Ricci v. R.I. Commerce Corp.

• Decision Date: 28 November 2022
• Docket Number: C. A. WC-2020-0502
• Parties: HELEN RICCI, Plaintiff, v. RHODE ISLAND COMMERCE CORPORATION; RHODE ISLAND AIRPORT CORPORATION; RHODE ISLAND AIRPORT POLICE DEPARTMENT; DENNIS GRECO; and IFTIKHAR AHMAD, Defendants.
• Court: Rhode Island Superior Court

HELEN RICCI, Plaintiff,
v.
RHODE ISLAND COMMERCE CORPORATION; RHODE ISLAND AIRPORT CORPORATION; RHODE ISLAND AIRPORT POLICE DEPARTMENT; DENNIS GRECO; and IFTIKHAR AHMAD, Defendants.

C. A. No. WC-2020-0502

Superior Court of Rhode Island

November 28, 2022

For Plaintiff: Joseph F. Penza, Jr., Esq.

For Defendant: Christopher N. Dawson, Esq. Timothy K. Baldwin, Esq. Timothy C. Cavazza, Esq. Joseph D. Whelan, Esq.

DECISION

GIBNEY, P.J.

Helen Ricci (Plaintiff) is the former Deputy Chief of the Rhode Island Airport Police Department (RIAPD), hired by the Rhode Island Airport Corporation (RIAC) (RIAPD and RIAC collectively, Defendants) and terminated without the benefit of a hearing as otherwise required by G.L. 1956 § 42-28.6-4, the Law Enforcement Officers' Bill of Rights (LEOBOR). On June 21, 2022, the Rhode Island Supreme Court affirmed that Plaintiff is a "law enforcement officer" covered by LEOBOR and instructed this Court on remand to "order compliance with the provisions of § 42-28.6-4 and restoration of [Plaintiff]'s salary and benefits to the status quo ante.' Ricci v. Rhode Island Commerce Corp., 276 A.3d 903, 909 (R.I. 2022). Now before this Court are two motions filed by Plaintiff following remand: (1) a Motion to Dismiss Charges due to Defendants' failure to comply with LEOBOR (Pl.'s Mot. to Dismiss Charges 1); and (2) a Motion to Order Restoration of Salary and Benefits without reduction for any health benefits or

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wages received from other employment.^[1] (Pl.'s Mot. to Order Restoration of Salary & Benefits (Pl's Mot. for Restoration) 3.) Jurisdiction is pursuant to G.L. 1956 § 8-2-13 and § 42-28.6-4.

I

Facts and Travel

On November 10, 2020, Defendants terminated Plaintiff based on alleged insubordination, among other reasons. (Compl. ¶¶ 15-17.) As required by §§ 42-28.6-4(c)-(d), Plaintiff requested a LEOBOR hearing and provided the name of her representative for the hearing committee. Id. ¶¶ 21-22. Defendants failed to respond or appoint their own committee representative because they believed that Plaintiff was not a "law enforcement officer" entitled to LEOBOR protections. Id. ¶¶ 24, 27.

On December 1, 2020, Plaintiff filed a Complaint with this Court seeking the protections of LEOBOR as a "law enforcement officer" as defined in § 42-28.6-1(1). See generally Compl.; see also Pl.'s Mem. of Law in Supp. of her Request for Decl. & Inj. Relief (Mar. 15, 2021 Mem.). In her March 15, 2021 memorandum, Plaintiff noted that, if the Court were to rule in Plaintiffs favor, the parties would need to address whether Defendants' noncompliance with LEOBOR would nevertheless necessitate dismissal of all charges contemplated by Defendants against Plaintiff or whether Defendants could show good cause for their failure to comply with the hearing timelines dictated by § 42-28.6-4(e). (Mar. 15, 2021 Mem. 8-9.) Section 42-28.6-4(e) obligated Defendants to communicate their hearing committee representative within five

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days of their receipt of Plaintiff s request for a hearing or to petition this Court for permission to file an untimely selection for good cause shown. Section 42-28.6-4(e).

On May 6, 2021, this Court issued a Decision granting Plaintiffs request for declaratory and mandatory injunctive relief, concluding that "Plaintiff . . . [was] entitled to the protections set forth under the LEOBOR." Ricci v. Rhode Island Commerce Corp., No. WC-2020-0502, 2021 WL 1902787, at *6 (R.I. Super. May 6, 2021). In accordance with that Decision, Plaintiffs counsel presented a draft order to the Court, which was entered on May 10, 2021, and ordered the following:

"1. The Court grants plaintiffs request for declaratory relief and injunctive relief in accordance with the Court's decision of May 6, 2021

"2. Plaintiff shall be reinstated to her position as Deputy Chief of the Rhode Island Airport Police Department with all back pay and benefits

"3. Plaintiff is entitled to the protection set forth under the Law Enforcement Officers' Bill of Rights.

"4. Pursuant to R.I.G.L. § 42-28.6-4(e), defendant shall provide plaintiff with the name of one active or retired law enforcement officer to serve on the Hearing Committee.

"5. The Court's findings of fact and conclusions of law set forth in its decision of May 6, 2021 are incorporated by reference herein."

(Order Granting Decl. & Inj. Relief, May 10, 2021.)

Defendants filed a timely appeal. (Docket, SU-2021-140-A.)^[2] Our Supreme Court affirmed the May 10, 2021 Order, although it did so using an alternate analysis. See Ricci, 276 A.3d at 907. As is relevant to this stage of the proceedings, Justice Robinson, writing for the Court, stated:

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"In our judgment, Ms. Ricci is fully entitled to the protections granted to law enforcement officers in the LEOBOR statute. Because the defendants did not comply with the provisions of § 42-28.6-4(a) and terminated Ms. Ricci in violation thereof, she is entitled to all of the salary and benefits she would have received had she not been wrongfully terminated.

". . .

"For the reasons set forth in this opinion, we affirm the order of the Superior Court in part, we vacate that order in part, and we remand the case to the Superior Court with instructions that it order compliance with the provisions of § 42-28.6-4 and restoration of Ms. Ricci's salary and benefits to the status quo ante." Id. at 909.

On remand to this Court, Plaintiff now revives her preserved argument that Defendants' failure to select a representative for the LEOBOR hearing within five days as required by § 42-28.6-4(e) necessitates dismissal of all charges contemplated by Defendants against Plaintiff. (Pl.'s Mot. to Dismiss Charges 2-3.) Although the five-day requirement may be excused upon a showing of "good cause," Plaintiff contends that Defendants' failure to comply due to their erroneous belief that LEOBOR did not apply to Plaintiff-even if in good faith-does not constitute good cause. Id. at 2.

Plaintiff further avers that she is entitled to back pay, health insurance reimbursement, relocation expenses, and accrued amounts of vacation, sick, and personal leave. (Pl.'s Mot. for Restoration Attach. 1.) At an October 31, 2022 hearing before this Court, Plaintiff argued that Defendants may not reduce the back pay and benefit amounts owed based on Plaintiffs outside earnings, unemployment benefits, and health benefits received during the interim period from termination to reinstatement. See generally Tr. Oct. 31, 2022. In support of this argument, Plaintiff pointed to: (1) Section 42-28.6-13, which repeatedly states that reinstated employees shall be "reimbursed all salary and benefits," see, e.g., §§ 42-28.6-13(d), (g)-(h) (emphasis added); and (2) our Supreme Court's statement that Plaintiff is "entitled to all of the salary and

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benefits she would have received had she not been wrongfully terminated." Ricci, 276 A.3d at 909 (emphasis added).^[3]

II

Standard of Review

Questions of statutory construction, including review of LEOBOR, are assessed de novo. Ricci, 276 A.3d at 906. "Enacted in 1976, LEOBOR 'is the exclusive remedy for permanently appointed law-enforcement officers who are under investigation by a law-enforcement agency for any reason that could lead to disciplinary action, demotion, or dismissal.'" City of Pawtucket v. Laprade, 94 A.3d 503, 511 (R.I. 2014) (quoting In re Simoneau, 652 A.2d 457, 460 (R.I. 1995)). "LEOBOR 'is remedial in nature,' and 'was enacted to protect police officers from infringements of their rights in the course of investigations into their alleged improper conduct.'" Id. (quoting Ims v. Town of Portsmouth, 32 A.3d 914, 925 (R.I. 2011)). As such, it must be liberally interpreted in favor of its protected class of officers. Ricci, 276 A.3d at 906-07.

To the extent that a contested provision of LEOBOR is unambiguous, "there is no room for statutory construction[,] and we must apply the statute as written." In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994). Our Supreme Court has noted, however, that "[t]he [LEOBOR] statute is not a model of clarity." Providence Lodge No. 3, Fraternal Order of Police v. Providence External Review Authority, 951 A.2d 497, 505 (R.I. 2008). Therefore, this Court's mandate "'is to determine and effectuate the Legislature's intent and to attribute to the enactment

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the meaning most consistent with its policies or obvious purposes.'" Ricci, 276 A.3d at 906 (quoting Such v. State, 950 A.2d 1150, 1155-56 (R.I. 2008)).

III

Analysis

A

Motion to Dismiss Charges

Plaintiff asserts that, notwithstanding this Court's May 10, 2021 Order, Defendants' failure to comply with the five-day requirement in § 42-28.6-4(e) necessitates dismissal of all charges with prejudice. (Pl.'s Mot. to Dismiss Charges 2-3.) Defendants press two arguments in response: (1) dismissal is foreclosed by the fact that our Supreme Court broadly ordered compliance with LEOBOR's notice and hearing requirements of § 42-28.6-4, (Defs.' Obj. to Dismiss Charges 4); and (2) in the event that this Court agrees with Plaintiff that charges should be dismissed due to Defendants' noncompliance with the five-day requirement, Defendants ask in the alternative that this Court excuse such noncompliance for good cause shown as permitted by § 42-28.6-4(e). Id. at 7.

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Supreme Court Ricci Opinion

Defendants' first argument that the specific language of the Supreme Court's Ricci opinion forecloses dismissal is without merit. The parties did not ask the Supreme Court to opine on § 42-28.6-4(e) or to rule on whether charges should be dismissed, so it is unsurprising that the Court did not reach those issues. Accord Tempest v. State, 141 A.3d 677, 687 n.15 (R.I. 2016) (declining to reach unnecessary issue or give "guidance" to the Superior Court in recognition of "'the cardinal principle of judicial...