      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


                                            )
JEFFERY L. STUMP,                           )
                                            )
             Plaintiff,                     )
                                            )   C.A. No. N17M-09-027 CLS
             v.                             )
                                            )
TOWN OF MIDDLETOWN,                         )
MAYOR KENNETH L.                            )
BRANNER, CHIEF MICHAEL                      )
IGLIO, and DELAWARE                         )
CRIMINAL JUSTICE                            )
COUNCIL, an agency of the State             )
of Delaware                                 )
                                            )
            Defendants.


                          Date Submitted: June 28, 2018
                          Date Decided: August 9, 2018

                  On Defendants’ Motion to Dismiss DENIED.
                                   OPINION


John S. Malik, Esquire, The Law Office of John S. Malik, 100 East 14th Street,
Wilmington, Delaware, 19801. Attorney for Plaintiff.


Rae M. Mims, Esquire, Department of Justice, 102 W. Water Street, Dover,
Delaware, 19904. Deputy Attorney General for Criminal Justice Council




                                        1
Scott G. Wilcox, Esquire, Whiteford Taylor & Preston LLC, 405 N. King Street,
Suite 500, Wilmington, Delaware, 19801. Attorney for Defendants Town of
Middletown, Mayor Kenneth L. Branner, and Chief Michael Iglio.


Scott, J.


      The issue in this action is whether a sworn police officer was afforded

sufficient due process in accordance with the Law Enforcement Officers’ Bill of

Rights when the officer was disciplined without an opportunity to participate in a

hearing.

                      Factual and Procedural Background

      Jeffery Stump (Stump) was employed by Defendant Town of Middletown as

a sworn police officer.    Stump held the rank of Master Sergeant prior to an

investigation of possible violations of Police Department Rules and Regulations.

After an investigation Stump was notified the Town of Middletown intended to

demote him two ranks to Master Corporal. The demotion was accompanied with a

reduction in pay and a probationary period of one year. Stump filed a grievance with

Mayor and Council of the Town of Middletown. After a review of the investigation

the Mayor and Council made the decision to reinstate Stump as Sergeant. This

decision had the effect of a demotion of only one rank for Stump. Stump requested

an appeal from this decision which was denied.


                                         2
                                Parties Assertions

        Sump petitions this Court for a Writ of Mandamus directing Defendants to

perform their duties pursuant to the Law Enforcement Officers’ Bill of Rights

(LEOBOR). Stump alleges that he was not provided the due process protections of

11 Del. C. § 9200 et. Seq. Stump claims the grievance process followed by the Town

of Middletown failed to provide a sufficient hearing as required by 11 Del. C. §

9203. Stump’s complaint alleges inter alia that he was deprived the opportunity to

hear and cross examine witnesses against him, to call witnesses on his behalf, and to

present evidence in his defense.1 Stump requests a Writ of Mandamus be issued

requiring Defendants Criminal Justice Council (CSC), Town of Middletown, and

Mayor of Middletown provide an adequate hearing prior to the imposition of any

disciplinary actions as required by § 9203.

        Defendants CSC have moved for dismissal of this petition claiming Stump is

not entitled to a hearing by CSC. CSC contends § 9203 only requires a hearing

before the council if there is no grievance procedure provided for by the bargaining

agreement between the agency and the bargaining unit. In the present case, CSC

contends Middletown Police officers are represented by the Fraternal Order of Police

Lodge #20. CSC submits that under the collective bargaining agreement grievances



1
    Compl. at 3.
                                         3
shall be administered in accordance with the Town of Middletown’s Personnel

Policy Manual. CSC urges dismissal as Stump has pursued his grievance through

the policy as stated in the manual, therefore he has exhausted his remedies and no

CSC hearing is required.

      Defendants Town of Middletown, Chief of Police Iglio, and Mayor Branner

(Hereinafter collectively referred to as Middletown) echo CSC’s reasoning for

dismissal. Middletown argues the Personnel Manual provides a grievance procedure

which Stump followed. Middletown argues Stump was afforded full due process

and has now exhausted his avenues for appeal.

                                    Discussion

      The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion

to dismiss is whether a plaintiff may recover under any reasonably conceivable set

of circumstances susceptible of proof under the complaint. 2         In making its

determination, the Court must accept all well-pleaded allegations in the complaint

as true and draw all reasonable factual inferences in favor of the non-moving party.3




2
  Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital
Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012) (citing Cent. Mortg.
Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
3
  Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del.1998); Nix v. Sawyer, 466 A.2d
407, 410 (Del.Super.Ct.1983).
                                       4
       When “matters outside the pleading are presented to and not excluded by the

Court, the motion shall be treated as one for summary judgment and disposed of as

provided in Rule 56, and all parties shall be given reasonable opportunity to present

all material made pertinent to such a motion by Rule 56.”4 The Court may only

consider documents outside the pleadings without converting the motion under two

exceptions: (i) where an extrinsic document is integral to a plaintiff's claim and is

incorporated into the complaint by reference, and (ii) where the document is not

being relied upon to prove the truth of its contents.”5

      CSC and Middletown rely heavily on the Collective Bargaining agreement

and Middletown Personnel Manual in their Motions. After a close reading of the

complaint and relevant statutes it is not necessary to review these documents in

ruling on the motions.

      Under 11 Del. C. § 9203, if a law enforcement officer faces potential

disciplinary action greater than a reprimand, “then that officer is entitled to a

hearing.”6 If a “contractual disciplinary grievance procedure” exists between the




4
  Del. Super. Ct. Civ. R. 12(b).
5
  Furman v. Delaware Dep't of Transp., 30 A.3d 771, 774 (Del. 2011).
6
  11 Del. C. § 9203.
                                       5
bargaining unit and the agency then the terms of that agreement “take precedence

and govern the conduct of the hearing.”7

      Both Middletown and CSC argue Stump’s disciplinary sanctions were heard

before the Mayor and Town Council and as such he has exhausted the process due

under the LEOBOR. An exercise in statutory construction is not required for the

Court to determine that Stump was guaranteed a hearing subsequent to any

disciplinary measures instituted by Middletown. What requires further investigation

is whether the hearing provided to Stump was sufficient to meet the requirements

under the LEOBOR.

      Alexander v. Town of Cheswold states the legislative intent of the LEOBOR.8

Senator Zimmerman stated:

             The purpose of this Act is to afford the Delaware law
      enforcement officer's rights to fair notice and a fair hearing on any
      charge brought against the officer within his or her own department.
      Present inconsistencies between departmental procedures within the
      State result in a disparity between individual treatment of law
      enforcement officers. This Act simply assures basic fundamental due
      process for all law enforcement officers in intradepartmental
      disciplinary hearings.9




7
  Id.
8
  Alexander v. Town of Cheswold, 2007 WL 1849089, at *3 (Del. Super. Ct. June
27, 2007).
9
  Synopsis, Senate Bill No. 96, 133rd Gen. Assembly (1985); 65 Del. Laws, c. 12,
§ 1.
                                        6
         As noted in Alexander, the LEOBOR’s main purpose is to provide consistency

in procedural safeguards for officers regardless of their agency of employment. 10

The LEOBOR calls for variation only where there exists a grievance procedure

provided for in an agreement between the bargaining unit of the officer and the

agency. However, that variation must be limited to conform to the intent of the

LEOBOR. Part of the consistency provided for in the LEOBOR includes a hearing

requiring “the officer and or the officer’s representative shall be given an opportunity

to present evidence and argument with respect to the issues involved.”11

         CSC and Middletown argue Stump’s case was reviewed in a hearing of the

Mayor and Town Council, and that hearing resulted in a lesser penalty for Stump.

However, accepting the allegations in the complaint as true neither Stump, nor his

counsel, were provided the opportunity at a hearing to hear and cross examine

witnesses against him, to call witnesses on his behalf, or to present evidence in his

defense. Without such an opportunity, the procedure afforded to Stump remains

deficient.




10
     Id.
11
     11 Del. C. § 9205 (b).
                                           7
For the foregoing reasons, Defendant’s motion to dismiss is DENIED.

IT IS SO ORDERED.




                                          /s/ Calvin L. Scott
                                          Judge Calvin L. Scott, Jr.




                                8
