Gantert v. City of Rochester

• Decision Date: 18 March 2016
• Docket Number: No. 2015–0St062,2015–0St062
• Citation: 168 N.H. 640,135 A.3d 112
• Parties: Officer John GANTERT v. CITY OF ROCHESTER & a.
• Court: New Hampshire Supreme Court

168 N.H. 640

135 A.3d 112

Officer John GANTERT

v.CITY OF ROCHESTER & a.

No. 2015–0St062

Supreme Court of New Hampshire.

Argued: October 8, 2015

Opinion Issued: March 18, 2016

Wilson, Bush, Durkin & Keefe, P.C., of Nashua (Charles J. Keefe on the brief and orally), for the plaintiff.

Terence M. O'Rourke, city attorney, by memorandum of law and orally, for the defendants.

Joseph A. Foster, attorney general(Patrick J. Queenan, assistant attorney general, on the brief and orally), for the State, as amicus curiae.

LYNN, J.

The plaintiff, Officer John Gantert, appeals an order of the Superior Court(Wageling , J.) granting summary judgment to the defendants, the City of Rochester, the Rochester Police Department, and the Rochester Police Commission, on the plaintiff's claims of tortious interference with prospective advantageous business relations, violations of his procedural due process rights, and damage to his reputation.All of his claims arise out of the defendants' alleged wrongful placement of the plaintiff on a so-called "Laurie List"¹ without affording him sufficient procedural due process.Because we find that the procedures afforded to the plaintiff in this case were adequate, we affirm the trial court's judgment.

I

The trial court found, or the parties agreed to, the following facts.²The plaintiff began working as a police officer in Rochester in March 2005.For six years he was viewed as a "good and productive officer" and had no disciplinary actions reflected in his personnel file.Upon beginning his shift on March 24, 2011, the plaintiff was instructed to assist another officer in booking an individual arrested for domestic violence.As part of the department's standard operating procedure in domestic violence cases, an officer interviews the victim and fills out a Lethality Assessment Protocol form (LAP), which assists in gauging the degree of violence and potential danger to the victim.

The LAP consists of a series of questions about past threats or violence committed by the accused, and the accused's access to weapons.The questions can be responded to with yes, no, or not answered.If a certain number of questions are answered "yes," the victim is considered to face a higher risk of lethal violence, and a protocol of assisting the victim is triggered.The LAP is also used to assist the court in determining the amount and conditions of bail.

Before ending his shift, the arresting officer had interviewed the victim, completed the LAP, and sent it to the county attorney.The plaintiff was not aware that the LAP had been completed and incorrectly believed that, pursuant to departmental policy, it was required to be sent to the county attorney with the rest of the arrest paperwork.After unsuccessfully attempting to contact the arresting officer or the victim, the plaintiff watched a videotaped interview of the victim by the arresting officer and completed a second LAP based upon information he learned from the interview.If a question on the LAP could be answered affirmatively based upon the video, he answered "yes"; if a question could not be so answered, he answered "no."The interview, which pertained only to the incident for which the accused had been arrested, did not cover many of the questions on the LAP, which mainly ask about past acts or behaviors.

This resulted in the LAP completed by the plaintiff being materially different from the one completed by the arresting officer.The original LAP, completed with information from the victim, resulted in almost all of the questions being answered "yes," which triggered the protocol; the LAP completed by the plaintiff had almost all "no" answers, which would not trigger the protocol.The plaintiff signed the arresting officer's name and sent the second LAP to the county attorney.At no time did the plaintiff consult with a superior or another employee as to how to proceed in light of the fact that he had no knowledge of the answers to many of the LAP questions.

The county attorney discovered the conflicting LAPs and referred the matter to the Rochester Police Department.Lieutenant Toussaint investigated, conducting interviews with the plaintiff and other officers.According to Toussaint's report, the plaintiff"admitted that the LAP form questions were not answered in the interview" that he reviewed.The plaintiff"stated that he knew" that "none of the LAP questions had been covered" in the recorded interview and "that he made his best guess about the answers based upon the demeanor of the victim in the videotaped statement."When asked why he had put incorrect information on the LAP, the plaintiff stated that "he had no information to work with and that he knew that the LAP form was required to be sent to the County Attorney's Office."

Toussaint found that the plaintiff violated two departmental policies: Standard Operating Procedure 26.1.4, SubsectionD.1.d, "Unsatisfactory Job Performance"; and Standard Operating Procedure 26.1.4, SubsectionD.3.e, "Falsification of any reports, such as, but not limited to, vouchers, official reports, time records, leave records, or knowingly mak[ing] any false official statements."His report was forwarded to Deputy Police Chief Allen, who agreed with the findings and recommended that the plaintiff's employment be terminated.

This decision was forwarded to Chief Dubois, who concurred and wrote a letter to the plaintiff notifying him that he intended to recommend termination to the police commission.The plaintiff asked the chief if there was another possible resolution to the matter, to which he recalls the chief responding, "Nothing you can say or do will make me change my mind about this."The chief also notified the plaintiff that his actions could be " Laurie material" and that he intended to notify the county attorney.The chief scheduled a meeting with the plaintiff to provide him with an opportunity to discuss the chief's intent to notify the county attorney's office of the fact that the plaintiff's personnel file could contain Laurie material; citing advice from union counsel, the plaintiff declined to attend.The chief and the union agreed that the chief would not notify the county attorney of the Laurie issue until after the police commission made a final decision.

On June 16, 2011, the Rochester Police Commission voted to uphold the chief's decision to terminate the plaintiff's employment.After this decision, the chief sent a letter to the county attorney stating that "the Rochester Police Department has an internal affairs file which could possibly be construed to contain issues relevant to State v. Laurie.This file affects [the plaintiff]."

Pursuant to the collective bargaining agreement (CBA) between the city and the police union, the plaintiff challenged his discharge before the New Hampshire Public Employee Labor Relations Board(PELRB), which selected an arbitrator.Following a hearing, the arbitrator found that the Rochester Police Department"had just cause to discipline [the plaintiff] for entering false information [on] the LAP report and not following proper protocol," but that "discharge [was] too great a penalty in this case."The arbitrator found that the plaintiff's actions implicated his honesty and integrity, but he"did not intentionally falsify the LAP form."Given the plaintiff's statements during the investigation, we interpret this to mean that, although the plaintiff had no intent to deceive, he did know that he was providing information that could be incorrect.Although acknowledging that the chief stated that he would not hire an officer on the "Laurie List," the arbitrator stated that Laurie does not require the discharge of untruthful officers and noted that the conduct by the officer in Laurie was much more severe.These circumstances, coupled with the fact that the submission of the inaccurate LAP was an isolated incident and the plaintiff had no other disciplinary problems in the past, led the arbitrator to reduce the discipline to a suspension without pay from June 16 to November 7, 2011.The arbitrator did not rule on the "Laurie List" issue, stating that "[w]hether [the plaintiff] shall remain Laurie listed is beyond the Arbitrator's authority."

After the arbitrator's decision, the plaintiff requested that both the chief and the county attorney remove his name from the "Laurie List."Both declined.

The plaintiff then brought this suit against the defendants in superior court.He claimed that the defendants placed him on the "Laurie List" without proper procedural due process, and sought damages and injunctive relief to remove his name from the "Laurie List."The defendants objected.The trial court construed the parties' memoranda of law as cross-motions for summary judgment and ruled in favor of the defendants.The court found that the plaintiff had a constitutionally protected interest and was therefore entitled to due process.After balancing the competing interests at stake, however, it found that the plaintiff had received sufficient due process.This appeal followed.

II

We have recently explained the background and operation of "Laurie Lists."SeeDuchesne v. Hillsborough County Attorney,167 N.H. 774, 777–82, 119 A.3d 188(2015).As relevant here, prosecutors have a duty to disclose "both exculpatory information and information that may be used to impeach the State's witnesses."Id. at 777, 119 A.3d 188;see alsoBrady v. Maryland,373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963).This duty extends to information known only to law enforcement agencies, such as information located in police officers' confidential personnel files.Duchesne,167 N.H. at 777–78, 781–82, 119 A.3d 188.After we granted a criminal defendant a new trial due to the prosecution's failure to disclose information found in a police officer's employment files and records, seeState v. Laurie,139 N.H. 325, 327, 333, 653 A.2d 549(1995), law enforcement authorities in this state began...