Summary
finding the term "just cause" lacks a single definition in "the broad spectrum of legal issues under the umbrella of employment law," and that courts have been "reluctant to define just cause"
Summary of this case from Naples v. New Castle Cnty., Corp.Opinion
C.A. No. 05C-08-037 (RBY).
Submitted: May 2, 2007.
Decided: August 2, 2007.
Order Upon Remand.
AFFIRMED
Benjamin A. Schwartz, Esq. Schwartz Schwartz, Dover, Delaware for Appellant.
William W. Pepper, Sr., Esq., Schmittinger Rodriguez, P.A., Dover, Delaware for Appellees.
On July 26, 2006, this Court found that the Appellee, Town of Cheswold ("Town"), had denied the Appellant, Robbin Vann, due process by convening a body of interested parties, the Town Council, to dismiss him from his post as the Town's Chief of Police. On interlocutory appeal, the Supreme Court reversed this decision, and remanded the matter so that this Court could address the Appellant's remaining issue on appeal, whether the Appellee's decision to dismiss the Appellant for just cause was supported by substantial evidence. For the following reasons, the Court finds the Appellee's decision supported by substantial evidence. It is, therefore, AFFIRMED.
FACTS
The Appellant had served as the Town's Chief of Police for approximately four years when, on March 8, 2005, Peter Diakos, the Town's Mayor, notified the Appellant by letter that he would be terminated in accordance with the procedure provided for in 11 Del. C. § 9301, the Police Chief Due Process statute. The letter listed 15 specific grounds for termination:
Section 9301(a) states that a chief of police in a municipality of 60,000 people or fewer may be removed from office if (1) there is a showing of just cause; (2) the police chief has been given written notice of the specific grounds for his termination; and (3) the police chief is given an opportunity to be heard at a public hearing before the elected governing body of the jurisdiction. Additionally, § 16.1 of the Town's Charter gives the Town Council the discretion to appoint a chief of police "as it deems reasonable and appropriate for the good of the Town" and provides the procedure for removing a chief of police from office by specifically referencing the Police Chief Due Process statute.
1. That the Appellant exceeded his authority by permitting officers to work overtime in contravention of a directive from the Mayor and Town Council that overtime was allowed only in an emergency or when authorized in advance by the Town Manager or Mayor. This resulted in the Town incurring additional salary expenses.
2. That the Appellant refused to meet with the Mayor and/or the Town Manager without his attorney present, thereby hampering the ability of the Mayor and/or Town Manager's ability to discuss important issues relating to the Appell ant's duties as Chief of Police.
3. That the Appellant contracted for and used cell phones without the Town's authority, which were allegedly used by the Appellant personally and not in his capacity as Chief of Police. This resulted in a bill in excess of $800 for which the Town was responsible.
4. That the Appellant violated a directive by the Mayor and Town Council by providing another officer with a key to the Police Evidence Room. The Appellant was given a written disciplinary action directive for this violation on January 21, 2005.
5. That the Appellant was repeatedly away from his office and the Town almost every day without giving notice to anyone or instructions on how to be located.
6. That, on an unspecified date, the Appellant left work for the day without closing his door, thereby leaving thousands of dollars of equipment and confidential records unsecured. An incident report was written for this offense.
7. That the Appellant was disrespectful to the Mayor in the presence of the Town Clerk and the File Clerk when the Appellant did not receive pay for the vacation time he requested.
8. That the Appellant made purchases of supplies and services costing the Town thousands of dollars without approval by the Town.
9. That the Appellant was insubordinate to the Mayor by failing to follow the Mayor's guidance regarding how to correctly perform his duties as Chief of Police.
10. That the Appellant had recently approached the Mayor with a closed fist in a threatening manner, accusing him of holding a secret meeting regarding the
Appellant's possible termination, and this caused the Mayor to be fearful for his own safety.
11. That the Appellant scheduled officers to work in such a manner that the Town was double covered on some days and not covered at all during the day on other days.
12. That the Appellant, in contravention of directives from the Mayor, incited Town employees, Town Council members, Town residents and law enforcement members outside of the Town, making false and derogatory statements about Town management and the Town Manager. Specifically, on one occasion the Appellant loudly expressed his dissatisfaction with the Mayor's decision regarding one of the Appellant's officers and the Appellant allowed this officer to use vulgar and obscene language.
13. That the Appellant refused to speak to or deal with the Town Manager regarding Town business.
14. That the Appellant falsified information to the Mayor on numerous occasions regarding many of the other 14 allegations contained within the letter.
15. That the Appellant and his officers refused to follow Town policies written by the Town Manager and approved by the Mayor.
Following these allegations, the Town Council met on May 24, 2005, in accordance with 11 Del. C. § 9301. The Appellant was in attendance, represented by counsel. The Town Council heard testimony regarding the Mayor's 15 allegations. The Town Council reconvened on May 25, 2005 to deliberate on the testimony. It unanimously voted to dismiss the Appellant. This appeal followed.
STANDARD OF REVIEW
The Court noted in its previous decision in this case that, while the Police Chief Due Process statute provided for a statutory right of appeal to the Superior Court from a decision of an elected governing body in a removal due process hearing, it did not provide a standard of review for this process. As such, this Court deemed the proper standard of review to be that which this Court normally applies in appeals from administrative decisions, the substantial evidence test. Therefore, as to the remaining issue on appeal, the Court will determine whether the Town's decision is supported by substantial evidence and free from legal error. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In addition, substantial evidence is "more than a scintilla but less than a preponderance." In these types of appeals, this Court does not have the "authority to weigh evidence, determine the credibility of witnesses or make independent factual findings." Questions of law are reviewed de novo.
Vann v. Town of Cheswold, 2006 WL 2382798, at *1 (Del.Super.).
Id.
Methodist Country House v. Wright, 2005 WL 1654354, at *2 (Del.Super.).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966)).
Id. (quoting Cross v. Califano, 475 F.Supp. 896, 898 (D. Fla. 1979)).
State v. Dalton, 878 A.2d 451, 454 (Del. 2005) (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998) (citing State v. Cephas, 637 A.2d 20, 23 (Del. 1994)).
DISCUSSION
As noted above, the remaining issue before the Court is whether the Town Council's decision to dismiss the Appellant for just cause was supported by substantial evidence. In reviewing the Town Council's decision, the Appellant argues that the Court should find that the just cause necessary for dismissal must rise to the level of "a wilfull or wanton act or pattern of conduct in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct" as defined by the Delaware Supreme Court in Avon Products, Inc. V. Wilson , a case dealing with the interpretation of Delaware's unemployment compensation statute, 19 Del. C. § 3314(2). The Appellant argues that the General Assembly used the term "just cause" in the Police Chief Due Process statute with full knowledge of the meaning assigned to the term in the unemployment compensation statute. This Court previously addressed the Appell ant's argument, determining that there was no support for this assertion either in the language or the legislative history of the statute. Instead, the Court found that "the term 'just cause' does not have a single definition for the broad spectrum of legal issues under the umbrella of employment law." The Court noted, that while many courts, including those in Delaware, have been reluctant to define just cause, those that have consider it to be "a fair and honest cause or reason." This broad definition of just cause is consistent with the flexible approach to the term taken by another Delaware Court. It also comports with the Town Charter provision granting the discretion to appoint a chief of police for an indefinite term to the Town Council, "as it deems reasonable and appropriate for the good of the Town." This Court, on remand, finds no reason to deviate from its previous ruling on the definition of the term "just cause" as it related to the Police Chief Due Process statute.Upon reviewing the transcript of the May 24, 2005 hearing before the Town Council, it appears that the majority of the evidence regarding the 15 allegations was testimonial in nature, pitting the Town's version of events, as testified to by the Mayor and Town Manager, against the Appellant's version, as testified to by the Appellant himself, Gregory Spielman, Thomas Lindale, Chuck Harrigan, Lisa Adams, Gerry Harkness and Elliot Rosario. Accordingly, much of the Town Council's May 25, 2005 unanimous decision to dismiss the Appellant was based on its assessment of credibility.
Delaware Courts have long held that when reviewing an administrative decision under the substantial evidence standard, "questions of credibility and conflicts in the evidence are resolved by the [administrative agency]." Therefore, it has been said that "where conflicting versions of an incident are 'sufficient,' the [administrative agency] is entitled to believe one party over the other."
T.A.H. First, Inc. v. Wescott, 2004 WL 2827879, at *3 (Del.Super.) (quoting Abex Corp. v. Todd, 235 A.2d 271, 273 (Del.Super.1967)).
Id. (citing Abex Corp., 235 A.2d at 274 (holding that "[t]o be sure, there was also evidence from which the Commission could have found that the . . . error was wilful or wanton [h]owever, the Commission was entitled to believe [the employee's] version of the controversy")).
In the present case, the Court finds that, based on the credibility determinations made by the Town Council and other testimonial evidence offered, there is substantial evidence to support the conclusion that the Appellant's continued employment did not further the good of the Town, and that it therefore had just cause to dismiss the Appellant:
1. As to the charge that the Appellant permitted his officers to work overtime in contravention of a directive from the Mayor and Town Council, the Town Manager testified that Administrative Policy Number 5 prohibited most overtime except in emergencies or when prior approval was obtained. The Town Manager further testified that after the policy was enacted the Appellant authorized overtime for his officers without obtaining the necessary approvals. The Appellant testified that the Mayor stated that the policy could be disregarded. However, when asked about this ground for termination, the Mayor denied ever telling the Appellant that he could disregard any of the Town Manager's directives.
2. The termination letter charged that the Appellant refused to meet with the Mayor and/or Town Manager. At the hearing, the Mayor testified that on several occasions he asked the Appellant to discuss police and administrative matters with him and the Town Manager, but that the Appellant refused to do so without his attorney present. The Mayor stated this went on for about a month before the letter of termination was given. The Appellant admitted that he had refused to meet with the Mayor and/or Town Manager without his attorney present because he no longer trusted the Mayor.
3. The notice of termination mentioned the Appellant's procurement of three cell phones in the Town's name that were used by the Appellant, the Appellant's wife (who was not an employee of the Town) and Elliot Rosario (a police officer for the Town) in their personal capacities. Elliot Rosario, testifying for the Appellant, stated that the Mayor admitted that he knew that the phones were purchased through the Town for personal usage. The Appellant also testified that he had conversations with the Mayor regarding the phones before they were procured, that the Mayor knew they were for the Appellant's private use and that the Mayor authorized the procurement of the phones and later signed an authorization after the phones were procured. The Mayor testified that he knew that the Appellant had purchased the phones only after they were purchased, that he did not know that the Appellant had billed the Town for the phones, and that he did not authorize the procurement of the phones. However, the Mayor acknowledged that the Appellant presented him with a document authorizing the Appellant's purchase after the fact.
4. The notice of termination charged that the Appellant violated a directive by the Mayor and Town Council prohibiting the Appellant from providing another officer with a key to the Police Evidence Room. The Appellant contended that the Mayor knew and assented to his providing his second in command with a key. However, the record shows that the Appellant was placed on administrative leave without pay for providing the key, and that the Appellant acknowledged this disciplinary action. The Mayor stated that he disciplined the Appellant to let him know that what he did was not appropriate.
5. As to the charge that the Appellant was away from his office during work hours, the Appellant testified this was because he was either out in the community or in court covering for his officers so they would not be called in when they were off duty. The Mayor stated that on many occasions the Appellant was away from his office during his regular work hours, 8 a.m. to 5 p.m., and, during this same time, was also unreachable on the cell phone provided by the Town.
6. The Town Manager testified to the charge that the Appellant left work for the day without closing the door to his office on one occasion. The Town Manager stated that by leaving the door open, the Appellant exposed the Town to liability for the theft of electronic equipment and confidential info rmation. The Appellant did not testify regarding topic during the hearing.
7. As to the allegation that the Appellant was disrespectful to the Mayor in the presence of other Town employees, the Mayor testified that on one occasion he met with the Appellant regarding the Appell ant's entitlement to vacat ion pay. During this meeting, the Appellant became verbally abusive and used foul language in from of other Town employees. The Appellant did not cover this topic in his testimony to the Town Council.
8. In June 2004, the Town decided to attempt to control its costs by implementing a requisition and purchase order process for all purchases made by the Town. The Town Manager presented documents indicating that on several occasions the Appellant made purchases without following the Town's requisition and purchase order process. The Appellant did not testify to this allegation during the hearing. On appeal, his counsel indicates that the Appellant did not follow this procedure, because the Mayor told the Appellant to disregard the Town Manager's policies and procedures. However, as indicated previously, the Mayor stated at the hearing that he never told the Appellant to disregard the Town's Manager's directives.
9. The notice of termination charged the Appellant with insubordination for failing to follow the Mayor's guidance regarding how to correctly perform his duties as Chief of Police. At the hearing, the Mayor testified that the Appellant hired an officer without documenting that he was a certified police officer, that another officer was hired without a required psychological examination, that two officers did not receive proper field training and that the Town's radar units, which are required to be certified on a yearly basis, had not been certified since 2002. Gregory Spielman, the officer allegedly hired without documentation that he was a certified police officer, testified that he met with the Mayor and the Appellant and that the Mayor assented to the Appellant's decision to hire him without having him out an application or performing a background check. Mr. Spielman stated that the Mayor indicated that if the Appellant was satisfied with his qualifications that was sufficient. As to the certification of the radar units, the Appellant admitted that he did not have the radar units certified on a yearly basis.
10. The Mayor testified that the Appellant approached him with a closed fist, bumped his arm and caused him to fear for his safety. The Mayor stated that the Appellant did so stating that he believed the Mayor was holding secret meetings attempting to terminate him. The Appellant did not testify regarding this charge.
11. Allegation eleven in the notice of termination states that Appellant scheduled officers such that the Town was double covered on some days and not covered at all on other days. The Mayor testified that he noticed this double coverage and absence of coverage when he looked at the schedule one day. The Appellant did not cover this topic during the hearing.
12. The notice of termination alleged that the Appellant had made false and derogatory comments concerning the management of the Town and the Town Manager. On February 16, 2005, the Appellant was given a final, written warning regarding what the Mayor termed his attempts to publicly discredit the Town Manager. The warning noted that any further comments would result in dismissal.
The Mayor testified that the Appellant refused to sign the warning letter. The Mayor then testified that similar conduct occurred on February 25, 2005 when the Appellant and another police officer began using curse words in front of Town employees.
13. The notice of termination charges the Appellant with refusing to speak to or deal with the Town Manager. This allegation is similar to the second allegation, so the testimony offered by the Town and the Appellant regarding the second allegation applies here as well.
14. It was alleged that the Appellant falsified information to the Mayor. At the hearing the Mayor testified that the Appellant presented the Mayor with documents the Appellant represented would allow him to withdraw $4,000 from his pension. The Mayor stated that he asked some questions and the Appellant had no answers. The Mayor testified that he later learned that the $4,000 was not part of the Appellant's pension but a fund derived from insurance, fees, and State contributions that was to benefit all the Town's police officers. The Mayor also testified about the Appellant's attempt to have him sign paperwork authorizing the three cell phones obtained by the Appellant in the Town's name, but used personally, after the fact.
15. The final allegation is that the Appellant and his officers refused to follow Town policies written by the Town Manager and approved by the Mayor. This allegation appears to be a generalization of a number of the specific allegations against the Appellant. The Appellant testified that the Mayor told him he could disregard all directives from the Town Manager. The Mayor testified that he never told the Appellant that he could disregard the Town Manager's directives.
The Appellant argues that, based on the evidence educed at the hearing, he should not have been dismissed as Chief of Police. It is certainly true that, given a different assessment of the evidence and of the credibility of the witnesses, the Town Council could have found problems in the town of Cheswold, but problems that had nothing to do with the Appellant and he should not be dismissed. However, if the hearing before a group which, by appearances at least, would be most receptive to Appellants' accusers is to be considered immune to challenge to its make-up under the circumstances of this situation, then, on the minimal standards to be applied for affirmance, the Town Council was entitled to its credibility determinations and assessment of the evidence. In that context, there exists substantial evidence for the Town to find it had just cause to dismiss the Appellant.
CONCLUSION
Accordingly, the Town Council's decision to dismiss the Appellant is AFFIRMED. As the Supreme Court has retained jurisdiction in this case, the matter is now returned to that Court.
SO ORDERED.