Perron v. City of Somersworth, 87-483

• Decision Date: 29 December 1988
• Docket Number: No. 87-483,87-483
• Citation: 131 N.H. 303,553 A.2d 283
• Parties: Ronald W. PERRON v. CITY OF SOMERSWORTH, et al.
• Court: New Hampshire Supreme Court

Page 283

553 A.2d 283

131 N.H. 303

Ronald W. PERRON v. CITY OF SOMERSWORTH, et al.

No. 87-483.

Supreme Court of New Hampshire.

Dec. 29, 1988.

Shea, Mertens, Sager & Sager, Wolfeboro (Edward J. Mertens, on the brief and orally), for plaintiff.

Shaheen, Cappiello, Stein & Gordon, Dover, and Elizabeth Cazden, Manchester (Daniel M. Cappiello and Elizabeth Cazden on the brief, and Daniel M. Cappiello orally), for defendant.

SOUTER, Justice.

The plaintiff appeals an order of the Superior Court (Nadeau, J.) affirming his 1987 dismissal as Chief of Police of the City of Somersworth. We affirm.

The plaintiff, Ronald W. Perron, served as chief of police in the defendant city from 1982 until August 18, 1987, when he was suspended with pay pending investigation into allegations of wrongdoing. On September 18, 1987, the city manager dismissed him for cause, under the authority of RSA 105:2-a, and in a three-page letter concluded that the plaintiff could no longer lead the police department or be trusted to fulfill his duties as its chief.

The manager stated five factual findings in support of his decision: (a) the plaintiff had used money of a fraternal organization, the Somersworth Police Association, of which he was treasurer, to pay for his membership in a health club, without reimbursing the association; (b) he had limited the management authority of the police department's senior officers and had excluded them from participating in the budgeting process; (c) he had retained records of disciplinary action taken against police officers after he should have destroyed them under the terms of a collective bargaining agreement; (d) he had used Somersworth Police Association funds to stock a coke machine under his control, had failed to reimburse the association, had failed to account for the machine's profits, and had lied about their amount; and (e) he had falsely denied that funds were available for controlled drug purchases, under circumstances that had led others to infer that he was guilty of irregularities in the use of those funds.

The plaintiff petitioned the superior court under RSA 105:2-a for review of the dismissal, and subsequently stipulated to the factual truth of three of the justifications invoked by the city manager: the failure to reimburse the association for health club dues, the failure to destroy the disciplinary records, and the misrepresentations to subordinates about money available for drug purchases. He denied imposing any undue limitation on his subordinates' management authority, however; he contested the allegation of mishandling money in running the coke machine; and he denied that there was cause to fire him.

The superior court ruled otherwise and upheld the city manager's decision. In his appeal before us, the plaintiff argues that the trial court applied an erroneous standard of cause, misunderstood the scope of the hearing, and could not as a matter of law have sustained the dismissal on the record before it.

The first two issues call for only summary treatment, however, the plaintiff having failed to raise them in the trial court. Specifically, he claims that the court was mistaken both in stating it could not substitute its judgment for that of the city manager, and in failing to recognize that "cause" sufficient for dismissal under RSA 105:2-a is "substantial cause" as described in such prior cases as Ingersoll v. Williams, 118 N.H. 135, 137, 383 A.2d 1119, 1120 (1978).

Were we to reach the merits of either claim, we would not hold out much hope for the plaintiff's position. Given the burden of persuasion in the superior court, which we will speak to below, we see no apparent error in the trial court's observation that it was not free merely to substitute its own view for the city manager's. And given the court's explicit ruling that state law required a chief's dismissal to be supported by "substantial cause which must specially relate to ... the administration of the office and must be restricted to something of a substantial nature directly affecting the rights and interest of the public," we see no plausible basis to doubt that the court correctly understood that "cause" under the statute was substantial cause as Ingersoll explained it. This seems clear, even though elsewhere in its opinion the court may have been less rigorous in describing the standard and may have cited a case of doubtful pertinence.

What is dispositive for our purposes, however, is that the plaintiff entirely failed to raise these two issues in the trial court, either by requests for rulings of law filed prior to the court's decision, or by motion for reconsideration after the decision was rendered and its alleged errors were revealed. It is axiomatic that matters ignored in the trial court may not be raised here. Daboul v. Town of Hampton, 124 N.H. 307, 309, 471 A.2d 1148, 1149 (1983).

That leaves the third issue, whether as a matter of law the trial court could have sustained the dismissal on the record before it. This does call for consideration on the merits, which we will preface with attention to the language of the governing statute and our prior case law construing its terms.

RSA 105:2-a provides that an appointed chief of police

"shall be subject to suspension without pay or dismissal only for cause, and after he has been presented with a written specification of the reasons. Upon such suspension or dismissal, he shall be entitled to a hearing, on the merits and reasonableness of the action, in superior court.... The court shall have the power to affirm, modify or negate such suspensions or dismissal, based upon its findings."

As we noted above, Ingersoll v. Williams indicated that "cause" for removal under the statute must be "substantial," 118 N.H. at 137, 383 A.2d at 1120, and although the very breadth of a chief's responsibilities precludes any simple, pat definition of "substantial cause," the term derives its practical significance from three different considerations. At the least, the requirement bars an...