Opinion
C. A. WC-2020-0502
02-08-2021
HELEN RICCI, Plaintiff, v. RHODE ISLAND COMMERCE CORPORATION, RHODE ISLAND AIRPORT CORPORATION, RHODE ISLAND AIRPORT POLICE DEPARTMENT, DENNIS GRECO, and IFTIKHAR AHMAD, Defendants.
For Plaintiff: Joseph F. Penza, Jr., Esq. For Defendant: Timothy C. Cavazza, Esq. Joseph D. Whelan, Esq.
For Plaintiff: Joseph F. Penza, Jr., Esq.
For Defendant: Timothy C. Cavazza, Esq. Joseph D. Whelan, Esq.
DECISION
GIBNEY, P.J.
Plaintiff Helen Ricci (Plaintiff or Ms. Ricci) is seeking declaratory and injunctive relief as a "law enforcement officer" pursuant to the Law Enforcement Officers' Bill of Rights (LEOBOR), G.L. 1956 § 42-28.6-1 et seq. Defendants Rhode Island Commerce Corporation, Rhode Island Airport Corporation, Rhode Island Airport Police Department, Dennis Greco, and Iftikhar Ahmad (collectively, Defendants) seek summary judgment, alleging that Plaintiff was not a "law enforcement officer" under the statute at the time of her termination. Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13 and 9-30-1.
I. Facts and Travel
Plaintiff filed this instant action on December 1, 2020. Ms. Ricci is the former Deputy Chief of the Rhode Island Airport Police Department (RIAPD), hired by the Rhode Island Airport Corporation (RIAC) on December 16, 2019 to serve in that position. (V. Compl. ¶ 7.) She was not sworn in as Deputy Chief until March 2, 2020. Id. ¶ 8. Ms. Ricci alleges in her Verified Complaint that during the period preceding her swearing in, she performed all duties of a Deputy Chief, though she did not wear a uniform, have a badge, or carry a gun, and was unable to make arrests. Id. ¶ 9; but see Defs.' Answer ¶ 9 (denying). Ms. Ricci also claims that it was only when she was sworn in on March 2, 2020 that she was provided with the uniform, badge, gun, and authority to arrest. V. Compl. ¶ 10; but see Defs.' Answer ¶ 10 (denying).
The Chief of the RIAPD at the time of Ms. Ricci's hiring, and thus her immediate supervisor, was Leo Messier (Messier), who later retired on July 7, 2020. (V. Compl. ¶¶ 11, 12.) Ms. Ricci claims that at all times she was employed with the RIAPD, Dennis Greco (Greco) was her supervisor. Id. ¶ 5; see Pl.'s Ex. 3 (Greco's Performance Evaluation of Ricci), at 2 ("I supervised Deputy Ricci from March 16, 2020 to June 30, 2020."); but see Defs.' Answer ¶ 5 (denying). Greco, Acting Senior Vice President of Operations and Maintenance at the RIAC, states that he is not a sworn officer of the RIAPD. See Defs.' Mem. Supp. Mot. Summ. J. (Defs.' Mem.) ¶ II.2; Greco Aff. ¶ 3. At no time during her tenure of employment with the RIAPD was Ms. Ricci promoted to Chief. (V. Compl. ¶ 13; Defs.' Answer ¶ 13.) An August 7, 2020 performance evaluation by Greco stated that the title of Acting Chief "was never bestowed upon [Ms. Ricci] by competent authority." (Tr. 11:6-7, 13:4-8 (Jan. 5, 2021); Pl.'s Ex. 3, at 5.) Ms. Ricci also testified that she was not able to hire or fire anyone on her own. (Tr. 13:18-21, 14:25-15:2.) However, Greco's performance review of Ms. Ricci indicates that she did answer Step 1 grievances generated by the union and assist with Step 2 and 3 responses. (Pl.'s Ex. 3, at 5.) RIAC did not employ a new Chief until at least November 10, 2020. (Defs.' Mem. ¶ II.9; Greco Aff. ¶ 9.)
The sole transcript referenced herein is that of the January 5, 2021 hearing in this matter.
On November 10, 2020, Ms. Ricci was terminated as a member of the RIAPD and employee of RIAC based on her purported insubordination, among other things. (V. Compl. ¶¶ 15-17; Defs.' Answer ¶¶ 15-17.) Ms. Ricci claims that she had not been disciplined before November 10, 2020. V. Compl. ¶ 14; but see Defs.' Answer ¶ 14 (denying). Ms. Ricci states that around 4:30 pm on November 10, 2020, she was told to report to the Grant Conference Room to meet with the Human Resources Director. V. Compl. ¶ 15; but see Defs.' Answer ¶ 15 (denying). Ms. Ricci then claims Greco told her that she was "being terminated effective immediately," reading from a typewritten statement that set forth the bases for her termination, including "concerns" about retaliatory charges filed against her by her previous employer, the Boston Police Department (BPD), during the period from 2009 to 2012. Tr. 15:8-11; V. Compl. ¶¶ 17-19; but see Defs.' Answer ¶ 17 (admitting only that "RIAC terminated Ricci's employment for reasons that included insubordination" and denying the remaining allegations as to Greco's role and behavior), ¶¶ 18-19 (claiming to be without knowledge or information about Plaintiff's prior employment with the BPD). Ms. Ricci also claims she requested a copy of the prepared statement from Greco at that time, which he refused to provide. V. Compl. ¶ 20; but see Defs.' Answer ¶ 20 (denying).
On or about November 12, 2020, the RIAPD promoted Inspector Joe Ottaviano to Chief of Police. (Tr. 19:4-8, 19:20-22; Pl.'s Ex. 7.) Ms. Ricci faxed a written request to Greco seeking a hearing under the LEOBOR on November 13, 2020. V. Compl. ¶ 21; Pl.'s Ex. 4; but see Defs.' Answer ¶ 21 (denying). Ms. Ricci also provided Greco with the name of her representative on the LEOBOR Hearing Committee on November 17, 2020. V. Compl. ¶ 22; Pl.'s Ex. 5; but see Defs.' Answer ¶ 22 (denying). On November 23, 2020, Ms. Ricci's counsel sent a letter to Greco notifying him that the Defendants' failure to appoint their own representative entitled her to dismissal of any charges against her with prejudice, and consequently requesting she be reinstated with back pay and benefits. V. Compl. ¶ 26; Pl.'s Ex. 6; but see Defs.' Answer ¶ 26 (admitting only that "counsel for Ricci sent a letter to Greco on November 23, 2020" and denying remaining allegations). Ms. Ricci further claims that she was subsequently advised that Defendants believed the LEOBOR did not apply to her and she was not entitled to a hearing. V. Compl. ¶ 27; but see Defs.' Answer ¶ 27 (admitting only that "Ricci is not a 'law enforcement officer' as defined by the [LEOBOR] and that Ricci is not entitled to a hearing under the LEOBOR" and denying remaining allegations).
In her Verified Complaint, filed on December 1, 2020, Plaintiff requests declaratory and injunctive relief from the Court, also arguing that she is entitled to damages and attorney's fees. On December 14, 2020, the Defendants filed their motion for summary judgment. Defendants subsequently filed their Answer on December 30, 2020. A remote hearing on this matter was held on January 5, 2021, during which the Plaintiff made additional oral argument and submitted multiple exhibits.
II. Parties' Arguments
Defendants request summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. (Defs.' Mem. 1, 3.) Defendants argue that Plaintiff was not covered by LEOBOR at the time of her termination because she was not a "law enforcement officer" as defined by that statute. Id. at 4-5. Defendants contend that, as Deputy Chief for the RIAPD from July 7, 2020 through November 10, 2020, Ms. Ricci was the highest ranking sworn officer in the RIAPD during that period. Id. ¶ II.10; Greco Aff. ¶ 10. Therefore, Defendants argue that Plaintiff is excluded from the definition of "law enforcement officer" under the plain and unambiguous language of the LEOBOR. (Defs.' Mem. 5.) Defendants further argue that this conclusion is supported by a full reading of the statute. Id. at 6-8. In particular, Defendants point to the LEOBOR definition of a "hearing committee" composed of three members, where one is appointed by the aggrieved law enforcement officer and one appointed by the chief or highest ranking officer, claiming that if the "highest ranking officer" also qualified as a "law enforcement officer" it would lead to an absurd result where that person could select two members of the three member committee. Id. at 6, 8. Defendants also claim that such an interpretation would lead to another absurd result: insulating the highest ranking officer from suspension during proceedings. Id. at 6-7. Because they claim that there are no material facts in dispute, Defendants request that Plaintiff's Verified Complaint be dismissed in its entirety, with prejudice. Id. at 8.
In contrast, Plaintiff argues that she is a law enforcement officer with rights under the LEOBOR. (V. Compl. 1.) Plaintiff claims that, at all times during her employment by the RIAPD, Greco was her supervisor. Id. ¶ 5. Plaintiff also claims that she was never promoted to Chief and was told in a performance review that she was not the Acting Chief. Id. ¶ 13; Pl.'s Ex. 3, at 5. At oral argument, Plaintiff also stated that she was never able to hire or fire anyone, citing to the job descriptions for both Deputy Chief and Chief. See Tr. 8:22-9:19, 11:6-8, 12:13-19, 13:4-25, 14:14-15:2; Pl.'s Ex. 3, at 5; Pl.'s Ex. 8, at 2; Pl.'s Ex. 9, at 1-2. Plaintiff argued that the Director of the RIAC would be the highest ranking officer under the LEOBOR, rather than Plaintiff, offering multiple exhibits as evidence of the legislative history of the LEOBOR section in dispute. See Tr. 20:7-17, 33:10-23 (citing G.L. 1956 § 1-4-14(b)'s grant of arrest and enforcement authority to the RIAC director and deputy director), 21:12-22:4; Pl.'s Ex. 10; Pl.'s Ex. 11; Pl.'s Ex. 12.
Additionally, in response to Defendants' argument about the dangers of Plaintiff "packing" the hearing committee, Plaintiff argued that this would be impossible because a new Chief was hired immediately after Plaintiff was terminated and would have had the relevant authority to appoint under the LEOBOR. See Tr. 35:4-13. Plaintiff also argued that the LEOBOR is a remedial statute and should be interpreted liberally. See id. at 35:14-16, 36:3-9. Consequently, in her Verified Complaint, Plaintiff is requesting that the Court declare her rights, status, and benefits under LEOBOR and find that the RIAPD's failure to timely file its hearing committee selection constitutes a dismissal of all charges against Plaintiff, with prejudice. (V. Compl. ¶¶ 30, 31.)
III. Standard of Review
A. Summary Judgment
Pursuant to Rule 56(c), "'[s]ummary judgment is appropriate when no genuine issue of material fact is evident from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, and the motion justice finds that the moving party is entitled to prevail as a matter of law.'" Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012) (quoting Beacon Mutual Insurance Co. v. Spino Brothers, Inc., 11 A.3d 645, 648 (R.I. 2011) (internal quotation omitted)). The moving party "'bears the initial burden of establishing the absence of a genuine issue of fact.'" McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (quoting Robert B. Kent et al., Rhode Island Civil and Appellate Procedure § 56:5, (2018-19 ed.)). Once the moving party has satisfied its burden, however, "[t]he burden then shifts . . . and the nonmoving party has an affirmative duty to demonstrate . . . a genuine issue of fact." Id.
Pursuant to Superior Court Rule of Civil Procedure 56(e),
"[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but an adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Super. R. Civ. P. 56(e).
However, the Rhode Island Supreme Court has admitted some leeway for the "adverse party's response" required, holding that "it is not an absolute requirement that the nonmoving party file an affidavit in opposition to the motion," for example. Capital Properties, Inc. v. State, 749 A.2d 1069, 1080 (R.I. 1999) (citing Steinberg v. State, 427 A.2d 338 (R.I. 1981)). In fact, the Supreme Court has stated that, "[i]f the affidavit of the moving party does not establish the absence of a material factual issue, the trial justice should deny the motion despite the failure of the nonmoving party to file a counter-affidavit." Id. (emphasis added).
Additionally, a verified complaint can serve as the functional equivalent of an affidavit on summary judgment. See Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir. 1991) (holding that "a verified complaint ought to be treated as the functional equivalent of an affidavit to the extent that it satisfies the standards explicated in Rule 56(e)[, ]" i.e., that it is "made on personal knowledge," "set[s] forth such facts as would be admissible in evidence," and shows that "the affiant is competent to testify to the matters stated therein").
B. Declaratory and Equitable Jurisdiction
The Superior Court is empowered to grant declaratory relief pursuant to the Uniform Declaratory Judgments Act (UDJA) and to grant equitable relief, including injunctions, as a court of general equitable jurisdiction. Sections 9-30-1 and 8-2-13; see Rhode Island Republican Party v. Daluz, 961 A.2d 287, 295 (R.I. 2008). This means that, under the UDJA, the Superior Court possesses the "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." Section 9-30-1; see also P.J.C. Realty, Inc. v. Barry, 811 A.2d 1202, 1207 (R.I. 2002) (quoting § 9-30-1). Section 9-30-2 of the UDJA provides as follows:
"Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder." Section 9-30-2 (emphasis added).
Thus, "the Superior Court has jurisdiction to construe the rights and responsibilities of any party arising from a statute pursuant to the powers conferred upon [it] by G.L. 1956 chapter 30 of title 9, the Uniform Declaratory Judgments Act." Canario v. Culhane, 752 A.2d 476, 478-79 (R.I. 2000). Furthermore, "'a decision to grant or deny declaratory or injunctive relief is addressed to the sound discretion of the [hearing] justice[.]'" K & W Automotive, LLC v. Town of Barrington, 224 A.3d 833, 836 (R.I. 2020) (quoting La Gondola, Inc. v. City of Providence, 210 A.3d 1205, 1213 (R.I. 2019) (further citations omitted)).
C. LEOBOR
The LEOBOR "sets forth specific procedural rights for law enforcement officers who may be subject to an investigation of misconduct by a law enforcement agency." Providence Lodge No. 3, Fraternal Order of Police v. Providence External Review Authority, 951 A.2d 497, 502-03 (R.I. 2008) (citing Town of North Kingstown v. Local 473, International Brotherhood of Police Officers, 819 A.2d 1274, 1276 (R.I. 2003)); see § 42-28.6-1 et seq. "Enacted in 1976, LEOBOR 'is the exclusive remedy for permanently appointed law-enforcement officers who are under investigation by a law-enforcement agency for any reason that could lead to disciplinary action, demotion, or dismissal.'" City of Pawtucket v. Laprade, 94 A.3d 503, 511 (R.I. 2014) (quoting In re Simoneau, 652 A.2d 457, 460 (R.I. 1995) (further citation omitted)); see also § 42-28.6-15 ("The remedies contained herein shall be the sole and exclusive remedies for all law enforcement officers subject to the provisions of this chapter."). Additionally, the Rhode Island Supreme Court has "declared that LEOBOR 'is remedial in nature,' and 'was enacted to protect police officers from infringements of their rights in the course of investigations into their alleged improper conduct.'" Laprade, 94 A.3d at 511 (quoting Ims v. Town of Portsmouth, 32 A.3d 914, 925 (R.I. 2011) (further citation omitted)).
D. Statutory Interpretation
Issues of statutory interpretation are generally questions of law. See Iselin v. Retirement Board of Employees' Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008). The LEOBOR is "a creature of statute" and "'[t]he rules of statutory construction require [courts] to give statutory provisions their customary and ordinary meaning in the absence of legislative intent to the contrary.'" Laprade, 94 A.3d at 514 (quoting In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994) (further citation omitted)). In certain circumstances, however, the courts will not interpret a statute literally, "when to do so would produce a result at odds with its legislative intent . . . Rather, [the court] will give the enactment 'what appears to be the meaning that is most consistent with its policy or obvious purpose.'" Kirby v. Planning Board of Review of Town of Middletown, 634 A.2d 285, 290 (R.I. 1993) (quoting Zannelli v. DiSandro, 84 R.I. 76, 81, 121 A.2d 652, 655 (1956)).
Additionally, should the court find that a statute is ambiguous, the analysis shifts because "'when a statute is susceptible of more than one meaning, [the court] employ[s] [its] well-established maxims of statutory construction in an effort to glean the intent of the Legislature.'" Town of Burrillville v. Pascoag Apartment Associates, LLC, 950 A.2d 435, 445 (R.I. 2008) (quoting Unistrut Corp. v. State Department of Labor and Training, 922 A.2d 93, 98-99 (R.I. 2007)). Yet even with an ambiguous statute, the court begins with the "plain language of the statute to determine the legislative intent[.]" Matter of Falstaff Brewing Corp. re: Narragansett Brewery Fire, 637 A.2d 1047, 1050 (R.I. 1994). When "interpreting a legislative enactment, [it is incumbent upon the court] to determine and effectuate the Legislature's intent and to attribute to the enactment the meaning most consistent with its policies or obvious purposes." Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987). It is only then that a court can determine how the legislative act serves its purpose, taking into consideration the practical results should the court adopt an alternative interpretation. Matter of Falstaff Brewing Corp., 637 A.2d at 1050.
IV. Analysis
As a preliminary matter, this Court allowed Plaintiff to argue against Defendants' motion orally at the January 5, 2021 hearing. Tr. 3:9-16, 31:19-21; see Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174, 188 (R.I. 2008) ("The decision as to whether or not to hold a hearing and allow oral argument is within the discretion of the court[.]"). Because Plaintiff has invoked the Court's equitable jurisdiction, and "principles of equity are flexible by nature," the Court will consider Plaintiff's arguments, advanced in her Verified Complaint and at oral argument, in response to Defendants' motion for summary judgment. Retirement Board of Employees' Retirement System of City of Providence v. Corrente, 111 A.3d 301, 307 (R.I. 2015); see also Retirement Board, 111 A.3d at 311 (Robinson, J., dissenting) ("'Equity looks through form to substance. Thus, a court of equity goes to the root of the matter and is not deterred by form.'") (quoting Huffman v. Peterson, 718 N.W.2d 522, 528 (Neb. 2006)).
A. LEOBOR's Definition of a Law Enforcement Officer
Defendants argue that Plaintiff was not covered by the LEOBOR at the time of her termination because she was not a "law enforcement officer" as defined by that statute. See Defs.' Mem. 4-5. Defendants contend that, as Deputy Chief for the RIAPD from July 7, 2020 through November 10, 2020, Ms. Ricci was the highest ranking sworn officer in the RIAPD during that period. Id. ¶ II.10; Greco Aff. ¶ 10. Therefore, Defendants argue that Plaintiff is excluded from the definition of "law enforcement officer" under the plain and unambiguous language of the LEOBOR. (Defs.' Mem. 5.)
Section 42-28.6-1 provides, in pertinent part:
"(1) "Law enforcement officer" means any permanently employed city or town police officer, state police officer, permanent law enforcement officer of the department of environmental management, or those employees of the airport corporation of Rhode Island who have been granted the authority to arrest by the director of said corporation. However this shall not include the chief of police and/or the highest ranking sworn officer of any of the departments including the director and deputy director of the airport corporation of Rhode Island." Sec. 42-28.6-1(1) (emphasis added).
The final sentence of § 42-28.6-1(1)'s definition of a "law enforcement officer" under the LEOBOR contains the disputed exclusionary language at issue here. Id. Defendants quote the relevant section only in part in making their argument, essentially reading "chief of police and/or the highest ranking sworn officer of any of the departments" as the relevant term of exclusion. See Defs.' Mem. 5. However, the final clause of the exclusionary sentence (which was added to the definition in 2005) is directly relevant to this situation. See § 42-28.6-1(1); Pl.'s Ex. 12.
The Rhode Island Supreme Court has consistently held that, when interpreting the language of a statute, our courts should "presume that the drafters 'intended each word or provision of a statute to express a significant meaning, '" and that courts should thus "'give effect to every word, clause, or sentence, whenever possible.'" Prew v. Employee Retirement System of City of Providence, 139 A.3d 556, 561 (R.I. 2016) (quoting State v. Clark, 974 A.2d 558, 571 (R.I. 2009)) (further citation omitted). Defendants have not offered any evidence related to the identity of the "director and deputy director of the airport corporation of Rhode Island[, ]" instead relying only on the language added in 1995 ("the chief of police and/or the highest ranking sworn officer of any of the departments"). See Pl.'s Ex. 11. Therefore, their argument that the term "highest ranking sworn officer" is unambiguous and can easily be applied to Ms. Ricci here is specious.
Even if the relevant language were as limited as Defendants claim, the argument that the legal use of "and/or" is unambiguous is an uphill battle. See Kenneth A. Adams & Alan S. Kaye, Revisiting the Ambiguity of "And" and "Or" in Legal Drafting, 80 St. John's L. Rev. 1167, 1191 (2006). Here, the agreed upon standard meaning of "and/or"-X or Y or both-does not resolve the ambiguity. See id. at 1192. Using that formula, the term in question would be unpacked as "the chief of police or the highest ranking sworn officer or both" and that would remain ambiguous. Defendants and Plaintiff do not dispute that the "both" in play here excludes two people from the definition (i.e., both the person who is chief and a separate person who is the highest ranking sworn officer). However, the Plaintiff argued that the legislative history indicates that this language was meant to exclude a high ranking sworn officer above the chief, referencing the situation in Providence where the Commissioner is the head of the police department. See Tr. 31:21-33:4; Providence Home Rule Charter Art. X § 1001(a) ("The head of the police department shall be the commissioner, who shall appoint a chief of police, who shall serve as the chief executive officer of the police department subject to the direction of the commissioner."). Defendants instead argue that this language would include the next highest ranking officer under the Chief. See Defs.' Mem. 6-7.
Legal writers have railed against the use of "and/or" in legal writing precisely because of its ambiguity. See Robert C. Dick, Legal Drafting in Plain Language 107 (3d ed. 1995) (referring to and/or as a "linguistic aberration"); Thomas R. Haggard, Legal Drafting in a Nutshell 266 (2003) (noting that judicial outrage directed at and/or "is fully warranted"); David Mellinkoff, Mellinkoff's Dictionary of American Legal Usage (1992) ("Where precision is called for, and/or is a disaster."); Bryan A. Garner, A Dictionary of Modern Legal Usage 56 (2d ed. 1995) (quoting the views of some "ardent haters" of and/or); 11 Richard A. Lord, Williston on Contracts § 30:12 (4th ed. 1990) (noting that and/or "has provoked outbursts of invective which are somewhat disproportionate to the amount of harm it causes"). Even Strunk and White objected to the use of "and/or" in The Elements of Style, stating that it is "[a] device, or shortcut, that damages a sentence and often leads to confusion or ambiguity." William Strunk, Jr. & E.B. White, The Elements of Style 40 (4th ed. Pearson 2000) (1959).
Where a statute is ambiguous, the Court looks to the intent of the Legislature and the purpose of the legislation in order to interpret the ambiguous language. See Town of Burrillville, 950 A.2d at 445; Matter of Falstaff Brewing Corp., 637 A.2d at 1050; Brennan, 529 A.2d at 637. The purpose of the LEOBOR as a whole has been described by the Rhode Island Supreme Court as "protect[ing] police officers from infringements of their rights in the course of investigations into their alleged improper conduct." In re Denisewich, 643 A.2d at 1196. The Legislature made clear its intent in creating the LEOBOR for this purpose by making it the "exclusive remedy for permanently appointed law enforcement officers who are under investigation or subject to interrogation by a law enforcement agency for any reason which could lead to disciplinary action, demotion or dismissal." Lynch v. King, 120 R.I. 868, 870 n.1, 391 A.2d 117, 119 n.1 (1978); see also Providence Lodge No. 3, 951 A.2d at 502-03.
As Plaintiff pointed out at oral argument, this means that the LEOBOR is a remedial statute. Tr. 35:14-16, 36:3-9; see Laprade, 94 A.3d at 511 (confirming that the "LEOBOR 'is remedial in nature, '" and that it "'is designed to protect the rights of the accused officer who, according to the statute, is [designated as] the aggrieved law enforcement officer'") (quoting Ims, 32 A.3d at 925) (further quotation omitted). "In the parlance of statutory construction, a remedial statute is one which affords a remedy, or improves or facilitates remedies already existing for the enforcement [of] rights [or] redress of wrongs[.]" Esposito v. O'Hair, 886 A.2d 1197, 1203 (R.I. 2005) (internal quotation omitted). A remedial statute should be interpreted liberally and not construed in a manner that would defeat its evident purpose. Prew, 139 A.3d at 563 (citing Asadoorian v. Warwick School Committee, 691 A.2d 573, 580 (R.I. 1997); McCarthy v. Environmental Transportation Services, Inc., 865 A.2d 1056, 1062 (R.I. 2005)).
The relevant Rhode Island caselaw and legislative history, while distinct, also reflects the national history of LEOBORs, insofar as "[l]ocal and national police unions are the principal advocates for the interests of police officers." Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers' Bills of Rights, 14 B.U. Pub. Int. L.J. 185, 198 (2005) (hereinafter Keenan & Walker, Analysis). Nationally, the rise of police unions and LEOBORs can be attributed to "what rank-and-file officers perceived to be abuses of authority by police managers[.]" Id. at 200. Thus, the Fraternal Order of Police has based its advocacy for the passage of LEOBORs on their contention that "'rank-and-file police officers are sometimes subjected to abusive and improper procedures and conduct on the part of the very departments or agencies they serve[.]'" Id. at 198 (quoting Press Release, Police Benevolent Association, Due Process for Police Officers Introduced in Senate (May 9, 1999)).
Regarding the underlying intent and purpose of the exclusionary language at issue here, the Court finds the Rhode Island Supreme Court's decision in Fraternal Order of Police, Westerly Lodge No. 10 v. Town of Westerly, 659 A.2d 1104 (R.I. 1995), instructive. In that case, the Rhode Island Supreme Court examined the rationale for excluding managerial and supervisory members of the police force from membership in collective bargaining units, holding that:
"The responsibility of lieutenants and captains to assume the role of chief under certain conditions in the Westerly police department makes these officers supervisory or managerial personnel. Their responsibilities to discipline, command, and adjust grievances of lower ranking officers further support this conclusion, in addition to their duties to effectuate departmental policy and make recommendations for certain actions regarding personnel. As a result, [they] constitute supervisory or managerial personnel to be excluded from the collective-bargaining unit." Fraternal Order of Police, Westerly Lodge No. 10, 659 A.2d at 1108.
In making this holding, our Supreme Court looked to federal labor practice and decisions of the United States Supreme Court. Id. Notably, in NLRB v. Yeshiva University, 444 U.S. 672 (1980), the United States Supreme Court stated that "normally an employee may be excluded as managerial only if he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy." Yeshiva, 444 U.S. at 683.
Given the history of LEOBORs generally and our Supreme Court's interpretation of the exclusion of managerial and supervisory officers in Rhode Island in a related context, the Court finds that the underlying purpose of the exclusion of "the chief of police and/or the highest ranking sworn officer of any of the departments including the director and deputy director of the airport corporation of Rhode Island" is to protect rank-and-file police officer employees from a managerial or supervisory officer's abusive or improper procedures related to discipline, dismissal, or demotion. Sec. 42-28.6-1(1); see Keenan & Walker, Analysis, 14 B.U. Pub. Int. L.J. at 242 ("Police officers are like other employees that depend on their supervisors' approval for their continued employment and advancement" who "face a powerful foe when their employer becomes an adversary."). The Court also finds that the plain language of the statute supports a reading, in the context of the RIAPD, that designates only the chief and the director and deputy director of the RIAC as explicitly excluded from coverage under the LEOBOR. Sec. 42-28.6-1(1). The only remaining question is whether the Deputy Chief, under these circumstances, would also be presumptively excluded from coverage, as the Defendants argue.
B. Plaintiff's Status as Law Enforcement Officer
Given the purpose behind the LEOBOR's exclusion of managerial or supervisory officers, the Court must then ask whether Ms. Ricci, in her tenure as Deputy Chief, was a member of that class. Federal employment law treats this question as "a mixed one of fact and law." Yeshiva, 444 U.S. at 691. On the one hand, there is a question of law regarding what powers or duties would make a police officer's position managerial or supervisory in the way required to justify their exclusion from the definition of the LEOBOR. On the other hand, in any given case it would be a question of fact whether the individual officer had those powers or duties.
In the context of federal employment law, there is a specific statutory definition of the term "supervisor" which sets out an enumerated list of powers, any one of which is "sufficient to confer supervisory status." Fall River Savings Bank v. N.L.R.B., 649 F.2d 50, 53 (1st Cir. 1981) (citing Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980) (further citation omitted)); see 29 U.S.C. § 152(11) (defining "supervisor" as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or reasonably to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment"). Unfortunately, there is not a similar definition in the LEOBOR for either the "chief of police" or the "highest ranking sworn officer of any of the departments including the director and deputy director of the airport corporation of Rhode Island."
Here, there was evidence offered by Plaintiff as to the duties of both the Chief and Deputy Chief of the RIAPD, in the form of their job descriptions. See Pl.'s Ex. 8; Pl.'s Ex. 9. The job description for the Chief of Police lists the following supervisory responsibilities: "[t]otal supervision of the RI Airport Corporation Police Department[, ] [h]andles hiring, evaluation, discipline, and termination process for the Police Department[, ] [a]ssists in resolution of labor relations issues and grievances." (Pl.'s Ex. 8.) In contrast, the job description for the Deputy Chief lists supervisory responsibilities as follows: "[a]ssists the Chief of Police with the supervision of the Police Department[, ] [r]ecommends and assists with the hiring, evaluation, discipline, and termination process for the Police Department[, ] [a]ssists in resolution of labor relations issues and grievances." (Pl.'s Ex. 9.) This would seem to establish that the position of Deputy Chief of the RIAPD was intended to be at least a supervisory role. See Fraternal Order of Police, Westerly Lodge No. 10, 659 A.2d at 1108.
However, the exclusionary language in the LEOBOR's definition of "law enforcement officer" is not so broad as to presumptively exclude any police officer who had some supervisory duties. After all, police departments are hierarchical organizations with several tiers of rank and increasing levels of supervisory powers. Given the remedial purpose of the LEOBOR, it would not be in keeping with the intention of the Legislature to construe it in such a way that would exclude a broad class of rank-and-file police officers from its protections. See Laprade, 94 A.3d at 511; cf. Entergy Gulf States, Inc. v. N.L.R.B., 253 F.3d 203, 208 (5th Cir. 2001) ("Supervisory status is not construed broadly because those deemed supervisors lose rights which the Act seeks to protect.") (further citation omitted). In appropriately limiting the application of this exclusion, the Court looks to the provisions of the statute as a whole and the relevant caselaw interpreting it.
As a general matter, a law enforcement officer's "right to a hearing under the act simply does not vest until the chief or someone in a comparable position indicates that one of the sanctions envisioned by the terms of § 42-28.6-4 will be imposed[.]" Zincone v. Mancuso, 523 A.2d 1222, 1225 (R.I. 1987) (emphasis added); see also International Brotherhood of Police Officers v. City of East Providence, 989 A.2d 106, 109 (R.I. 2010) ("'Until such a decision is made by a police chief, the hearing provision of [the] LEOBOR and the ensuing procedural steps are not operative.'") (quoting Providence Lodge No. 3, 951 A.2d at 503) (emphasis added and further citation omitted). The language at issue here, when read in combination with other portions of the statute and in light of its purpose, clearly seeks to bar from protection those supervisors working at a managerial level who occupy positions equivalent to the chief of police or higher. That is because it is only the chief of police or those of higher rank in an individual organization who have the discretion to enact the kind of arbitrary sanctions that the LEOBOR guards against. See Zincone, 523 A.2d at 1225; International Brotherhood of Police Officers, 989 A.2d at 109.
Plaintiff and Defendants each present a different parade of horribles for the Court's consideration as potential consequences of interpreting the LEOBOR's language incorrectly. Plaintiff claims that if the Court accepts Defendants' interpretation, then you could have a situation where "a chief go[es] away on vacation for a month and the captain is left in charge" and the captain's temporary command would exclude him from the LEOBOR's protections should he be terminated while the chief's position was vacant. (Tr. 34:9-24.) Defendants argue that if someone in Plaintiff's position were granted a LEOBOR hearing, they would be allowed to stack the hearing committee in their favor by appointing two of the three members and that they would be insulated from suspension. See Defs.' Mem. 6-8. Defendants' fear in this case is unwarranted, as Plaintiff points out, because at the time she submitted her request for a hearing, there was a new Chief of the RIAPD. See Tr. 35:4-13. As to Plaintiff's concerns, there is good precedent to support the contention that the "spasmodic and infrequent assumption of a position of command and responsibility does not transform an otherwise rank-and-file worker into a supervisor." NLRB v. Quincy Steel Casting Co., 200 F.2d 293, 296 (1st Cir. 1952).
Ms. Ricci was never the Chief of the RIAPD. (V. Compl. ¶ 13; Defs.' Answer ¶ 13.) In fact, her performance review in August explicitly charges her with insufficient deference to her corporate chain of command. See Pl.'s Ex. 3. Furthermore, the only undisputed basis of Ms. Ricci's termination is insubordination. See V. Compl. ¶ 17; Defs.' Answer ¶ 17. Mr. Greco and the RIAC exercised their managerial authority over the RIAPD when they terminated Ms. Ricci, and the Legislature has made clear that members of the RIAC have the requisite enforcement powers to go along with their managerial prerogative in a police hierarchy. See § 1-4-14(b) (granting arrest and enforcement authority to "[t]he director, deputy director, aeronautics inspectors, and selected employees of the Rhode Island airport corporation to whom such powers may be delegated in the discharge of the duties of their office"). However, material issues of fact remain in dispute on this record as to what powers Ms. Ricci had during the period between the retirement of Chief Messier and her termination, as well as who occupied the positions of director and deputy director of the RIAC, or their equivalent positions in any current hierarchy, at that time. See Tr. 33:15-34:5 (stating that Ms. Ricci never had the power to hire or terminate); Pl's Ex. 3, at 5 (indicating that Ms. Ricci answered Step 1 grievances generated by the union and assisted with Step 2 and 3 responses). Consequently, Defendants' motion for summary judgment is denied.
It is worth noting that insubordination by definition implies a higher authority in the chain of command. See Black's Law Dictionary (11th ed. 2019) (defining "insubordination" as both "[a] willful disregard of an employer's instructions, esp. behavior that gives the employer cause to terminate a worker's employment" and "[a]n act of disobedience to proper authority; esp., a refusal to obey an order that a superior officer is authorized to give").
V. Conclusion
This Court finds that the Defendants have not met their summary judgment burden because the determination of whether Ms. Ricci should be properly excluded from coverage by the LEOBOR hinges on a mixed question of law and fact, and material issues of fact remain in dispute. Therefore, the Defendants' motion for summary judgment is denied.