Opinion
C. A. WC-2020-0502
11-28-2022
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: Christopher N. Dawson, Esq. Timothy K. Baldwin, Esq. Timothy C. Cavazza, Esq. Joseph D. Whelan, Esq.
For Plaintiff: Joseph F. Penza, Jr., Esq.
For Defendant: Christopher N. Dawson, Esq. Timothy K. Baldwin, Esq. Timothy C. Cavazza, Esq. Joseph D. Whelan, Esq.
DECISION
GIBNEY, P.J.
Helen Ricci (Plaintiff) is the former Deputy Chief of the Rhode Island Airport Police Department (RIAPD), hired by the Rhode Island Airport Corporation (RIAC) (RIAPD and RIAC collectively, Defendants) and terminated without the benefit of a hearing as otherwise required by G.L. 1956 § 42-28.6-4, the Law Enforcement Officers' Bill of Rights (LEOBOR). On June 21, 2022, the Rhode Island Supreme Court affirmed that Plaintiff is a "law enforcement officer" covered by LEOBOR and instructed this Court on remand to "order compliance with the provisions of § 42-28.6-4 and restoration of [Plaintiff]'s salary and benefits to the status quo ante.' Ricci v. Rhode Island Commerce Corp., 276 A.3d 903, 909 (R.I. 2022). Now before this Court are two motions filed by Plaintiff following remand: (1) a Motion to Dismiss Charges due to Defendants' failure to comply with LEOBOR (Pl.'s Mot. to Dismiss Charges 1); and (2) a Motion to Order Restoration of Salary and Benefits without reduction for any health benefits or wages received from other employment. (Pl.'s Mot. to Order Restoration of Salary & Benefits (Pl's Mot. for Restoration) 3.) Jurisdiction is pursuant to G.L. 1956 § 8-2-13 and § 42-28.6-4.
Plaintiff also filed a motion requesting an award of attorney's fees. See generally Pl.'s Renewed Prelim. Mot. for Att'y Fees. At an October 31, 2022 hearing before this Court, Plaintiff withdrew this motion, referencing our Supreme Court's holding in Campbell v. Tiverton Zoning Board, 15 A.3d 1015, 1024-26 (R.I. 2011) (claim for litigation expenses must be denied where underlying proceeding is not an "adjudicatory proceeding" under chapter 92 of title 42).
I
Facts and Travel
On November 10, 2020, Defendants terminated Plaintiff based on alleged insubordination, among other reasons. (Compl. ¶¶ 15-17.) As required by §§ 42-28.6-4(c)-(d), Plaintiff requested a LEOBOR hearing and provided the name of her representative for the hearing committee. Id. ¶¶ 21-22. Defendants failed to respond or appoint their own committee representative because they believed that Plaintiff was not a "law enforcement officer" entitled to LEOBOR protections. Id. ¶¶ 24, 27.
On December 1, 2020, Plaintiff filed a Complaint with this Court seeking the protections of LEOBOR as a "law enforcement officer" as defined in § 42-28.6-1(1). See generally Compl.; see also Pl.'s Mem. of Law in Supp. of her Request for Decl. & Inj. Relief (Mar. 15, 2021 Mem.). In her March 15, 2021 memorandum, Plaintiff noted that, if the Court were to rule in Plaintiffs favor, the parties would need to address whether Defendants' noncompliance with LEOBOR would nevertheless necessitate dismissal of all charges contemplated by Defendants against Plaintiff or whether Defendants could show good cause for their failure to comply with the hearing timelines dictated by § 42-28.6-4(e). (Mar. 15, 2021 Mem. 8-9.) Section 42-28.6-4(e) obligated Defendants to communicate their hearing committee representative within five days of their receipt of Plaintiff s request for a hearing or to petition this Court for permission to file an untimely selection for good cause shown. Section 42-28.6-4(e).
On May 6, 2021, this Court issued a Decision granting Plaintiffs request for declaratory and mandatory injunctive relief, concluding that "Plaintiff . . . [was] entitled to the protections set forth under the LEOBOR." Ricci v. Rhode Island Commerce Corp., No. WC-2020-0502, 2021 WL 1902787, at *6 (R.I. Super. May 6, 2021). In accordance with that Decision, Plaintiffs counsel presented a draft order to the Court, which was entered on May 10, 2021, and ordered the following:
"1. The Court grants plaintiffs request for declaratory relief and injunctive relief in accordance with the Court's decision of May 6, 2021.
"2. Plaintiff shall be reinstated to her position as Deputy Chief of the Rhode Island Airport Police Department with all back pay and benefits.
"3. Plaintiff is entitled to the protection set forth under the Law Enforcement Officers' Bill of Rights.
"4. Pursuant to R.I.G.L. § 42-28.6-4(e), defendant shall provide plaintiff with the name of one active or retired law enforcement officer to serve on the Hearing Committee.
"5. The Court's findings of fact and conclusions of law set forth in its decision of May 6, 2021 are incorporated by reference herein."
(Order Granting Decl. & Inj. Relief, May 10, 2021.)
Defendants filed a timely appeal. (Docket, SU-2021-140-A.) Our Supreme Court affirmed the May 10, 2021 Order, although it did so using an alternate analysis. See Ricci, 276 A.3d at 907. As is relevant to this stage of the proceedings, Justice Robinson, writing for the Court, stated:
In her briefing to the Supreme Court, Plaintiff noted her argument that "under R.I.G.L. § 42-28.6-4(e), RIAPD'S failure to name its representative to the Hearing Committee within five (5) days from when Ricci made her request for a hearing, should result in all of the charges against her being dismissed, with prejudice." Pl.'s Rule 12A Counter Statement at 10 n.3, Ricci v. Rhode Island Commerce Corp., 276 A.3d 903 (R.I. 2022).
"In our judgment, Ms. Ricci is fully entitled to the protections granted to law enforcement officers in the LEOBOR statute. Because the defendants did not comply with the provisions of § 42-28.6-4(a) and terminated Ms. Ricci in violation thereof, she is entitled to all of the salary and benefits she would have received had she not been wrongfully terminated.
". . .
"For the reasons set forth in this opinion, we affirm the order of the Superior Court in part, we vacate that order in part, and we remand the case to the Superior Court with instructions that it order compliance with the provisions of § 42-28.6-4 and restoration of Ms. Ricci's salary and benefits to the status quo ante." Id. at 909.
On remand to this Court, Plaintiff now revives her preserved argument that Defendants' failure to select a representative for the LEOBOR hearing within five days as required by § 42-28.6-4(e) necessitates dismissal of all charges contemplated by Defendants against Plaintiff. (Pl.'s Mot. to Dismiss Charges 2-3.) Although the five-day requirement may be excused upon a showing of "good cause," Plaintiff contends that Defendants' failure to comply due to their erroneous belief that LEOBOR did not apply to Plaintiff-even if in good faith-does not constitute good cause. Id. at 2.
Plaintiff further avers that she is entitled to back pay, health insurance reimbursement, relocation expenses, and accrued amounts of vacation, sick, and personal leave. (Pl.'s Mot. for Restoration Attach. 1.) At an October 31, 2022 hearing before this Court, Plaintiff argued that Defendants may not reduce the back pay and benefit amounts owed based on Plaintiffs outside earnings, unemployment benefits, and health benefits received during the interim period from termination to reinstatement. See generally Tr. Oct. 31, 2022. In support of this argument, Plaintiff pointed to: (1) Section 42-28.6-13, which repeatedly states that reinstated employees shall be "reimbursed all salary and benefits," see, e.g., §§ 42-28.6-13(d), (g)-(h) (emphasis added); and (2) our Supreme Court's statement that Plaintiff is "entitled to all of the salary and benefits she would have received had she not been wrongfully terminated." Ricci, 276 A.3d at 909 (emphasis added).
At the October 31, 2022 hearing, Plaintiff conceded that Zuromski v. Providence School Committee, 520 A.2d 137, 138-39 (R.I. 1987) requires reduction for unemployment benefits paid to Plaintiff, assuming Defendants are self-insured. Plaintiff otherwise argued that no further reductions are required by law, and that if the Supreme Court had intended a reduction in this case, the Court would have stated so explicitly.
II
Standard of Review
Questions of statutory construction, including review of LEOBOR, are assessed de novo. Ricci, 276 A.3d at 906. "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)). "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.'" Id. (quoting Ims v. Town of Portsmouth, 32 A.3d 914, 925 (R.I. 2011)). As such, it must be liberally interpreted in favor of its protected class of officers. Ricci, 276 A.3d at 906-07.
To the extent that a contested provision of LEOBOR is unambiguous, "there is no room for statutory construction[,] and we must apply the statute as written." In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994). Our Supreme Court has noted, however, that "[t]he [LEOBOR] statute is not a model of clarity." Providence Lodge No. 3, Fraternal Order of Police v. Providence External Review Authority, 951 A.2d 497, 505 (R.I. 2008). Therefore, this Court's mandate "'is to determine and effectuate the Legislature's intent and to attribute to the enactment the meaning most consistent with its policies or obvious purposes.'" Ricci, 276 A.3d at 906 (quoting Such v. State, 950 A.2d 1150, 1155-56 (R.I. 2008)).
III
Analysis
A
Motion to Dismiss Charges
Plaintiff asserts that, notwithstanding this Court's May 10, 2021 Order, Defendants' failure to comply with the five-day requirement in § 42-28.6-4(e) necessitates dismissal of all charges with prejudice. (Pl.'s Mot. to Dismiss Charges 2-3.) Defendants press two arguments in response: (1) dismissal is foreclosed by the fact that our Supreme Court broadly ordered compliance with LEOBOR's notice and hearing requirements of § 42-28.6-4, (Defs.' Obj. to Dismiss Charges 4); and (2) in the event that this Court agrees with Plaintiff that charges should be dismissed due to Defendants' noncompliance with the five-day requirement, Defendants ask in the alternative that this Court excuse such noncompliance for good cause shown as permitted by § 42-28.6-4(e). Id. at 7.
1
Supreme Court Ricci Opinion
Defendants' first argument that the specific language of the Supreme Court's Ricci opinion forecloses dismissal is without merit. The parties did not ask the Supreme Court to opine on § 42-28.6-4(e) or to rule on whether charges should be dismissed, so it is unsurprising that the Court did not reach those issues. Accord Tempest v. State, 141 A.3d 677, 687 n.15 (R.I. 2016) (declining to reach unnecessary issue or give "guidance" to the Superior Court in recognition of "'the cardinal principle of judicial restraint'" that "'if it is not necessary to decide more, it is necessary not to decide more”) (quoting PDK Laboratories, Inc. v. Drug Enforcement Administration, 362 F.3d 786, 799 (C.A.D.C. 2004) (Roberts, J., concurring in part and concurring in judgment)). The Ricci Court merely reiterated the unchallenged language of this Court's May 10, 2021 Order, impliedly leaving the Superior Court to address in the first instance Plaintiff's preserved argument for dismissal of the charges.
2
Good Cause Excusing Defendants' Noncompliance with § 42-28.6-4(e)
This Court's May 10, 2021 Order stated that "Plaintiff is entitled to the protection set forth under [LEOBOR]" and ordered Defendants to "provide plaintiff with the name of one active or retired law enforcement officer to serve on the Hearing Committee" pursuant to § 42-28.6-4(e). Notwithstanding this language, Plaintiff has consistently preserved her argument that Defendants' noncompliance with the five-day requirement of § 42-28.6-4(e) may necessitate dismissal. See, e.g., Mar. 15, 2021 Mem. 8-9; Pl.'s Rule 12A Counter Statement at 10 n.3, Ricci v. Rhode Island Commerce Corp., 276 A.3d 903 (R.I. 2022). Defendants do not contest that they failed to respond to Plaintiff's hearing request but argue that such noncompliance should be excused by this Court for good cause shown. (Defs.' Obj. to Dismiss Charges 7.)
To the extent Defendants argue that their good faith but erroneous interpretation of "law enforcement officer" constitutes good cause, that argument is easily dispensed by reference to the various cases cited by Plaintiff, which uniformly decline to equate "good cause" with mere "good faith." See Pl.'s Mot. to Dismiss Charges 2-3 (citing Feb. 1, 2006 Hr'g Tr., International Brotherhood of Police Officers, Local 369 v. Town of Burrillville Police Department, No. PC-2006-0379 (R.I. Super. dismissed Feb. 28, 2006)); June 29, 2005 Hr'g Tr., Petrella v. City of Providence, No. MP/05-3319 (R.I. Super. 2005); Oct. 7, 2003 Hr'g Tr., Town of Lincoln Police Department v. McRoberts, No. PC-2003-5142 (R.I. Super. dismissed Dec. 14, 2003)). Although LEOBOR does not define good cause and this Court has not dictated a good cause standard, it is at least clear that good cause does not equate to good faith. Cf. Woonsocket Neighborhood Development Corp. v. Mathews, No. 99-3915, 2000 WL 1879903, at *4 (R.I. Super. Dec. 1, 2000) ("'Good cause' generally means a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.").
Although unpublished opinions "have no precedential value," they may nevertheless be cited as instructive. Whitaker v. State, 199 A.3d 1021, 1030 n.5 (R.I. 2019).
Identifying what is not good cause, however, does not resolve the issue of whether there exists good cause on the facts of this case. The practical effect of applying § 42-28.6-4(e) against a nonresponsive law enforcement agency-or applying the equivalent provision in § 42-28.6-4(c) against a law enforcement officer-is dismissal of the agency's charges against the officer or waiver of the officer's right to a hearing. Sections 42-28.6-4(c), (e). Such dismissal or waiver is the administrative equivalent of a default; therefore, this Court will apply the good cause standard from Rule 55(c) of the Superior Court Rules of Civil Procedure. Where there are no intervening equities, any doubt about the existence of good cause should, as a general proposition, be resolved in favor of the party seeking to establish good cause. See Berberian v. Petit, 118 R.I. 448, 452-53, 374 A.2d 791, 793 (1977). "'A Rule 55(c) motion also may be granted whenever the court finds that the default was not the result of gross neglect, that the nondefaulting party will not be substantially prejudiced by the reopening, and the party in default has a meritorious defense.'" Security Pacific Credit (Hong Kong) Ltd. v. Lau King Jan, 517 A.2d 1035, 1036 (R.I. 1986) (quoting 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2696 at 518-19 (1983)).
As to the first element, Defendants' failure to comply with § 42-28.6-4(e) was not due to gross neglect, but rather due to the belief that Plaintiff was not a "law enforcement officer" protected by LEOBOR. (Answer ¶ 27.) Nevertheless, Plaintiff argues that Defendants should have chosen a hearing committee member and sought to stay the LEOBOR hearing or petitioned this Court claiming good cause not to file its member selection, (Mot. to Dismiss 2); but neither of those actions would be necessary in the absence of Plaintiffs claim that she was a "law enforcement officer," a claim not filed until after LEOBOR's five-day requirement. Compare id. (noting Defendants' five-day deadline of November 18, 2020), with Compl. 7 (filed December 1, 2020). These facts simply do not equate to "ignoring] [a] claim or allowing] it to languish," Wolanski v. Crawford, No. C.A. 90-0073, 1998 WL 960788, at *2 (R.I. Super. Oct. 16, 1998), and the first element of the good cause standard therefore favors Defendants. Cf. R.C. Associates v. Centex General Contractors, Inc., 810 A.2d 242, 245 (R.I. 2002) (upholding denial of motion to vacate default judgment where attorney simply "never followed up").
The second element also cuts in Defendants' favor, requiring "that the nondefaulting party will not be substantially prejudiced[.]" Security Pacific Credit (Hong Kong) Ltd., 517 A.2d at 1036 (internal quotation omitted). LEOBOR mandates that Plaintiff "receive all ordinary pay and benefits as . . . she would receive if . . . she were not so suspended," § 42-28.6-13(f), and in the absence of other evidence of harm such as unavailability of witnesses or other discovery challenges, there is no evidence that Plaintiff would be prejudiced by a denial of her Motion to Dismiss Charges. See FDIC v. Francisco Investment Corp., 873 F.2d 474, 479 (1st Cir. 1989) (explaining issue of prejudice "is not mere delay, but rather its accompanying dangers: loss of evidence, increased difficulties of discovery, or an enhanced opportunity for fraud or collusion"); see also Security Pacific Credit (Hong Kong) Ltd., 517 A.2d at 1036 (looking to federal interpretations of Fed.R.Civ.P. 55(c), "whose terms are substantially identical to those of the Rhode Island rule").
Finally, the good cause standard requires that "the party in default has a meritorious defense." Security Pacific Credit (Hong Kong) Ltd., 517 A.2d at 1036 (internal quotation omitted). Defendants' claim that "Plaintiff's termination was substantially justified," (Answer 6), can only be resolved through a LEOBOR hearing. See § 42-28.6-15 (providing that LEOBOR contains the "sole and exclusive remedies" for all law enforcement officers"); see also Indigo America, Inc. v. Big Impressions, LLC, 597 F.3d 1, 4 (1st Cir. 2010) ("Establishing the existence of a meritorious defense is not a particularly arduous task."); Coon v. Grenier, 867 F.2d 73, 77 (1st Cir. 1989) ("[A] party's averments need only plausibly suggest the existence of facts which, if proven at trial, would constitute a cognizable defense.").
As three elements favor Defendants, they have therefore shown good cause to permit an untimely hearing committee selection in accordance with § 42-28.6-4(e). As such, Defendants shall reinstate Plaintiff to her position as Deputy Chief of the RIAPD and shall, within five days of this Court's order, provide Plaintiff with the name of one active or retired law enforcement officer to serve on a LEOBOR hearing committee in accordance with § 42-28.6-4(e). Nothing in this Decision, however, should be construed to prohibit Defendants from pursuing a suspension in accordance with §§ 42-28.6-4(a) and 42-28.6-13.
B
Motion for Restoration of Salary and Benefits
A remedial statute, like LEOBOR, is liberally construed to effectuate its purpose. Ricci, 276 A.3d at 906-07. "[T]he purpose of LEOBOR is to protect police officers from any impairment of their rights when their conduct is questioned by a law enforcement agency with respect to a noncriminal matter." Providence Lodge No. 3, Fraternal Order of Police, 951 A.2d at 504. LEOBOR therefore provides procedural guarantees and, when those procedural dictates are violated, it provides law enforcement officers with limited remedies. Section 42-28.6-15. Because this is a noncriminal disciplinary matter for which Defendants seek to terminate Plaintiff, § 42-28.6-4(f) is applicable, which provides:
"Suspension may be imposed by the chief or highest ranking sworn officer of the law enforcement agency upon receipt of notice or disciplinary action in accordance with § 42-28.6-4(b) of this chapter in which termination or demotion is the recommended punishment. Any such suspension shall consist of the law enforcement officer being relieved of duty, and he or she shall receive all ordinary pay and benefits as he or she would receive if he or she were not so suspended." Section 42-28.6-13(f).
Rhode Island courts have not addressed whether "all ordinary pay and benefits," as used in § 42-28.6-13(f), contemplates reductions for interim outside earnings and benefits, but our Supreme Court has addressed this issue with respect to tenured employees under the Merit System Act. Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 (R.I. 2002). In Wilkinson, a "full status" state employee under the state's merit system was wrongfully terminated without cause in violation of constitutional due process and what the Court referred to as "just-compensation protections." See id. at 1135, 1140; see also G.L. 1956 § 36-4-59 (providing tenure to state employees who have achieved twenty years of service credit). The Court ordered the employee be reinstated with "all benefits that he was and remains entitled to receive . . . as if he had not been terminated, less any compensation that he may have received from other sources that he would not otherwise have earned but for his wrongful termination." Wilkinson, 788 A.2d at 1144 (emphasis added).
The Wilkinson Court therefore impliedly recognized that an appropriate remedy for a procedural due process violation is the common "make whole" remedy. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975) (make whole remedy described as, "[w]here a legal injury is of an economic character, . . . '[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed'") (quoting Wicker v. Hoppock, 18 L.Ed. 752 (U.S. 1867)). This interpretation is further supported by the canon of statutory construction that "[w]here a public interest is affected, courts prefer an interpretation which favors the public." 2B Sutherland Statutory Construction § 56:1 (7th ed.). As observed by the New Jersey Supreme Court in a similar case involving a statutorily-protected municipal employee, "'such an interpretation both fulfills the legislative desire to abrogate the common law rule, in fairness to municipal officials who have been improperly treated, and at the same time gives due concern to the need often legislatively expressed to safeguard and protect public funds.'" White v. North Bergen Township, 391 A.2d 911, 923 (N.J. 1978) (quoting Springfield Township v. Pedersen, 3 72 A.2d 286, 289 (N.J. 1977)). Accord Morgado v. City & County of San Francisco, 268 Cal.Rptr.3d 360, 363-64 (Cal.App. 2020) ("As a general matter, windfalls are to be avoided, and that is especially so when public funds are the source of payment.") (emphasis in original).
Contrary to Plaintiffs assertion, use of the word "all" in § 42-28.6-13(f) and in our Supreme Court's Ricci opinion does not abrogate the traditional "make whole" remedy. Section 42-28.6-13(f) requires "all ordinary pay and benefits as [Plaintiff] would receive if . . . she were not so suspended." Section 42-28.6-13(f) (emphasis added). Plaintiff does not argue that her alleged outside employment predated her termination or that it would have occurred had she not been terminated by Defendants. As such, it may be properly factored into the "make whole" calculation to avoid overcompensation above "ordinary pay and benefits" for the harm suffered. Id.
This interpretation is in accord with court rulings addressing other state LEOBOR statutes. See, e.g., Morgado, 268 Cal.Rptr.3d at 362 (officer wrongfully terminated in violation of Public Safety Officers Procedural Bill of Rights Act entitled to reinstatement, but "make-whole relief permitted deduction of side income from order of front pay); City of Temple v. Taylor, 268 S.W.3d 852, 853 (Tex. App. 2008) (police officer terminated in violation of Fire Fighters' and Police Officers' Civil Service Act entitled to back pay reduced by amount of any interim earnings). Reducing back pay and benefits in consideration of outside earnings is also in line with federal and state court interpretations of similar statutes protecting other classes of workers. See, e.g., Heinrich Motors, Inc. v. National Labor Relations Board, 403 F.2d 145, 148 (2d Cir. 1968) ("The general rule in back pay cases is that a wrongfully discharged employee is entitled to the difference between what he would have earned but for the wrongful discharge and his actual interim earnings from the time of discharge until he is offered reinstatement."); Department of Health v. Donahue, 690 P.2d 243, 250 (Colo. 1984) (en banc) (Personnel Rules providing procedural protections to state employees with back pay remedy required "an offset for any substitute earnings or unemployment compensation received."); White, 391 A.2d at 923 (statute permitting wrongfully discharged municipal employee to recover "salary" was "subject to mitigation by outside earnings in the interim by the dismissed and later vindicated . . . employee").
IV
Conclusion
For the reasons set forth herein, this Court denies Plaintiffs Motion to Dismiss Charges. Defendants have shown good cause for their noncompliance with the five-day requirement of § 42-28.6-4(e).
This Court grants in part Plaintiff's Motion for Restoration of Salary and Benefits, but denies such Motion to the extent Plaintiff seeks restoration of salary or benefits without offset for any substitute earnings, unemployment compensation received, outside benefits obtained, vacation time already paid, and/or expenses not yet owed to Plaintiff.
Counsel shall prepare the appropriate orders for entry.