Officer John Gantert v. City of Rochester & A

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2015-0062
OFFICER JOHN GANTERT
v.
CITY OF ROCHESTER & a.
Argued: October 8, 2015
Opinion Issued: March 18, 2016
Wilson, Bush, Durkin & Keefe, P.C., of Nashua (Charles J. Keefe on the
brief and orally), for the plaintiff.
Terence M. O’Rourke, city attorney, by memorandum of law and orally,
for the defendants.
Joseph A. Foster, attorney general (Patrick J. Queenan, assistant
attorney general, on the brief and orally), for the State, as amicus curiae.
LYNN, J. The plaintiff, Officer John Gantert, appeals an order of the
Superior Court (Wageling, J.) granting summary judgment to the defendants,
the City of Rochester, the Rochester Police Department, and the Rochester
Police Commission, on the plaintiff’s claims of tortious interference with
prospective advantageous business relations, violations of his procedural due
process rights, and damage to his reputation. All of his claims arise out of the
defendants’ alleged wrongful placement of the plaintiff on a so-called “Laurie
List”1 without affording him sufficient procedural due process. Because we
find that the procedures afforded to the plaintiff in this case were adequate, we
affirm the trial court’s judgment.
I
The trial court found, or the parties agreed to, the following facts.2 The
plaintiff began working as a police officer in Rochester in March 2005. For six
years he was viewed as a “good and productive officer” and had no disciplinary
actions reflected in his personnel file. Upon beginning his shift on March 24,
2011, the plaintiff was instructed to assist another officer in booking an
individual arrested for domestic violence. As part of the department’s standard
operating procedure in domestic violence cases, an officer interviews the victim
and fills out a Lethality Assessment Protocol form (LAP), which assists in
gauging the degree of violence and potential danger to the victim.
The LAP consists of a series of questions about past threats or violence
committed by the accused, and the accused’s access to weapons. The
questions can be responded to with yes, no, or not answered. If a certain
number of questions are answered “yes,” the victim is considered to face a
higher risk of lethal violence, and a protocol of assisting the victim is triggered.
The LAP is also used to assist the court in determining the amount and
conditions of bail.
Before ending his shift, the arresting officer had interviewed the victim,
completed the LAP, and sent it to the county attorney. The plaintiff was not
aware that the LAP had been completed and incorrectly believed that, pursuant
to departmental policy, it was required to be sent to the county attorney with
the rest of the arrest paperwork. After unsuccessfully attempting to contact
the arresting officer or the victim, the plaintiff watched a videotaped interview
of the victim by the arresting officer and completed a second LAP based upon
information he learned from the interview. If a question on the LAP could be
answered affirmatively based upon the video, he answered “yes”; if a question
could not be so answered, he answered “no.” The interview, which pertained
only to the incident for which the accused had been arrested, did not cover
many of the questions on the LAP, which mainly ask about past acts or
behaviors.
1See State v. Laurie, 139 N.H. 325 (1995).
2The parties submitted an “Agreed Statement of Facts” and accompanying exhibits to the trial
court. The court relied upon these facts in its order, and they are part of the record on appeal.
2
This resulted in the LAP completed by the plaintiff being materially
different from the one completed by the arresting officer. The original LAP,
completed with information from the victim, resulted in almost all of the
questions being answered “yes,” which triggered the protocol; the LAP
completed by the plaintiff had almost all “no” answers, which would not trigger
the protocol. The plaintiff signed the arresting officer’s name and sent the
second LAP to the county attorney. At no time did the plaintiff consult with a
superior or another employee as to how to proceed in light of the fact that he
had no knowledge of the answers to many of the LAP questions.
The county attorney discovered the conflicting LAPs and referred the
matter to the Rochester Police Department. Lieutenant Toussaint investigated,
conducting interviews with the plaintiff and other officers. According to
Toussaint’s report, the plaintiff “admitted that the LAP form questions were not
answered in the interview” that he reviewed. The plaintiff “stated that he knew”
that “none of the LAP questions had been covered” in the recorded interview
and “that he made his best guess about the answers based upon the demeanor
of the victim in the videotaped statement.” When asked why he had put
incorrect information on the LAP, the plaintiff stated that “he had no
information to work with and that he knew that the LAP form was required to
be sent to the County Attorney’s Office.”
Toussaint found that the plaintiff violated two departmental policies:
Standard Operating Procedure 26.1.4, Subsection D.1.d, “Unsatisfactory Job
Performance”; and Standard Operating Procedure 26.1.4, Subsection D.3.e,
“Falsification of any reports, such as, but not limited to, vouchers, official
reports, time records, leave records, or knowingly mak[ing] any false official
statements.” His report was forwarded to Deputy Police Chief Allen, who
agreed with the findings and recommended that the plaintiff’s employment be
terminated.
This decision was forwarded to Chief Dubois, who concurred and wrote a
letter to the plaintiff notifying him that he intended to recommend termination
to the police commission. The plaintiff asked the chief if there was another
possible resolution to the matter, to which he recalls the chief responding,
“Nothing you can say or do will make me change my mind about this.” The
chief also notified the plaintiff that his actions could be “Laurie material” and
that he intended to notify the county attorney. The chief scheduled a meeting
with the plaintiff to provide him with an opportunity to discuss the chief’s
intent to notify the county attorney’s office of the fact that the plaintiff’s
personnel file could contain Laurie material; citing advice from union counsel,
the plaintiff declined to attend. The chief and the union agreed that the chief
would not notify the county attorney of the Laurie issue until after the police
commission made a final decision.
3
On June 16, 2011, the Rochester Police Commission voted to uphold the
chief’s decision to terminate the plaintiff’s employment. After this decision, the
chief sent a letter to the county attorney stating that “the Rochester Police
Department has an internal affairs file which could possibly be construed to
contain issues relevant to State v. Laurie. This file affects [the plaintiff].”
Pursuant to the collective bargaining agreement (CBA) between the city
and the police union, the plaintiff challenged his discharge before the New
Hampshire Public Employee Labor Relations Board (PELRB), which selected an
arbitrator. Following a hearing, the arbitrator found that the Rochester Police
Department “had just cause to discipline [the plaintiff] for entering false
information [on] the LAP report and not following proper protocol,” but that
“discharge [was] too great a penalty in this case.” The arbitrator found that the
plaintiff’s actions implicated his honesty and integrity, but he “did not
intentionally falsify the LAP form.” Given the plaintiff’s statements during the
investigation, we interpret this to mean that, although the plaintiff had no
intent to deceive, he did know that he was providing information that could be
incorrect. Although acknowledging that the chief stated that he would not hire
an officer on the “Laurie List,” the arbitrator stated that Laurie does not require
the discharge of untruthful officers and noted that the conduct by the officer in
Laurie was much more severe. These circumstances, coupled with the fact
that the submission of the inaccurate LAP was an isolated incident and the
plaintiff had no other disciplinary problems in the past, led the arbitrator to
reduce the discipline to a suspension without pay from June 16 to November 7,
2011. The arbitrator did not rule on the “Laurie List” issue, stating that
“[w]hether [the plaintiff] shall remain Laurie listed is beyond the Arbitrator’s
authority.”
After the arbitrator’s decision, the plaintiff requested that both the chief
and the county attorney remove his name from the “Laurie List.” Both
declined.
The plaintiff then brought this suit against the defendants in superior
court. He claimed that the defendants placed him on the “Laurie List” without
proper procedural due process, and sought damages and injunctive relief to
remove his name from the “Laurie List.” The defendants objected. The trial
court construed the parties’ memoranda of law as cross-motions for summary
judgment and ruled in favor of the defendants. The court found that the
plaintiff had a constitutionally protected interest and was therefore entitled to
due process. After balancing the competing interests at stake, however, it
found that the plaintiff had received sufficient due process. This appeal
followed.
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II
We have recently explained the background and operation of “Laurie
Lists.” See Duchesne v. Hillsborough County Attorney, 167 N.H. 774, 777-82
(2015). As relevant here, prosecutors have a duty to disclose “both exculpatory
information and information that may be used to impeach the State’s
witnesses.” Id. at 777; see also Brady v. Maryland, 373 U.S. 83, 87 (1963).
This duty extends to information known only to law enforcement agencies,
such as information located in police officers’ confidential personnel files.
Duchesne, 167 N.H. at 777-78, 781-82. After we granted a criminal defendant
a new trial due to the prosecution’s failure to disclose information found in a
police officer’s employment files and records, see State v. Laurie, 139 N.H. 325,
327, 333 (1995), law enforcement authorities in this state began developing
“Laurie Lists” to share information regarding officer conduct between police
and prosecutors. Duchesne, 167 N.H. at 778-79.
In 2004, the Attorney General issued a memorandum (Memo) to all
county attorneys and law enforcement agencies in the state, which aimed to
“develop a standardized method for identifying and dealing with potential
Laurie material,” including “information contained in confidential police
personnel files and internal investigations files.” The Memo identified several
categories of conduct that should generally be considered potential Laurie
material:
 any sustained instance where an officer deliberately lied
during a court case, administrative hearing, other official
proceeding, in a police report, or in an internal investigation;
 any sustained instance when an officer falsified records or
evidence;
 any sustained instance that an officer committed a theft or
fraud;
 any sustained instance that an officer engaged in an
egregious dereliction of duty . . . ;
 any sustained complaint of excessive use of force;
 any instance of mental instability that caused the police
department to take some affirmative action to suspend the
officer for evaluation or treatment.
Pursuant to the Memo, such material “must be retained in the officer’s
personnel file so that it is available for in camera review by a court and possible
disclosure to a defendant in a criminal case.”
Because police personnel files are generally confidential by statute, see
RSA 105:13-b (2013), the Attorney General recognized in the Memo that
prosecutors must rely upon police departments to identify Laurie issues. He
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advised that law enforcement agencies should notify the county attorney, in
writing, “whenever a determination is made that an officer has engaged in
conduct that constitutes Laurie material.” He placed responsibility on county
attorneys to compile a confidential, comprehensive list of officers within each
county who are subject to possible Laurie disclosure — the so-called “Laurie
List.” The county attorney is also informed if one of these officers leaves his or
her law enforcement agency for another position.
The Memo included a sample policy and procedure for police
departments to identify and retain Laurie material in their files. First, the
deputy chief reviews all internal investigation files, including investigations
conducted by other police personnel, and determines whether the incident
involves any of the categories of conduct identified as potential Laurie material.
If so, the deputy chief sends a memorandum to the chief, who reviews it and
determines whether the incident constitutes a Laurie issue. If it does, the chief
notifies the officer involved, who may request a meeting with the chief to
present facts or evidence. After the chief makes a final decision, the chief
notifies the county attorney if the incident is ultimately determined to
constitute a Laurie issue.
The Rochester Police Department has adopted the procedure outlined in
the Memo in its Standard Operating Procedures. The plaintiff acknowledges
that the only difference between the procedure provided for in the Memo and
the procedure utilized in this case is that he had an additional hearing before
the Rochester Police Commission before the chief notified the county attorney
that his file contained potential Laurie material.
III
On appeal, the plaintiff argues that the trial court erred in finding that:
(1) the procedures established by the Attorney General’s Memo provide
sufficient due process, pursuant to Part I, Article 15 of the New Hampshire
Constitution, before an officer is placed on the “Laurie List”; and (2) the
plaintiff received sufficient procedural due process in this case. The
defendants argue that the process afforded the plaintiff is constitutionally
sufficient and that the trial court properly granted summary judgment to the
defendants.
As noted above, the plaintiff received the procedures established by the
Memo and an additional hearing before the police commission. For this
reason, to the extent there is a meaningful difference between the procedure
contemplated by the Memo and that which occurred here, the plaintiff received
more process in this case. We thus need address only the plaintiff’s second
argument — whether the process he received in this case comports with the
requirements of constitutional due process. Because this argument raises a
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question of constitutional law, our review is de novo. See State v. Veale, 158
N.H. 632, 636 (2009).
Part I, Article 15 of the New Hampshire Constitution provides that “[n]o
subject shall be . . . deprived of his property, immunities, or privileges . . . or
deprived of his life, liberty, or estate, but by . . . the law of the land.” N.H.
CONST. pt. I, art. 15. We have held that “law of the land” means due process
of law. Veale, 158 N.H. at 636. “We engage in a two-part analysis in
addressing procedural due process claims: first, we determine whether the
individual has an interest that entitles him or her to due process protection;
and second, if such an interest exists, we determine what process is due.” Doe
v. State of N.H., 167 N.H. 382, 414 (2015). “The ultimate standard for judging
a due process claim is the notion of fundamental fairness.” Saviano v.
Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 320 (2004). “Fundamental
fairness requires that government conduct conform to the community’s sense
of justice, decency and fair play.” Id.
Here, the defendants do not dispute that the plaintiff has an interest
sufficient to entitle him to due process. The question before us, therefore, is
what process is due. To determine what process is due, we balance three
factors: (1) the private interest that is affected; (2) the risk of erroneous
deprivation of that interest through the procedure used and the probable value
of any additional or substitute procedural safeguards; and (3) the government’s
interest, including the fiscal and administrative burdens resulting from
additional procedural requirements. Doe, 167 N.H. at 414. “The requirements
of due process are flexible and call for such procedural protections as the
particular situation demands.” Id. (quotation omitted).
The private interest affected, as the trial court found, is the plaintiff’s
“reputation and ability to continue to work unimpeded as a police officer.” As
we stated in Duchesne:
Although the “Laurie List” is not available to members of the public
generally, placement on the list all but guarantees that information
about the officers will be disclosed to trial courts and/or
defendants or their counsel any time the officers testify in a
criminal case, thus potentially affecting their reputations and
professional standing with those with whom they work and interact
on a regular basis.
Duchesne, 167 N.H. at 783. We have held that an interest in one’s reputation,
particularly in one’s profession, is significant and that governmental actions
affecting it require due process. See Veale, 158 N.H. at 638-39; Petition of
Bagley, 128 N.H. 275, 284 (1986) (“The general rule is that a person’s liberty
may be impaired when governmental action seriously damages his standing
and associations in the community.”); cf. Clark v. Manchester, 113 N.H. 270,
7
274 (1973) (holding that an employee was not entitled to due process, in part,
because he failed to show “that the governmental conduct likely will . . .
seriously damage his standing and associations in this community . . . [or]
impose a stigma upon the employee that will foreclose future opportunities to
practice his chosen profession” (quotation omitted)). Here, we agree that the
private interest is significant.
The plaintiff argues that the procedure used “creates a great risk” of
erroneous deprivation of his interest because he did not have “a full and fair
opportunity to be heard.” He contends that, although officers have an
opportunity to meet with the chief prior to being placed on the “Laurie List,”
this occurs only after findings and determinations have been made at other
levels of the department, leaving the officer with the task of trying to undo
these conclusions. He further argues that officers are never given a hearing
before an impartial tribunal. In his case, the plaintiff had a hearing before the
Rochester Police Commission, but he argues that the police commission is not
neutral given its ties to the police department. The plaintiff contends that a
hearing that provides the ability to review evidence offered against him, present
evidence of his own, cross-examine witnesses, and be represented by counsel,
would be a proper procedure and would be the best method to “reach the truth
of a matter” regarding a “Laurie List” issue.
The second factor tasks us to consider “the risk of erroneous deprivation
of [the private] interest through the procedure used and the probable value of
any additional or substitute procedural safeguards.” Doe, 167 N.H. at 414.
The plaintiff has not clearly articulated how or why the procedures followed by
the Rochester police were unfair; nor has he shown that there was a true risk
of erroneous deprivation of his interests.
The plaintiff spoke with the officer conducting the internal investigation
and had the opportunity to explain his version of what had occurred. He also
had the opportunity to meet with the chief before a final decision was made.
Even accepting the plaintiff’s assertion that the chief told him before their
scheduled meeting that his mind was already made up — a circumstance that
could raise concerns about the fairness of the proceeding — we note that the
chief did not have the final word, as the ultimate decision was made by the
police commission. Moreover, the chief did not conduct the investigation or
make the initial findings, which the plaintiff does not claim were unfair or
biased.
To the extent the plaintiff argues that this process is inherently biased
against him, we do not find this argument persuasive. The plaintiff had
multiple opportunities to be “heard” — by the investigating officer, the chief,
and the police commission. His real complaint about the procedure appears to
be that he does not agree with the decisions made by these various officials.
The procedure he advocates might be more in-depth, but it is not clear that it
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would add significantly to the accuracy of outcomes versus the procedure
already in place. See Appeal of Silverstein, 163 N.H. 192, 200 (2012) (holding
that procedure whereby final decision on termination of public school teacher
was made by the school board rather than a neutral third party, such as an
arbitrator, did not offend due process).
Next we examine the government’s interest. Doe, 167 N.H. at 414. We
recognize that “the prosecutorial duty that spawned the creation and use of
‘Laurie Lists’ is of constitutional magnitude.” Duchesne, 167 N.H. at 780. The
government has a great interest in placing on the “Laurie List” officers whose
confidential personnel files may contain exculpatory information. See Laurie,
139 N.H. at 330 (holding that New Hampshire Constitution affords greater
protection to criminal defendants and requires the State to prove beyond a
reasonable doubt that the undisclosed exculpatory evidence would not have
affected the verdict).
After balancing these interests, we conclude that the plaintiff was
afforded sufficient process before he was placed on the “Laurie List.” Given the
government’s strong interest in meeting its constitutional Brady obligation, and
its interest in not delaying placement of officers on the list, the procedures
implemented in this case struck the proper balance. Here, there was an
internal investigation — which the plaintiff does not allege was unfairly or
improperly conducted — two layers of review within the department, an
opportunity to meet with the chief, and a hearing before the police commission.
There is no need for a more formalized hearing or additional process before an
officer is placed on the “Laurie List.”
However, as we explained in Duchesne, the interest of individual officers
in their reputations and careers is such that there must be some post-
placement mechanism available to an officer to seek removal from the “Laurie
List” if the grounds for placement on the list are thereafter shown to be lacking
in substance, as was the case in Duchesne. In Duchesne, we recognized that
after an officer is placed on the “Laurie List,” he may have grounds for judicial
relief if the circumstances that gave rise to the placement are clearly shown to
be without basis. Duchesne, 167 N.H. at 784-85. In Duchesne, the findings
by the arbitrator and the attorney general showed that the officers had not
engaged in the conduct for which they were placed on the list. Id. at 784.
Because the initial decision of the chief of police was reversed, there was no
justification for keeping the officers on the “Laurie List.” Id. at 784-85.
Here, unlike in Duchesne, there is a basis for keeping the plaintiff on the
list. Although the arbitrator found that the plaintiff did not intentionally falsify
the LAP, it is clear from his own admission that he supplied answers on the
LAP that he knew he had no basis to believe were true. This is certainly
enough of a reflection on the plaintiff’s general credibility to trigger at least a
prosecutor’s obligation to disclose such information to a court for in camera
9
review in a case in which the plaintiff will appear as a state witness.3 See id. at
783-84.
The plaintiff suggests that the employment disciplinary process
culminating in the arbitration is distinct from the “Laurie List” designation
process and, as such, officers should be provided a separate hearing dealing
solely with the Laurie issue. We find this argument unpersuasive because both
the discipline and the “Laurie List” designation were predicated on the same
underlying conduct of the plaintiff.
In Duchesne, we held that the trial court erred in not ordering the
removal of officers from the “Laurie List” because the original allegation of
misconduct “ha[d] been determined to be unfounded,” so there was “no
sustained basis for the petitioners’ placement on the ‘Laurie List.’” Id. at 784-
85. Crucial to our holding was that “the chief’s decision was overturned by an
arbitrator, a neutral factfinder, following a full hearing conducted pursuant to
procedures agreed to in the CBA,” and “[a]s a result of these determinations,
references to the incident [had] been removed from the petitioners’ personnel
files.” Id. at 784. The arbitration in Duchesne did not examine the officers’
placement on the “Laurie List,” but rather whether the city had just cause to
take disciplinary action against the officers. Id. at 775-76. The arbitration
dealt with the facts of the incident underlying their placement on the list, and
we therefore held that the decision affected the Laurie issue. Id. at 784-85.
The same is true here. Although the arbitrator in this case noted that he
had no authority over the plaintiff’s placement on the “Laurie List,” and his
decision did not focus specifically on the Laurie issue, his decision was based
upon the same information that led to the plaintiff’s placement on the list. Had
his findings been different, they could have had the same ramifications as in
Duchesne, i.e., providing a basis for removing the plaintiff from the “Laurie
List.” However, in contrast to Duchesne, the arbitrator’s decision in this case
did not establish that there was no basis for the plaintiff’s placement on the
“Laurie List.” Having an additional hearing to examine the same facts would
serve little purpose.
Our decision in Duchesne did not prescribe any specific procedures that
law enforcement or prosecutorial authorities must follow in connection with the
use of “Laurie Lists.” Instead, we merely recognized that basic notions of
fairness require that an officer must be removed from the list when it is clear
that there are no valid grounds for his being on the list, and that, absent other
available procedures, the courts can provide a remedy to an aggrieved officer.
3The record shows that three judges, after reviewing the plaintiff’s personnel records in camera,
determined that portions of the record contained potentially relevant and/or potentially
exculpatory information, and ordered that parts of the file be disclosed to the prosecutor and
defense attorney.
10
Id. at 784-85. We are cognizant of the fact that the legislature is currently
examining “Laurie List” issues. See Laws 2015, ch. 150 (“establishing a
commission to study the use of police personnel files as they relate to the
Laurie List”). Subject to the constitutional obligations imposed on the State
under Brady and its progeny, we think that the legislature, rather than this
court, is the proper body to regulate the use of “Laurie Lists,” including the
development of procedures for the placement of police officers on, and their
removal from, such lists. In the case before us, it is sufficient to hold that the
plaintiff was afforded all the process he was due.
Affirmed.
DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.
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