Providence County Superior Court. (PC 11-7205). Presiding Justice Alice B. Gibney, Associate Justice Sarah Taft-Carter.
For Petitioner: Vincent F. Ragosta, Jr., Esq.
For Respondent: Joseph F. Penza, Jr., Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Flaherty, J. and Indeglia, J., dissenting.
This case came before the Supreme Court pursuant to a writ of certiorari filed
by the petitioner, the City of Pawtucket (city or petitioner), seeking review of a Superior Court judgment affirming a decision of a hearing committee that was convened to adjudicate disciplinary charges against the respondent, Pawtucket police officer Nichalas Laprade (Laprade or respondent). Before this Court, the petitioner argues (1) that the hearing committee erred in denying the city's request to reschedule the date of its first hearing and that the Superior Court justice erred by affirming the hearing committee's decision; (2) that the Presiding Justice erred by denying the city's request to convene its first hearing after the originally scheduled date and that the Superior Court justice erred in failing to review this ruling; and (3) that the hearing committee erred in failing to take judicial notice of the respondent's criminal conviction and that the Superior Court justice erred in affirming this decision. For the reasons set forth in this opinion, we quash the judgment of the Superior Court, vacate the decision of the hearing committee, and remand the case to the Superior Court.
Facts and Travel
On February 18, 2011, Pawtucket police officer Nichalas Laprade was convicted of disorderly conduct by indecent exposure  in Sixth Division District Court, a criminal conviction stemming from an incident that occurred on November 9, 2010, during which two women observed the off-duty Laprade masturbating and exposing himself while driving his personal vehicle. On May 3, 2011, the City of Pawtucket and the Department's Office of Professional Standards/Internal Affairs charged Laprade in an eighteen-count complaint, alleging violations of Department rules and regulations stemming from his indecent exposure conviction as well as other incidents of alleged misconduct, including sleeping while on duty.
After being notified of the disciplinary charges against him--as well as the city's recommendation that his employment be terminated--Laprade timely filed a written request for a hearing in accordance with the Law Enforcement Officers' Bill of Rights Act (LEOBOR), as set forth in G.L. 1956 chapter 28.6 of title 42. In accordance with § 42-28.6-4, a three-person hearing committee was then selected; it was composed of Patrolman Richard Ramirez (Ramirez)--a Providence police officer selected by Laprade--and Major Bruce Moreau (Moreau) from the Pawtucket Police Department, who was chosen by the city. On June 23, 2011, these two committee members selected Sergeant Arthur Lee (Lee) of the Providence Police Department to serve as the third committee member and as the chairman of the committee. Lee proceeded to contact the parties, who agreed to hold the first scheduled
hearing at 11:00 a.m. on Wednesday, July 20, 2011.
On July 11, 2011--nine days before the scheduled hearing and one day after the statutory deadline set forth in § 42-28.6-5(c)--the city provided Laprade with a list of witnesses and evidence that the city planned to present at the hearing. That same day, Moreau returned from vacation and discovered that he had a conflict with the July 20 hearing date. Moreau also learned that a medical issue had arisen with a family member of the city's legal counsel that also conflicted with the hearing date. Finally, Moreau was notified that the city's delivery of the witness and evidence list would not comply with LEOBOR unless the hearing date was continued. Based on these circumstances, Moreau contacted the committee chair and requested that the hearing date be continued " a day or two" to avoid any conflicts. Moreau further stated that, if the hearing committee could not meet on one of those days, Lee should " consider drafting a letter to the [Presiding Justice] requesting an extension of time." Lee, however, responded that legal counsel for Laprade had objected to changing the hearing date, but had offered to hold the meeting on July 20 anytime between 6 a.m. and 9 p.m. As a result, Lee confirmed that, while the timing was subject to change, the hearing would proceed on July 20 as originally scheduled.
On July 14, 2011, Moreau wrote to the Presiding Justice of the Superior Court, explaining that, upon opposing counsel's objection, the committee chair had denied the city's request for a continuance; he then asked that the statutory thirty-day timeframe for holding the first LEOBOR hearing be extended pursuant to § 42-28.6-5(b). Upon receiving a copy of this letter, counsel for Laprade telephoned the Presiding Justice and requested a hearing on the matter. On July 18, 2011, a hearing took place before the Presiding Justice--although no complaint or miscellaneous petition was filed in Superior Court--at which counsel for the city submitted a memorandum of law in support of the requested continuance. Although it was
counsel for Laprade who requested the hearing, he nonetheless argued that Moreau's letter to the Presiding Justice was inappropriate, stating that " the Court at this point in the [LEOBOR] proceedings really doesn't have any jurisdiction to hear anything that is before it." Counsel explained that the letter had not come from the committee as whole, but rather from one member. Counsel maintained that, when faced with Moreau's request for a continuance, the committee chair had adhered to the July 20 hearing date--which was within the thirty-day timeframe allowed under § 42-28.6-5. Therefore, counsel for Laprade argued that the Superior Court was without jurisdiction to decide the issue, and maintained that the hearing should proceed on July 20 as planned subject only to subsequent review by the Superior Court in accordance with the appeal process specified in § 42-28.6-12.
Conversely, the city maintained that, pursuant to § 42-28.6-5(b), the Presiding Justice had jurisdiction to extend the time for the committee to hold its first hearing. Counsel for the city argued that the hearing date should be continued because a family medical issue had arisen that would be addressed on that date and also because Moreau had a commitment which conflicted with the July 20 hearing. The city also noted that a violation of the statutory requirements for presenting the witness and evidence list--mandating disclosure ten days prior to the hearing--had not yet arisen, and would occur only if the hearing proceeded as scheduled; therefore, he argued, the hearing should be continued to avoid potential procedural error. Faced with this argument, counsel for Laprade replied that he would agree to a continuance, as long as the hearing was treated for all purposes as if it was in fact being held on the original date of July 20.
On July 18, 2011, the Presiding Justice issued a written order stating that the city's failure to present the witness and evidence list ten days prior to the scheduled hearing date did not present good cause to extend the hearing date under § 42-28.6-5(b). The order further indicated that the Presiding Justice was, however, " sympathetic to Counsel's family medical exigency," and ordered the parties " to agree upon another mutually convenient date for a hearing," specifying that " the date of the hearing will still be considered as July 20, 2011 for timing purposes."
The parties subsequently agreed to hold the first hearing on Friday, July 22, 2011. On this date, the city again requested that the committee reconsider a continuance of the July 20 hearing date; however, this request was denied. The hearing committee then took judicial notice of the Presiding Justice's July 18, 2011 order, specifying that it would not be marked as evidence. Significantly, the committee refused to accept any evidence that day, despite repeated and vigorous attempts by Laprade's counsel to introduce documents and place evidence on the record. Nonetheless, the chairman was steadfast in his refusal to take any evidence on July 22, 2011. Instead, the proceeding concluded after the committee decided to petition the Presiding Justice to appoint legal counsel to advise the committee--which was subsequently granted--and scheduled the next meeting for September 8, 2011.
At the September 8 hearing, the city submitted its complaint against Laprade into evidence, presented an opening statement,
and attempted to call its first witness. Counsel for Laprade  objected to the witness being called, claiming that, pursuant to § 42-28.6-5(e), the city was precluded from presenting witnesses or evidence because it had failed to provide the evidence and witness list to Laprade at least ten days in advance of July 20. In response, the city argued that the disclosure of the witness and evidence lists were in fact timely because the July 22 proceeding--which, in accordance with the Presiding Justice's July 18 order, was treated as having taken place on July 20--did not constitute a hearing under LEOBOR because no evidence was taken at the proceeding. Counsel for Laprade countered that the July 22 proceeding was a hearing under LEOBOR, and, in the alternative, if the committee found that it was not a hearing, the committee would need to treat the September 8 hearing as having occurred on July 20 in order to comply with the Presiding ...