Rossi v. Town of Pelham, Civil No. 96-139-SD.

• Decision Date: 29 September 1997
• Docket Number: Civil No. 96-139-SD.
• Citation: 35 F.Supp.2d 58
• Parties: Cheryl B. ROSSI v. TOWN OF PELHAM; Peter R. Flynn, individually and in his capacity as Pelham Administrative Ass't; Paul R. Scott, individually and in his capacity as Vice-Chairman of the Pelham Bd. of Selectmen; David Rowell, individually and in his capacity as Pelham Police Chief.
• Court: U.S. District Court — District of New Hampshire

35 F.Supp.2d 58

Cheryl B. ROSSI v. TOWN OF PELHAM; Peter R. Flynn, individually and in his capacity as Pelham Administrative Ass't; Paul R. Scott, individually and in his capacity as Vice-Chairman of the Pelham Bd. of Selectmen; David Rowell, individually and in his capacity as Pelham Police Chief.

Civil No. 96-139-SD.

United States District Court, D. New Hampshire.

September 29, 1997.

Order Denying Reconsideration December 18, 1997.

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COPYRIGHT MATERIAL OMITTED

Michael L. Donovan, Concord, NH, for Plaintiff.

Diane M. Gorrow, Soule, Leslie, Kidder, Zelin, Sayward & Loughman, Salem, NH, Donald E. Gardner, Devine, Millimet & Branch, PA, Manchester, NH, for Defendants.

ORDER

DEVINE, Senior District Judge.

In this civil rights action, plaintiff Cheryl B. Rossi, who was serving as town clerk and town tax collector for the Town of Pelham, New Hampshire, claims that Pelham officials unlawfully searched her office at the town hall and unlawfully seized her person and her property by placing a police guard in her office to watch over her on her last day of service. Rossi also alleges numerous state law claims arising out of the same facts.

At issue before the court is defendants' motion for summary judgment and plaintiff's objection thereto.

Statement of Facts

Plaintiff Rossi was serving as town clerk and town tax collector for the Town of Pelham, New Hampshire, a position which she held for 23 years. In 1993, Rossi lost her bid for reelection to those offices. New Hampshire law requires a succession audit when the position of town tax collector passes to a successor. New Hampshire Revised Statutes Annotated (RSA) 41:36 provides: "Whenever the term of office of a collector of taxes shall end ... [t]he selectmen shall cause an audit of his accounts to be made promptly." Rossi contacted the town's auditing firm to make arrangements for the required succession audit. She spoke with Paul Mercier at the firm, who told her that the audit would take place on Monday, March 15, 1993. During their conversation, Rossi told Mercier she planned to take home for the weekend the books and records she kept as town tax collector in order to prepare for the Monday audit. Later, in a conversation with defendant Peter Flynn, a member of the Pelham board of selectmen, Mercier mentioned Rossi's plans to remove the books and records from the town hall to her house. In turn, Flynn relayed word of Rossi's plan to defendant Paul Scott, another selectman.

Selectman Scott convened a meeting of the board of selectmen to inform them of Rossi's plan and to discuss what, if anything, the selectmen should do about it. At the meeting, the selectmen voted to have defendant Police Chief David Rowell take action to prevent Rossi from removing the books and records from the town hall. In carrying out the vote of the selectmen, Scott and Flynn prepared the following letter for Chief Rowell to deliver to Rossi:

Please be advised that the Board of Selectmen insist that no records pertaining to Town Clerk/Tax Collector transactions be removed from the Pelham Town Hall at any time. The Selectmen call your attention to the terms and conditions of RSA 33-A:1, III(a) and RSA 33-A:2 and:3 and RSA 5:38. The Selectmen recognize these records are your responsibility at this time. However, we still insist that these records remain in the Town Hall Office of Town Clerk/Tax Collector and be secured and bound in any manner you choose until the March 15, 1993 arrival of the auditors. To insure security of these records, the Board of Selectmen have arranged that the Pelham Police Department provide adequate protection within the building.

Thanking you for your cooperation in advance and trusting that this procedure will meet with your approval, I remain

Respectfully yours, Paul R. Scott Vice Chairman Board of Selectmen

Complaint, Exhibit 1.

The letter was delivered to Rossi on the Friday before the Monday of the audit. Defendant Rowell deployed Police Officer Robert Cunha to town hall instructing him to ensure Rossi did not remove the books and records from that building.

Officer Cunha arrived at the town hall on Friday afternoon and entered Rossi's office, announcing to her that he was acting under orders from the police chief and the selectmen. He then sat down in Rossi's private office and remained there while she worked. After 45 minutes, he moved from her office to a desk just outside her office door. Rossi decided to quit working at 7:00 p.m., at which time Officer Cunha escorted her first to the vault, where she deposited the records, and then out of the town hall.

Discussion

Constitutional Claims

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. CONST. amend. IV. Here, Rossi claims that three distinct Fourth Amendment violations occurred when Officer Cunha positioned himself in her private office to ensure that she did not remove any work-related books and records. Rossi alleges that Officer Cunha's conduct constituted an unreasonable search of her office, an unreasonable seizure of her person, and an unreasonable seizure of her property. The court will address the claims in that order.

Rossi alleges that Officer Cunha unreasonably searched her office when he entered her private office and remained there for 45 minutes. Defendants argue that Officer Cunha's presence in Rossi's office did not constitute a "search" within the meaning of the Fourth Amendment because he intended only to prevent Rossi from leaving town hall with work-related files, rather than to discover evidence. The dictionary defines "search" as follows: "To look into or over carefully or thoroughly in an effort to find or discover." Webster's THIRD NEW INTERNATIONAL DICTIONARY 2048 (1976). Likewise, the older Fourth Amendment caselaw focused on the intent to discover: "A search implies an examination of one's premises or person with a view to the discovery of contraband or evidence of guilt ... [and] implies exploratory investigation or quest." Haerr v. United States, 240 F.2d 533, 535 (1957). However, the more recent caselaw defines "search" as infringement of "an expectation of privacy that society is prepared to consider reasonable." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). A citizen's expectation of privacy may be equally infringed by random and undirected trespass as by exploratory investigation. Under modern jurisprudence, it is irrelevant whether or not the search agent intended to discover evidence. On this point, this court finds no distinction between Officer Cunha's in-person monitoring of Rossi and the video surveillance monitoring of public employees that has been clearly held to constitute a search. Hector Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 181 (1st Cir.1997).

Next, defendants argue that Rossi did not enjoy a reasonable expectation of privacy in her office at the town hall and that Officer Cunha's intrusion into that office therefore did not constitute a "search." In Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968), the Court held that employees may have a reasonable expectation of privacy in their workplace against intrusions by the police. In Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), the Court stated that such an expectation in one's place of work is "based upon societal expectations that have deep roots in the history of the Amendment." Id. at 178 n. 8, 104 S.Ct. 1735. The Court in Ortega, supra, 480 U.S. at 717, 107 S.Ct. 1492, extended Mancusi's protection of workplace privacy to public employees, recognizing that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." Under Ortega, a public employee's office privacy is protected not only against intrusions by law enforcers, but also against work-related intrusions by public employers. Thus the Supreme Court has extended Fourth Amendment protection beyond the "paradigmatic entry" into a house by police officers in search of criminal evidence to work-related investigation of a public employee's private office. Ortega, supra, 480 U.S. at 715, 107 S.Ct. 1492 (noting that "it would be `anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior'") (quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 335, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978)).

Under Ortega, public employees may enjoy Fourth Amendment protections against unreasonable work-related intrusions in their offices, as a general matter. The qualifier indicates that, according to the Court, an employee's expectation of privacy may be undermined if co-workers, supervisors, and/or the general public enjoy by practice or procedure a general right to access the office or workplace. Ortega, supra, 480 U.S. at 718, 107 S.Ct. 1492 ("[S]ome government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable."). A general right of access to an office erodes any expectation of privacy, which may not then be revived and conjured up when a state actor seeks access to that office.

According to the Court, "Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis." Ortega, supra, 480 U.S. at 718, 107 S.Ct. 1492. The First Circuit recently surveyed the factors that federal courts consider relevant in making the case-by-case determination. Hector Vega-Rodriguez, supra, 110 F.3d at 179. The circuit court identified the following factors: (1) whether the work area in question was given over to an employee's exclusive use, (2) the extent to which others had access to the...