Aiudi v. Baillargeon

• Decision Date: 12 April 1979
• Docket Number: No. 78-181-M,78-181-M
• Citation: 399 A.2d 1240,121 R.I. 454
• Parties: Aldo AIUDI v. Joseph BAILLARGEON et al. P.
• Court: Rhode Island Supreme Court

Page 1240

399 A.2d 1240

121 R.I. 454

Aldo AIUDI v. Joseph BAILLARGEON et al.

No. 78-181-M.P.

Supreme Court of Rhode Island.

April 12, 1979.

[121 R.I. 466] Stephen E. Cicilline, Providence, for petitioner.

Aram P. Jarret, Jr., Asst. City Sol., Woonsocket, for respondents.

OPINION

WEISBERGER, Justice.

This case is before us on a petition for certiorari to review a judgment of the Superior Court upholding the discharge of the petitioner, Aldo Aiudi, from his position as a member of the Police Department of the City of Woonsocket. On May 15, 1975, the Chief of Police of Woonsocket filed charges against the petitioner for violations of certain regulations of the Woonsocket Police Department, namely, "conduct unbecoming an officer" and "conduct tending to cast disrepute on the department." The specifications alleged that the petitioner while serving as a security guard at Fernandes Food World (Fernandes) had on several occasions carried away groceries and other items from that establishment without first having paid for them.

The petitioner appeared at a hearing before the Director of Public Safety of Woonsocket who rendered a decision sustaining the charges against petitioner and dismissing petitioner from the department effective May 15, 1975. Pursuant to regulations of the police department and § 10.1 of the Personnel Ordinance of the City of Woonsocket, petitioner appealed his dismissal to the Personnel Board of the City of Woonsocket and a second hearing was conducted on December 8 and 15, 1975. The board upheld the decision of the Director of Public Safety dismissing petitioner from the police department.

Thereafter, petitioner appealed to the Superior Court in accordance with the provisions of G.L.1956 (1970 Reenactment) § 45-20-1.1, which provides for a trial de novo in respect to all issues of fact and law relating to the dismissal of a police officer. After a hearing, the Superior Court entered judgment on October 4, 1976, upholding the decision of the Woonsocket Personnel Board discharging petitioner from the Woonsocket Police Department. The petitioner sought review by way of certiorari. The writ issued June 2, 1978.

The petitioner was appointed as a member of the Woonsocket Police Department in May 1962, and served until his dismissal effective May 15, 1975. In addition to his regular duties as a police officer, petitioner worked part-time for 7 years at Fernandes on Clinton Street in Woonsocket, serving as a security officer and controlling traffic in the parking lot. It was also his duty at closing time to make certain that everyone had left the store. During the period January through May 1975, petitioner worked at Fernandes on Thursday evenings.

In 1975 the store manager noted that items such as oil, lobster meat and shrimp were being stolen from the store. Consequently, a surveillance operation was undertaken by security agents engaged by Fernandes at the Clinton Street store. On April 17, 1975, a security employee of Fernandes and the store manager observed one David Ashworth leave the store pushing a blue mobile carrier or buggy. They saw him remove five cases from the buggy and place them near the produce door. A few minutes later Ashworth was observed driving his automobile around to the rear of the store and loading the cases into the vehicle. He then drove the vehicle around to the parking lot at the front of the store. Later the observers noted that Ashworth moved the vehicle near petitioner's station wagon and placed at least five cases into the rear of petitioner's vehicle. These events caused another surveillance to be conducted on April 24, 1975. On this occasion two other security agents came into the store about 8:20 p. m., pretending to act as ordinary shoppers. They observed petitioner filling several empty bags with merchandise. Only one cash register was open, and the two security agents noted that petitioner did not check out his merchandise at this register prior to closing time. A short while later petitioner was observed placing seven bags into the rear of his station wagon. The trial justice specifically found that "at least some of those bags contained items which were not paid for and that were items that he placed in those bags earlier just before coming out."

Although petitioner denied that he had taken groceries from Fernandes without paying for them, the trial justice found that on both occasions Officer Aiudi had acted in the manner described by the surveillance witnesses and as corroborated in respect to the April 17 incident by the testimony of Mr. Ashworth. Ashworth's testimony was submitted to the court through a stenographic transcript of testimony which he had given in proceedings before the Director of Public Safety. The trial justice found that Officer Aiudi's conduct, which in effect amounted to receiving stolen goods on the first occasion and larceny on the second occasion, constituted "conduct which is unbecoming a police officer and conduct tending to cast disrepute on the police department." Therefore, he concluded that the charges filed by the Chief of Police of Woonsocket had been proven. The trial justice also concluded that the penalty of dismissal which petitioner received was reasonable and appropriate under all of the circumstances and therefore entered judgment upholding the decision of the Personnel Board of the City of Woonsocket. This petition ensued.

The petitioner raises a number of arguments concerning his right to discovery and certain rulings which were made during the course of the administrative hearings. We cannot consider these arguments because we are reviewing a judgment of the Superior Court entered after a trial de novo. Thus, we review the proceedings in the Superior Court and not those which took place at the municipal level. Having availed himself of the full benefit of such a trial, without regard to the findings of fact or conclusions of law made by the administrative hearing agencies, petitioner is entitled to review only of the Superior Court proceedings. See Berkshire Fine Spinning Associates v. Label, 74 R.I. 6, 11, 60 A.2d 871, 874 (1948). In Apice v. American Woolen Co., 74 R.I. 425, 60 A.2d 865 (1948), we held that as a result of a subsequent de novo hearing in the Superior Court, it was unnecessary to remand a workmen's compensation petition to the administrative agency whose hearing officer had not been validly appointed and was not therefore a De jure officer at the time of the earlier administrative hearing. We observed that "(a)n appeal from the department of labor brings up the entire matter for a hearing De novo before the superior court, which does not then act as a reviewing or appellate court in any sense. Thus the rights of all parties are fully protected in such a new hearing in that court." Id. at 437, 60 A.2d at 871. The petitioner understandably does not contend that he was denied discovery opportunities prior to trial in the Superior Court. Before his appearance in that court he had been afforded hearings before the Director of Public Safety and the Personnel Board of the City of Woonsocket and had an opportunity to see and cross-examine the witnesses presented against him. His challenges relate solely to alleged procedural defects at the administrative hearings. However, rulings relating to discovery and other procedural determinations at the municipal level are irrelevant to a review of the de novo trial in the Superior Court. See Commonwealth v. Cronin, 336 Pa. 469, 9 A.2d 408 (1939).

The petitioner also asserts that the regulations with whose violation he was charged are unconstitutionally vague and overbroad. In asserting this argument, petitioner cites a number of criminal cases involving statutes held to be vague but has not cited any case relating to dismissal of employees. Such a case was recently decided by the Supreme Court of the United States in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). There the Court considered the dismissal of a nonprobationary federal employee under a regulation allowing dismissal "only for such cause as will promote the efficiency of the service." In fact the employee had made slanderous utterances concerning other employees in the Office of Economic Opportunity. In spite of the fact that the conduct involved speech and therefore had certain First Amendment overtones, the Court held that the phrase used was "constitutionally sufficient against the charges both of overbreadth and of vagueness." Id. at 159, 94 S.Ct. at 1647, 40 L.Ed.2d at 36. The Court cited United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796, 816 (1973), for the proposition that:

"(T)here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. '(T)he general class of offenses to which . . . (the provisions are) directed is plainly within (their) terms, . . . (and they) will not be struck down as vague, even though marginal cases could be put where doubts might arise.' United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954)."

Further, in a case involving a court-martial of a military service officer, phrases very similar to those being attacked as facially unconstitutional in the present case were upheld by the Supreme Court of the United States. In Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), Captain Levy was court-martialed for, Inter alia, violation of certain articles of the Uniform Code of Military Justice, namely, "conduct unbecoming an officer and a gentleman" and conduct "to the prejudice of...