In re Lepore

• Decision Date: 09 December 2016
• Docket Number: No. 2016-123,2016-123
• Citation: 2016 VT 129
• Court: Vermont Supreme Court
• Parties: In re Grievance of John Lepore

2016 VT 129

In re Grievance of John Lepore

No. 2016-123

Supreme Court of Vermont

October Term, 2016

December 9, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Labor Relations Board

Richard W. Park, Acting Chair

William H. Sorrell, Attorney General, and Bridget C. Asay, Solicitor General, Montpelier, for Appellant.

Timothy Belcher and Kelly A. Everhart, Vermont State Employees' Association, Montpelier, for Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. SKOGLUND, J. The State appeals from a decision by the Labor Relations Board that reversed its dismissal of grievant John Lepore and instead suspended him for thirty days without pay. The Board agreed with the State that grievant committed serious offenses and demonstrated "poor judgment and dishonesty related to his fitness for state employment" while serving as a juror in a capital murder trial. It concluded, however, the State could not dismiss grievant given its delay in imposing discipline and its failure to restrict grievant's job duties during the investigation into grievant's misconduct. The State argues that neither ground undermines its conclusion that grievant's serious misconduct warranted dismissal, particularly because grievant suffered no prejudice from the delay. We agree, and we therefore reverse the Board's decision.

¶ 2. The Board found as follows. Grievant worked as an environmental biologist for the Vermont Agency of Transportation (AOT) from 1992 until his dismissal in July 2015. In this position, grievant evaluated the potential impact of proposed transportation projects, created reports, and coordinated with others to apply for and prepare environmental permits. Grievant interacted with numerous other state and federal employees, and it was important that he gain and keep the trust and respect of his peers.

¶ 3. In 2005, grievant served as a juror in the federal criminal trial of Donald Fell and engaged in conduct that eventually led to his dismissal from State employment. Fell was charged with two capital offenses, and prosecutors sought the death penalty. In direct contravention of the federal court's repeated instructions to the jury, grievant and his then-girlfriend traveled to Rutland during trial to view the crime scene and the home and neighborhood where Fell's mother lived. Grievant then shared his observations with other jurors during deliberations. The jury found Fell guilty of all charges, and sentenced him to death on the capital counts.

¶ 4. Five years later, grievant told Fell's post-conviction attorneys about his actions during trial. The attorneys drafted a statement for grievant to sign. Grievant made changes and additions to the statement, and reviewed and initialed each paragraph before signing it. Fell's attorneys then sought to vacate Fell's convictions, alleging juror misconduct. In sworn testimony before the federal court, grievant denied visiting the crime scene during trial, or telling other jurors about his observations.

¶ 5. In a July 2014 ruling, the federal court concluded that grievant violated the fundamental integrity of Fell's trial by deliberately undertaking an independent investigation. The court found this definitively established by grievant's sworn declaration, the testimony of his then-girlfriend who traveled with him to the crime scene, and the testimony of a later girlfriend with whom he shared his plans. The court explained that grievant had traveled over two hours to view the crime scenes in knowing violation of the court's orders. While there, he viewed extra-recordinformation that was highly relevant to the aggravating and mitigating factors presented at trial. After breaching his oath as a juror, he returned to the courtroom where he purposely neglected to inform the court of his transgressions. And years later, during a post-trial proceeding convened specifically to assess the fairness of Fell's trial, grievant openly lied to the court about whether he had committed these acts. The court concluded that grievant's "extraordinary and continuous defiance of the [c]ourt's directives . . . tainted the integrity of Fell's trial and violated his constitutional right to an unbiased jury." Despite the significant resources that had been invested in Fell's trial, grievant's behavior required the court to vacate Fell's convictions and schedule a new trial.

¶ 6. In August 2014, a Vermont newspaper article identified grievant as the juror responsible for Fell's conviction being overturned and described him as an AOT employee. The article recounted the federal court's findings and conclusions, including its statement about grievant's "brazen disobedience, dishonesty, and unwillingness to decide the case based upon the evidence presented at trial." AOT officials learned of the article, and during the second week of August 2014, a Department of Human Resources (DHR) investigator was assigned to look into grievant's actions. Additional newspaper reports referring to grievant's misconduct and his status as a state employee followed. Other state employees expressed concern to grievant's supervisor about grievant's judgment and disregard of protocol in connection with his service as a juror, and its potential effect in the workplace. Grievant's supervisor had similar concerns, although she did not limit grievant's job duties in any way.

¶ 7. While working on grievant's case, the DHR investigator had twenty-six other active investigations, an unusually high number. His investigation included reviewing the ninety-three-page federal court decision, gathering documents related to a timesheet issue, contacting the U.S. Attorney's Office to obtain a copy of grievant's testimony before the federal court, reviewing thetranscript of that testimony, and collecting media reports involving the Fell trial and grievant's role in it. The investigator issued his report to AOT on March 23, 2015.

¶ 8. A month later, on April 30, 2015, Richard Tetreault, AOT's Director of Highways, informed grievant in writing that AOT was contemplating imposing serious disciplinary action against him including dismissal. The disciplinary charges were based almost exclusively on grievant's conduct in connection with the Fell trial.^* Grievant did not realize he was under investigation for alleged misconduct until he received the letter. Grievant had an opportunity to respond to the charges on June 10, 2015. He did not appear at the meeting, but a union representative attended on his behalf.

¶ 9. On July 22, 2015, Tetreault terminated grievant's employment based on his finding that grievant committed misconduct and gross misconduct. In reaching his decision, Tetreault evaluated the Colleran factors. See In re Jewett, 2009 VT 67, ¶ 23, 186 Vt. 160, 978 A.2d 470 (identifying and endorsing use of factors articulated in In re Colleran, 6 V.L.R.B. 235, 268-69 (1983), in considering appropriate disciplinary action). Tetreault concluded that grievant's offenses of dishonesty and unethical behavior were unacceptable and intolerable, and constituted serious misconduct. He expressed concern about grievant's credibility in interactions with other state and federal employees. Tetreault considered the fact that grievant had no record of discipline and had been viewed as a satisfactory employee, although he noted that grievant had a history of needing to correct his behavior with coworkers. He determined that grievant's misconduct undermined his supervisors' and coworkers' trust in him, and that grievant's credibility could not be restored given the severity of his actions and dishonesty. As to the remaining factors, Tetreault found that: the penalty of dismissal was consistent with that imposed on other employees who hadcommitted such serious dishonesty; grievant's offenses had been reported in the media and were well-known across the AOT and other state and federal agencies that interacted with AOT; grievant's behavior exposed the State to serious potential liability; AOT's reputation could be severely undermined if it did not dismiss grievant; grievant had fair notice that he should not engage in dishonest and unethical behavior, and he did not demonstrate good potential for rehabilitation given his pattern of behavior. Tetreault found no mitigating circumstances diminishing the seriousness of grievant's misconduct, and he concluded that dismissal was the only acceptable action.

¶ 10. The Vermont State Employees' Association (VSEA) filed a grievance with the Board, arguing in relevant part that the State violated the collective bargaining agreement (CBA) by failing to impose discipline within a reasonable time and dismissing grievant without just cause.

¶ 11. Following a hearing, the Board concluded that the State abused its discretion in dismissing grievant. At the outset, it agreed with grievant that the State did not "act promptly to impose discipline . . . within a reasonable time of the offense" as required by the CBA. It found that although AOT became aware of the bulk of grievant's alleged misconduct from an August 2014 newspaper article, it took seven months to complete an investigative report, and several more months elapsed before grievant was dismissed. The Board rejected the argument that the investigator's heavy workload justified the State's violation of the prompt-discipline requirement. It also rejected the State's assertion that it should not find a violation of this provision because grievant failed to show that he was prejudiced by the delay. The Board found that grievant suffered some inherent prejudice from the delay because he...