In re Grievance of Danforth

• Decision Date: 04 October 2002
• Docket Number: No. 00-185, 01-022.,00-185, 01-022.
• Parties: In re GRIEVANCE OF Gloria DANFORTH.
• Court: Vermont Supreme Court

812 A.2d 845

In re GRIEVANCE OF Gloria DANFORTH.

No. 00-185, 01-022.

Supreme Court of Vermont.

October 4, 2002.

Edward R. Zuccaro, St Johnsbury, Acting Chair.

Kimberly B. Cheney of Cheney, Brock & Saudek, P.C., Montpelier, for Plaintiff-Appellee (00-185) / Appellant (01-022).

Daniel L. Burchard of McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, and Elizabeth F. Novotny, Department of Public Safety, Waterbury, for

Defendant-Appellant (00-185) / Appellee (01-022).

Present: DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and COHEN, Superior J., Specially Assigned.

SKOGLUND, J.

The issue raised by these consolidated, interlocutory appeals is whether the Vermont Labor Relations Board (the "Board") has jurisdiction and authority to order disclosure of confidential information contained in the records of the Vermont Department of Public Safety Internal Affairs Unit. The Vermont Department of Public Safety (the "Department") appeals a Board decision ordering it to release redacted Internal Affairs Unit (IAU) records to grievant, former police sergeant Gloria Danforth. Danforth cross-appeals claiming that the Board erred in denying her subpoena request for the Department's "command and review sheets." Danforth also appeals a second Board order, concerning the same underlying facts, denying her subpoena request for IAU records of investigations which may have occurred subsequent to her dismissal. We affirm the challenged decisions of the Board.

These appeals were born of a grievance hearing brought by Danforth and other female employees against the Department over alleged discrimination and retaliation within the Department based on their gender, prior complaints they made regarding Departmental practices, and Danforth's prior grievance activity.¹ During that grievance hearing, in an effort to impeach an adverse witness who was also a sergeant with the Department, Danforth's attorney asked the witness if he had ever told Danforth he had lied in a deposition. Prompted by this pregnant question, an IAU investigation was summarily brought to determine if the witness had, in fact, lied in a deposition. With one business day's notice, Danforth was ordered to appear as a material witness at the IAU investigative interview of the witness.

Danforth was unable to obtain counsel for the IAU interview, in accordance with her rights under Department Rules and Regulations, see Department Rules and Regulations, Section III, Art. III, § 7.5, after only one business day's notice of the investigative interview.² The investigating officer excused her appearance and ordered her to appear four days later. She was again unsuccessful in obtaining counsel, but attended the interview nonetheless, asserting her right to counsel and refusing to answer questions until she obtained one. Three days later, Danforth herself became the subject of a separate IAU investigation based on her alleged violation of the Department's code of conduct by deliberately failing to obey a lawful order, and by failing to fully and truthfully answer questions in connection with an internal investigation. Again she was ordered to appear before an IAU investigator and again she was unable to obtain counsel. She answered some, but not all questions—refusing to answer questions without her "counsel of choice" present.

The commissioner of the Department delivered formal written charges to Danforth pursuant to 20 V.S.A. § 1880, advising that her actions during the IAU investigation violated the Department's code of conduct. In accordance with 20 V.S.A. § 1880, the charges advised Danforth that she had a right to have the matter determined by a hearing panel comprised of members of the Department, and that if she did not request such a hearing, the commissioner would take such disciplinary action as he deemed appropriate, including dismissal. Danforth did not request a hearing panel. The commissioner then determined that her violations of the Department's code of conduct warranted her dismissal.

Danforth appealed the disciplinary action to the Labor Board as authorized by 20 V.S.A. § 1880, asking the Board to overturn her dismissal. Her appeal asserts that her dismissal was "without just cause and with improper motives." She claims she is the only member of the Department who has been ordered to answer questions by IAU without counsel present, after one business day's notice, and after asserting her right to have counsel for such questions. She also claims her dismissal constituted retaliation for exercising her First Amendment rights, engaging in grievance activity and whistle blowing, and was a discriminatory violation of the collective bargaining agreement between the State and the Vermont State Employees' Association (VSEA), which requires discipline to be applied consistently and uniformly. VSEA, State Police Bargaining Unit, Art. 14, § 2(c).

In accordance with her grievance appeal before the Board, Danforth sought discovery and issued subpoenas duces tecum on the commissioner to obtain the following information in the appeal hearing:

1. Reports of all allegations of misconduct by state police officers, and the findings as to such allegations, submitted by the commissioner of public safety to the State Police Advisory Commission since January 1, 1995. Such reports may be redacted so that the name of the individual state police officer is not revealed so long as the log shows the alleged misconduct and the disposition, and is in such a form to permit a determination whether discipline is imposed on members uniformly.

2. Copies of the written log made with respect to each allegation of misconduct relating to any state police officer maintained pursuant to 20 V.S.A. § 1923(c) since January 1, 1995. Such reports may be redacted so that the name of the individual state police officer is not revealed so long as the log shows the alleged misconduct and the disposition, and is in such a form as to permit a determination whether discipline is imposed on members uniformly.

3. Copies of the records of the Office of Internal Investigation relating to Sargent [sic] Gloria Danforth.

4. Copies of the Command and Review Sheets (or records) relating to the referral of charges against and dismissal from employment of Detective Sergeant Gloria Danforth.

5. Copies of any e-mails, notes, or written material of any sort, not otherwise requested, from or to the Commissioner of Public Safety relating to the referral of charges against and dismissal from employment of Detective Sergeant Gloria Danforth.

After being served with these subpoenas, the Department and the state police advisory commission (SPAC)³ both filed timely motions to quash pursuant to V.R.C.P. 45(c)(3), arguing that the records created and maintained by the Department's IAU are confidential under 20 V.S.A. § 1923(d)(3) and can be disclosed only at SPAC's direction.

The Labor Board issued an order, granting the motions in part, denying them in part, and commanding the Department to produce summaries containing limited information of internal affairs investigations concerning misconduct by state police officers since January 1, 1995, relevant to Danforth's allegations, including: the case number; the date the member being investigated was notified of the charges; the date the member was interviewed; whether the member requested that an attorney be present for the interview; all cases in which the interview took place after the member requested legal counsel without legal counsel for the member present; and all cases in which discipline was taken for refusal to answer questions without legal counsel present. The Board also granted Danforth's subpoena requesting IAU records relating to the time usually given to officers to obtain counsel and respond to an IAU investigation. The Board's order recognized the importance of anonymity and the difficulty maintaining such in "a state of Vermont's size" and so ordered that "[t]he summaries of allegations and findings should be prepared so that the identity of the involved state police officer is not revealed." It further ordered that the summaries set forth the alleged misconduct and the Department's disposition "in such a form to permit a determination whether discipline is imposed on members uniformly and consistently." Danforth's subpoena requesting copies of IAU command and review sheets which allegedly include reasons for her dismissal was denied because the Board found she had failed to make a sufficient showing of need. Both parties filed timely motions to reconsider, which were denied. Both parties appeal.

On appeal, the Department argues that the Board lacked jurisdiction to order the Department to disclose IAU records, that those records are confidential under 20 V.S.A. § 1923, and, assuming the Board has jurisdiction, the Board's order was both overbroad and unduly onerous. Danforth cross-appeals asserting that she needs the command and review sheets in order to determine if reasons other than the alleged failure to answer questions at the IAU investigation motivated her dismissal. She also brings a second appeal of the Board's later denial of her subpoena for IAU records of investigations that may have been brought subsequent to her dismissal.

I.

The Department argues that the Board lacks jurisdiction to order the disclosure of confidential IAU records. We disagree.

As a public administrative body, jurisdiction of the Board is exclusively conferred by statute. Boynton v. Snelling, 147 Vt. 564, 565, 522 A.2d 232, 233 (1987). Under the State Employees Labor Relations Act (SELRA or the "Act") the Board is authorized to "hear and make final determination[s] on the grievances of all employees who are eligible to appeal grievances to the board." 3 V.S.A. § 926. "Grievance" is defined by the Act as "an employee's ... expressed dissatisfaction, presented in writing, with aspects of employment or working conditions under collective bargaining...