      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: March 25, 2019
                           Date Decided: April 8, 2019

                  On Plaintiff’s Petition for Writ of Mandamus.
                                   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


Scott G. Wilcox, Esquire, Moore & Rutt, 1007 N. Orange Street, Suite 437,
Wilmington, Delaware, 19801. Attorney for Defendants Town of Middletown,
Mayor Kenneth L. Branner, and Chief Michael Iglio.
                                        1
                                  Findings of Fact

      In the Fall of 2015, an internal affairs investigation was initiated by the Town

of Middletown Police Department related to an incident that occurred on September

28, 2015, involving Master Sergeant Jeffery Stump.1 Following their standard

procedure, Sergeant Stump was provided notice of the investigation, the allegations

he was facing, and the disciplinary sanctions that could be imposed as a result of the

outcome of the investigation. The investigation was carried out by then Captain

Iglio, who at the time was an Internal Affairs officer.

      On November 6, 2015, as part of the investigation, Sergeant Stump was

interviewed by Captain Iglio. Also present at the interview was Lieutenant Texter

and Counsel for Sergeant Stump. The interview was recorded in compliance with 11

Del. C. § 9200 (c) (7).

      At the end of the investigation, Captain Iglio reached the conclusion that four

of the allegations against Sergeant Stump were sustained. A fifth allegation was not

sustained, and Sergeant Stump was exonerated in relation to a sixth allegation. These

conclusions were reviewed by the town solicitor and then presented to then Chief of

Police Yeager. At the time, imposition of discipline based on the findings of internal

investigations was up to the discretion of the Chief of Police. By letter dated January



1
 For the purposes of the Court’s decision, the actions giving rise to the investigation
are irrelevant.
                                         2
7, 2016, Sergeant Stump was notified that he was to be disciplined. The discipline

imposed was effective retroactive to January 4, 2016, including a demotion two

ranks to Master Corporal, a corresponding reduction in pay, and one year of

probation. This notice is addressed from the Mayor and Council of Middletown,

signed by Mayor Branner. Sergeant Stump was made aware of this decision after

working at least part of a shift on January 8, 2016. Sergeant Stump acknowledged

receipt of this notice, signing the letter on the same day.

      On January 20, 2016, Counsel for Sergeant Stump notified Captain Iglio that

his client wished to appeal the findings and discipline imposed following the internal

affairs investigation. Correspondence from Counsel indicates they understood the

grievance procedure to be pursuant to Section 6.2(B)(2)(a) and (b) of the Town’s

Personnel Policy Manual, and an ultimate appeal to the Mayor.

      As a result of the request for an appeal, Sergeant Stump and his Counsel

attended a meeting with Mayor Branner, and the attorney for the Mayor. No

members of the Town Council or Police Department were present for this meeting.

Following the meeting Sergeant Stump was notified by letter dated December 6,

2016, that the Mayor and Council heard the appeal, and agreed that the penalty they

placed upon Stump “may have been too severe.” The letter served as notice that




                                           3
Sergeant Stump was to be reinstated one rank to Sergeant, and provided back pay

from January 6, 2016 to December 5, 2016.2

      On December 14, 2016, Sergeant Stump notified the Mayor via email that he

wished to appeal the Mayor and Council’s determination “to the next step.” The

Mayor’s response from the following day stated “[The Mayor] heard your appeal, as

stated in the MOU and Town Policy manual, and made a recommendation to Council

which was accepted.” The response further states that the Mayor and Council’s

decision was final, and that there was no “next step” in the appeals process.

      On December 28, 2016, Sergeant Stump’s attorney requested a hearing via

trial board to be convened under the auspices of the Criminal Justice Council (CJC).

In response, now acting Chief Iglio sent a letter to the CJC notifying the Council of

the Collective Bargaining Agreement (CBA) between the Town and the Middletown

Police Department Fraternal Order of Police Lodge #20.           Acting Chief Iglio

provided an abbreviated statement of the matter, and represented that Sergeant

Stump initiated and exhausted the grievance procedure as outlined in the personnel

policy manual.

      Based on the facts presented by the parties, the CJC determined Sergeant

Stump was not entitled to a hearing under the auspices of the CJC. The Letter from



2
 The scheduling of the appeal with the Mayor was delayed due to Stump taking
medical leave during 2016.
                                      4
CJC Executive Director Kervick shows there was a misapprehension on the part of

the CJC in regards to the process afforded Sergeant Stump. As of the date of the

letter it was understood by the CJC that “the Middletown Police Department held a

hearing concerning Sergeant Stump’s demotion […] under its grievance procedure

articulated within the Department’s collective bargaining agreement.”3 The letter

continues “Sergeant Stump’s grievance went through the successive steps of the

agreement” indicating the CJC believed Sergeant Stump was afforded the

opportunity to present his case to the Mayor and City Council.4

         Following the denial of a trial board hearing before the CJC, Stump petitioned

this Court for a Writ of Mandamus, demanding a hearing consistent with the

requirements of Law-Enforcement Officers’ Bill of Rights (LEOBOR).

         At no time throughout this process was Sergeant Stump offered a hearing as

commonly understood by the Courts and various administrative agencies of this

State. The Process afforded to Sergeant Stump in no way mirrored the requirements

of LEOBOR, with the exception of 11 Del. C. § 9200 (c) related to the investigation.

At no time was Sergeant Stump offered the opportunity to present evidence or to call

and cross-examine witnesses. Sergeant Stump was notified of the investigative

findings and recommendation for discipline on the day his discipline was imposed.



3
    Joint Ex. G.
4
    Id.
                                            5
Discipline was retroactively imposed, delivered after Sergeant Stump completed at

least a portion of an assigned shift. Middletown presented evidence that the

Disciplinary procedures contained in the Personnel Policy manual do not apply to

Middletown Police Officers.

      The initial disciplinary action was approved by “Mayor and Council” of

Middletown, signed by the Mayor.5          Stump’s appeal through the grievance

procedure was heard by the Mayor, despite his participation in the initial disciplinary

decision. Stump was never afforded an opportunity to present a case to an impartial

board of officers nor members of Town Council.

                                 Parties Assertions

      The facts alleged in the Complaint indicate Sergeant Stump was disciplined

following the conclusion of an internal investigation, without the protections

afforded by LEOBOR. Sergeant Stump argues he is entitled to a hearing before the

CJC, as an appeal from the “final” decision rendered by the Mayor of Middletown.

Sergeant Stump argues that since he was never afforded an adversarial hearing, he

is entitled to one now.

      Middletown takes the position Sergeant Stump was afforded sufficient due

process throughout his disciplinary process. Middletown is of the opinion the


5
  Middletown Town Charter Section 22 States: “The word ‘Council’ shall be
construed to mean the ‘Mayor and Council’ of Middletown.” there is no indication
“Mayor and Council” is construed to mean the Mayor individually.
                                       6
internal affairs interview was consistent with that of an adversarial hearing, in that

Sergeant Stump, represented by Counsel, was provided an opportunity to present his

side of the story. Middletown also argues the Court’s review is limited to the

grievance process. Middletown’s argument is that Sergeant Stump did not petition

for a CJC hearing until after exhausting the grievance process, therefore the focus of

this review should be whether or not the Court can mandate the CJC to hold a hearing

at this time.

       Middletown presented evidence that certain provisions apply to Police

Officers, while others do not. Middletown argues, for example, the provision

governing a demotion, requiring a written notice is to be provided to the employee

at least five days before the effective date, applies to town employees generally, but

does not apply to Police Officers of the Town.

       Middletown argues the successive steps of the grievance procedure, as

outlined by the policy manual were followed. Middletown suggests Step (a) was

met during questioning by then Captain Iglio and Lieutenant Texter during the

Internal Affairs investigation, Step (b) was met when then Chief Yeager notified

Sergeant Stump of the investigation’s findings and retroactive imposition of

demotion on January 8, 2016, and the grievance process was exhausted when

Sergeant Stump met with the Mayor.




                                          7
      Middletown argues the discipline imposed, and grievance procedure followed

met all necessary requirements under LEOBOR, the CBA, and the Town’s personnel

policy manual. According to Middletown the investigation into Sergeant Stump’s

violations met with the requirements under 11 Del. C. §9200, and therefore the

requirements of LEOBOR have been satisfied.

      The CJC argues mandamus is not the correct avenue to address Sergeant

Stump’s grievance. The CJC, in denying Sergeant Stump’s request, was under the

impression Sergeant Stump received the full protection of procedural due process

available under Delaware Law. The CJC argues that in the absence of a CBA, a

Police Officer as defined by the statute, is entitled to the procedural protections

related to an investigation and discipline afforded under 11 Del. C. 9200 Et. Seq.

The CJC argues 11 Del C. 9200 (c) provides the framework for the investigation and

questioning of a Police Officer for any reason which could lead to disciplinary

action. The investigator is required to provide the findings and any recommendation

for further action in writing to the Police Officer at the close of the investigation. At

that time the Police Officer may accept the findings, or they are entitled to a hearing

under 11 Del. C. 9204. The Officer may waive their right to a hearing, however any

waiver must be in writing. When a hearing is required, the agency will notify the

CJC. In a hearing conducted by the CJC in conformity with the statute the agency

is given an opportunity to present its case, and the Officer is provided an opportunity

                                           8
to do the same. The Officer is permitted representation, the opportunity present

evidence and argument, and the opportunity to call and cross examine witnesses.

        However, when the CJC receives a request for a hearing the first check is to

determine the timing of the request. Under LEOBOR, a hearing must be conducted

within 30 days after the conclusion of the investigation. If more than 30 days has

passed since the conclusion of the investigation, the CJC cannot fulfill the obligation

to provide a hearing. The CJC received Sergeant Stump’s request nearly one year

after he was demoted. Despite a delay due to medical reasons, this delay meant the

CJC could not review the matter.

        Furthermore, the CJC contends, the evidence presented indicates the parties

engaged in other procedures, not laid out in either the CBA nor LEOBOR. The CJC

states it was apparent the parties engaged in some other negotiated agreement, in

addition to the CBA, which pursuant to § 9203 would control the conduct of a

hearing without the involvement of CJC.

                                     Discussion

        A writ of mandamus is the appropriate remedy “in all cases where the party

has a right to have any thing done, and has no other specific means of compelling its

performance.”6 A writ of mandamus is designed to compel the performance of an

official duty if it is shown that: 1) the complainant has a clear right to the


6
    Marbury v. Madison, 5 U.S. 137, 147 (1803).
                                          9
performance of the duty; 2) that no other adequate remedy is available; and 3) that

the officer, tribunal, board, or agency arbitrarily has failed or refused to perform its

duty.7 Mandamus will not issue to compel the performance of a discretionary act.8

A writ of mandamus is issuable only in the exercise of sound judicial discretion.9

      Mandamus is a remedial writ, it does not create a duty, but rather functions to

coerce the performance of pre-existing duties imposed by law, by those who neglect

or refuse to perform their duties.10

        The case as laid before the Court presents two procedures; a disciplinary

procedure, and a grievance procedure. The parties’ arguments have centered on the

grievance procedure, and whether Sergeant Stump has a right of appeal beyond a

hearing before the Mayor and Council. The right to an impartial hearing under the

auspices of the CJC is not an appeal right. A CJC hearing is a right provided at the

conclusion of an internal investigation. To mandate a CJC hearing the Court would

be required to unwind the procedures that have already taken place.

      Assuming arguendo, there was no CBA between the parties, Sergeant Stump

would have been entitled to a hearing under the auspices of the CJC. The time for

that hearing would have been in January 2016, when Sergeant Stump was notified



7
  Land v. Carroll, 810 A.2d 350 (Del. 2002).
8
  George v. Connections Cmty. Support Programs, Inc., 168 A.3d 673 (Del. 2017).
9
  Victor B. Woolley, Woolley’s Practice in Civil Actions §1653 (1906).
10
   Id.
                                        10
of the findings from the internal investigation. The scheduling of a hearing and

conduct of the hearing would have been dictated by §§ 9204 and 9205. If an

impartial panel of Middletown officers could not be found to preside over the

hearing, only then would Sergeant Stump be entitled to a hearing before a panel of

officers empaneled by CJC.11 Following the hearing the decision of the panel would

be delivered including any right of appeal.12 LEOBOR does not dictate what form

that appeal must take.

      However, the Police Officers for the Town of Middletown are covered by a

CBA. The terms of that agreement include a disciplinary grievance procedure,

therefore the terms of the agreement take precedence over LEOBOR and govern.13

Sergeant Stump’s investigation complied with the protections of LEOBOR.

Following the close of the investigation, the discipline procedure of the CBA was

exhausted when Sergeant Stump was advised of the disciplinary action to be taken.

From that point forward Sergeant Stump’s appeals fell within the grievance

procedure of the CBA.

      Sergeant Stump’s first step in the grievance procedure should have been

presented and heard by his department supervisor. The next step should have been

a grievance with Sergeant Stump’s department supervisor’s immediate supervisor.


11
   See 11 Del. C. § 9205 (b).
12
   See 11 Del. C. § 9207.
13
   See 11 Del C. § 9203.
                                       11
The final step in the grievance process is a hearing before the Mayor and Council.

Beyond this final step in the process, the CBA does not provide an avenue for a

subsequent appeal.

      The Court cannot grant a writ to compel the CJC to convene a hearing as an

appeal from the decision of the Mayor. Middletown is correct in that assertion. In

order to mandate a hearing before a panel of officers convened under the auspices

of the CJC, this Court would be required to unwind the process back to the

completion of the internal affairs investigation.      The Delaware Courts have

repeatedly indicated mandamus is a proper remedy for violations of LEOBOR, but

the power of this Court to declare the proceedings void, and compel the CJC to

conduct a hearing is beyond the permissible scope of mandamus.

      The Town’s Personnel Policy Manual states a final grievance is to be filed

with the Mayor and Council, and a hearing shall be scheduled thereafter. The

manual does not dictate the procedure of that hearing. While the meeting with the

Mayor may have been inadequate, the guidelines for proceedings in the final step of

the grievance policy are not prescribed with such precision and certainty that nothing

is left to discretion or judgment.




                                         12
      Reviewing the facts presented in their entirety, there is no clear legal or

ministerial duty this Court may compel. Thus, for the reasons set forth above, the

Court declines to exercise jurisdiction over the matter pursuant to a writ of

mandamus.



      IT IS SO ORDERED.




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




                                       13
