Riccio v. County of Fairfax, Va.

• Decision Date: 12 July 1990
• Docket Number: No. 89-2399,89-2399
• Citation: 907 F.2d 1459
• Parties: Gary RICCIO, Plaintiff-Appellant, v. COUNTY OF FAIRFAX, VIRGINIA; J. Hamilton Lambert; John E. Granfield, Chief; the Board of Supervisors of Fairfax County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1459

907 F.2d 1459

Gary RICCIO, Plaintiff-Appellant, v. COUNTY OF FAIRFAX, VIRGINIA; J. Hamilton Lambert; John E Granfield, Chief; the Board of Supervisors of Fairfax County, Defendants-Appellees.

No. 89-2399.

United States Court of Appeals Fourth Circuit.

Argued Jan. 11, 1990.

Decided July 12, 1990.

Peter David Greenspun, Klein & Greenspun, Fairfax, Va. (Sarah Deneke, Klein & Greenspun, Fairfax, Va., on the brief), for plaintiff-appellant.

David John Fudala, Hall, Markle, Sickels & Fudala, P.C., Fairfax, Va., for defendants-appellees.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

MURNAGHAN, Circuit Judge:

Discharged Fairfax County Police Officer Gary Riccio brought an action pursuant to 42 U.S.C. Sec. 1983, alleging that the process by which the decision to discharge him was made violated his procedural due process rights under the Fourteenth Amendment of the United States Constitution. Riccio named as defendants the County of Fairfax, Virginia, Fairfax County Executive J. Hamilton Lambert, Fairfax County Police Department Chief of Police John E. Granfield, and the Board of Supervisors of Fairfax County. After a hearing on motions for summary judgment brought by all the parties, the district court granted summary judgment in favor of the defendants. Riccio has appealed.

I.

On June 24, 1987, Ann Elizabeth Stark contacted the Fairfax County Police Department ("the Department") to report that she believed that Riccio had made several obscene phone calls to her. Stark had tape recorded two of the calls. That evening, Stark informed Riccio's supervisor, Lieutenant Phillip Lively, that she received the alleged calls on June 21, 1987, and June 24, 1987. Stark apparently knew Riccio, first becoming acquainted with him when she was in high school and he, while on duty, would spend time on school grounds. The two apparently had subsequent encounters.

Lively immediately contacted the Department's Internal Affairs Section, which assigned Sergeant Steven Hardgrove to investigate the matter. Later that evening, Hardgrove contacted Riccio and interviewed him at some length. At the interview, Riccio denied making the calls. Riccio acknowledged that he knew Stark and that he first met her while she was in high school. He told Hardgrove that the relationship he established with Stark and other high school students was for the purpose of improving the image of the police department generally and establishing himself as a police officer to whom they could turn. He also informed Hardgrove that he was visiting his parents in Pennsylvania on June 21, the first day of the alleged calls to Stark, and he provided Hardgrove with specific information regarding his activities on June 24, the second day of the alleged calls to Stark.

After the interview, at 1:00 a.m. on June 25, Hardgrove informed Riccio that he was relieved of duty, with pay, pending further investigation of the matter. Also on June 25, Riccio received written notice that he was being investigated for violating Department Regulations 201.3 (governing obedience to laws and regulations) and 201.7 (governing standards of conduct). ¹ Hardgrove instructed Riccio not to discuss the investigation with anyone.

As Hardgrove proceeded with his investigation, he learned that earlier in 1987, a woman named Jennifer Dundas had accused Riccio of making obscene phone calls to her. Although the record is not clear, it appears that Dundas decided not to pursue a formal complaint and the Department did not make any formal charges. Although, in his brief before us, Riccio claims that he was "cleared of all allegations of making obscene phone calls" to Dundas, there is no such indication in the record. Indeed, the report of Lt. Lively, who investigated the Dundas incident, states that Riccio admitted to calling Dundas, although he characterized the call as a practical joke.

Shortly after Riccio's suspension, several other relevant events occurred. According to Cheryl Beaudoin, a police dispatcher in Vienna, Virginia, Riccio informed Beaudoin, on June 25, of the charges pending against him. ² On July 7, the Department conducted a polygraph exam on Riccio. Riccio contends that the Department ordered him to take the exam and in deposition testimony Hardgrove conceded that his directive was probably construed as an order. However, it is also true that the idea of taking a polygraph was first proposed by Riccio on the night of his suspension. ³ Fairfax County Police Investigator Guy Morgan administered the exam and concluded that Riccio was "deceptive" in his responses.

Hardgrove and Riccio met on July 2 and July 16. At the latter meeting, the two discussed the polygraph results and Riccio's communications to Beaudoin, of which Hardgrove had learned. Hardgrove played a portion of the tape that Stark had provided, which prompted Riccio to state, "It sure sounds like me." ⁴

On July 22, Hardgrove presented Chief of Police John E. Granfield with his report. That report recommended that Riccio be held in violation of Regulation 201.3 (governing obedience to laws and regulations) as it pertains to Va.Code Ann. Sec. 18.2-427 (proscribing obscene phone calls); Regulation 201.20 (governing truthfulness) for contradicting himself in his description of events with respect to the Dundas complaint; and Regulation 205.1 (governing insubordination) for discussing the investigation with Beaudoin notwithstanding the order not to discuss the matter with anyone. The recommendations were concurred in by Lt. Daniel J. Kerr of the Internal Affairs Section. In addition to providing the evidence against Riccio, the report provided Riccio's explanation for his interaction with the high school students; Riccio's characterization of the call to Dundas; the fact that Riccio made only one conflicting statement in the pre-polygraph test interview; Riccio's responses when asked to explain the polygraph results; the fact that Beaudoin, who had heard the Stark tape, concluded that the voice on the tape was "definitely not" Riccio's; and the fact that Riccio generally maintained his innocence throughout. The report did not include the alibi evidence presented by Riccio to Hardgrove regarding the fact that he was in Pennsylvania on June 21 or that he claimed he could account for his activities on June 24. Nor did the report indicate any investigation of Riccio's alibi evidence. ⁵

On August 7, a meeting was held between Riccio, Hardgrove, Captain Rappaport (Riccio's immediate supervisor), and Major Edward A. Stevens (Commander of the Patrol Bureau). The defendants contend, and Riccio does not deny, that Riccio was given the opportunity to present his side of the story at the meeting. Throughout the meeting, reference apparently was made to the Hardgrove report of which Riccio was not provided a copy (although there is no indication that he asked to see it). In the record before us, there is an Internal Affairs Routing Slip signed by Major Stevens on August 6, the day before the meeting, which reads: "Concur with [Internal Affairs] findings. Recommend termination on 8/7/87 after hearing."

Major Stevens found Riccio in violation of Regulation 201.3, Regulation 201.20, and Regulation 205.1. He concluded that he would recommend that Riccio be terminated. Major Stevens formalized those conclusions in a memorandum, dated August 7 and signed by Riccio. The memorandum further advised Riccio as follows:

You may make a written reply to my recommendation within ten business days of your receipt of this letter. This reply is not an appeal.

You have ten business days to appeal this recommendation under General Order 305.4 or 305.5. Failure to respond will be an indication that you waive your right to appeal.

At oral argument, counsel for the defendants informed us that Riccio's pay was cut off on August 7.

After receiving Major Stevens' recommendation, Riccio obtained counsel. Through his attorneys, he elected to challenge Major Stevens' conclusion pursuant to Section 305.4 of the Department's General Orders. The process required the appointment of a three-member Hearing Panel, one member to be selected by Riccio, one member to be selected by the Department, and one member to be selected by the first two members. The member selected by the Department served as chair. According to General Order 305.4, Article IX, the findings of the Hearing Panel are to be "given significant weight but are advisory and not binding upon the Chief of Police."

The Hearing Panel convened and conducted evidentiary hearings on September 22, 23, 30, and October 1. The Department presented essentially the evidence relied upon in the Hardgrove report. That evidence included the Hardgrove report itself, the testimony of Stark, Dundas, Lt. Lively, Hardgrove, and, without objection, Morgan (the polygraph examiner). Riccio presented character witnesses, witnesses who knew Riccio's voice and did not believe that the caller on the Stark tape was Riccio, a polygraph expert who disagreed with one of Morgan's five findings of deception and a voice expert who did not believe the voice on the Stark tape was Riccio's. The Department presented the rebuttal testimony of FBI Agent Bruce Koenig who challenged the method used by Riccio's expert in reaching his conclusions. ⁶

On October 1, after two and one-half hours of deliberation, the Hearing Panel sustained the charges against Riccio and recommended termination. Lorenzo Williams, the panel member selected by Riccio, dissented. The next day, Chief of Police Granfield reviewed the Hearing Panel's findings and informed Riccio that he was "terminating [Riccio's] employment" effective that day.

Riccio then pursued further appeal rights secured by General Order 305.4. Pursuant to the order, Riccio appealed Chief Granfield's decision to Fairfax County Executive J. Hamilton Lambert. Lambert ordered the appointment of a Special Police Hearing Panel ("SPHP"), which was...