In re Madore

In re Madore (2002-220); 175 Vt. 510; 825 A.2d 12

2003 VT 35

[Filed 27-Mar-2003]

                                 ENTRY ORDER

                                 2003 VT 35

                      SUPREME COURT DOCKET NO. 2002-220

                              MARCH TERM, 2003

  In re Appeal of Dennis Madore	       }	APPEALED FROM:
                                       }
                                       }
                                       }	Labor Relations Board
                                       }
                                       }
                                       }	DOCKET NO. 01-1


             In the above-entitled cause, the Clerk will enter:

       ¶  1.  This is an appeal from an order of the Vermont Labor
  Relations Board (the Board) requiring the Department of Public Safety (the
  Department) to produce summaries of certain Internal Affairs Unit (IAU)
  records concerning allegations of misconduct by state police officers. 
  This order was made pursuant to a motion to compel discovery made by
  appellee Dennis Madore, who had appealed to the Board his dismissal from
  the position of State Police Lieutenant ordered by the Commissioner of the
  Department.  On appeal, the Department contends that the Board abused its
  discretion by (1) requiring production of the IAU records despite the fact
  that two of the four charges against appellee required dismissal if proven,
  which made such records irrelevant to the issue of the uniformity and
  consistency of discipline imposed by the Commissioner; and (2) ordering the
  Department to summarize IAU allegations that did not result in the
  imposition of discipline because the member resigned or the allegations
  were not sustained, proved, or admitted, as such records were similarly
  irrelevant to the issue of whether the Commissioner failed to impose
  discipline in a uniform and consistent manner.  We affirm.

       ¶  2.  The facts in this case are not in dispute.  In June of 2000,
  IAU obtained a copy of a Washington County Family Court decision pertaining
  to the divorce of appellee and Donna Madore that indicated that appellee
  had violated the Department's code of conduct.  IAU subsequently commenced
  an investigation into appellee's prior conduct, focusing on numerous
  alleged incidents of physical and emotional abuse of his wife as well as
  allegations of extramarital affairs.  Several persons were interviewed as
  part of this investigation, including Donna Madore, Judge M. Kathleen
  Manley (who had presided at the divorce proceedings), and appellee himself.
   
       ¶  3.  As a result of this investigation, on November 7, 2000, the
  Commissioner issued formal written charges alleging that appellee had
  committed nine violations of the Department's code of conduct.  The
  Commissioner advised appellee that his actions violated four specific
  provisions of the code of conduct: Part A, Section 3.1 (Criminal Conduct -
  Felony), Part A, Section 14.1 (Truthfulness), Part B, Section 3.1 (Conduct
  Unbecoming), and Part B, Section 4.1 (Criminal Conduct - Misdemeanor); that
  appellee had the right to file a request for a hearing before a hearing
  panel; and that if he did not file such a request, the Commissioner would
  impose some form of discipline, including possibly discharge.  On November
  29, 2000, appellee presented facts and circumstances to the Commissioner
  that appellee believed responded to the charges and the possible
  discipline.  On December 7, 2000, the Commissioner notified appellee of his
  conclusion that there were no mitigating circumstances and that he was
  terminating appellee's employment with the Department.

       ¶  4.  On January 5, 2001, Appellee appealed his dismissal to the
  Labor Relations Board, pursuant to 20 V.S.A. § 1880(c).  In that appeal,
  appellee asked the Board to reverse his dismissal on the ground that the
  Commissioner violated Article 14 of the collective bargaining agreement
  between the Vermont State Employees' Association and the State of Vermont
  for the State Police bargaining unit by, inter alia, failing to apply
  discipline with a view toward uniformity and consistency of treatment.

       ¶  5.  While that appeal was pending, appellee sought from the
  Department certain IAU records that he believed contained evidence in
  support of his claim, eventually filing a motion to compel discovery.  The
  Department filed a response to the motion, arguing, inter alia, that the
  Board should refrain from ruling on the motion to compel until this Court
  issued a ruling in the then-pending appeal of In re Danforth, ___ Vt. ___,
  812 A.2d 845 (2002), which involved a challenge to an order of the Board
  compelling disclosure of IAU records in similar circumstances.  Without
  waiting for the Danforth decision, the Board issued an order commanding the
  Department to produce the following:

    [S]ummaries of all allegations of misconduct by state police
    officers, and the findings as to such allegations, between January
    1, 1995, and the date [appellee] was disciplined, covered by
    Sections 1.0, 2.0, 3.1, 8.0, 9.0 and 14.1 of Part A; and Sections
    4.1 and 7.0 of Part B of the Employer's Code of Conduct.

  The Department filed a subsequent motion to clarify the language of the
  order and to stay the order pending the resolution of the Danforth appeal. 
  In a second order, the Board denied the stay and stated that the summaries
  should include allegations that had been made and had not been found to be
  established, in addition to the allegations that resulted in discipline. 
  The Department then filed the instant appeal, pursuant to 3 V.S.A. § 1003.
   
       ¶  6.  We note at the outset that many of the issues originally
  raised by the parties in this appeal have been resolved by our opinion in
  Danforth.  In particular, we held in Danforth that the Board has
  jurisdiction to order the disclosure of confidential IAU records, ___ Vt.
  at ___, 812 A.2d at 853-54; that the Board can compel disclosure of IAU
  records even in those cases where the state police advisory commission had
  not authorized the release of such records, id. at ___, 812 A.2d  at 854;
  and that the Board did not abuse its discretion in ordering the Department
  to produce summaries of certain requested records relevant to the issue of
  the uniformity and consistency of the imposition of discipline, id. at ___,
  812 A.2d  at 854-55.   The only issues remaining to be addressed in the
  instant appeal pertain to other alleged abuses of discretion by the Board
  in compelling the production of the particular summaries involved in this
  case.

       ¶  7.  On review, the Board's decisions are treated with deference
  and are presumed to be correct and reasonable.  In re Whitney, 168 Vt. 209,
  213, 719 A.2d 875, 878 (1998).  "Implicit in the authority of the Board to
  conduct a de novo hearing is the authority to compel disclosure and fashion
  its order in a manner it deems most appropriate."  Danforth, ___ Vt. at
  ___, 812 A.2d  at 854.  A decision of the Board "will not be overturned
  unless it is shown to be clearly erroneous."  In re AFSCME, Local 490, 153
  Vt. 318, 321, 571 A.2d 63, 65 (1989); see also Lamare v. N. Country Animal
  League, 170 Vt. 115, 124, 743 A.2d 598, 604 (1999) ("Discovery rulings are
  within the sound discretion of the trial court and will not be disturbed on
  appeal absent a clear abuse or withholding of that discretion.").

       ¶  8.  The Department's first argument is that the Board abused its
  discretion by requiring production of the summaries of the IAU records
  despite the fact that the Department's code of conduct requires dismissal
  for two of the four charges brought against appellee.  If these two charges
  are proven, the Commissioner has to dismiss the employee and the Labor
  Board has to affirm that result.  Thus, the Department argues that the
  issue of the uniformity and consistency of discipline would not be
  implicated for these charges and there would be no issue for which the IAU
  records would be relevant.  In order to avoid breaching the confidentiality
  of the IAU records unnecessarily, the Department contends that disclosure
  should be ordered only if the Board rules that the two more serious charges
  are not proven.

       ¶  9.  In essence, the Department is arguing that the proceedings
  below should have been bifurcated, one phase to determine if the charges
  are proved and another to determine the discipline to be imposed for those
  charges that are proved, with the question of the production of records
  only relevant to the second phase.  The Department failed to move for a
  bifurcated hearing below and thus is making this argument for the first
  time on appeal.  Therefore, although we recognize that many of the issues
  involved here were not resolved at the time of the Board's discovery order
  because Danforth had not yet been decided, we decline to address this
  argument of the Department here.  See In re Palmer, 171 Vt. 464, 473, 769 A.2d 623, 629 (2000) (matters not raised or fairly presented below are not
  preserved for appeal).  If the Department wishes to further press this
  argument, it should present it to the Board first, at which point the Board
  can adjust its discovery order to ensure that it is "sufficiently narrow in
  scope to maintain the privacy of Department employees while still
  permitting . . . access to pertinent IAU records."  Danforth, ___ Vt. at
  ___, 812 A.2d  at 855.
        
       ¶  10.  The Department's second argument is that the Board abused its
  discretion by ordering the Department to summarize IAU allegations that did
  not result in the imposition of discipline (cases where the member resigned
  or the allegations were not sustained, proved, or admitted).  The
  Department contends that such records pertain only to the statutory
  inability to impose any discipline and thus are irrelevant to the issue of
  whether the Commissioner failed to impose discipline in a uniform and
  consistent manner.

       ¶  11.  We find the records of allegations that did not result in the
  imposition of discipline to be relevant to appellee's claims of disparate
  treatment.  See Ulm v. Ford Motor Co., 170 Vt. 281, 290, 750 A.2d 981, 989
  (2000) (evidence is relevant "if it has any tendency to make the existence
  of any fact of consequence to the determination of the action more or less
  probable"); V.R.E. 401.  First, these records may help to demonstrate
  whether and how often the specific charges brought against appellee have
  been brought by the Commissioner in the past, and are thus relevant to the
  issue of whether the particular charges brought against appellee indicate
  that appellee has been singled out for discipline.  Second, we note that
  some of the disciplinary standards in this appeal involve considerable
  discretion in their application.  The records may provide examples of
  factual situations found to be insufficient to prove the particular charges
  brought against appellee, and are thus relevant to the issue of whether the
  facts in appellee's case are sufficient to prove the charges against him. 
  Therefore, the Board acted within its discretion in finding these records
  to be relevant and in crafting a sufficiently narrow discovery order that
  balanced appellee's need for these records against the privacy interest of
  the Department's employees.  See Danforth, ___ Vt. at ___, 812 A.2d  at 855.

       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned