Turnley v. Town of Vernon

• Decision Date: 21 June 2013
• Docket Number: No. 12–098.,12–098.
• Citation: 2013 VT 42,71 A.3d 1246
• Parties: Kevin TURNLEY v. TOWN OF VERNON.
• Court: Vermont Supreme Court

71 A.3d 1246

2013 VT 42

Kevin TURNLEY

v.TOWN OF VERNON.

No. 12–098.

Supreme Court of Vermont.

June 21, 2013.

Sharon L. Annis of McCarty & Buehler, P.C., Brattleboro, for Plaintiff–Appellee.

John T. Leddy and Kevin J. Coyle of McNeil, Leddy & Sheahan, P.C., Burlington, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

REIBER, C.J.

¶ 1. The Town of Vernon appeals the superior court's reversal of its decision to fire police chief Kevin Turnley. The Town Selectboard determined that the chief made inaccurate statements when asked at public meetings about when he learned of a low-level sex offender's residence and about why he did not inform the community. Because the Board failed to make expressly the findings necessary to support its action, we affirm the superior court's judgment.

¶ 2. The Board's allegations center on two separate occasions in October 2009 when the chief responded to questions about his knowledge of a low-level sex offender's residence in the town. The record reveals the following. At some time in October after the alleged misrepresentations, the Board sent an undated letter to the chief, accusing him of dereliction and conduct unbecoming an officer. The Board informed the chief that his employment was terminated immediately and that it had scheduled a hearing as required by 24 V.S.A. § 1932(a). The letter specified, in relevant part:

The Selectboard has concluded that you have been derelict in your official duty, and that you are guilty of conduct unbecoming an officer, in that you knowingly and deliberately made false statements to the Board and to the public at two public meetings concerning your knowledge related to a potential public safety issue, in particular, the residence in the Town of Vernon of a registered sex offender.

¶ 3. At the hearing, the Board reiterated the charges it outlined in the letter and called a series of witnesses to describe the chief's receipt of an e-mail from the state Department of Public Safety regarding the relocation of a sex offender and the chief's subsequent public statements. The Board introduced a copy of an August 13, 2009, e-mail addressed to the chief and advising him that a man with a conviction for “criminal sexual misconduct with a minor” had moved into the town. A police administrator testified that the chief gave her a copy of the e-mail on August 14 and asked her to place it in the so-called “offender's book.” The administrator did not herself have access to the e-mail account that received the notification. The e-mail did not provide any details regarding the offender's previous address or whether he was subject to any ongoing correctional supervision. The administrator testified that the e-mail's contents did not require community notification. See 13 V.S.A. §§ 5411, 5411a (regarding sex-offender registration and law-enforcement duties).¹

¶ 4. With regard to the first alleged misrepresentation, the Board called two witnesses, who testified that at an October 6, 2009, public meeting the chief was asked why his department had not notified the public about the residence of the man referenced in the August e-mail. According to these witnesses, the chief said the department did not do so because he did not receive the notice directly and had learned of the offender's residence only a day or two before the October meeting.

¶ 5. The Board then called the Board secretary to verify the contents of minutes and a partial transcript she had prepared of the Board's October 19, 2009, meeting, when the chief made his second alleged misrepresentation. According to the transcript, the Board's chairman asked the chief about his October 6 statements. The exchange, as recounted in the partial transcript and minutes, went as follows:

[CHAIRMAN:] Now I'm confused as to when you knew when we had that meeting the other night you were saying that you hadn't known for very long [about the offender's residence]. When were you told about it as far as the sex offender registry [giving] you the notification?

[CHIEF TURNLEY:] Rebecca had an e-mail that she showed me, I do not recall getting the e-mail it did not have my e-mail address at the bottom of it. So as far as when he moved in it was a short time before the meeting.

[CHAIRMAN:] [S]o you didn't talk to them [at] the [s]ex offender registry?

[CHIEF TURNLEY:] [N]o not until it was like a day or two days before I had gotten a call from Sherry and I had spoken to her.

¶ 6. The chief's attorney declined to present any evidence at the termination hearing, calling into question the Board's objectivity and describing the proceedings as “a farce” and “a controlled[,] contrived termination of the Chief.” At the conclusion of the hearing, the chief's attorney moved to dismiss the charges, arguing the Board members had acted improperly as prosecutors and fact finders, had engaged in inappropriate communication directly with witnesses, and had demonstrated bias.

¶ 7. The Board rejected the chief's attorney's procedural objections and determined the chief received notice that the offender moved into the jurisdiction on August 13, 2009, and that the chief twice made false statements about his knowledge of the sex offender's presence—once at the October 6, 2009, public meeting and a second time at the October 19, 2009, Selectboard meeting.² If the Board believed the chief knowingly or intentionally misstated the facts, it did not specifically or expressly say so.

¶ 8. The chief appealed the Board's decision to the superior court, which conducted an on-the-record review in accordance with Vermont Rule of Civil Procedure 75. The record consisted of a 2009 employee evaluation ³ and certified copies of the Board's deliberative materials, including, among other things, a copy of an October 2009 e-mail addressed to the chief notifying him of the newly resident sex offender; a transcript of the November 9, 2009, termination hearing; and sworn statements from members of the Selectboard and witnesses.

¶ 9. In superior court, the chief renewed the objections lodged at the Board hearing and argued that the grounds for his firing were insufficient as a matter of law. In an eighteen-page order, the superior court rejected the chief's procedural and due-process claims but reversed the Board's decision to fire him after concluding that the “termination of [the chief's] employment on account of these two false, but perhaps simply mistaken statements is so disproportionate to the misconduct that it cannot be sustained, as a matter of law.” In particular, the court concluded that the evidence supported the determination that the chief twice made inaccurate statements regarding his awareness of the sex offender's presence. Nevertheless, the court was “unable to find evidence in the record to confirm that the statements were made with knowledge of their falsehood.”

¶ 10. The Town now appeals, urging this Court to reinstate the Board's decision. The Town argues principally that the Board possessed the discretion to fire the chief for dishonesty and that substantial evidence supported its decision to do so. It further contends that the superior court improperly reweighed the evidence to arrive at its own factual findings rather than reviewing the record simply to determine if there was competent evidence to support the Board's findings and whether those findings supported its conclusions.

¶ 11. On appeal of a Rule 75 determination, we apply the same standard as the trial court. Rhoades Salvage/ABC Metals v. Town of Milton Selectboard, 2010 VT 82, ¶ 13, 188 Vt. 629, 9 A.3d 685 (mem.). “Under V.R.C.P. 75, review in superior court by way of appellate review or certiorari is virtually synonymous.” Hunt v. Vill. of Bristol, 159 Vt. 439, 441, 620 A.2d 1266, 1267 (1992). This review is confined to questions of law and encompasses the consideration of “evidentiary points only insofar as they may be examined to determine whether there is any competent evidence to justify the adjudication, much as in the case of a motion for a directed verdict.” Id. (quoting Royalton Coll., Inc. v. State Bd. of Educ., 127 Vt. 436, 447–48, 251 A.2d 498, 506 (1969)). “Discretionary rulings may be set aside only for abuse and the judgment is not reviewable on the merits.” Id. Under the deferential standard of review accorded administrative and quasi-judicial bodies in these circumstances, it is not for the superior court to independently weigh the evidence to make its own factual findings. Rather, the superior court on a Rule 75 appeal must uphold factual findings if any credible evidence supports the conclusion by the appropriate standard. See In re D'Antonio, 2007 VT 100, ¶ 9, 182 Vt. 599, 939 A.2d 493 (mem.); see also Yoder v. Town of Middleton, 152 N.H. 363, 876 A.2d 216, 218 (2005) (“Our standard is not whether we would have ruled differently, but whether a reasonable person could have reached the same decision as did the [Board] based upon the evidence before it.”) (emphasis added). With respect to an officer's dismissal,

[i]t is not necessary that the alleged conduct be criminal in character nor that it be proved beyond a reasonable doubt.... It is elementary that the measure of proof to convict for a criminal offense is substantially different and greater than that necessary to support the dismissal of a municipal employee.

In re Zeber, 398 Pa. 35, 156 A.2d 821, 825 (1959). The conclusions must, however, be supported by the findings.

¶ 12. We need not address the sufficiency of the evidence adduced during the Selectboard hearing because we conclude that the Board simply did not make the findings required to support its actions. We therefore affirm the superior court's reversal of the Town's action. See Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990) (“[W]e may affirm a correct judgment even though the grounds stated in support of it are erroneous.”). The Board's written findings do not make...