Opinion
C.A. No: 05C-08-037 (RBY).
Submitted: April 20, 2006.
Decided: July 26, 2006.
Upon Consideration of Appellant's Appeal GRANTED.
Benjamin A. Schwartz, Esq. Schwartz Schwartz, Dover, Delaware for Appellant.
William W. Pepper, Sr., Esq., Schmittinger Rodriguez, P.A., Dover, Delaware for Appellants.
OPINION
Appellant, Robbin Vann, brings the present appeal under the Police Chief Due Process statute, 11 Del. C. § 9301(b). Vann appeals the decision for the Appellee, Town Council of Cheswold ("Town"), after a public hearing, to terminate his position as Chief of Police. Vann claims that he was denied his due process right to a fair hearing, because members of the Town Council, who presided over the hearing, were biased against him. For the following reasons, Vann's appeal is GRANTED.
FACTS
Robbin Vann was employed formerly as the Chief of Police of Cheswold, Delaware. On March 8, 2005, Vann received a termination letter from the Mayor of Cheswold, Peter Diakos, identifying fifteen specific reason for his termination.Diakos' letter also informed Vann that he had the right to a public hearing under the Police Chief Due Process statute. Under the law, a chief of police in a municipality of 60,000 people or fewer, may be removed from office if (1) there is showing of just cause; (2) the police chief has been given written notice of the specific grounds for his termination; and (3) the police chief is given an opportunity to be heard at a public hearing before the elected governing body of the jurisdiction.
§ 9301(a).
Vann exercised his statutory right to a public hearing, which was held on May 25, 2005 before the Cheswold Town Council. Vice Mayor Richard Ziegenhorn presided over the hearing as the Chairperson of Town Council, as Mayor Diakos would be testifying as a witness. In addition to Ziegenhorn, Town Council members, Robert Seeney, Robert Sine, James Plummer, and Connie Edel represented the Town Council for purposes of Vann's hearing.
At the hearing, Edward J. Ryan, Jr., Town Manager, and Mayor Diakos testified in support of the alleged fifteen incidents of misconduct to demonstrate that just cause existed to terminate Vann. Vann maintains that he was not terminated for cause, but was terminated in retaliation for his investigation into the alleged improprieties surrounding the appointment of Ryan as Town Manager. Vann claims that he received information that the Town Council did not approve the appointment of Ryan as Town Manager, as required by the Town Charter. Recognizing a potential conflict of interest, Vann did not investigate the allegations personally, but turned the matter over to Delaware State Police and the Attorney General's Office.
On May 26, 2005, Vice Mayor Ziegenhorn informed Vann in writing that the Town Council voted unanimously to terminate his employment as Chief of Police of the Town of Cheswold. On August 17, 2005, Vann filed a timely appeal to this Court, pursuant to § 9301(b).
STANDARD OF REVIEW
There is a statutory right of appeal to the Superior Court from a decision of an elected governing body in a removal due process hearing. The statute requires the appellant file a notice of appeal with the Superior Court within 90 days of receipt of the written decision; however, the statute does not provide a standard of review. Without specific statutory indication as to the standard of review for this process, the proper review of this Court on appeal is deemed to be whether the elected body's decision is supported by substantial evidence and is free from legal error. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." The existence of substantial evidence is not a question for this review.
§ 9301(b).
Id.
Phillips v. Div. of Professional Regulation, 2004 WL 440414, at *2 (Del.Super.) ( citing Berchock v. Coucnil on Real Estate Appraisers, 2001 Del. Super. LEXIS 162, *9, aff'd, 787 A.2d 100 (Del. 2001)).
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) ( quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966)).
ISSUE
The issue in this matter is the process regarding a municipal effort to discharge a police chief. A police chief, of course, is a law-enforcement officer in any understanding of common parlance. He is, however, expressly excluded as being covered by the Law Enforcement Officers' Bill of Rights (11 Del. C. § 9200 (b)). Hence, the provisions of 11 Del. C. § 9200 through 9209 do not, by their specific terms, apply to Appellant as a matter of statutory law. That is not to say, though, that concepts of fairness and justice, which are encompassed in that chapter, are forclosed to a police chief.
DISCUSSION
On appeal, Vann argues that he was denied his constitutional right to due process, because the Town Council members who sat in judgment were not impartial. Vann further disputes the Town's argument that Vann waived his claim that the hearing was unfair, because he did not make an objection at the hearing. Finally, Vann maintains that the Town Council's decision was flawed, because it did not have just cause to fire Vann as Chief of Police.
A. Due Process.
Judicial proceedings, including quasi-judicial proceedings or administrative hearings, are governed by "fundamental requirements of fairness which are the essence of due process." Due process "requires that an individual be given a full and fair hearing before an impartial tribunal at a meaningful time and in a meaningful manner." Due process is not a technical concept delineated by a fixed content. Rather, due process is a "flexible concept which calls for such procedural protections as the situation demands."
Bell Atlantic-Delaware v. PSC of State of Delaware, 705 A.2d 601, 605 (Del.Super. 1997) ( citing Carousel Studio v. Unemployment Ins. Appeal Bd., 1990 WL 91108 (Del.Super.)).
Cook v. Oberly, 459 A.2d 535, 538 (Del.Ch. 1983) ( citing Goldberg v. Kelly, 397 U.S. 254 (1970); West Penn Power Company v. Train, 522 F.2d 302, 312 (3d Cir. 1975)).
Id. ( citing Mathews v. Eldridge, 424 U.S. 319, 334 (1976)).
Id.
The test for evaluating the constitutional sufficiency of the procedures in a specific judicial proceeding considers the following three factors: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation of the interest through the process used and the value or necessity for additional safeguards; and (3) the government's interests and purpose in promulgating the statute.
Id. at 538-39 ( citing Goldberg, 397 U.S. at 263-71; Mathews, 424 U.S. at 334; Mackey v. Montrym, 443 U.S. 1, 10 (1979)).
The private interest at issue in this case is Vann's position as the Cheswold Police Chief, which is a constitutionally protected property interest. This Court has held that an employee, who can only be dismissed for just cause, has a property interest protected by due process. The Police Chief Due Process statute specifically provides that a police chief can be dismissed only for just cause. The State's interest in providing a discharged police chief with a public hearing, which is clearly provided by statute, serves to support Vann's position that he is entitled to a fair and impartial hearing.
Barber v. Lewes, 1997 WL 127951, at *8 (Del.Super.) ( Cook v. City of Harrington, 1990 WL 35244 (Del.Super.)).
§ 9301(b).
The consideration, then, is whether the provision in § 9301(b) for a hearing before the elected body of the municipality, in this case, permitted the deprivation of a police chief's interests, because of the circumstances.
By way of contrast, a similar statute enacted for the protection of law enforcement personnel expressly foresees the possibility that the board empaneled for the due process hearing for a discharged law enforcement officer may have a conflict of interest. The Law Enforcement Officers' Bill of Rights provides a discharged officer the opportunity for a hearing before an impartial panel of officers in the department. The statute also provides that "[i]n the event an impartial board cannot be convened, then a board of 3 officers or more shall be convened under the auspices of the Delaware Criminal Justice Council." The Law Enforcement Officers' Bill of Rights recognizes the possibility that the members of the departmental board could, in a given instance, fail to be impartial, providing the alternative hearing before the Delaware Criminal Justice Council as an additional safeguard. This is to ensure that law enforcement officers are afforded due process.
11 Del. C. § 9205.
Id.
§ 9205(b).
One must note, of course, that the Law Enforcement Officers' Bill of Rights, by its express terms, "shall not apply to . . . the chief of police of any police force in this State." Hence, no effort to incorporate by reference, for instance, provisions of that Bill into the provisions relating to police chiefs would be statutorily valid.
That certainly does not say, however, that the Officer's Bill of Rights or the Police Chief Due Process provision, either expressly or by implication, attempts to preclude the fulfillment of fairness and justice to a termination process by statute. The need, always, for the provision of fundamental concepts of due process is manifest. It is that concept, which Appellant presses here.
The particular events in this case expose a deficiency, affecting the integrity of Vann's hearing. The Council members have a conspicuous base for bias against him, because of his role in the investigation into the Ryan appointment and the (at least superficial) interests of the individuals opposed to Appellant's position. Indeed, in the original "9301 hearing", the Town's witnesses in support of Vann's termination, presented to the panel chaired by the Vice-mayor, were Mayor Diakos and Town Manager Ryan. That, inherently, suggests a conflict of interest, or at the very least the appearance of it, for the Town Council members empaneled for the hearing. Although the Town Council would not be affected if Vann were terminated, the Town Council, Mayor, Vice Mayor, and Town Manager would continue to work together after the hearing. Accordingly, Vann must be provided a forum for due process, where both the presence and appearance of fairness and justice exist. Certainly, the procedure devised for that forum need not adopt the provisions discussed in § 9205. That procedure, on the other hand, can be used as a model for a similar event in the management of this matter.
Though raised additionally as a response by Appellee to this appeal, Vann's failure to object to the partiality of the Town Council at the hearing was not a waiver of his right to due process. It is true that a party who abandons his constitutional rights is deemed to have waived those rights. Waiver of a constitutional right is recognized in both criminal and civil actions. However, "a valid waiver is an intentional relinquishment of a known right or privilege." The validity of a waiver will be determined by an examination of the totality of the circumstances.
Mazik v. Decision Making, Inc., 449 A.2d 202, 204 (Del. 1982) ( citing Baio v. Commercial Union Ins. Co., 410 A.2d 502, 508 (Del. 1979)).
Id. ( citing Miranda v. Arizona, 384 U.S. 436, (1966); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311 (1964)).
Hall v. McGuigan, 743 A.2d 1197, 1205 (Del.Super. 1999) ( citing Mazik, 449 at 204).
Id. ( citing Pellaton v. Bank of New York, 592 A.2d 473, 476 (Del. 1991)).
In this case, Vann did not waive his right to a due process hearing. After receiving notice of his termination, the Appellant made a timely request for, and received a hearing in accordance with § 9301. The hearing was conducted before the elected body of the Town of Cheswold in accordance with the statute. Vann understood that a hearing before the Town Council was his only recourse. Without any suggestion or understanding that an alternative hearing was available, Vann's failure to raise an objection to the integrity of the Town Council does not constitute an intentional relinquishment creating a waiver of his due process rights.
B. Just Cause.
The Cheswold Town Charter gives the Town Council the discretion to appoint a chief of police "as it deems reasonable and appropriate for the good of the Town" for an indefinite term. The Town Charter also establishes the procedures for removing a Chief of Police from office by specifically referring to the Police Chief Due Process statute. However, neither the Town Charter, nor the Police Chief Due Process statute, defines what constitutes "just cause."
§ 16.1. Cheswold Town Charter.
Id.; 11 Del. C. § 9301.
In this case, Vann argues that "just cause" is a term of art, established by the Delaware employment law jurisprudence as being a "wilful or wanton act or pattern of conduct in violation of the employer's interest, the employee's duties, or the employee's expected standard of conduct." Moreover, Vann presumes the General Assembly purposely used the term "just cause" with full knowledge of its meaning in the employment law context. Vann cites the United State Supreme Court for the proposition that when:
Avon Products, Inc. v. Wilson, 513 A.2d 1315, 1316 (Del. 1986) ( citing Abex Corporation v. Todd, 235 A.2d 271, 272 (Del.Super. 1967)).
Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
Morissette v. United States, 342 U.S. 246, 263 (1987).
However, the term "just cause" does not have a single definition for the broad spectrum of legal issues under the umbrella of employment law. Vann takes issue with the Town's definition of just cause, referencing a 1979 version of Black's Law Dictionary, as being:
[a] cause outside legal cause, which must be based on reasonable grounds, and there must be a fair and honest cause or reason, regulated by good faith. Fair, adequate, reasonable cause. Legitimate cause; legal or lawful ground for action; such reasons as will suffice in law to justify the action taken.
Black's Law Dictionary, 775 (5th Ed. 1979).
In fact, an updated version of Black's Law Dictionary provides a broader definition of just cause, in the context of an employment termination case, as being a "legally sufficient reason." Many courts, including the Delaware Courts, have been reluctant to define just cause. But the courts that have ventured to assign a fixed definition to just cause consider it to be "a fair and honest cause or reason." This interpretation of just cause comports with the Town's less restrictive definition, and not Vann's "wilful and wanton" standard.
Black's Law Dictionary, (8th Ed. 2004).
Bd. of Educ. of Smyrna Sch. Dist. v. DiNunzio, 602 A.2d 85, 94 (Del.Super. 1990) ( citing Delagorges v. Bd. of Educ., 176 Conn. 630, 410 A.2d 461, 465 (1979)) (holding, in an appeal of a school administrator's termination, that good cause grounds for termination must be related to the administrator's personal competence.)
Wendi J. Delmendo, Determining Just Cause: An Equitable Solution for the Workplace, 66 Wash. L. Rev. 831, 833 (July, 1991).
Id.
Having decided that Vann was not afforded his right to a fair and impartial hearing, the Court need not determine whether the Town Council had just cause to terminate Vann as Police Chief. It should be noted, though, that the definition of just cause for the purposes of a police chief's due process hearing is not the narrow wilful and wanton standard. There is no support for Appellant's assertion that the General Assembly intended that the term "just cause" be afforded the wilful and wanton standard, which is applied in determining unemployment insurance compensation. Neither the language of the statute, nor the legislative history, provides any such indication. Accordingly, under § 9301(a), the just cause that must exist to remove a chief of police from office is a fair and honest cause or reason.
CONCLUSION
For the reasons stated above, the decision of the Appellee, Town Council of Cheswold, to terminate the employment of Appellant, Robbin Vann, as the Cheswold Chief of Police is REVERSED, and a new hearing, in a forum composed pursuant to the standards described in this decision, shall be provided to consider this matter.