Zaccagnini v. Town of Johnston Police Dept.

• Court: Rhode Island Superior Court
• Writing for the Court: RUBINE, J.
• Decision Date: 30 March 2010
• Docket Number: PC 08-2377
• Citation: Zaccagnini v. Town of Johnston Police Dept., PC 08-2377 (R.I. Super. Mar 30, 2010)
• Parties: MARC ZACCAGNINI v. TOWN OF JOHNSTON POLICE DEPARTMENT

MARC ZACCAGNINI v. TOWN OF JOHNSTON POLICE DEPARTMENT

No. PC 08-2377

Superior Court of Rhode Island

March 30, 2010

DECISION

RUBINE, J.

This matter is before the Court on an appeal by Detective Marc Zaccagnini (Det. Zaccagnini) from a decision of a Hearing Committee convened under the Law Enforcement Officers' Bill of Rights ("LEOBOR"). Detective Zaggagnini contends he is aggrieved by sad decision which upheld the termination of his employment with the Town of Johnston Police Department ("JPD"). Jurisdiction is pursuant to G.L. 1956 §§ 42-35-15 and 42-35-15.1.

I Facts and Travel

Detective Zaccagnini was a member of the JPD. On October 23, 2007, he was terminated from his employment with the JPD by Chief Richard S. Tamburini as a result of various violations of departmental rules and regulations, as well as for his misdemeanor convictions for wilfull trespass and vandalism after he entered a plea of nolo contendere on these charges on October 10, 2007.^1[] At the plea hearing, Det. Zaccagnini admitted, under oath, to the facts which formed the basis of those charges. According to those facts, on or about January 25, 2007, in the early hours of the morning, Det. Zaccagnini went to the apartment residence of a former girlfriend at 39 Dale Avenue in the Town of Johnston. He entered that apartment without consent, and then willfully and maliciously damaged the victim's front door. The charges originally were brought by the Rhode Island State Police (RISP) who investigated the incident. The internal affairs section of the JPD also joined the investigation.

On January 26, 2007, Captain David M. DeCesare (head of internal affairs for JPD) informed Det. Zaccagnini that Chief Tamburini had ordered an official internal investigation of the January 25, 2007 incident at 39 Dale Avenue. See "Internal Affairs Complaint # 07-2-IA." ("Internal Affairs Complaint I.") Detective Zaccagnini was informed further that "[y]our actions and conduct may perhaps be criminal and if so, criminal charges may be brought against you." Id. At that time and consistent with § 42-28.6-13(c), he was suspended with pay, pending the outcome of the internal investigation. Id.

Later that same day, and based upon information provided by Det Zaccagnini's former girlfriend, Chief Tamburini ordered Det. Zaccagnini to undergo a drug test. Detective Zaccagnini refused to undergo the test and was charged with willful violation of a direct order and insubordination. See "Internal Affairs Complaint # 07-2-IA." ("Internal Affairs Complaint II.") Also on January 26, 2007, Det. Zaccagnini was arraigned on criminal charges, one of which was felony breaking and entering. See id. As a result, his prior status of suspension with pay was changed to suspension without pay "due to you having been arraigned on a felony charge of Breaking and Entering." Id. Detective Zaccagnini also was informed by Capt. DeCesare that "[t]his status will remain in effect until the case is adjudicated at which time your status will be re-evaluated and sanctions for these additional charges, as well as other departmental charges previously cited, will be imposed." Id. On April 24, 2007, Det. Zaccagnini submitted to a drug test, the results of which were positive for the presence of cocaine.

On October 10, 2007, Det. Zaccanini pleaded nolo contendere, under oath, to the reduced charges of wilfull trespass and vandalism. On each misdemeanor charge he received a five-year deferred sentence of imprisonment, along with fifty hours of community service. On October 21, 2007, Det. Zaccagnini allegedly was involved in another criminal incident which resulted in him being charged with disorderly conduct and simple assault on a police officer. On October 24, 2007, the Town of Johnston, through Chief Tamburini, terminated Det. Zaccagnini's employment with the JPD for, among other things, "criminal conduct."^2[] An amended notice of termination was sent to Detective Zaccagnini, dated November 1, 2007.

Thereafter, Det. Zaccagnini requested a hearing pursuant to § 42-28.6-4. The hearing commenced on December 20, 2007, and it closed on February 8, 2008. At the hearing, counsel for Det. Zaccagnini challenged alleged procedural defects pertaining to the absence of sworn complaints against the detective. The Hearing Committee rejected these arguments and on March 3, 2008, by written decision on a vote of two to one, it affirmed the Police Chief's decision to terminate Det. Zaccagnini's employment.^3[] Detective Zaccagnini timely appealed that decision to this Court pursuant to § 42-28.6-12.

Additional facts will be supplied as necessary in the course of this Decision.

II Standard of Review

Our Supreme Court "has recognized that LEOBOR is 'the exclusive remedy for permanently appointed law enforcement officers who are under investigation and subject to discipline action' by a law enforcement agency for noncriminal allegations of misconduct." Providence Lodge No. 3, Fraternal Order of Police v. Providence External Review Authority, 951 A.2d 497, 502 (R.I. 2008) (emphasis added) (quoting In re Sabetta, 661 A.2d 80, 83 (R.I. 1995)). Thus, pursuant to LEOBOR, any law enforcement officer who is facing charges that may result in punitive action may request a hearing before a hearing committee consisting of three active or retired law enforcement officers. See §§ 42-28.6-1 and 42-28.6-4.

In the event that an officer receives an adverse decision from the hearing committee, he or she may appeal to the Superior Court. See § 42-28.6-12. For the purpose of any such an appeal, the hearing committee is "deemed an administrative agency and its final decision shall be deemed a final order in a contested case within the meaning of §§ 42-35-15 and 42-35-15.1." Section 42-28.6-12 (the "Administrative Procedures Act").

Section 42-35-15(g) provides that: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

"(1) In violation of constitutional or statutory provisions:

(2)In excess of the statutory authority of the agency;

(3)Made upon unlawful procedure;

(4)Affected by other error or law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6)Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

When reviewing an agency decision pursuant to § 42-35-15, the Court may not substitute its judgment for that of the agency with respect to credibility of witnesses or the weight of evidence concerning questions of fact. See Center for Behavioral Health v. Barros, 710 A.2d 680, 684 (R.I. 1998); Mine Safety Appliances Co. v. Berry, 620 A.2d 1255, 1259 (R.I. 1993). As such, the Court's review is limited to "an examination of the certified record to determine if there is any legally competent evidence therein to support the agency's decision." Johnston Ambulatory Surgical Assocs., Ltd. V. Nolan, 755 A.2d 799, 805 (R.I. 2000) (quoting Barrington Sch. Comm. v. R.I. State Labor Relations Bd., 608 A.2d 1126, 1138 (R.I. 1992)). Competent or substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance." Newport Shipyard v. R.I. Comm'n for Human Rights, 484 A.2d 893, 897 (R.I. 1984) (quoting Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981)). The appeal to this Court is not grounded on the hearing committee's basing its decision on inadequate evidence, but only on the alleged procedural defects in the manner by which the JPD disciplined the detective.

The Court "may reverse [the] findings of the administrative agency only in instances where the conclusions and the findings of fact are totally devoid of competent evidentiary support in the record, or from the reasonable inferences that might be drawn from such evidence." Bunch v. Bd. Of Review, 690 A.2d 335, 337 (R.I. 1997) (citations omitted). "Questions of law, however, are not binding on the court and may be reviewed to determine what the law is and its applicability to the facts." Narragansett Wire Co. v. Norberg, 118 R.I. 596, 607, 376 A.2d 1, 6 (1977).

III Analysis

Detective Zaccagnini asserts that the notice provisions of the LEOBOR were violated, and that he suffered a denial of due process as a result of those alleged violations. Specifically, Det Zaccagnini asserts that the complaint was not sworn by Chief Tamburini as required by § 42-28.6-2(d) of the LEOBOR. Consequently, he avers that the Hearing Committee did not have jurisdiction to hear the merits of the complaint. Detective Zaccagnini maintains that the Hearing Committee should have dismissed the action due to these alleged procedural deficiencies.

Before addressing the merits of Det. Zaccagnini's allegations the Court first observes that despite Det. Zaccagnini's allegations of error, the Hearing Committee did not have the authority to dismiss the matter due to procedural defects. Section 42-28.6-11(a) provides: "The hearing committee shall be empowered to sustain, modify in whole or in part, or reverse the complaint or charges of the investigating authority, as provided in § 42-28.6-4." In interpreting this provision, our Supreme Court held that the LEOBOR "does not give the hearing committee the power summarily to dismiss charges for procedural violations of the Law Enforcement Officers' Bill of Rights." In re Sabetta, 661 A.2d at...