Frye v. Inhabitants of Town of Cumberland

• Decision Date: 15 August 1983
• Parties: Roderick FRYE v. INHABITANTS OF the TOWN OF CUMBERLAND.
• Court: Maine Supreme Court

Page 195

464 A.2d 195

Roderick FRYE v. INHABITANTS OF the TOWN OF CUMBERLAND.

Supreme Judicial Court of Maine.

Argued Jan. 4, 1983.

Decided Aug. 15, 1983.

Richardson, Tyler & Troubh by Wendell G. Large (orally), William B. Troubh, Portland, for plaintiff.

Jensen, Baird, Gardner & Henry by Kenneth M. Cole, III (orally), Nicholas Nadzo, Michael A. Nelson, Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, CARTER, ^* VIOLETTE and WATHEN, JJ.

ROBERTS, Justice.

Roderick Frye filed two complaints, later consolidated, in the Superior Court, Cumberland County, which sought relief from the decision of the Town Manager of the Town of Cumberland dismissing Frye from his position as a police officer with the Cumberland Police Department. The Superior Court denied relief, concluding that none of Frye's contentions required either remand or reinstatement. On appeal to the Law Court, Frye contends, as he did in the Superior Court (1) that his dismissal violated the procedural requirements of 30 M.R.S.A. § 2361 (Supp.1982-1983); (2) that the Town Manager, who presided at Frye's subsequent dismissal hearing, was not an impartial hearing officer and permitted the introduction of improper evidence; and (3) that the Town Manager's decision was not supported by substantial evidence on the record as a whole. In addition, Frye argues on appeal that the Superior Court erred in denying either discovery or an evidentiary hearing on the issue of any possible bias on the part of the Town Manager acting as the hearing officer. We modify the judgment of the Superior Court and, as modified, affirm.

I.

In November of 1979, the Chief of Police of the Cumberland Police Department suspended Frye pending an investigation of alleged violations of several department regulations. By letter dated December 10, 1979, the police chief informed Frye that the investigation of the charges had been completed and that: "Your employment with the Cumberland Police Department is hereby terminated as of this date." Another letter from the police chief, dated December 13, 1979, informed Frye that: "Prior to any final action as to your employment with the Town, you have the right, pursuant to Title 30, Section 2361 ... to seek a hearing before the Town Manager."

On January 3, 1980, the plaintiff filed the first of two complaints in Superior Court, naming the Town of Cumberland, the Cumberland Police Department, the Town Manager, and the Chief of Police, as defendants. The first complaint alleged termination of Frye's employment without notice and a hearing in violation of 30 M.R.S.A. § 2361 and the due process provisions of the United States and Maine Constitutions. The complaint requested an order reinstating Frye as a full-time police officer, with "back pay" and costs. In essence, Frye's first complaint was based upon his claim that the delivery of the notice of dismissal, prior to any statutory hearing, would render any subsequent hearing invalid. At the same time, the plaintiff filed a motion requesting a stay of the dismissal hearing pending a judicial decision on the merits of his complaint. The Superior Court denied the request for a stay.

Frye's dismissal hearing proceeded as scheduled on January 10, 1980. The hearing was conducted before the Town Manager. ¹ The Chief of Police presented the Town's case, calling witnesses and submitting documents into evidence. Frye was represented by counsel and had the opportunity to present and cross-examine witnesses.

The Town Manager issued a "final decision" on February 7, 1980. The decision included findings of violations in three of four general categories of charges and concluded that Frye's dismissal was proper. The Town Manager also awarded Frye $740.35, representing wages due up to the date of the hearing.

On March 7, 1980, Frye filed his second complaint in Superior Court. The second complaint repeated the allegations and demands of the first complaint, but also alleged that: (1) the dismissal hearing was not held before an impartial hearing officer; (2) Frye was prejudiced by unfair evidentiary rulings and by severely limited opportunities to present direct testimony and to cross-examine witnesses; (3) the findings were not supported by substantial evidence, and (4) the hearing officer misapplied the law because the findings did not amount to "cause" for dismissal. Frye also demanded additional compensation for the period between the January 10 dismissal hearing and the February 7 administrative decision.

Thereafter, in response to the plaintiff's notice of deposition, the Town Manager moved for a protective order pursuant to M.R.Civ.P. 26(c). Following a hearing, the Superior Court ordered the deposition "cancelled." At the same time, upon the plaintiff's motion, the Superior Court consolidated the two complaints pursuant to M.R.Civ.P. 42.

By order dated December 10, 1981, the Superior Court denied any relief to the plaintiff. In his decision the Superior Court justice concluded that (1) substantial evidence exists on the record to support the findings; (2) the plaintiff was not prejudiced by the Town Manager's evidentiary rulings; (3) the plaintiff's contention that he was not dismissed for cause was without merit; and (4) the Town Manager acted properly in not recusing himself and the plaintiff did receive an impartial hearing that was "in all respects procedurally fair."

II.

Title 30 M.R.S.A. § 2361(1) (Supp.1982-1983) provides that: "Police officers ... may be removed for cause after notice and hearing." (Emphasis added.) On the basis of this language Frye argues that because he received a letter from the Chief of Police purporting to dismiss him prior to a formal dismissal hearing, his subsequent termination by the Town Manager was void. Undeniably, the purpose of section 2361(1) is to insure that municipalities comply with certain due process rights before discharging a police officer. See L.D. 231, Statement of Fact (109th Legis.1979). On the facts of this case, however, we find no merit in Frye's contention that the police chief's actions, which were corrected within three days, constitute a violation of section 2361(1).

First, Frye asks this Court to assume that his hearing occurred subsequent to his dismissal. Although the letter of dismissal may have been premature, the true effect of the letter was only a suspension both because Frye has a statutory right to a hearing and because Frye was subsequently awarded partial back pay. Second, even if the plaintiff's contention regarding the timing of the hearing is technically correct, the record reveals that he was afforded adequate notice and a meaningful opportunity to be heard prior to any final determination by the Town Manager. Finally, Frye's suggestion that a temporary lapse in procedural regularity alone should serve as grounds for this or any court to grant him reinstatement or immunity from any further proceedings with respect to these particular charges is patently erroneous. See Barber v. Inhabitants of the Town of Fairfield, 460 A.2d 1001 (Me.1983).

Frye next argues that the Town Manager's failure to disqualify himself as the hearing officer "irreparably tainted" the dismissal hearing and violated Frye's due process rights. Frye contends that the Town Manager's involvement in the investigation was sufficiently "deep" to render an impartial hearing impossible. Prior to the dismissal hearing the Chief of Police provided the Town Manager with the notices of suspension and termination and with the allegations supporting these notices--purportedly pursuant to the Town Manager's role as chief administrator of the Town. Hence, the plaintiff contends that the Town Manager had prior contact and knowledge of the investigation which made an impartial hearing impossible.

We have previously observed, in the context of a Board of Registration in Medicine proceeding, that:

[T]he combination of investigator, prosecutor and sitting member of the adjudicatory panel, even if ostensibly a nonparticipating member, creates an intolerably high risk of unfairness. See Withrow v. Larkin, 421 U.S. 35, 58, 95 S.Ct. 1456, 1470, 43 L.Ed.2d 712, 730 (1975). We shall not approve that practice in our review of future proceedings of this Board or those of other administrative agencies.

Gashgai v. Board of Registration in Medicine, 390 A.2d 1080, 1082 n. 1 (Me.1978). In Gashgai, the Board of Registration in Medicine, which was the administrative agency responsible for the licensing and discipline of physicians, charged Dr. Gashgai with "unprofessional conduct" and, following an administrative hearing, placed him on probation for one year. The charges were investigated by a Dr. George Sullivan as a consultant for the State Department of Health and Welfare. Originally the charges were presented to an ethics committee of the Maine Medical Association; however, in a separate action, the Law Court suppressed the committee's report of the case. Meanwhile, the Board commenced proceedings, and Dr. Sullivan signed the complaint in his capacity as Secretary of the Board. Dr. Sullivan also sat with the Board during its hearing, and admitted he had a copy of the suppressed report.

In a more extreme case of procedural irregularity in a dismissal hearing we stated that:

For nearly a century it has been the law in this State that a proceeding to remove an incumbent from public office is judicial in nature, and that municipal officials in such removal proceedings must assume the role of a deliberate, unprejudiced tribunal and provide the incumbent with a full and fair hearing. Andrews v. King, 77 Me. 224 (1885). See State v. McLellan, 117 Me. 73, 102 A. 778 (1918). In Andrews, supra, this Court while holding that it was not necessarily improper for a Mayor to present the charges and preside at the removal hearing, [stated that] "... he should not prejudge the case; he should not act as prosecutor at the hearing; there, he should divest...