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Hubacz v. Waterbury

Supreme Court of Vermont

April 6, 2018

Adam Hubacz
The Village of Waterbury

          Supreme Court On Appeal from Superior Court, Washington Unit, Civil Division Mary Miles Teachout, J.

          Daniel A. Seff of Murphy Sullivan Kronk, Burlington, for Petitioner-Appellee.

          John T. Leddy and Kevin J. Coyle of McNeil, Leddy & Sheahan, Burlington, for Respondent-Appellant.

          Susan Edwards of Law Offices of Susan Edwards, Wells, for Amicus Curiae New England Police Benevolent Association.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          CARROLL, J.

         ¶ 1. The Village of Waterbury (the Village) seeks interlocutory review of the trial court's order granting Adam Hubacz's Vermont Rule of Civil Procedure 75 petition to overturn the Village's decision terminating his employment as a police officer. The superior court certified the following question to this Court: Is a State's Attorney's unilateral decision to refuse to prosecute any cases investigated by a particular municipal police officer, alone, a sufficient basis for termination of the officer pursuant to 24 V.S.A. § 1931? We answer this question generally in the affirmative, but with the limitations explained below. Accordingly, we remand for proceedings consistent with this opinion.

         ¶ 2. The parties to this dispute have been embroiled in litigation in both state and federal court since the Village placed petitioner Hubacz on administrative leave in 2012.[1] While employed as a police officer by the Village, petitioner applied for a law enforcement position in another town. He participated in a prepolygraph examination interview, which was a required condition of the application process. During the interview, petitioner admitted to several acts, including cheating on a police exam, insurance fraud, taking uniforms from a prior employer, failure to report income on his tax returns, and impersonating a police officer for discounts and to intimidate high school classmates. Following these admissions, the police officer who conducted the interview cancelled the actual polygraph examination and sent a report of the prepolygraph examination to the Village police chief who subsequently delivered a copy to the Washington County State's Attorney. Deciding that petitioner's conduct effectively undermined his credibility and qualifications as a police officer, the State's Attorney elected to no longer prosecute any cases involving petitioner, whose duties included developing cases for prosecution and testifying in court.[2] The State's Attorney notified the Village of his decision.

         ¶ 3. In January 2012, the Village placed petitioner on administrative leave and instituted proceedings to terminate his employment pursuant to 24 V.S.A. § 1932(a), which allows for the suspension or termination of a police officer for negligence, dereliction of duty, or conduct unbecoming an officer. The Village notified petitioner that the decision to terminate his employment was based upon the State's Attorney's refusal to continue to prosecute cases in which petitioner was involved. The Village scheduled a hearing before the Village's Trustees and provided petitioner the required statutory notice. The hearing was held on January 24, 2012, and by stipulation of the parties, the sole basis for the request for termination was the State's Attorney's decision to cease prosecuting petitioner's cases. The Trustees took testimony at the hearing, but no other reasons for the termination were offered at the hearing.

         ¶ 4. In a written decision, the Trustees terminated petitioner's employment, pursuant to 24 V.S.A. § 1932(a), citing the decision by the Washington County State's Attorney not to prosecute any cases from or involving petitioner and petitioner's resulting inability to participate in most, if not all, of his law enforcement duties. The Trustees also concluded that petitioner's inability to contribute to the prosecution of cases rendered him negligent and derelict in his duties and would result in a misuse of taxpayer funds. Finally, the Trustees reasoned that petitioner had committed conduct unbecoming an officer because his behavior was likely to have an impact on the public's respect for police officers and confidence in the police department as a whole.

         ¶ 5. Petitioner filed suit in federal court, raising a due process claim and seeking a reversal of the termination decision. The federal court treated the claim as an appeal under V.R.C.P. 75, which provides for superior court review of administrative actions. Hubacz v. Vill. of Waterbury, No. 2:12-cv-39, 2014 WL 1493981, at *1 (D. Vt. Apr. 15, 2014). The court noted that the Trustees made no independent findings regarding the conduct described in petitioner's prepolygraph interview, instead, as explained above, their ruling was based entirely and exclusively upon the State's Attorney's decision not to prosecute petitioner's cases and that decision's impact on petitioner's ability to perform the duties of a Village police officer. For this reason, the court determined that the Trustees' factual findings did not support the termination decision and remanded the matter to the Trustees for consideration of facts that might support termination under § 1932(a). Id. at *8; see Turnley v. Town of Vernon, 2013 VT 42, ¶ 11, 194 Vt. 42, 71 A.3d 1246 (explaining V.R.C.P. 75 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" (quotation omitted)); Garbitelli v. Town of Brookfield, 2011 VT 122, ¶ 6, 191 Vt. 76, 38 A.3d 1133 ("[R]eview [under V.R.C.P. 75] is normally limited to answering legal questions raised by the factual record developed in the administrative proceeding."); In re D'Antonio, 2007 VT 100, ¶ 8, 182 Vt. 599, 939 A.2d 493 (mem.) (construing V.R.C.P. 75 to permit remand where court determines administrative body's factual findings insufficient to support legal conclusions).

         ¶ 6. The federal court also suggested that the Trustees consider whether § 1932 provided the sole basis for termination of a police officer, and noted that 24 V.S.A. § 1931, as applied by this Court in Gadue v. Village of Essex Junction, 133 Vt. 282, 336 A.2d 182 (1975), might provide an alternate, independent basis for termination. The court stated that "[a]s the Village properly notes, Hubacz essentially suffers from a legal disability insofar as he is unable to effectively perform the functions of his job." Hubacz, 2014 WL 1493981, at *8. The court offered that petitioner's "legal disability" might be analogous to the physical disability we held supported termination for cause pursuant to § 1931 in Gadue, 133 Vt. at 283, 336 A.2d at 183.

         ¶ 7. The Trustees conducted three days of hearings on remand, which included witness testimony regarding petitioner's termination. Regarding termination under § 1932, the Trustees found that petitioner could not develop cases for prosecution or testify in court because of the State's Attorney's decision and, thus, petitioner could not perform the duties required by his position as a police officer: "Consequently, [petitioner] has become negligent and derelict in his official duties as a police officer when he cannot testify in court or otherwise be involved in the prosecution of cases." The Trustees further concluded that the actions described in petitioner's prepolygraph interview permitted the conclusion that the State's Attorney's decision was based on conduct unbecoming an officer, which the Trustees understood to include conduct that eroded public confidence in law enforcement. The Trustees' decision did not examine the truth of the admissions in petitioner's prepolygraph interview, instead concluding that "[i]n short, we find that the most important fact here is that [petitioner] made these admissions in the first place and did substantial damage to his reputation and credibility that resulted in the State['s] Attorney's ultimate decision not to prosecute his cases."

         ¶ 8. Regarding termination under § 1931, the Trustees concluded that the State's Attorney's nonprosecution decision constituted "a legal and functional disability in that [petitioner] is unable to perform the requisite duties of a police officer." The Trustees emphasized the small size of the Village police force and the necessity that each officer be able to investigate suspected criminal activity, conduct arrests and process suspects, and participate ...

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