Helen Ricci v. Rhode Island Commerce Corporation; Rhode Island Airport Corporation; Rhode Island Airport Police Department; Dennis Greco; and Iftikhar Ahmad, C.A.

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STATE OF RHODE ISLAND WASHINGTON, SC. SUPERIOR COURT [Filed: May 6, 2021] HELEN RICCI, Plaintiff, : : : v. : : RHODE ISLAND COMMERCE : CORPORATION; RHODE ISLAND AIRPORT : CORPORATION; RHODE ISLAND AIRPORT : POLICE DEPARTMENT; DENNIS GRECO; : and IFTIKHAR AHMAD, : Defendants. : C.A. No. WC-2020-0502 DECISION GIBNEY, P.J. Before this Court is Helen Ricci’s (Plaintiff) request for declaratory and mandatory injunctive relief as a “law enforcement officer” pursuant to the Law Enforcement Officers’ Bill of Rights (LEOBOR), G.L. 1956 §§ 42-28.6-1 et seq., and the objection by Defendants Rhode Island Commerce Corporation, Rhode Island Airport Corporation, Rhode Island Airport Police Department, Dennis Greco, and Iftikhar Ahmad (collectively, Defendants). Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13 and 9-30-1. I Facts and Travel Plaintiff is the former Deputy Chief of the Rhode Island Airport Police Department (RIAPD), hired by the Rhode Island Airport Corporation (RIAC) on December 16, 2019 to serve in that position. (V. Compl. ¶ 7.) She was sworn in as Deputy Chief on March 2, 2020. Id. ¶ 8. On November 10, 2020, Plaintiff was terminated as a member of the RIAPD and employee of RIAC, based on her purported insubordination, among other things. Id. ¶¶ 15-17. Consequently, Plaintiff requested a LEOBOR hearing, which went unanswered, and then filed the instant Verified Complain on December 1, 2020.1 In her Verified Complaint, Plaintiff requested declaratory and injunctive relief from the Court. On December 14, 2020, the Defendants filed their motion for summary judgment, and they subsequently filed their Answers on December 30, 2020. A remote hearing was held on January 5, 2021, during which Plaintiff testified. On February 8, 2021, this Court denied Defendants’ motion for summary judgment. Finally, Plaintiff filed a request for declaratory and injunctive relief on March 15, 2021 to which Defendants objected. Plaintiff seeks a declaration that she is entitled to the rights and benefits set forth under the LEOBOR and that RIAPD’s failure to file its hearing committee selection within the time prescribed under the statute constitutes a dismissal of all charges against her. Along with such declarations, Plaintiff seeks injunctive relief by requesting that she be reinstated to her employment with payment of her salary and benefits retroactive to the date of her termination. This Court heard oral arguments on March 26, 2021. Subsequently, Defendants filed a supplemental memorandum to which Plaintiff replied. This Court now issues its Decision. For a more detailed recitation of the facts of this case, please refer to this court’s February 8, 2021 Decision. See Ricci v. Rhode Island Commerce Corporation, No. WC-2020-0502, 2021 WL 507730 (R.I. Super. Feb. 08, 2021). 1 2 II Standards of Review A Declaratory and Injunctive Relief The Superior Court is empowered to grant declaratory relief pursuant to the Uniform Declaratory Judgments Act (UDJA) and to grant equitable relief, including injunctions, as a court of general equitable jurisdiction. See §§ 9-30-1 and 8-2-13; see also Rhode Island Republican Party v. Daluz, 961 A.2d 287, 295 (R.I. 2008). Under the UDJA, the Superior Court possesses the “‘power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.’” Section 9-30-1 (quoting P.J.C. Realty, Inc. v. Barry, 811 A.2d 1202, 1207 (R.I. 2002)). Section 9-30-2 of the UDJA provides as follows: “Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.” (emphasis added). Thus, “the Superior Court has jurisdiction to construe the rights and responsibilities of any party arising from a statute pursuant to the powers conferred upon [it] by G.L. 1956 chapter 30 of title 9, the Uniform Declaratory Judgments Act.” Canario v. Culhane, 752 A.2d 476, 478-79 (R.I. 2000). Furthermore, “‘a decision to grant or deny declaratory or injunctive relief is addressed to the sound discretion of the [hearing] justice[.]’” K & W Automotive, LLC v. Town of Barrington, 224 A.3d 833, 836 (R.I. 2020) (quoting La Gondola, Inc. v. City of Providence, By and Through Lombardi, 210 A.3d 1205, 1213 (R.I. 2019) (further citations omitted)). 3 B Statutory Interpretation Issues of statutory interpretation are generally questions of law. See Iselin v. Retirement Board of Employees’ Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008). “‘The rules of statutory construction require [courts] to give statutory provisions their customary and ordinary meaning in the absence of legislative intent to the contrary.”’ City of Pawtucket v. Laprade, 94 A.3d 503, 514 (R.I. 2014) (quoting In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994) (further citation omitted)). In certain circumstances, however, the courts will not interpret a statute literally, “when to do so would produce a result at odds with its legislative intent . . . Rather, [the court] will give the enactment ‘what appears to be the meaning that is most consistent with its policy or obvious purpose.”’ Kirby v. Planning Board of Review of Town of Middletown, 634 A.2d 285, 290 (R.I. 1993) (quoting Zannelli v. Di Sandro, 84 R.I. 76, 81, 121 A.2d 652, 655 (1956)). Additionally, should the court find that a statute is ambiguous, the analysis shifts because ‘“when a statute is susceptible of more than one meaning, [the court] employ[s] [its] wellestablished maxims of statutory construction in an effort to glean the intent of the Legislature.’” Town of Burrillville v. Pascoag Apartment Associates, LLC, 950 A.2d 435, 445 (R.I. 2008) (quoting Unistrut Corp. v. State Department of Labor and Training, 922 A.2d 93, 98-99 (R.I. 2007)). In the case of a remedial statute, it should be interpreted liberally and not construed in a manner that would defeat its evident purpose. Prew v. Employee Retirement System of City of Providence, 139 A.3d 556, 563 (R.I. 2016) (citing Asadoorian v. Warwick School Committee, 691 A.2d 573, 580 (R.I. 1997)). 4 C Law Enforcement Officer’s Bill of Rights The LEOBOR “sets forth specific procedural rights for law enforcement officers who may be subject to an investigation of misconduct by a law enforcement agency.” Providence Lodge No. 3, Fraternal Order of Police v. Providence External Review Authority, 951 A.2d 497, 502 (R.I. 2008) (citing Town of North Kingstown v. Local 473, International Brotherhood of Police Officers, 819 A.2d 1274, 1276 (R.I. 2003)); see §§ 42-28.6-1 et seq. “Enacted in 1976, LEOBOR ‘is the exclusive remedy for permanently appointed law-enforcement officers who are under investigation by a law-enforcement agency for any reason that could lead to disciplinary action, demotion, or dismissal.’” Laprade, 94 A.3d at 511 (quoting In re Simoneau, 652 A.2d 457, 460 (R.I. 1995) (further citation omitted)); see also § 42-28.6-15 (“The remedies contained herein shall be the sole and exclusive remedies for all law enforcement officers subject to the provisions of this chapter.”). Additionally, the Rhode Island Supreme Court has “declared that LEOBOR ‘is remedial in nature,’ and ‘was enacted to protect police officers from infringements of their rights in the course of investigations into their alleged improper conduct.’” Laprade, 94 A.3d at 511 (quoting Ims v. Town of Portsmouth, 32 A.3d 914, 925 (R.I. 2011) (further citation omitted)). III Parties’ Arguments As a preliminary matter, Plaintiff initially sought a mandatory injunction to reinstate Plaintiff with backpay and benefits. In their opposing memorandum, Defendants argued that, at the outset, Plaintiff failed to not only meet but also argue the elements for injunctive relief. However, as Plaintiff contends, if this Court chooses to grant her declaratory relief, then the injunctive relief, by definition, would inevitably be granted because Plaintiff would be entitled to 5 the protections set forth under the LEOBOR. As such, this Court will proceed with its analysis without consideration of the elements for injunctive relief. Plaintiff argues that she is a law enforcement officer with rights under the LEOBOR. Plaintiff explains that a fair reading of the second sentence of § 42-28.6-1(1) means that a “law enforcement officer” does not include: (1) the chief of police of any department, which includes RIAPD; and/or (2) the highest ranking sworn officer of any department, which includes the director and deputy director of RIAC. (Pl.’s Mem. Supp. Req. (Pl.’s Mem.) 3.) First, Plaintiff states that it is undisputed that at the time that she was terminated, no one was the chief of police of the RIAPD. Next, Plaintiff contends that the highest ranking sworn officer at the time of her termination was the director of RIAC, which § 1.4(15) of the Aeronautics Regulations define as the “President and Chief Executive Officer of the [RIAC]” and which Article III, § 3(e) of the RIAC’s by-laws confirms, as it states that the President and CEO is sometimes referred to as the “Executive Director.” Id. at 4. Thus, Plaintiff argues, the highest ranking sworn officer was Iftikhar Ahmad, who is the president and chief executive officer of RIAC. Id. As such, because there can only be one highest ranking sworn officer, Plaintiff could not also be the highest ranking sworn officer. Lastly, Plaintiff argues that this Court’s question in its previous decision regarding Plaintiff’s powers as deputy chief is irrelevant here because it is undisputed that she was neither the chief nor the highest ranking sworn officer of RIAC, which are the only exclusions of the definition of “law enforcement officer.” Id. at 6. Defendants respond that Plaintiff was not covered by the LEOBOR at the time of her termination because she was not a “law enforcement officer” as defined by that statute. Defendants contend that, as deputy chief for the RIAPD and in the absence of a chief of police, Plaintiff was the highest ranking sworn officer in the RIAPD at the time of her termination. (Defs.’ Mem. Opp’n 6 to Pl.’s Req. (Defs.’ Mem.) 1.) They explain that the structure of sworn officers of the RIAPD from highest to lowest is as follows: chief, deputy chief, lieutenants, sergeants, and patrol officers. Id. at 5-6. Furthermore, Defendants maintain that Plaintiff had exercised managerial authority as deputy chief. Id. at 2. As such, Defendants argue, accepting Plaintiff’s strained reading of the LEOBOR would produce the “absurd result” of (1) vesting Plaintiff with the sole authority to dictate who forms part of her own LEOBOR hearing committee, and (2) immunize her from suspension pending the adjudication of the hearing. Id. Defendants propose a different interpretation of the exclusion in the LEOBOR’s definition of “law enforcement officer.” Essentially, they claim that, pursuant to the statute’s language, to be the highest ranking sworn officer, the individual in question must either hold rank within or be a member of a police department. Id. at 10. Defendants argue that Plaintiff has not offered any evidence that the director or deputy director of RIAC are members of the RIAPD. They also contend that Dennis Greco and Iftikhar Ahmad are not sworn officers. Defendants maintain that, contrary to Plaintiff’s interpretation of the statute, the phrase “including the director and deputy director of the airport corporation of Rhode Island” at the end of the last sentence of § 42-28.61(1) creates a third and fourth category of positions, which are also excluded from the definition of “law enforcement officer.” Id. at 11. Lastly, in their supplemental memorandum, Defendants claim that based on the doctrine of unclean hands, Plaintiff should not be allowed to invoke the LEOBOR because she continuously represented herself as the acting chief during the period from July 7, 2020 to November 10, 2020. (Defs.’ Suppl. Mem. 17.) In her reply, Plaintiff explains that Iftikhar Ahmad is, in fact, a sworn officer, as is evidenced by his authority to make arrests, pursuant to G.L. 1956 § 1-4-14(b), which provides, in pertinent part: 7 “The director . . . and selected employees of the Rhode Island airport corporation . . . have . . . the same authority to make arrests for violation of the statutes, laws, rules, and regulations relating to aviation and airport security matters, and to enforce those statutes, laws, rules, and regulations, as regular constituted law enforcement officers in the state.” (emphasis added). Therefore, Plaintiff argues that Mr. Ahmad, as director, and the other sworn members of RIAC all have the same authority as other law enforcement officers in the state as it relates to aviation and airport security matters. (Pl.’s Reply Mem. 2.) Furthermore, Plaintiff points out that the definition of law enforcement officer in the LEOBOR utilizes the phrase Rhode Island airport corporation rather than Rhode Island Airport Police Department, which is the term the parties have mostly used during this litigation.2 Id. at n.2. However, Plaintiff clarifies that even if Mr. Ahmad has different statutory enforcement powers, that would not change his status as a sworn law enforcement officer under § 1-4-14(b). Id. at 5. Lastly, Plaintiff reiterates that there is nothing in the LEOBOR to suggest that there is another exception to the definition of a “law enforcement officer” based on one’s supervisory duties. Id. at 7. Plaintiff responds to Defendants’ contention that because Plaintiff had high-level supervisory authority based on her tasks, she was the highest ranking sworn officer at the time of her termination. She maintains that all the tasks she performed were part of her duties as deputy chief, as asserted by Mr. Greco. Id. (citing Jan. 5, 2021 Tr. at Ex. 3).3 In response to Defendants’ claim that she was in a position equivalent to the chief, Plaintiff argues that she did not possess the Plaintiff also notes that Defendants’ attempt to differentiate RIAPD officers as peace officers from RIAC ones under G.L. 1956 § 12-7-21(3) is unwarranted because this statute also utilizes the term “Rhode Island corporation police” instead of “Rhode Island Airport Police Department.” Id. at 4. Therefore, Plaintiff claims, Mr. Ahmad is also a peace officer pursuant to that statute. 3 In Mr. Greco’s performance evaluation of Plaintiff, he explicitly listed her duties under her title as deputy chief and also stated that in absence of the chief of police, she had other higher duties which would fall under “other duties as assigned” in her job description. Id. at 6 (citing Jan. 5, 2021 Tr. at Ex. 3). 2 8 elements of the chief of police. Id. at 7. Thus, she claims that her supervisory responsibilities have no bearing on this case, and, because she was not the chief or the highest ranking sworn officer at the time of her termination, she falls under the definition of “law enforcement officer.” IV Analysis Section 42-28.6-1 of the LEOBOR provides, in pertinent part: “(1) ‘Law enforcement officer’ means any permanently employed city or town police officer, state police officer, permanent law enforcement officer of the department of environmental management, or those employees of the airport corporation of Rhode Island who have been granted the authority to arrest by the director of said corporation. However this shall not include the chief of police and/or the highest ranking sworn officer of any of the departments including the director and deputy director of the airport corporation of Rhode Island.” Section 42-28.6-1(1) (emphasis added). The Rhode Island Supreme Court has consistently held that, when interpreting the language of a statute, our courts should “presume that the drafters ‘intended each word or provision of a statute to express a significant meaning,’ and that courts should thus ‘give effect to every word, clause, or sentence, whenever possible.’” Prew, 139 A.3d at 561 (quoting State v. Clark, 974 A.2d 558, 571 (RI. 2009) (further citation omitted)). In the case of some ambiguity, interpretation of the statute should be construed according to the purpose behind such legislation. See Town of Burrillville, 950 A.2d at 445. In its February 8, 2021 decision, this Court found that “the plain language of the [LEOBOR] statute supports a reading, in the context of the RIAPD, that designates only the chief and the director and deputy director of the RIAC as explicitly excluded from coverage under the LEOBOR.” Ricci, 2021 WL 507730, at *7. Furthermore, this Court held that the exclusionary language in the LEOBOR’s definition of “law enforcement officer” is not so broad as to 9 presumptively exclude any police officer who had some supervisory duties. Id. at *8. This Court concluded that the purpose behind the LEOBOR is to protect rank-and-file police officer employees from a managerial or supervisory officer’s abusive or improper procedures related to discipline, dismissal, or demotion. Id. at *7. As a general matter, a law enforcement officer’s “right to a hearing under the act simply does not vest until the chief or someone in a comparable position indicates that one of the sanctions envisioned by the terms of § 42-28.6-4 will be imposed[.]” Zincone v. Mancuso, 523 A.2d 1222, 1225 (R.I. 1987); see also International Brotherhood of Police Officers v. City of East Providence, 989 A.2d 106, 109 (R.I. 2010). As this Court stated in its previous Ricci decision, “[t]he language at issue here, when read in combination with other portions of the statute and in light of its purpose, clearly seeks to bar from protection those supervisors working at a managerial level who occupy positions equivalent to the chief of police or higher. That is because it is only the chief of police or those of higher rank in an individual organization who have the discretion to enact the kind of arbitrary sanctions that the LEOBOR guards against.” 2021 WL 507730, at * 9 (emphasis added) (citing Zincone, 523 A.2d at 1225; International Brotherhood of Police Officers, 989 A.2d at 109). The LEOBOR covers all permanently employed state and municipal police officers, law enforcement officers of the department of environmental management, and employees of the Rhode Island airport corporation who have power of arrest. Section 42-28.6-1(1). Police officers under RIAPD are employees of RIAC who have the power of arrest, but so does the director of RIAC. See § 1-4-14(b). The plain language of the LEOBOR clearly states, “the highest ranking sworn officer of any of the departments” and, right after without a comma or caveat, “including the director and deputy director of the airport corporation of Rhode Island.” Section 42-28.6-1(1). Thus, interpreting this statute by “giv[ing] effect to every word, clause, or sentence, whenever 10 possible,” the last portion of the last sentence of this subsection includes the director and deputy director of RIAC as the highest ranking sworn officers of RIAC. Prew, 139 A.3d at 561. If, at the time of Plaintiff’s termination, there was no chief of police, then the highest ranking person with arresting authority at the airport corporation of Rhode Island would be considered the “highest ranking sworn officer”—in this case, the director of RIAC. During the period from July 7, 2020 to November 10, 2020, while there was no chief of police, Plaintiff certainly assisted with supervisory responsibilities similar to the chief, but it is undisputed that Dennis Greco explicitly stated to Plaintiff that she was not the acting chief. Ricci, 2021 WL 507730, at *1 (“An August 7, 2020 performance evaluation by Greco stated that the title of Acting Chief “was never bestowed upon [Ms. Ricci] by competent authority.”).4 Furthermore, the fact that Plaintiff was terminated due to insubordination, among other reasons, itself shows that Plaintiff was not the highest ranking sworn officer. Id. at *9, n.4. In Plaintiff’s performance evaluation conducted by Dennis Greco, he explained that he supervised Plaintiff and that in the absence of the chief, she was assisting with many supervisory responsibilities, and that if she worked on improving certain areas, this could “possibly lead [her] to greater rank and responsibility within and/or outside of RIAC.” (Jan. 5, 2021 Tr. at Ex. 3.) Although Defendants present persuasive arguments, the LEOBOR is a remedial statute which must be construed liberally in accordance with the purpose and intent of the statute to protect law enforcement officers during an investigation. Because, at the time Plaintiff requested a LEOBOR hearing, there was already a chief of police at RIAPD to manage the hearing committee 4 On this same point, Defendants contend that Plaintiff represented herself as acting chief, but as the evidence demonstrates, Dennis Greco stated that Plaintiff was not acting chief. Thus, Defendants’ claim for unclean hands is without merit. See Defs’ Suppl. Mem. at 2, 12. 11 and suspension of Plaintiff, it would be consistent with maintaining the purpose of the statute to afford Plaintiff the LEOBOR protections. In accordance with this Court’s previous decision and the legislative history behind the LEOBOR and the definition of “law enforcement officer,” this Court concludes that the phrase “including the director and deputy director of the airport corporation of Rhode Island,” as drafted, modifies the phrase “highest ranking sworn officer of any of the departments.” Thus, this language leads to the conclusion that the highest ranking sworn officer of RIAC was, indeed, Mr. Ahmad. Therefore, this Court holds that Plaintiff was not the highest ranking sworn officer and that she falls under the definition of “law enforcement officer”; thus, she is entitled to the protections set forth under the LEOBOR. As such, this Court grants Plaintiff’s request for declaratory relief and, consequently, for injunctive relief. Plaintiff shall be reinstated to her position as deputy chief of RIAPD with all her back pay and benefits. Furthermore, § 42-28.6-4(e) states, in part: “The charging law enforcement agency shall provide the law enforcement officer with the name of one active or retired law enforcement officer to serve on the hearing committee, within five (5) days of its receipt of the officer’s request for a hearing. Failure by the charging law enforcement agency to file its hearing committee selection within that time period shall constitute a dismissal of all charges against the law enforcement officer, with prejudice; provided, however, that the presiding justice of the superior court, upon petition and for good cause shown, and permit the filing of an untimely hearing committee selection by the agency.” The Court will await Defendants’ selection of a hearing committee member. 12 V Conclusion For the foregoing reasons, Plaintiff’s request for declaratory and injunctive relief that Plaintiff is entitled to the protections set forth under the LEOBOR is granted. Counsel shall present the appropriate order for entry. 13 RHODE ISLAND SUPERIOR COURT Decision Addendum Sheet TITLE OF CASE: Helen Ricci v. Rhode Island Commerce Corporation; Rhode Island Airport Corporation, Rhode Island Airport Police Department; Dennis Greco; and Iftikhar Ahmad CASE NO: C.A. No. WC-2020-0502 COURT: Washington County Superior Court DATE DECISION FILED: May 6, 2021 JUSTICE/MAGISTRATE: Gibney, P.J. ATTORNEYS: For Plaintiff: Joseph F. Penza, Jr., Esq. For Defendant: Timothy C. Cavazza, Esq.; Joseph D. Whelan, Esq. 14

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