration and law-enforcement duties).[1]
¶ 4.            
With regard to the first alleged misrepresentation, the Board called two
witnesses, who testified that at an October 6, 2009, public meeting the chief
was asked why his department had not notified the public about the residence of
the man referenced in the August e-mail.  According to these witnesses,
the chief said the department did not do so because he did not receive the
notice directly and had learned of the offender’s residence only a day or two
before the October meeting.
¶ 5.            
The Board then called the Board secretary to verify the contents of
minutes and a partial transcript she had prepared of the Board’s October 19,
2009, meeting, when the chief made his second alleged misrepresentation. 
According to the transcript, the Board’s chairman asked the chief about his
October 6 statements.  The exchange, as recounted in the partial
transcript and minutes, went as follows:
[CHAIRMAN:]  Now I’m confused as
to when you knew when we had that meeting the other night you were saying that
you hadn’t known for very long [about the offender’s residence].  When
were you told about it as far as the sex offender registry [giving] you the
notification?
[CHIEF TURNLEY:]  Rebecca had an
e-mail that she showed me, I do not recall getting the e-mail it did not have
my e-mail address at the bottom of it. So as far as when he moved in it was a short
time before the meeting.    
[CHAIRMAN:] [S]o you didn’t talk to
them [at] the [s]ex offender registry?
[CHIEF TURNLEY:]  [N]o not until
it was like a day or two days before I had gotten a call from Sherry and I had
spoken to her.   
¶ 6.            
The chief’s attorney declined to present any evidence at the termination
hearing, calling into question the Board’s objectivity and describing the
proceedings as “a farce” and “a controlled[,]
contrived termination of the Chief.”  At the conclusion of the hearing,
the chief’s attorney moved to dismiss the charges, arguing the Board members
had acted improperly as prosecutors and fact finders, had engaged in
inappropriate communication directly with witnesses, and had demonstrated
bias.    
¶ 7.            
The Board rejected the chief’s attorney’s procedural objections and
determined the chief received notice that the offender moved into the
jurisdiction on August 13, 2009, and that the chief twice made false statements
about his knowledge of the sex offender’s presence—once at the October 6, 2009,
public meeting and a second time at the October 19, 2009, Selectboard
meeting.[2] 
If the Board believed the chief knowingly or intentionally misstated the facts,
it did not specifically or expressly say so.  
¶ 8.            
The chief appealed the Board’s decision to the superior court, which
conducted an on-the-record review in accordance with Vermont Rule of Civil
Procedure 75.  The record consisted of a 2009 employee evaluation[3] and certified copies of the Board’s
deliberative materials, including, among other things, a copy of an October
2009 e-mail addressed to the chief notifying him of the newly resident sex
offender; a transcript of the November 9, 2009, termination hearing; and sworn
statements from members of the Selectboard and
witnesses.   
¶ 9.            
In superior court, the chief renewed the objections lodged at the Board
hearing and argued that the grounds for his firing were insufficient as a
matter of law.  In an eighteen-page order, the superior court rejected the
chief’s procedural and due-process claims but reversed the Board’s decision to
fire him after concluding that the “termination of [the chief’s] employment on account
of these two false, but perhaps simply mistaken statements is so
disproportionate to the misconduct that it cannot be sustained, as a matter of
law.”  In particular, the court concluded that the evidence supported the
determination that the chief twice made inaccurate statements regarding his
awareness of the sex offender’s presence.  Nevertheless, the court was
“unable to find evidence in the record to confirm that the statements were made
with knowledge of their falsehood.”  
¶ 10.         The
Town now appeals, urging this Court to reinstate the Board’s decision. 
The Town argues principally that the Board possessed the discretion to fire the
chief for dishonesty and that substantial evidence supported its decision to do
so.  It further contends that the superior court improperly reweighed the
evidence to arrive at its own factual findings rather than reviewing the record
simply to determine if there was competent evidence to support the Board’s
findings and whether those findings supported its conclusions.  
¶ 11.         On
appeal of a Rule 75 determination, we apply the same standard as the trial
court.  Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 2010 VT 82, ¶ 13, 188 Vt. 629, 9 A.3d 685
(mem.).  “Under V.R.C.P. 75, review in the
superior court by way of appellate review or certiorari is virtually
synonymous.”  Hunt v. Vill.
of Bristol, 159 Vt. 439, 441, 620 A.2d 1266, 1267
(1992).  This review is confined to questions of law and encompasses the
consideration of “evidentiary points only insofar as they may be examined to
determine whether there is any competent evidence to justify the adjudication,
much as in the case of a motion for a directed verdict.”  Id.
(citing Royalton Coll., Inc. v. State Bd of Educ.,
127 Vt. 436, 447-48, 251 A.2d 498, 506 (1969)).  “Discretionary rulings
may be set aside only for abuse and the judgment is not reviewable on the
merits.”  Id.  Under the deferential standard of review
accorded administrative and quasi-judicial bodies in these circumstances, it is
not for the superior court to independently weigh the evidence to make its own
factual findings.  Rather, the superior court on a Rule 75 appeal must
uphold factual findings if any credible evidence supports the conclusion by the
appropriate standard.  See In re D’Antonio,
2007 VT 100, ¶ 9, 182 Vt. 599, 939 A.2d 493; see also Yoder v.
Town of Middleton, 876 A.2d 216, 218 (N.H. 2005) (“Our standard is not
whether we would have ruled differently, but whether a reasonable person
could have reached the same decision as did the [Board] based upon the evidence
before it.”)  (emphasis added).  With
respect to an officer’s dismissal, 
[i]t is not necessary that the alleged conduct be criminal
in character nor that it be proved beyond a reasonable doubt.
. . . It is elementary that the measure of proof to convict for
a criminal offense is substantially different and greater than that necessary
to support the dismissal of a municipal employee.
 

Appeal of Zeber, 156 A.2d 821, 825 (Pa. 1959).  The
conclusions must, however, be supported by the findings.  
¶ 12.         We
need not address the sufficiency of the evidence adduced during the Selectboard hearing because we conclude that the Board
simply did not make the findings required to support its actions.  We
therefore affirm the superior court’s reversal of the Town’s action.  See Gochey v. Bombardier, Inc., 153 Vt. 607, 613,
572 A.2d 921, 925 (1990) (“We may affirm a correct judgment even though the
grounds stated in support of it are erroneous.”).  The Board’s written findings do not make clear whether it
actually concluded the chief knowingly and deliberately misled the
public.   In its dismissal letter, the
select Board alleged that the chief had “knowingly and deliberately” made false
statements.  In the notice of the hearing, the Board used the same
phrase.  In its decision, however, the Board expressly found that the
chief gave “false testimony” without reference to his state of mind.  The
term “testimony” in this situation was ill-advised, as the chief had not been
under oath at the time of the statements in question.  To compound the
ambiguity of the Board’s finding, as we have noted, the term “false testimony”
generally refers to “testimony that is untrue,” and does not necessarily
signify a state-of-mind element.  In contrast, the term “false statement”
generally suggests an intent to mislead.  Given
the lack of clarity we cannot impute to the Board a finding of knowing and
deliberate deception that is not specifically reflected in its decision.
¶ 13.         Nowhere
in its report does the Board make an explicit finding regarding the chief’s
mental state or intent with respect to those inaccurate statements.  We
are invited instead to assume that such a finding was made in support of the
Board’s ultimate decision that it was legally entitled to fire the chief for
cause.  We decline to do so.  First, under the Municipal
Administrative Procedure Act, 24 V.S.A. § 1209, the Board’s conclusions must
“be based on the findings of fact.” 24 V.S.A. § 1209(c). 
Furthermore, to the extent the Board seeks to enjoy the deference accorded to a
quasi-judicial body, it must comply with the requirements imposed on other
judicial organs.  See Harrington v. Dep’t of Emp’t
Servs., 142 Vt. 340, 344, 455 A.2d 333, 337
(1982) (“We will consider the findings sufficient if they dispose of the issues
presented and make a clear statement of the trier’s decision and the basis upon
which that decision was made.” (quotation omitted));  see also Sec’y, Vt. Agency of Natural Res. v. Irish,
169 Vt. 407, 419, 738 A.2d 580, 580 (1999) (“The trial court has a fundamental
duty to make all findings necessary to support its conclusions, resolve the
issues before it, and provide an adequate basis for appellate review.”). 
When reviewing a decision such as this, we must determine whether the evidence
“reasonably tends to support [the] findings and whether the findings in turn
support the [body’s] conclusions and decisions.”  Harrington,
142 Vt. at 344, 455 A.2d at 336 (emphasis added). 
¶ 14.          Here,
a finding with respect to the chief’s intent when he made the erroneous
statements was not only an essential mental element of the misconduct charged;
the chief’s intent also presents the determinative factor in assessing whether
the alleged conduct was sufficient to permit dismissal under our officer-tenure
statute.  Vermont law specifies that police officers, including a police
chief, “shall hold office during good behavior, unless sooner removed for
cause.”  24 V.S.A. § 1931(a).  The
appointing authority may schedule a hearing to consider charges “[w]henever it appears to the appointing authority
. . . that any regular officer has become negligent or
derelict in the officer’s official duty, or is guilty of conduct unbecoming an
officer.”  24 V.S.A. § 1932(a).  
¶ 15.         The
chief’s failure to publicly disseminate information regarding a low-level sex
offender could not, in and of itself, constitute dereliction under 24 V.S.A. §
1932(a) because it does not implicate the performance of a specific duty. 
See Black’s Law Dictionary 475 (8th ed. 2004) (defining dereliction in a
similar context as “[w]illful or negligent failure to
perform assigned duties; culpable inefficiency in performing assigned
duties”).  As we have observed, the Board premised its conclusion on the
chief’s misstatements and not on the actual failure to inform the community of
the offender’s residence, which he was apparently under no legal duty to
do.  
¶ 16.         Nor would simple misstatements without intent to mislead constitute
conduct unbecoming a law enforcement officer under 24 V.S.A. § 1932 in
circumstances such as these, where the misstatements themselves—rather than
negligent job performance—constitute the alleged cause for firing. 
We have had only limited occasion to consider the type of misconduct that
constitutes conduct unbecoming an officer such that a municipal body may fire a
police official for cause in harmony with 24 V.S.A. §§ 1931(a) and
1932(a).  In Martin v. Town of Springfield, we sustained an
officer’s dismissal where the record upon which the town manager made his
decision disclosed not only a specific refusal to follow direct orders but also
a chronic unwillingness “to accept supervision.”  141 Vt. 554, 559, 450
A.2d 1135, 1138 (1982); cf. Kennedy v. Dep’t of Pub. Safety, 168 Vt.
601, 719 A.2d 405 (1998) (state trooper dismissed for conduct unbecoming an
officer and lying to investigators after driving under the influence in his
cruiser and personal vehicle on multiple occasions did not establish a prima
facie case of discrimination based on his alcoholism).   These
limited cases, as the Town correctly notes, do not signal a floor for the type
of misconduct that would permit dismissal for cause; they simply illustrate the
types of misconduct that has been considered sufficient in the past.  
¶ 17.         A
wide range of behavior—public or private—may qualify as conduct unbecoming an
officer of the law.  See, e.g., Andras
v. Wyalusing Borough, 796 A.2d 1047, 1048-50 (Pa. Commw.
Ct. 2002) (funds mismanagement, failure to maintain records, lengthy
disciplinary history sufficient for police chief’s removal); 
Borough of Riegelsville v. Miller, 639 A.2d 1258, 1263
(Pa. Commw. Ct. 1994) (police chief’s adultery was
conduct unbecoming an officer even though the affair took place in private
life). Generally speaking, we require higher standards of conduct from our
law-enforcement officials than we might of people in other professions.  Cerceo
v. Borough of Darby, 281 A.2d 251, 255 (Pa. Commw.
Ct. 1971) (“Twentieth Century America has the right to demand for itself, and
the obligation to secure for its citizens, law enforcement personnel whose
conduct is above and beyond reproach. The police officer is expected to conduct
himself lawfully and properly to bring honor and respect to the law which he is
sworn and duty-bound to uphold.”).      
¶ 18.         On
the question of the type of conduct that would qualify as conduct unbecoming an
officer and thereby justify dismissal for cause, New Hampshire law, which
enshrines employment protections for police officials similar to those found in
our statutes, is instructive.  Compare 24 V.S.A. § 1931 (permanent
officers “shall hold office during good behavior, unless sooner removed for
cause”), with 105 N.H. Rev. Stat. § 2-a. (police chief “subject to
suspension without pay or dismissal only for cause” (emphasis
added)).    That state’s courts have concluded that cause for
removal under their governing statute must be substantial, in part, to advance
the sound public policy of avoiding dismissals animated by “personal dislike,
political disagreement, or reasons of that nature.”   Perron
v. City of Somersworth, 553 A.2d 283, 285 (N.H. 1988) (quotation omitted). 
The New Hampshire Supreme Court has specifically rejected a rote formulation of
“substantial cause.”   See id.  (stating
that “the very breadth of a chief’s responsibilities precludes any simple, pat
definition of ‘substantial cause’ ”).  Rather, the New Hampshire
courts’ inquiry has been guided by reference to several, interrelated considerations. 
Among those considerations is the obvious requirement that the complained-of
misdeeds must have a direct bearing on law enforcement officers’ ability to
carry out their jobs.  “[C]ause for removal
under the statute must be substantial and requires a demonstration of
unfitness or incapacity to discharge the responsibilities of the position.” 
Yoder v. Town of Middleton, 876 A.2d 216, 218 (N.H. 2005) (emphasis
added) (citing Perron, 553 A.2d at 285). 
“[A] ground for dismissal must be one which specifically relates to and affects
the administration of the office, and must be restricted to something directly
affecting the rights and interests of the public.”  Perron, 553 A.2d at 285
(quotation and alteration omitted).  Finally, the New Hampshire
courts have concluded under their similar statute that “the ground for removal
must be of substantial significance, such as corruption or inefficiency in
office, infraction of the rules governing the police force, the commission of
an infamous crime, or the conviction of a misdemeanor and sentence to
imprisonment for a term.”  Id. (quotation omitted).  
¶ 19.         We
have no difficulty agreeing with the Town’s reasonable argument that lying and
a reputation for dishonesty would compromise a police chief’s ability to carry
out his official duties.  Compare Jones v. Kansas State Univ., 106
P.3d 10, 28 (Kan. 2005) (officer’s intentional submission of false report and
destruction of evidence unnecessarily exposed police department to charges of misconduct
and “seriously affected his credibility and integrity as a[n] officer”), with City
of N. Vernon v. Brading, 479 N.E.2d 619, 624
(Ind. Ct. App. 1985) (officer’s issuance of insufficient-funds check “without
accompanying [supported] findings of criminal intent is not such conduct which
‘renders the continuance of the officer in his office detrimental to the
discipline or efficiency of the service’—and thus is not conduct unbecoming an
officer.”).  A reputation for dishonesty also would diminish public
respect in a way that would bear on departmental morale.  See Appeal of
Zeber, 156 A.2d at 825 (“Unbecoming conduct on
the part of a municipal employee, especially a policeman or fireman, is any
conduct which adversely affects the morale or efficiency of the bureau to which
he is assigned. . . . Unbecoming conduct is also any
conduct which has a tendency to destroy public respect for municipal employees
and confidence in the operation of municipal services.”).  Here, however, we
do not have a specific finding that the chief knowingly and deliberately lied or that his actions provoked—or would provoke—those
types of consequences. See Clites v. Twp.
of Upper Yoder, 485 A.2d 724, 728 (Pa. 1984) (record did not support charge
of conduct unbecoming an officer stemming from police chief’s destruction of
log books that arguably served no purpose where there “was no evidence . . . to indicate that the morale or
efficiency of the police department had suffered as a result . . .
nor was there evidence that . . . conduct had destroyed public
respect for or confidence in the police department”).  Rather, we have a
finding that may be interpreted in one of many ways.  
¶ 20.        
Because the Board’s findings or lack thereof with respect to the
allegation that the chief knowingly and deliberately misled the public
are ambiguous, we conclude that they cannot support the Board’s determination
to fire the chief for conduct unbecoming an officer under our officer-tenure
statute.        
           
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1]  The
administrator’s testimony appears to suggest the chief would have had a
statutory duty to notify the community of the offender’s presence if his
conviction or classification had been different.  The e-mail the chief
received lacked specifics regarding the offender’s conviction.  In any
event, any such duty would be found in the Town’s regulations or department
policies to which this Court has not been referred by either party.  The
sex-offender-reporting statutes impose a duty on local law enforcement to
release certain types of registry information only upon inquiry by a member of
the public about a specific individual, or for certain offenses requiring
electronic posting.  See generally 13 V.S.A. §§ 5411, 5411a.  In the
case of requests for information regarding sex offenders whose crimes do not
trigger Internet reporting under 13 V.S.A. § 5411a, requesters must meet
certain criteria before police are required to release registry details. 
See 13 V.S.A. § 5411(b)(1) (law enforcement required to release registry
information when those seeking the information can articulate a safety concern
about a specific person who they have reason to believe is a registered sex
offender or whose behavior prompts an articulable worry).  Otherwise,
active community notification by law enforcement is discretionary and permitted
only based on an offender’s heightened classification or in the case of “a
compelling risk to public safety and [then] only after consultation with the
Vermont [C]rime [I]nformation [C]enter and the
department of corrections.”  13 V.S.A. § 5411c(a).    



[2] 
The Board’s December 2009 Report of the Results of the Deliberative Process
incorrectly refers to the chief’s public statements as “false
testimony.”   As the trial court properly noted, the statements in
question were not testimony.  Testimony is defined as “[e]vidence that a competent witness under oath or affirmation
gives at trial or in an affidavit or deposition.”  Black’s Law Dictionary
1514 (8th ed. 2004).
 


[3]
 The employee evaluation figured in the record submitted to the superior
court but apparently played no role in the Board’s determination and was
accordingly not weighed by the superior court.



