Semper v. City of Providence
| Decision Date | 23 August 2001 |
| Docket Number | 96-1828 |
| Parties | EDWIN J. SEMPER, JR. and THOMAS OATES v. THE CITY OF PROVIDENCE, by and through its Treasurer, Stephen Napolitano |
| Court | Rhode Island Superior Court |
DECISION
This matter is before the Court on a request filed by plaintiffs Edwin J. Semper, Jr. and Thomas Oates that the defendant City of Providence, indemnify them for legal fees they incurred while successfully defending against criminal charges arising out of actions they allegedly took in their capacities as municipal police officers. After consideration of an agreed statement of facts and briefs filed by the parties, this Court denies plaintiffs their requested relief.
The facts pertinent to this Court's consideration of this matter are set forth in the agreed statement of facts filed by the parties. In September 1985, plaintiffs Edwin J Semper, Jr. (Semper) and Thomas Oates (Oates) were employed as Detective Patrolmen in the Intelligence Bureau of the Providence Police Department. In this capacity, they were assigned duties connected with the handling of protected witness, Peter Gilbert. At the time of his arrest, Mr Gilbert was a welfare recipient. Oates was directed by Lieutenant Richard Tamburini to have Mr. Gilbert's welfare checks mailed directly to the Providence Police Station. Semper also was directed by Lieutenant Tamburini to handle Mr. Gilbert's financial matters.
On February 28, 1991, plaintiffs were indicted separately on felony charges arising from orders issued by their immediate superior, Lieutenant Tamburini, with respect to their assignment of holding Peter Gilbert in protective custody.[1] As a result of these indictments plaintiffs were suspended from the Providence Police Department without pay, pursuant to the Law Enforcement Officers' Bill of Rights, G.L. § 42-28.6-1, et. seq. [2]
On December 17, 1992, a jury acquitted the plaintiffs of all counts of the first indictment. Thereafter, in April 1993, a special prosecutor dismissed all counts in the remaining indictments, pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. As a result of being cleared of these charges, Oates and Semper received backpay.
In defending themselves against the allegations charged in the indictments, both plaintiffs incurred substantial legal bills.[3] Oates incurred legal expenses in the amount of $25,000.00 and Semper incurred legal bills in the amount of $18,925.00. Neither Oates nor Semper filed a grievance pursuant to the provisions of their Collective Bargaining Agreement with the City to compel reimbursement of these fees. Before instituting suit, Semper filed a notice of his claim for legal fees with the Claims Committee of the City Council, pursuant to the provisions of G.L.1956 § 45-15-5. Oates did not file such a claim. Plaintiffs have submitted their case to this Court for decision on stipulated facts and briefs.
At the outset, it should be noted that before bringing their claim against the City, plaintiffs are required to comply with the provisions of G.L.1956 § 45-15-5, which provides:
"Every person who has any money due him or her from any town or city, or any claim or demand against any town or city, for any matter, cause, or thing whatsoever, shall take the following method to obtain what is due: The person shall present to the town council of the town, or to the city council of the city, a particular account of that person's claim, debt, damages, or demand, and how incurred or contracted; which being done, in case just and due satisfaction is not made to him or her by the town or city treasurer of the town or city within forty (40) days after the presentment of the claim, debt, damages, or demand, the person may commence his or her action against the treasurer for the recovery of the complaint."
Our Supreme Court has stated that G.L.1956 § 45-15-5 "sets out the steps that every person who has a monetary claim against a municipality must follow." Shackleton v. Coffee 'An Service, Inc., 657 A.2d 544, 545 (R.I. 1995) (citing Bernard v. Alexander, 605 A.2d 484, 485 (R.I. 1992)) ("[T]here is no question that § 45-15-5 requires every person who has a monetary claim against a municipality to present to the town or city council a particular account of his or her claim.") "The notice requirement may not be waived voluntarily or involuntarily." Lahaye v. City of Providence, 640 A.2d 978, 980 (R.I. 1994) (citing Batchelder v. White, 28 R.I. 466, 467, 68 A. 320, 320 (1907)).
Despite our Court's unequivocal requirement that notice of the claim must be provided to a municipality, it has determined, however, that if a party fails to file notice it will not invalidate the action or support a motion for judgment on the merits. Provost v. Finlay, 768 A.2d 1256, 1259 (R.I. 2001) (); Blessing v. Town of South Kingstown, 626 A.2d 204, 205 (R.I.1993).
In the instant matter, plaintiff Semper complied with G.L. 1956 § 45-15-5 by filing notice of his claim with the Claims Committee of the City Council. Oates, however, did not provide the City with notice pursuant to the statute. Despite Oates failure to file this notice, such a "defect is amendable." Palumbo v. Yeaw, 636 A.2d 708, 710 (R.I. 1994) (citing Gibbons v. Fitzpatrick, 183 A. 642, 56 R.I. 39 (1936)). "The sanction for having failed to file a notice of presentment and to wait the required period is that the action is subject to dismissal as prematurely brought." Id. at 710 (quoting Blessing v. Town of South Kingstown, 626 A.2d at 205). As to plaintiff Oates, therefore, his action is dismissed as prematurely brought, without prejudice to his refiling his complaint after he complies with the provisions of G.L. 1956 § 45-15-5. This Court shall nonetheless proceed to decide this case as to plaintiff Semper.
Our Supreme Court has stated that "[i]t is the historical practice of the American legal system that each party to a legal action pays its own expenses." Monti v. Warwick School Committee, 554 A.2d 638, 640 (RI. 1989). This common law principal requires a person prosecuted for a crime to pay his own expenses when he has the means of doing so. In the Matter of Chapman v. The City of New York, 61 N.E. 108, 109, 168 N.Y. 80, 85 (1901) (citation omitted). In fact, the Court of Appeals in Chapman equated the duty of a public official to pay his own legal fees in a criminal prosecution with that official's obligation to pay taxes:
Despite this fundamental cornerstone of the American legal system requiring individuals to pay for their own defenses, statutes may be enacted to require municipalities to reimburse officials for legal fees arising out of a criminal prosecution. See Schieffelin v. Henry, 123 Misc. 792, 206 N.Y.S. 172 (1924), aff'd 211 A.D. 850, 207 N.Y.S. 914. Any such derogation of the common law, however, requires strict construction. Lake v. State, 507 A.2d 1349, 1351 (R.I. 1986); Rhode Island Hospital Trust Co. v. Hodgkin, 48 R.I. 459, 137 A. 381, 383 (1927).
The Rhode Island General Assembly has not enacted a statute that authorizes indemnification for legal fees incurred by an official as a result of being charged criminally for acts allegedly committed in his or her official capacity where the individual is subsequently found not guilty of the crime.[4] In fact, our Supreme Court has previously addressed this apparent legislative shortcoming in Monti v. Warwick School Committee, 554 A.2d 638 (R.I. 1989). Monti was employed as a school principal in Warwick when he was charged with sexual assault against students at his school. He successfully defended against this indictment and sought reimbursement of his legal bills incurred in contesting these charges. The Court in Monti determined that G.L. § 9-1-31, providing indemnification of teachers for legal expenses incurred in suits against them, does not extend to criminal proceedings.[5] Id. at 640. Justice Murray expressed concern, however, in her concurrence that public school teachers and personnel are particularly vulnerable to suit and frivolous criminal charges being leveled against them due to the wide student contact inherent in these positions. Id. at 640. She suggested that the General Assembly eliminate this vulnerability and "reexamine the statute as presently drafted, since the policy underlying it goes partially unfulfilled." Id. at 641. To date, the legislature has taken no action to enact any such amendments to the civil indemnification statutes.
Absent any statute requiring a municipality to indemnify a public official for legal fees incurred in connection with a criminal prosecution, plaintiff's only other recourse is to look to the terms of his Collective Bargaining Agreements with the...
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