Simoneau, In re

• Decision Date: 12 January 1995
• Docket Number: No. 93-283-M,93-283-M
• Citation: 652 A.2d 457
• Parties: In re Lieutenant John A. SIMONEAU. P.
• Court: Rhode Island Supreme Court

Page 457

652 A.2d 457

In re Lieutenant John A. SIMONEAU.

No. 93-283-M.P.

Supreme Court of Rhode Island.

Jan. 12, 1995.

Richard G. Riendeau, Asst. City Sol., Vincent F. Ragosta, Jr., Office of City Sol., Providence, for petitioner.

Joseph F. Penza, Jr., Olenn & Penza, Warwick, for respondent.

OPINION

MURRAY, Justice.

This case comes before us on a petition for certiorari by the city of Providence (the city), which seeks review of the final decision of a hearing committee (committee) convened pursuant to the Law Enforcement Officers' Bill of Rights, G.L.1956 (1993 Reenactment) chapter 28.6 of title 42. The committee has ruled in favor of Lieutenant John A. Simoneau (respondent) of the Providence police department (the department), finding him not guilty of seven charges alleging insubordination, undermining the development and maintenance of proper professional attitudes in his subordinates, engaging in behavior counterproductive to the fostering of efficiency, discipline, and morale in his subordinates, conduct unbecoming an officer; and abuse of those under his command. For the reasons that follow, we quash the committee's decision.

The respondent is a veteran of over twelve years' service with the city's police department. The investigation into respondent's alleged misconduct was prompted by allegations made against respondent by Patrolwoman Rhonda Kessler (Kessler), currently a six-year veteran of the department. Kessler was assigned to the department's patrol bureau as a spare; Kessler did not hold a steady car-post assignment. Between May and October of 1990 Kessler attempted to secure a position in subdistrict 2 through a bidding process. The respondent, then a sergeant, was also assigned to subdistrict 2 in a supervisory capacity. In her first two bids for a steady car-post assignment in subdistrict 2, Kessler was outbid by male officers with more seniority. Kessler believed that respondent recruited senior officers to outbid her for these positions. During the summer of 1990 Kessler communicated her concern to Major Edward Collins (Collins), the head of the department's uniform division, that respondent was discriminating against her because of her gender. Kessler asserted that she was prevented from obtaining a position in subdistrict 2 because respondent believed that there were too many women in the district. Collins ordered that Kessler's name be placed on the master post board for a position in subdistrict 2 as a spare. Kessler's name was removed and placed on the bottom of the board with the initials of both respondent and his brother, Dennis Simoneau, then a lieutenant in the department's patrol bureau. Collins again put Kessler's name in subdistrict 2 with his own initials to indicate that it was his order. Kessler submitted a third bid for a steady car-post assignment in subdistrict 2. This time she was the most senior officer submitting a bid. The respondent contacted Patrolman Daniel Salzillo (Salzillo), who was out of work as a result of a disability, to submit a bid for the post. Salzillo was senior in rank to Kessler. Collins requested that Salzillo withdraw his bid so that Kessler would receive the assignment. Salzillo withdrew his bid but later resubmitted it. Collins intervened and awarded the car-post to Kessler even though she was junior to Salzillo.

Shortly thereafter at a roll call during October of 1990, respondent ordered the officers in subdistrict 2 to assemble prior to the commencement of their shift. Approximately five uniformed officers were present. The respondent read to the assembled officers the assignments and special notices. There was uncontroverted testimony by three officers present at the roll call that respondent engaged in an emotional tirade against his superior officers. He denigrated them for their interference in the Kessler car-post assignment, using extremely offensive language. According to the testimony of Patrolman Peter Mazzie (Mazzie), respondent became angry and red-faced when he began addressing the award of the car-post in subdistrict 2 to Kessler. The respondent said Collins and Chief Walter Clark "must be shitting in their fucking pants because of the situation that happened with the Mary Nunes incident." ¹ Mazzie testified that respondent used the word "fuck" several times and, before concluding the roll call, said in reference to the Kessler car-post assignment, that this "is a nine inning ball game and only the first fucking inning." Patrolwoman Tabatha Glavin testified that every other word out of respondent's mouth was "fuck." The respondent called the entire administration "politicians and cowards" and said that they "are afraid that Rhonda Kessler was going to make this another fuckin' Mary Nunes caper." Patrolman John Carnevale stated that during the roll call, respondent said that he would "file a reverse discrimination suit against the Chief and Major Collins." Carnevale stated that respondent used the words "fuck," "fuckin'," and "asshole" during the roll call. The respondent declared that "Major [Collins] was trying to be a fuckin' diplomat or fuckin' politician and that if the Major hadn't changed * * * [the car-post assignment] that he himself was once again going to sue the City, sue the Chief and the Major."

A lengthy investigation into respondent's conduct was initiated in October of 1990 by the department's internal-affairs division. The investigation culminated in the seven charges against respondent. ² The respondent requested a hearing pursuant to the provisions of chapter 28.6 of title 42. A hearing committee, consisting of Lieutenant Mark O'Connor (O'Connor) of the Scituate police department, Captain James Wynne of the North Kingstown police department, and Detective Lieutenant Terry Crawley of the Providence police department, conducted its hearing over five days beginning on October 26, 1992, and ending on December 14, 1992. The committee heard testimony from approximately fifteen witnesses. On December 14, 1992, at the conclusion of the city's case in chief, before respondent presented his case, counsel for respondent made an oral motion for a directed verdict and/or judgment of acquittal. The committee took a short break before rendering its decision finding respondent not guilty of all charges. O'Connor delivered the decision of the committee and stated that "this panel unanimously * * * find[s] Lieutenant John Simoneau not guilty of each and every charge brought against him. * * * This panel finds that there is not sufficient evidence beyond a reasonable doubt to find [him] guilty."

After announcing its decision, the committee requested from counsel three copies of the stenographic record of the hearing to assist it in constructing its findings of fact. In response, counsel for...