Zincone v. Mancuso

• Decision Date: 15 April 1987
• Docket Number: No. 85-98-A,85-98-A
• Citation: 523 A.2d 1222
• Parties: Raymond ZINCONE et al. v. Anthony J. MANCUSO et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1222

523 A.2d 1222

Raymond ZINCONE et al. v. Anthony J. MANCUSO et al.

No. 85-98-Appeal.

Supreme Court of Rhode Island.

April 15, 1987.

Joseph F. Penza Jr., Olenn & Penza, Kevin McAllister, Providence, for plaintiff.

Edward C. Clifton, City Sol. for City of Providence, Martin Aisenberg, Asst. City Sol., for City of Providence, for defendant.

OPINION

KELLEHER, Justice.

The plaintiffs in this Superior Court civil action each hold the rank of patrolman in the Providence police department. The defendant is the department's chief. In their original complaint, the plaintiffs alleged that the defendant had violated various provisions of the Law Enforcement Officers' Bill of Rights Act, G.L.1956 (1984 Reenactment) chapter 28.6 of title 42, as well as their civil rights. They also sought injunctive relief. During the pendency of this litigation, a count was added to the plaintiffs' complaint whereby they sought a declaratory judgment on the question of whether a police officer who is charged with separate but unrelated violations of department regulations is entitled under the Bill of Rights Act to a separate "hearing committee" that would consider the evidence on each charge. The issue was submitted to a Superior Court justice along with a stipulation of facts. The justice subsequently responded to the question in the negative, and this appeal ensued.

Hereafter we shall discuss the situation as it relates solely to Officer Raymond Zincone and refer to him and to the chief, Anthony J. Mancuso, by their last names. What we rule as to Zincone's claim will apply equally well to Officer David DiFolco's ¹ claim.

The record indicates that on September 27, 1982, Mancuso filed a "four-count" complaint against Zincone. Each count describes an incident "involving" several alleged violations of department rules and regulations. The first count referred to a December 15, 1981 incident; the second concerned a June 12, 1981 incident; the third described a July 25, 1982 episode; and the fourth related to a June 27, 1977 situation.

On October 19, 1982, Zincone's counsel notified Mancuso of Zincone's choice of the individuals who were to represent him on the hearing committees that were to consider the evidence relating to each incident. Mancuso selected a State Police captain as his representative on the panel that would consider all the charges set forth in the complaint. In late October Mancuso notified Zincone that if he did not select one officer to hear all the incidents, he would face suspension without pay. The impasse was resolved when Mancuso was enjoined from suspending plaintiffs, and it was agreed by all parties that the question of separate committees would be resolved by amending the complaint and adding a count seeking a declaratory judgment. The question posed to the trial justice was whether police officers charged with separate, unrelated incidents are entitled to separate hearing committees under the Law Enforcement Officers' Bill of Rights Act.

The purpose of the Law Enforcement Officers' Bill of Rights (the act) is "to protect the rights of policemen threatened with disciplinary action." Lynch v. King, 120 R.I. 868, 875, 391 A.2d 117, 121 (1978). In creating the legislation, however, the Legislature recognized that "the public has an interest in the validity of the mechanism whereby allegations of improper conduct by police officers are adjudicated," id. at 874, 391 A.2d at 121, and it endowed any hearing committee convened to hear such allegations with broad investigatory powers. Id. at 878, 391 A.2d at 123.

On several occasions this court has noted that if a departmental investigation of a police officer's conduct could result in the imposition of a disciplinary action, such as a demotion, transfer, dismissal, loss of pay, or similar action, to a permanently employed law enforcement officer, such officer is entitled to a hearing on any charge arising from the investigation before a "hearing committee" composed of three active Rhode Island law enforcement officers. Section 42-28.6-4. The hearing committee is to consist of three members, with the chief or the highest-ranking officer of the department or organization bringing the charge selecting one member of the committee, the aggrieved officer choosing another, and the two selectees appointing a third member. Section 42-28.6-1. If the selectees cannot agree within a ten-day period on the third choice, the presiding justice of the Superior Court is then authorized, upon application, to designate the third member. Id. The committee is empowered to consider all reasonable and probative evidence presented it, and every party before the committee may cross-examine any and all witnesses presented. Sections 42-28.6-6 and 42-28.6-9.

The act, comprehensive as it is, does not expressly provide for or prohibit the bringing of unrelated, separate charges against a police officer at a single hearing. Certain provisions, however, do indicate that the Legislature contemplated that such consolidation would be permissible. Section 42-28.6-4, providing for a right to a hearing, stipulates that "the law enforcement agency shall give notice to the law enforcement officer that he is entitled to a hearing...