Providence Lodge No. 3, Fop v. Pera

• Decision Date: 10 July 2008
• Docket Number: No. 2006-343-Appeal.,2006-343-Appeal.
• Parties: PROVIDENCE LODGE NO. 3, FRATERNAL ORDER OF POLICE et al. v. PROVIDENCE EXTERNAL REVIEW AUTHORITY et al.
• Court: Rhode Island Supreme Court

951 A.2d 497

PROVIDENCE LODGE NO. 3, FRATERNAL ORDER OF POLICE et al. v. PROVIDENCE EXTERNAL REVIEW AUTHORITY et al.

No. 2006-343-Appeal.

Supreme Court of Rhode Island.

July 10, 2008.

Lauren Jones, Esq., Providence, for Petitioner.

Jason Preciphs, Esq., Providence, for Respondent.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice GOLDBERG, for the Court.

This case came before the Supreme Court on May 7, 2008, on appeal by the plaintiffs — Providence Lodge No. 3, the Fraternal Order; of Police, Keith LaFazia, and Joseph Sarrasin (FOP, officers, or collectively plaintiffs) — from a declaratory judgment and order entered in favor of the defendants, Providence External Review Authority,¹ the City of Providence, and David N. Cicilline, in his capacity as mayor of the City of Providence (city, or collectively defendants). On appeal, the plaintiffs contend that the trial justice erred in: (1) refusing to strike down the Providence External Review Authority (PERA) Providence Code Sec. 18½-2 (PERA Ordinance) as unconstitutional; (2) failing to find that the PERA Ordinance was preempted by G.L. 1956 chapter 28.6 of title 42, "Law Enforcement Officers' Bill of Rights," (LEOBOR); and (3) erroneously construing this Court's decision in City of East Providence v. McLaughlin, 593 A.2d 1345 (R.I.1991), in which we held that an initial investigation, not conducted by law enforcement, did not transgress the provisions of LEOBOR. For the reasons stated in this opinion, we affirm the declaratory judgment and order entered by the Superior Court.²

Facts and Travel

In 2002, the PERA Ordinance was enacted by the Providence City Council to provide a system of civilian oversight with respect to the Providence Police Department. The city council did not write on a clean slate, however, because in 1973, three years before the General Assembly enacted LEOBOR, a civil rights action that was tried to completion in federal court culminated in a consent judgment (consent decree) that is still in force to this day. See section II, infra. The parties to that consent decree, the city, the FOP and others, agreed to a procedure for the filing, investigation, and adjudication of civilian complaints against members of the Providence Police Department. Additionally, the parties agreed that all uniformed officers would be assigned badge numbers and the city would maintain a roster with photographs and badge numbers of all uniformed personnel. The provisions of this consent decree have withstood two post-LEOBOR challenges in federal court.

Under the PERA Ordinance, PERA is vested with the authority to receive complaints, conduct investigations and hearings, make findings of fact, and if appropriate, forward recommendations of discipline to the chief of police. In addition, PERA is charged with community outreach responsibilities to inform the public of its mission.

The PERA began receiving citizen complaints on June 24, 2005. During the next several months, four complaints were referred for active investigation, and the police department's internal affairs office was notified. On November 8, 2005, an individual filed a complaint against two Providence police officers, alleging acts of misconduct. The PERA commenced an investigation, and a notice of such was sent to each officer on March 10, 2006. The notices informed the officers that they were to contact PERA investigators by March 17, 2006, to schedule an interview. The officers failed to comply, and on August 25, 2006, PERA sent each officer a second request to schedule an interview and a notice that a hearing was scheduled to commence on September 21, 2006. The officers also were informed that, if the complaints were sustained, they could be subject to discipline in accordance with a predetermined disciplinary matrix.

As the hearing date approached, the officers turned to the Superior Court and filed a complaint seeking declaratory and injunctive relief. As grounds for relief, plaintiffs raised the same contentions that are before us: that the PERA scheme was enacted in excess of the city's authority under article 13, section 2, of the Rhode Island Constitution and that it impermissibly intruded upon an area reserved to the General Assembly, under article 13, section 4, of the Rhode Island Constitution. Further, plaintiffs contended that the PERA Ordinance was in conflict with LEOBOR and therefore was invalid. The parties entered into an agreement postponing the PERA hearing and submitted an agreed upon record to the trial justice. On November 3, 2006, the trial justice heard argument and made a bench decision.

In his decision, the trial justice acknowledged that police matters are issues of statewide concern, but he rejected plaintiffs' contention that LEOBOR foreclosed the city's right to investigate police misconduct. The trial justice found that LEOBOR's procedural safeguards are activated at the point in time when the chief of police actually receives a recommendation that an officer should be subject to discipline, but that these procedural safeguards do not prevent the city from adopting procedures to investigate citizen complaints against its police officers. In exercising his discretion under the Uniform Declaratory Judgments Act, the trial justice declined to declare the PERA Ordinance unconstitutional. He concluded, however, that as a civilian review board, PERA had no authority to sanction an officer or direct the chief of police to impose discipline because that power was vested in the chief of police, "or perhaps someone that he [or she] designates," who may do so only in accordance with LEOBOR.

The trial justice emphasized that PERA "has no prerogative to mete out punishment to any officer whose conduct [it] investigates." Citing this Court's holding in McLaughlin, 593 A.2d at 1351, in which we held that "a preliminary proceeding not resulting directly in disciplinary action * * * did not have to meet the requirements of the Law Enforcement Officers' Bill of Rights[,]" the trial justice concluded that PERA may investigate complaints of officer misconduct, but he added that its authority is limited. According to the trial justice, the PERA members may recommend that an officer be disciplined, and may do so "with all the energy they can muster," but they can do no more. The decision to mete out punishment rests with the chief of police. The trial justice flatly rejected plaintiffs' contention that the chief of police must accept PERA's recommendation and impose sanctions. He declared that the provisions of LEOBOR control the manner in which the chief of police may impose discipline, and that any provision of the ordinance that suggests otherwise should be deemed inoperative.

The trial justice denied plaintiffs' request to declare the PERA Ordinance invalid in its entirety. He found that PERA may conduct investigations and hearings of alleged police misconduct and, if the allegations are sustained, make recommendations to the chief of police. Further, the trial justice declared that the ordinance should not be construed or interpreted in any manner that would authorize PERA to impose discipline; he also ruled that the ordinance should not be construed or interpreted as authorizing or requiring the chief of police to impose discipline without affording the protections set forth in LEOBOR. The plaintiffs filed a timely notice of appeal to this Court on November 28, 2006.

Standard of Review

A Superior Court decision granting or denying declaratory relief is reviewed with great deference by this Court. Fleet National Bank v. 175 Post Road, LLC, 851 A.2d 267, 273 (R.I.2004). In a declaratory judgment action, the trial justice undertakes a fact-finding function, without the assistance of a jury, and then decides whether to grant or deny relief. "It is well-established that `the findings of fact of a trial justice, sitting without a jury, will be given great weight and will not be disturbed absent a showing that the trial justice overlooked or misconceived material evidence or was otherwise clearly wrong.'" Casco Indemnity Co. v. O'Connor, 755 A.2d 779, 782 (R.I.2000) (quoting Technology Investors v. Town of Westerly, 689 A.2d 1060, 1062 (R.I.1997)). The same deference will be applied to the "resolution of mixed questions of law and fact, as well as the inferences and conclusions drawn from the testimony and evidence * * *." Wickes Asset Management, Inc. v. Dupuis, 679 A.2d 314, 317 (R.I.1996) (quoting Warwick Musical Theatre, Inc. v. State, 525 A.2d 905, 909-10 (R.I.1987)). However, a trial justice's findings with respect to questions of law will be reviewed de novo. Casco Indemnity Co., 755 A.2d at 782.

Analysis

This Court has recognized that LEOBOR is "the exclusive remedy for permanently appointed law enforcement officers who are under investigation and subject to discipline action" by a law enforcement agency for noncriminal allegations of misconduct. In re Sabetta, 661 A.2d 80, 83 (R.I.1995). The LEOBOR sets forth specific procedural rights for law enforcement officers who may be subject to an investigation of misconduct by a law enforcement agency.³ Town of North Kingstown v. Local 473, International Brotherhood of Police Officers, 819 A.2d 1274, 1276 (R.I.2003).

In contrast, the PERA scheme does not provide for an investigation by a law enforcement agency; nor, as modified, does it allow for police discipline.⁴ The civilian members of PERA are limited to making a recommendation to the chief of police. In accordance with the limiting construction placed on the ordinance by the trial justice, and consistent with the provisions of LEOBOR, the chief of police is vested with the authority to impose discipline or to decline to do so. Whether or not the city maintains a review board similar to PERA, the discretionary determination to impose discipline always rests with the chief of police. This Court has observed that "[r]egardless...