Opinion
No. CV 01 0809373 S
October 29, 2004
MEMORANDUM OF DECISION
These are two consolidated cases that arise out of the arrests, acquittal and subsequent termination of Alberto Santana, formerly a police officer employed by the city of Hartford. Santana is seeking reimbursement for defense costs and other expenses arising out of his criminal defense, as well as reinstatement as an officer, back pay and benefits, and the like. The facts have been presented to the court on a set of stipulated facts and three binders of documentary evidence.
Santana was sworn as a Hartford police officer in 1985. On February 16, 1993, he was arrested for unlawful drug activity and was suspended without pay on February 18, 1993. As a result of the report of an investigative grand jury, conducted by Hon. Arthur Spada, a second arrest warrant was issued in December 1994, and all charges were consolidated in an amended information, CR 94-466596. For some unexplained reason the criminal case languished for years. Finally tried in 2001, a jury found Santana not guilty as to three of the five counts on March 20, 2001. On July 12, 2001, the then presiding judge entered judgment of acquittal on the remaining counts.
Santana requested on July 17, 2001, that he be reinstated, and his union filed a grievance regarding failure to reinstate on July 31, 2001. On September 4, 2001, a "third step" ruling in the grievance procedure held that the city may suspend an officer prior to the conclusion of the administrative process. The city conducted part of an "I-file" investigation in the fall of 2001. Then Chief Marquis informed Santana on November 11, 2001, that a disciplinary hearing would be scheduled on the issue of conduct unbecoming an officer. Apparently on December 10, 2001, the investigation was completed. After a hearing, the "third step" hearing officer found the allegations sustained and Santana's employment was terminated as of June 6, 2002.
While the administrative proceedings were taking their course, Santana filed the first complaint, which claimed that his expenses incurred in the criminal proceedings should be reimbursed pursuant to § 53-39a of the General Statutes. After termination, the second action, which essentially seeks a declaratory judgment regarding claimed infirmities in the termination proceedings and correlative relief, was filed. The two actions were consolidated and, as noted above, the parties submitted the issues to the court on a set of stipulated facts (Exhibit A) and three binders of documentation (Exhibits B, C and D). On September 21, 2004, I requested a hearing on the issue of whether administrative remedies could be bypassed by agreement, and the parties presented their thoughts on that issue on October 20, 2004. The parties waived the 120-day requirement in which to render a decision; that period apparently would have expired on October 4, 2004.
I. Reimbursement for expenses of the criminal defense.
Section 53-39a provides that:
Whenever, in any prosecution of an officer of . . . a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result of such prosecution, including the payment of any legal fees necessarily incurred.
An officer seeking reimbursement under § 53-39a must show he has been acquitted or the charges dismissed, and that the charged crime was "allegedly committed . . . in the course of his duty as (an officer)." The phase "in the course of his duty" has been construed to have the same meaning as that used in the workers' compensation context:
Link v. Shelton [ 186 Conn. 623 (1982)] instructs us to construe the phase "in the course of his duty" by looking to the meaning of "course of employment" under workers' compensation law. Link v. Shelton, supra, 627. "In order to come within the course of the employment, an injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it." McNamara v. Hamden, 176 Conn. 547, 550-51, 398 A.2d 1161 (1979). (Footnote omitted).
Rawling v. New Haven, 206 Conn. 100, 106-07 (1988).
An employee who substantially deviates from the duties of employment, even if the event in issue temporally occurs during the time of employment, forfeits any right to compensation, and case law recognizes no bright line. Rawling, supra, 107.
The question of deviation is typically one of fact for the trier. Labbe v. American Brass Co., 132 Conn. 606, 609-10, 46 A.2d 339 (1946). In deciding whether a substantial deviation has occurred, the trier is entitled to weigh a variety of factors, including the time, place and extent of the deviation; Herbst v. Hat Corporation of America, 130 Conn. 1, 7, 31 A.2d 329 (1943); as well as "what duties were required of the employee and the conditions surrounding the performance of his work . . ." Farnham v. Labutis, 147 Conn. 267, 270, 160 A.2d 120 (1960). Although an assault can be shown, under certain circumstances, to have occurred in the course of employment; Link v. Shelton, supra, 628-29; an assault can also be viewed as a personal frolic unwarranted by the work environment. Stulginski v. Waterbury Rollins Mills Co., 124 Conn. 355, 361-62, 119 A. 653 (1938). A sexual assault is generally viewed as foreign to the scope of employment unless the work setting itself precipitates the assault. Ward v. General Motors Corporation, 431 A.2d 1277, 1280 (Del.Super. 1981); 1 A. Larson, Workmen's Compensation (1985) 11.22 n. 69.
Rawling v. New Haven, 206 Conn. 100, 107-08 (1988).
A perusal of the case law may be instructive. In Rawling, an officer was accused of a sexual assault in the course of investigating a complaint of violence. The prosecution was terminated in his favor. The trial court had granted a summary judgment in favor of the officer. The Supreme Court reversed, holding that there was a substantial question of fact as to whether the officer had deviated from his duty. Just because he was on duty at the time of the alleged assault by no means required a finding that the charges arose out of conduct in the course of duty. And, critically for our discussion, the fact that his status as a police officer was implicated in the criminal proceedings does not foreclose further discussion:
The plaintiff next claims that the fact of dismissal of the charges in the prior criminal prosecution precludes relitigation of the question of whether his conduct was in the course of duty. He argues that because his "status" as a police officer was implicated in the criminal charges, the judgment of dismissal conclusively established that his alleged criminal behavior occurred in the course of his duty as a police officer. We decline to interpret the judgment of dismissal so broadly.
Rawling v. New Haven, 206 Conn. 100, 110 (1988).
In Link v. Shelton, supra, an officer reported for duty and, as a result of apparently losing his temper at work, was charged with a criminal offense. In that case, incidents of work apparently triggered work-related arguments. There then was a sufficient nexus with employment to compel indemnification of expenses. In Crotty v. Borough of Naugatuck, 2 Conn. L. Rptr. 609, 1990 WL 283742 (1990), Judge McWeeney found that an officer who had been accused of perjury before a grand jury in testimony about payments from the police union to the mayor had not been acting in the course of his employment for the purpose of § 53-39a. In Smith v. Hartford, an officer called on a residence in response to a request from the Department of Children and Families. He was accused of sexually inappropriate behavior during the course of the call. Judge O'Neill found that the conduct had occurred in the course of employment and reimbursement was appropriate.
The facts of this case, though complex, are analytically simple. Santana's first arrest was for claimed conduct that appeared to have little to do with employment. Wide-ranging allegations of misconduct inform the second arrest. Although the parameters are not entirely clear, Santana appears to have been accused to have been part of an extensive drug trafficking network, and at least some of the claimed misconduct certainly appears to involve abuse of his position as a police officer. The parties have included documentation to the effect that some witnesses claimed that Santana protected the drug operation by his knowledge of police activities and that his status as an officer contributed to the operation. For the purpose of this issue, I assume that at least some of the claimed misconduct occurred while Santana was on duty as a police officer of the city of Hartford.
This does not end the inquiry, even it as argued by Santana, the "animating theory" driving the grand jury investigation and the subsequent charges against Santana was abuse of the uniform. If Santana abused the uniform by engaging in drug trafficking while on duty, it is hard to imagine a more blatant deviation from duty. The arguably close cases arise from situations in which an officer is clearly doing something within the scope of his duty, such as investigating citizen complaints or testifying, and is accused of inappropriate conduct in the course of such activity. In these situations, it is at least arguable that the conduct was undertaken to benefit the employer. Here, there is nothing in the documentation to suggest that any of the activity was undertaken to benefit the employer. I find for the defendants on the first count, because even if some of the alleged activity occurred during hours of employment, the claimed transgressions did not benefit the employer in any way and, if true, constituted gross deviations from the duties of employment.
Compare the perhaps analogous situation of whether a diocese should be vicariously liable where a priest was accused of sexual misconduct. In Mullen v. Horton, 46 Conn.App. 759 (1997), the Appellate Court held that it was possible that facts could be introduced to show that sexual advances were a misguided attempt at counseling or therapy, and thus intended to benefit the employer. Thus, it was possible that the activity was to benefit the employer.
II. Election to rely on the prosecution.
The second count of the consolidated complaint claims that the city elected to rely on the results of the criminal prosecution, and thus, after the acquittal, was prevented from pursuing termination of employment by administrative means. This count appears to comprise the second and third issues identified by the parties: whether the city lost its "capacity to maintain Alberto Santana's suspension under Appendix A of the collective bargaining agreement" and whether the city effectively delegated to the criminal justice system the resolution of the merits of whether Santana engaged in conduct unbecoming an officer. Both parties have treated these issues as primarily factual.
From the materials submitted and the stipulations, I find the following facts. The first arrest for drug activity occurred on February 16, 1993, and Santana was apparently taken off duty by his supervisor at that time. On February 18, 1993, he was suspended without pay by then Chief Loranger. Pursuant to Appendix A of the collective bargaining agreement ("CBA"), it was permissible to suspend without pay an officer who had been arrested for a felony, and the CBA is silent both as to the amount of time one may be so suspended and as to when a disciplinary hearing is required.
The entire documentation regarding the February 18, 1993, suspension is critical. Chief Loranger's suspension letter began by stating that an "investigation conducted by this Department culminated in the finding that sufficient cause exists to charge you with violating the Hartford Police Department's Code of Conduct." The letter then quoted the language of Article I, Section 1.00: "Any violation of the rules and regulations . . . or any act which tends to undermine the good order, efficiency and discipline of the department, or which reflects discredit upon the department or any member thereof, shall constitute conduct unbecoming an employee . . . In that on February 16th 1993, you were arrested by the Hartford Police. Department for violating Connecticut General Statutes 53a-8-Criminal Liability for the acts of another (Possession of Narcotics with intent to sell). The underlying factors that lead to your arrest constitute conduct unbecoming an employee." The letter went on to say that because of the circumstances, he ordered Santana's suspension without pay "pending the outcome of this matter either through criminal court or the Police Department administrative process . . . The Department advocate will make himself available to you or your counsel to discuss these charges and provide additional information which you feel is necessary in the preparation of your defense. If you wish to be represented by Union Counsel, you should make every effort to notify the Union officials as soon as possible so that they may arrange for this representation."
At the same time the letter was prepared, a "personnel payroll activity form" was completed to process the suspension. In the "remarks" section was the notation, "suspension pending department hearing."
As noted above, nothing happened for years. The police department did not convene an administrative hearing, nor, so far as the record shows, was it asked to convene a hearing. Similarly, the criminal trial did not proceed, nor, so far as the record shows, did Santana make any effort to compel a speedy trial. Cf. § 54-82m of the General Statutes; § 43-39 of the Practice Book. There may or may not have been strategic reasons underlying the delay. Apparently Santana at the least saw no urgency and may have seen some advantage in delay. The department apparently saw no need to take immediate action once Santana was suspended. What is clear, however, that the chief on February 18, 1993, stated that an " investigation conducted by this Department" led to the charge of violating the Code of Conduct.
A criminal defendant in general is to be tried within twelve months of the commencement of the action; if his trial has not so commenced, he has the ability to compel trial within thirty days by filing a motion for a speedy trial. Section 43-40 of the Practice Booklists various periods of time which are exempted from the computation of time.
In any event, after the acquittal the city either began or continued with, depending on one's point of view, administrative investigation and hearings. Santana claims that he was suspended pursuant to Appendix A of the CBA, § 6(a), which provides that "[n]o officer shall be suspended without pay until a disciplinary hearing has been conducted . . . unless he or she has been arrested for a felony." Santana claims in essence that because Chief Loranger's letter of suspension refers to a resolution by the criminal court or administrative hearing, and because the criminal court result came first, that the city was then barred from any further proceeding other than reinstatement if requested. His claim is fortified by the assertion that his suspension without pay was justified only by arrest on criminal felony charges.
Santana's position is constructed most logically, but only by careful selection of the underlying premises. I do not believe, first, that it was the intention of the city or, for that matter, of the parties to the CBA, to delegate to the courts the resolution of whether Santana engaged in activity unbecoming to an officer, for a variety of reasons. Santana's position is, of course, never expressly stated by any of the documents, and is based largely on the single reference in Chief Loranger's letter to the effect that Santana was suspended pending the outcome in court or in the administrative process. It is true, as Santana points out in this forum, that several of the police personnel puzzled over this language in their depositions, and rightfully so. The language is problematic from anyone's perspective.
I can identify a scenario in which the language makes perfect sense, though it has not been articulated. If Santana had been convicted, it may well be that the entire controversy would have been ended, because a jury would have found beyond a reasonable doubt that he had engaged in at least some of the conduct which formed the basis for the administrative charge. So, the outcome could be resolved by the criminal court, or, if there is not a conviction, the resolution would occur in the administrative arena.
I do not believe, however, that any such delegation was made. As noted above, there is no such provision in the CBA, and one might argue that it would be an unfair labor practice to delegate away from the parties to the agreement such a substantial provision. More critically, however, such a delegation makes no sense. The issues involved are quite different, and the burden of proof is markedly different. The procedures and protections in the forums are widely variant.
It also makes sense to delay civil proceedings until criminal proceedings have ended. It is apparent that that has been the custom of the department, from a perusal of cases submitted in support of the city's position in this case. In civil proceedings, for example, invocation of the Fifth Amendment privilege may result in an adverse inference, and discovery and testimony in civil cases may compromise traditional conduct of criminal cases. I do not find that isolated excerpts from materials submitted in this case support a finding, by the preponderance of the evidence, that either party intended to delegate to the criminal justice system the resolution of the disciplinary action.
Additionally, the issue was raised in the grievance context. On July 31, 2004, the police union pursued a "third step" grievance proceeding. It maintained that Santana ought simply to be reinstated, because he had been acquitted. The hearing officer disagreed: the decision, issued on September 10, 2001, referred back to the suspension letter of February 18, 1993, and said that the question of discipline was under review after the dismissal of charges. There was no automatic reinstatement, and the decision had not been in effect delegated to the courts.
The related issue is whether the suspension had to end with the final acquittal on July 12, 2001. As noted above, the apparent basis for the suspension without pay was the arrest on felony charges. The CBA called for suspension without pay only after a disciplinary hearing or a felony arrest. The CBA does not state when such suspension shall end. If final resolution were delegated to the criminal justice system, then the suspension would presumably end when the case ended, if favorably to the officer. But if the decision making power is not so delegated, as I have found, does the suspension necessarily end when the criminal case ends?
Again, we are hobbled somewhat by the absence of express language. There is nothing that states that a suspension will end if the prosecution ends, even if the arrest forms the basis of the suspension. From a consideration of all the circumstances, though, I do not think that it was the intent of the parties so to define the termination of the suspension. If we return to the terms of the initial suspension, we note that the chief first states that the department has initiated an investigation into the underlying activity and finds cause to believe that the conduct has occurred, and thus suspends. The suspension is concededly proper. If there is probable cause to arrest, there presumably is probable cause to suspend, and the department had presumably conducted some investigation at the time the letter was written. The letter states that the outcome will depend on either the administrative process or the criminal case. If the suspension was proper, then it was proper to await the resolution. I find that the plaintiff has not sustained his burden to show that the suspension had to be terminated when the criminal action was terminated.
III. Whether the administrative process was improperly invoked.
The relief sought by the third count is to request the court to declare that the resort to the administrative process, undertaken after the acquittal of criminal charges, was in violation of the CBA because the process was claimed not to be directed by the chief and because it did not comport with time requirements. Partly because the CBA is most vague on these questions, I find that the plaintiff has not sustained his burden to show that the CBA was violated.
I note that I have expressed reservations whether this portion of the dispute is properly before the court. I asked the parties to respond to the issue of whether administrative remedies have been exhausted. The response of the parties, at the risk of over-generalization, was that the substantive merits of the charges was appropriately addressed by arbitration, but not whether the issues were arbitrable, and that constitutional issues and those collateral to the merits of the charges were appropriate for the court to resolve.
The investigation in this instance was in the context of an "I-file." "I-files" are not mentioned in the CBA. Apparently the chief can initiate an investigation of any sort of complaint if he determines the investigation is in the best interest of the department. There is nothing specific in the agreement to prevent a chief from acting on his own, regardless of the existence of a "complaint." In any event, there is no claim in this case that a chief did not have the power to initiate investigation and hearing processes such as occurred in this case. It seems clear that an investigation of some kind was begun at about the time of Santana's suspension in 1993. Chief Loranger's letter of February 18 refers to an investigation, and there are several reports, including transcripts of and references to witness interviews by Internal Affairs, in the binders of documents that were supplied to the court. This investigation appears to have been authorized by then Chief Loranger. Apparently the investigation was put on hold for the duration of the grand jury and the pendency of the criminal case. The departmental activity was revived after the acquittal and Santana's request for reinstatement. Bruce Marquis, then the chief asked Lt. Dowd, then in charge of the Internal Affairs Division, to advise him of when the investigation began and when it was to be completed. Dowd could not find a memo from the chief initiating the investigation in the 2001 time frame, but he found a letter from the Assistant Chief to that effect.
Some of the deponents seem to rely on the language of CBA Appendix A 2.: "The above (section pertaining to signed and sworn to citizen complaints) does not preclude the Chief of Police from initiating a departmental investigation upon receipt of any type of complaint if he or she determines it to be in the best interest of the Police Department and/or the Police Officer involved. The investigation of an unsigned complaint must be concluded . . ."
The plaintiff takes the position that there was no I-file investigation until October 12, 2001, and the city seems to agree with that position. See ¶ 27 of the Stipulation of Facts and Issues. Because of the vague nature of the evidence, including the CBA, I find it difficult to be quite so precise: because there was an initial investigation that was apparently not concluded, the second investigation would not necessarily be deemed to be a new investigation.
The explanation of the administrative process lies in the documentary evidence more than in people's testimony about the documents. The chronology can be reliably reconstructed from the documents. As noted above, the overall criminal investigation appears to have been begun early in February 1993. After the arrest on February 16, Chief Loranger issued the suspension letter on February 18, 1993. The criminal charges were finally dismissed on July 12, 2001. On July 17, 2001, Santana's counsel wrote to then Chief Marquis and requested reinstatement. On July 19, Chief Marquis referred the letter to Assistant Chief Reilly and asked him to investigate the matter. The next step was the union's grievance, discussed above; the third step grievance culminated in the letter dated September 10, 2001, which stated, inter alia, that the matter was under investigation by Chief Marquis.
After the resolution of the grievance, there appears a memo from Lt. Dowd to Richard Calderone requesting a complete investigation of I-File 93-03. The department appears, then, to have treated the issue all as one investigation. There is documentation of at least several interviews having been conducted, both in 1993 and in 2001.
Chief Marquis wrote to Santana's attorney on November 11, 2001. He said that, as is the custom, the department would hold disciplinary hearings, as the criminal charges had been disposed of. He said that the attorney would be informed of any scheduled hearing and he suggested an individual to talk to if he had any questions. On April 3, 2002, Chief Marquis notified the attorney of the hearing and enclosed copies of the original suspension documents prepared in 1993.
The hearing was held on May 3, 2002. Santana's position was that the time limits that he claims were prescribed by Order 3-2 were violated and that the department did not sustain its burden on the merits. The hearing officer disagreed with both contentions. He held, by letter to Chief Marquis dated May 21, 2002, that the proceedings were not governed by Order 3-2, which applies to citizen complaints. He also held that there was substantial evidence regarding Santana's involvement in drug activity. He stated that the proceedings were convened pursuant to Special Order 01-02 and the memorandum of understanding dated March 8, 2002. On receipt of the findings, Marquis terminated Santana effective June 6, 2002.
I could find neither document in the materials submitted to me.
I find, then, that the initial investigation in 1993 was initiated at the chief's direction. If the 2001 actions were but the continuation of that investigation, after a long hiatus, then they were initiated by the chief. If the 2001 revival is deemed a new action, then it was still at the direction of the chief, who had asked Reilly to investigate and was involved, in a supervisory capacity, at virtually every step. At the very least, the actions were authorized by the chief and ratified by the chief. I do not find that the plaintiff has sustained a burden of proving that the investigation in general was not undertaken by order of the chief.
The second issue has to do with timing. Santana relies on Department Order 3-2, which has to do with citizen complaints. This is not a citizen complaint. If it were a citizen complaint, pursuant to Order 3-2, an investigation of the complaint would ordinarily have to be completed in 30 days. If more time were needed to investigate, the chief could authorize another 45 days, and the status of the investigation would have to be reported. Lt. Dowd mused at one point that the same general time guidelines must govern I-files, though no express authority was offered for those thoughts. The union steward, by way of affidavit, expressed the same sentiment more specifically.
Additiotally, Appendix A, § D.2 provides that in the case of an unsigned complaint, the investigation must be completed within thirty days, and at this point the officer must be informed of whether the investigation has concluded. If it has, and if it has been determined not to bring charges, then no charges arising specifically out of that complaint can be made.
What is clear is that there are no express guidelines as to timeliness pertain to investigations initiated by the chief. Ordinarily, if no express time deadlines are ordained, then a reasonableness standard applies. See, very generally, Brzezinek v. Covenant Ins. Co., 74 Conn.App. 1, 5-6 (2002). On the facts of this case, the plaintiff has not shown the timeliness to be unreasonable. On the contrary, the first investigation was initiated immediately after the arrest. Events were held in abeyance the state's judicial inquiry and the long delay in prosecution: the chief had little to do with either of those events. While the subsequent continuation could have been accomplished more quickly, it was not until September 1993, that a hearing officer concluded that the continuing suspension was justified and the investigation continued. I found no evidence in the documents provided that Santana ever asked for a speedier hearing. He appeared more interested in taking advantage of pre-existing delay than in actually proceeding more quickly with hearings on the merits. There clearly, in any event, is no violation of any time requirements spelled out in the CBA.
See also ¶¶ 13 and 14 of the Stipulated Facts.
The plaintiff also has not proved a remedy. While it may be that violation of a CBA is an unfair labor practice and may be the subject of injunctive relief; see Local 818 v. East Haven, 42 Conn.Sup. 227, 5 Conn. L. Rptr. 400 (1992); there is no remedy spelled out in the circumstances presented.
IV. The Due Process Claim.
The plaintiff's final position is that the length of time involved in the post-suspension process violated procedural due process. He relies on principles stated in authority such as Gilbert v. Homar, 520 U.S. 924 (1988). The city appears to argue principally that there is no constitutionally protected property right in the circumstances presented.
I disagree with the city's position on that issue. It seems quite clear that Santana had a property right in continuing employment which was constitutionally entitled to be protected against procedural due process violations, because he could be terminated only for certain sorts of cause. See, e.g., Tedesco v. Stamford, 222 Conn. 233, 242 (1992); Bartlett v. Krause, 209 Conn. 352, 367 (1988). But the process that is due is flexible according to the circumstances, and generally three factors are considered:
In Mathews v. Eldridge, supra, 335, the court stated that the "specific dictates of due process generally [require] consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." . . .
Tedesco v. Stamford, 222 Conn. 233, 243 (1992).
These factors were stated more specifically in the context of the timeliness of post-suspension hearings in Gilbert v. Homar, CT Page 15757 520 U.S. 924, 930-34 (1988). In Gilbert, a police officer was suspended after having been arrested. In balancing the interests of the parties, the court stated that the officer had a significant interest in his job and in being paid. The relative length and finality of the deprivation are to be considered. Gilbert also recognized that the employer of a police officer has a most significant interest in the integrity of the force; I would add that public confidence in the moral fabric of the police is of almost inestimable value. The government's interest, in short, in maintaining a suspension is very great. The third consideration is the risk of an erroneous deprivation and the probable value of additional safeguards. It is generally recognized that the safeguards inherent in the criminal system, e.g., the requirement of probable cause and, in this instance, the recommendations of the report of the judicial inquiry, reduce to a considerable degree the risk of an erroneous deprivation. Indeed, in Gilbert it is suggested that a pretermination hearing is generally not required where there has been an arrest. Id., 933-34.
The situation changes somewhat after dismissal of criminal charges, though it is quite clear that the dismissal of criminal charges, in this situation, does not by itself compel the automatic vacation of the suspension. E.g., Homar v. Gilbert, 63 F.Sup.2d 559, 570 n. 10 (M.D. Pa. 1999). Then a hearing ought to be held within a reasonable time. There is no talisman to determine what is reasonable. We know from Gilbert v. Homar, supra, 935, that ninety days does not per se exceed a permissible limit. The issue was discussed at somewhat more detail in Homar v. Gilbert, supra, the decision of the federal district judge on remand from the Supreme Court. Citing Jones v. City of Gary, 57 F.3d 1435 (7th Cir. 1995), the court referred to examples where three-month and six-month delays were not violative of procedural due process.
I believe that the relevant period to consider is the time from July 2001, to May 2002, when Santana was terminated after a hearing. There are a number of factors to consider. First, there had been a finding of probable cause and a judicial inquiry, thus reducing the probability of an erroneous factual premise underlying the suspension. It is true that criminal charges were dismissed, but the final report which arose from the May 3, 2002, hearing and which formed the basis of the termination found several factors additional to criminal charges, such as being untruthful to officers conducting the investigation and association with drug activity, which were part of the basis of the judicial inquiry. The burdens of proof are of course different in civil and administrative forums. Second, it does not appear that Santana pressed for an immediate hearing. He wanted immediate reinstatement based on his arguments such as delegation to the court system, but he does not appear to have requested a hearing on the merits of the charges underlying the suspension. See Homar, supra, at 63 F.Sup.2d 570. Third, he was represented by his union and the process was subject to the collective bargaining agreement. In this regard, Tedesco v. Stamford, supra, 244-53, is instructive. In an analogous though by no means identical situation, the court stressed the protections afforded by the grievance process and the concomitant reduction of the risk of an erroneous deprivation. Fourth, there was some reason for the delay. A third step grievance brought by the union, as noted above, intervened for some of the time. That grievance, if successful, would have eliminated the need for a substantive hearing. Some investigative work was done by the police, though, in candor, it does not appear that an enormous amount of time was spent on post-dismissal investigation. Santana was entitled to reasonable notice prior to the May 3 hearing. Finally, the process which is itself designed to minimize mistake in the process, to wit, the periods of notice, the representation which, in this case, was, at different steps, by both union representative and private counsel, the pursuit of the collective bargaining process and the continuing investigation, itself caused a significant portion of the delay. The avoidance of a rush to judgment also carries a price.
Again, there are no precise time limitations in the collective bargaining agreement which govern the unusual scenario presented by this case.
I do not find that the plaintiff has proved a violation of constitutionally protected procedural due process rights.
Judgment shall enter for the defendants.
Beach, J.