Clisham v. Board of Police Com'rs of Borough of Naugatuck

• Decision Date: 04 August 1992
• Docket Number: No. 14412,14412
• Citation: 613 A.2d 254,223 Conn. 354
• Court: Connecticut Supreme Court
• Parties: Dennis E. CLISHAM v. BOARD OF POLICE COMMISSIONERS OF the BOROUGH OF NAUGATUCK, et al.

Page 254

613 A.2d 254

223 Conn. 354

Dennis E. CLISHAM v. BOARD OF POLICE COMMISSIONERS OF the BOROUGH OF NAUGATUCK, et al.

No. 14412.

Supreme Court of Connecticut.

Argued June 4, 1992.

Decided Aug. 4, 1992.

William F. Dow, III, with whom was Steven D. Ecker, New Haven, for appellant (plaintiff).

William J. St. John, Jr., Waterbury, for appellees (defendants).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

PETERS, Chief Justice.

The dispositive issue in this appeal is whether the named defendant, the board of police commissioners of the borough of Naugatuck (board), acted with the impartiality mandated by the constitutional guarantees of due process when it voted to remove the plaintiff, Dennis E. Clisham, from the office of chief of police of the borough of Naugatuck. ¹ During the course of removal proceedings commenced by the board pursuant to 26 Spec.Acts 934, No. 321, § 4, ² the plaintiff filed a motion to disqualify in which he alleged that three members of the five member board were biased against him. The three members did not recuse themselves. After the five board members voted unanimously to remove the plaintiff from the office of chief of police and to terminate his employment with the police department, the plaintiff filed an appeal with the Superior Court pursuant to 26 Spec.Acts 934, No. 321, § 5. ³ The Superior Court dismissed the plaintiff's appeal. The plaintiff appealed the judgment of dismissal to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse.

The following facts underlie this appeal. The plaintiff, having been a lieutenant in the Naugatuck police department, became chief of police of the borough of Naugatuck as a result of the action of the board on July 26, 1984. ⁴ William Rado, then the mayor of Naugatuck and a member of the board, seconded the board's appointment of the plaintiff to this office. In May, 1985, Terry L. Buckmiller, a political rival of Rado, was elected mayor.

On December 9, 1987, the board, comprised of six individuals who had not been on the board at the time of the plaintiff's appointment, notified the plaintiff in writing that, following an investigation conducted by one of the attorneys for the borough, the plaintiff was being charged with eleven violations of the rules and regulations of the police department. Charges one, two and three alleged that in a Naugatuck bar on October 6, 1987, the plaintiff had threatened the lives of two individuals and had "solicit[ed] a physical assault" upon another in violation of rule 17, § 1(7), (10) and/or (11) of the rules and regulations of the Naugatuck police department. ⁵ Charges four and five alleged that, in a cafe on October 24, 1984, the plaintiff had assaulted an individual, had threatened his life and had threatened the lives of the individual's family members in violation of rule 17, § 1(7), (10) and/or (11) of the rules and regulations of the Naugatuck police department. The sixth charge alleged that the plaintiff had assaulted individuals on three separate occasions and, thus, had "demonstrat[ed] a propensity for physical assaults upon persons" in violation of rule 17, § 1(7), (10) and/or (11). ⁶

The board commenced a series of hearings on the charges against the plaintiff on December 15, 1987. The stated purpose of the hearings was to decide whether the board would remove the plaintiff as chief of police. At the first hearing, the plaintiff made an oral motion that, "in the interest of fairness," board member Buckmiller recuse himself from sitting on the hearings. Buckmiller complied. The parties thereafter agreed that, pursuant to 26 Spec.Acts 934, No. 321, § 4, ⁷ in order to remove the plaintiff from office and terminate his employment with the police department, the remaining five members of the board would have to vote unanimously for his removal. ⁸

At the January 26, 1988 hearing, the attorney for the borough began presenting evidence on the charges against the plaintiff. At that hearing, the plaintiff made an oral motion that another board member, Rocco DeCarlo, Sr., recuse himself because DeCarlo was then a defendant in a civil action the plaintiff had brought in the United States District Court. Following an executive session to discuss the motion, the board responded that DeCarlo would recuse himself if the plaintiff would allow the remaining four board members to preside and would accept as final the actions of those four board members. The plaintiff declined the board's offer and reminded it that the town charter provides that the chief of police can be removed only upon the unanimous vote of five board members. The hearings resumed and DeCarlo remained on the panel.

At the August 30, 1988 hearing, the plaintiff filed a motion to disqualify board members DeCarlo, Edward Mason and Robert Sharon. The motion alleged that DeCarlo had "expressed on prior occasions an animosity toward the movant and a conviction that the movant should be removed from office"; that Mason had "publicly and repeatedly expressed and maintained a belief that the movant should be removed from office and ha[d] actively taken steps to assure that that should occur"; and that Sharon had testified as a witness against the plaintiff before a grand jury. The plaintiff offered to present evidence to support his claims of bias as to each of the three board members named and attempted to call each as a witness. The board sustained an objection to calling the board members as witnesses, but did hear the testimony of two other witnesses. Although the record does not reflect that the board ever made an affirmative ruling to deny the plaintiff's motion to disqualify DeCarlo, Mason and Sharon, the hearings continued with their presence.

At the February 14, 1989 hearing, the board voted on each of the six remaining charges. By a four to one margin, the board voted that charges one and three had been proved. The board voted by a three to two margin that the second charge had been proved. It unanimously concluded that charges four and five had not been proved and that charge six had been proved. At the conclusion of the hearing, the board voted unanimously to grant a motion to dismiss the plaintiff from the Naugatuck police department for violating departmental rules and regulations. The board served a written notice of its decision on February 21, 1989.

The plaintiff appealed to the Superior Court within thirty days, as required by 26 Spec.Acts 934, No. 321, § 5, claiming that (1) he was denied a hearing by an impartial panel in violation of his due process rights, ⁹ (2) the board improperly based its decision to dismiss the plaintiff on facts known at the time of his appointment, and (3) the board's decision to remove the plaintiff violated the unanimity requirement of 26 Spec.Acts 934, No. 321, § 4. The trial court ruled against each of the plaintiff's claims and, accordingly, rendered a judgment dismissing his appeal.

On appeal to this court, the plaintiff reasserts the three claims he raised below. ¹⁰ Because we are persuaded that the participation of Mason in the board's decision to dismiss the plaintiff denied the plaintiff his constitutional right to be heard by an impartial tribunal, we reverse the trial court's judgment and direct a remand to the board for a new hearing before an impartial panel. ¹¹

I

Number 321, § 4, of 26 Spec.Acts 934, provides in relevant part that "[u]pon reasonable notice and after due hearing, the board of police commissioners may remove from office, for malfeasance or for any neglect or refusal to properly perform his duties, any member or officer of said department of police protection, including the chief of police." ¹² Because a police chief in Naugatuck can be removed from office only for "malfeasance or for any neglect or refusal to properly perform his duties," the plaintiff has a property interest in his position as chief of police that is protected by the due process clause of the fourteenth amendment to the United States constitution; see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985); Bartlett v. Krause, 209 Conn. 352, 366-67, 551 A.2d 710 (1988); Lee v. Board of Education, 181 Conn. 69, 71-73, 434 A.2d 333 (1980); and by article first, § 8 of the Connecticut constitution. See Lee v. Board of Education, supra, at 71-72 ("[a]rticle one, section eight of our state constitution ... given the same effect as the fourteenth amendment to the federal constitution"); see also Rado v. Board of Education, 216 Conn. 541, 555, 583 A.2d 102 (1990); Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S.Ct. 42, 93 L.Ed.2d 5 (1986).

In our analysis of the plaintiff's claim that his due process rights were violated, we must balance "the governmental interest in existing procedures against the risk of erroneous deprivation of a private interest through the use of these procedures." Petrowski v. Norwich Free Academy, supra, 199 Conn. at 235, 506 A.2d 139. That analysis starts from the proposition that the board was acting in a quasi-judicial capacity when it undertook dismissal proceedings against the plaintiff. See id., at 234, 506 A.2d 139; Catino v. Board of Education, 174 Conn. 414, 417, 389 A.2d 754 (1978). "At the core of due process is the requirement for an impartial tribunal. See Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). Due process demands ... the existence of impartiality on the part of those who function in judicial or quasi-judicial capacities." (Internal quotation marks omitted.) Rado v. Board of Education, supra, 216 Conn. at 556, 583 A.2d 102; see also Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1 (1982).

"The applicable due process standards for disqualification of administrative adjudicators do not...