2004-122, DANIEL YODER v. TOWN OF MIDDLETON

owner of a local car repair garage. Sobel notified the Town selectmen of his had, without permission, given ammunition belonging to the Town to Park, Town. In August 2002, Acting Police Chief Sobel suspected that the plaintiff Air Force B ase in 2002, he was allowed to perform part - time shift patrol for the while away on active military duty. When the plaintiff was reassigned to Pease of Police from 1994 until 2001, when he was placed on administrative leave The record supports the following facts. The plaintiff served as the Chief

Middleton (Town). We affirm. Court (Lewis, J.) affirming his dismissal as the Chief of Police of the Town of GALWAY, J. The plaintiff, Daniel Yoder, appeals an order of the Superior

Lee on the brief, and Ms. Lee orally), for the defendant. Ransmeier & Spellman, P.C., of Concord (Lawren ce S. Smith and Lisa M.

brief and orally), for the plaintiff. McKittrick Law Offices, of North Hampton (J. Joseph McKittrick on the

No. 20 04 - 122 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

erroneous as a matter of law. Sandford v. Town of Wolfeboro, 15 p. 2 2 N.H.,, uphold the trial court’s de cision unless it is unsupported by the evidence or constitute “substantial cause” for termination under RSA 105:2 - a. We will We first address the plaintiff’s argument that his actions did not

impair his ability to function as Chief of Police. We address each issue in turn. State v. Laurie, 139 N.H. 3 p. 2 25 (1995), the plaintiff’s credibility problems woul d prejudicial; and (3) the trial court improperly concluded that, consistent with the Attorney General’s investigation file as evidence was erroneous and not have “substantial cause” to terminate him; (2) the tr ial court’s admission of The plaintiff makes the following arguments on appeal: (1) the Town did

plaintiff. its burden of establishing that there was substantial cause to terminate the pursuant to RSA 105: p. 2 2 - a (2001). The trial c ourt ruled that the Town satisfied poor judgment.” The plaintiff appealed the Town’s decision to the trial court by unauthorized taking, showing lack of candor, and exercising “egregiously uphold an appropriate s tandard of behavior for his position by committing theft The Town subsequently dismissed the plaintiff because he had failed to

connection with this matter.” serious questions about the truthfulness of [the plaintiff’s] statements . . . in and that the plaintiff’s inconsiste nt conduct during the investigation “raise[s] plaintiff’s actions “likely constituted the crime of theft by unauthorized taking,” to the selectmen on May 6, p. 2 2003, the Attorney General’s Office stated that the selectmen that he ga ve ammunition belonging to the Town to Park. In a letter it was old and unfit for police use. He also alleged that he never denied to the to providing Park with ammunition that belonged to the Town, but alleged that When interviewed by the Attorney General’s Office, the plaintiff admitted

pending the outcome of an investigation by the Attorney General’s Office. come from the Town. The plaintiff was then placed on administrative leave ammunition as coming from here,” the plaintiff admitted that it might have from his house. After the selectmen sa id, “Look, we can pinpoint this and said he might have taken some ammunition but it was old ammunition asserted that the ammunition could be traced, the plaintiff changed his story plaintif f initially denied having taken any ammunition. When the selectmen asked him about the apparent theft of ammunition from the police station. The The Town selectmen met with the plaintiff on September 18, p. 2 2002, and

station. that they had the same lot number as that of the ammunition at the police agreed to return the four boxes of .45 caliber ammunition to Sobe l, who noted acknowledged that he had recently received ammunition from the plaintiff. He suspicion and went to Park’s garage to retrieve the ammunition. Park p. 3 3

the selectmen’s accusations that he was stealing from the Town. that he initially denied taking Town ammunition only as an angry response to ammunition from the police department to Park. The plaintiff now c ontends General’s Office, the plaintiff then asserted that he never denied that he gave maybe some of it did come from the Town. When interviewed by the Attorney number of the ammunition at the police sta tion, the plaintiff admitted that plaintiff with the fact that the ammunition recovered from Park matched the lot it was old ammunition from his house. After the selectmen confronted the changed his stor y stating that he might have taken some ammunition but that the selectmen asserted that the ammunition could be traced, the plaintiff Here, the plaintiff initially denied having taken any ammunition. When

Id. rendered him incapable of holding a position “demanding honor and integrity.” Id. at p. 3 308. We found sufficient evidence that the plaintiff’s overall be havior to his officers about the status of police funds for controlled drug purchases. from the police department’s soda machine, and the plaintiff admitted to lying an accurate report” when confronted with questions ab out unreported profits indicated that the plaintiff was “either lying” or “entirely unconcerned to make and dishonesty. Perron, 131 N.H. at 307 - 08. Specifically, the evidence Chief of Police where there w as evidence of misadministration of public funds finding that there was substantial cause to terminate the plaintiff’s position as disagree. In Perron, we found sufficient evidence to support the trial court’s substan tial cause for termination. See Ingersoll, 118 N.H. at 137. We in “personal dislike or disagreement” with the Town selectmen and were not a First, the plaintiff argues that his inconsistent statements resulted only

omitted). misdemeanor and sentence to imprisonment for a term.” Id. (quotation force, the commission of an infamous crime, or the c onviction of a corruption or inefficiency in office, infraction of the rules governing the police addition, the ground for removal must be of substantial significance, “such as affecting the rights and interests of t he public.” Perron, 1 p. 3 31 N.H. at 306. In must specifically relate to and affect the administration of the office, “directly Ingersoll v. Williams, 118 N.H. 135, 137 (1978). Rather, a ground for dismissal factors as “personal dislike, political disagreement, or reasons of that nature.” Somersworth, 131 N.H. 303, 306 (1988). This precludes reliance upon such incapacity to discharge the responsibilities of the position. Perron v. City of the st atute must be substantial and requires a demonstration of unfitness or to dismissal only for cause. We have stated that the cause for removal under RSA 105:2 - a provides that an appointed Chief of Police shall be subject

same decision as did the trial court based upon the evidence before it. Id. ruled differently, but whether a reasonable person co uld have reached the 868 A.2d 1002, 100 p. 4 4 (2005). Our standard is not whether we would have 4

for the trial court to find substantial cause for his removal. actions understandably eroded the Town’s tr ust and were sufficient evidence standard of behavior appropriate for his position. Accordingly, the plaintiff’s department’s policy of truthfulness in an investigation and fell below the cause. Id. Here, the plaintiff’s lack of candor was a violation of the police “infraction of the rules governing the police force” as an example of substantial is not limited to those specific acts. To the contrary, we have also included conviction, or inefficiency of office, see id., the definition of “substantial cause” 306. We disagree. While removal may be justified by corruption, criminal matter, nor did his actions involve corruption or inefficiency of office. See id. at dismiss him because he was neither charged with a misdemeanor in this Finally, the plaintiff contends that the Town lacked substantia l cause to

a Police Chief.” the Town’s conclusion that the plaintiff acted “counter to the role and duties of circumstances surrounding it, the trial court had sufficient evidence to affirm regarding the plaintiff’s improper taking of the ammunit ion and the allegations was less than forthright. In light of the findings of the trial court unauthorized taking. Third, the plaintiff’s testimony in response to the was “not green or corroded” and th at the plaintiff likely committed theft by Attorney General’s investigation concluded that the ammunition given to Park position demanding integrity. See Perron, 131 N.H. at 308. Second, the “egregi ously poor judgment,” which cast doubt upon his capability of holding a that the act of taking Town property without authorization demonstrated the monetary value of the ammunition alone. Instead, the selectmen found selectmen’s conclusion that he had violated the public trust was not based on ammunition. We disagree. First, the plaintiff’s arg ument is misplaced. The Town lacked substantial cause for his dismissal given the value of the prosecute him due to the de minimis value of the items. Thus, he argues, the corroded.” In addition, he points out that the Attorney General declined to only worth $ p. 4 44.80 and was unfit for police use because it was “green and The plaintiff also contends that the ammunition that he gave to Park was

id. at 306; see also Blake v. Town of Pittsfield, 12 p. 4 4 N.H. p. 5 555, 561 (1984). trial court to find that it affected the “rights and interests of the public.” See selectmen. In this case, the plaintiff’s conduct was sufficient evidence for the an explicit violation that caused more than personal disagreement with the departmental or other official investigation,” the plaintiff’ s lack of candor was requires officers to “truthfully state the facts . . . before any judicial, integrity.” See id. Moreover, where the Town’s police department policy grave doubts as to his capabilit y of holding a position “demanding honor and Based upon this trail of inconsistent statements, the plaintiff created 5

file. First, without objection by the plaintiff, the trial court admitted into specific findings were supported by evidence other than the Attorney General’s Even assuming that the admission of the file was error, the trial court’s

findings were unsupported by the evidence at trial. improper possession of Town property. The plaintiff argues that all three Office made “a serious attempt” to investigate whether the plaintiff had [the plaintiff] had kicking around his house;” and (3) the Attorney Genera l’s car; (2) Park stated that the plaintiff said he was giving him “old ammo that stated that the plaintiff owed him ammunition for work done on the plaintiff’s the trial court relied upon the file to find that: (1) according to Sobel, Park Attorney General’s file because the trial court relied upon it. He contends that The plaintiff argues that he was prejudiced by the admission of the

trial court. sufficient basis to support any material c onclusions that were reached by the Attorney General’s report, which was admitted without objection, provided a “serious questions” about his truthfulness about the matter. We find that the the plaintiff’s inconsi stent statements to the Town and to investigators, raising constituted the crime of theft by unauthorized taking.” The report also detailed the police department to Park, and that the plaintiff’s conduct “likely observations “conclusively establish” that the plaintiff gave ammunition from In the report, the Attorney General’s Office stated that Sobel’s

disagree. that, therefore, the admission of the file as evidence prejudiced his case. We heavily on the file at trial beyond its limited evidentiary purpose. He contends result of the admission of the file. The plaintiff argues that the Town relied We turn first to the issue of whether the plaintiff was prejudiced as a

In re Brittany L., 144 N.H. 139, 144 (1999). ruling wa s clearly untenable or unreasonable to the prejudice of his case. See discretion reversible on appeal, the plaintiff must show that the trial court’s exercise of discretion standard). To demonstrate an unsustainable exercise of (2002); cf. State v. Lambert, 147 N.H. 29 p. 5 5 (2001) (explaining unsustainable unsustainable exercise of discretion. In re Antonio W., 147 N. H. 408, 414 and such a ruling will not be disturbed on appeal unless there has been an admissibility of evidence is committed to the sound discretion of the trial judge, as evidence without objection by the plaintiff. We have held that the summarized in a report from the Attorney General’s Office, which was admitted the bases for his removal. Significantly, the contents of the file were admitted the Attorney General’s file for the limited purpose of reviewing one of investigation of the plaintiff was inadmissible hearsay. At trial, the court Next, the plaintiff argues that the Attorney General’s file on its p. 6 6

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

plaintiff’s dismissal, we need not address the Laurie issue. this evidence compelled the trial court’s finding of substantial cause for the rendered him unfit for the position of Police Chief. Because we conclude that trial court ruled that the plaintiff’s “course of conduct in this entire matter” involved in the case violated the defendant’s constitutional rights). Here, the inform defendant of the credibility issues of a police officer significantly Laurie, 139 N.H. 325, 333 (1995) (holding that the prosecution’s failure to plaintiff from effectively carrying out the duties of Police Chief. See State v. support the trial court’s conclusion that a Laurie issue would hi nder the Finally, the plaintiff argues that there was insufficient evidence to

failed to demonstrate reversible error. See In re Brittany L., 144 N.H. at 144. clearly untenable or unreasonable to the p rejudice of his case. Thus, he has the plaintiff, we find that he has failed to show that the trial court’s ruling was attempt” to investigate the plaintiff. Lacking any other specific examples from the trial court to find th at the Attorney General’s Office made “a serious witnesses in the course of its investigation. Thus, it was not unreasonable for Attorney General’s Office reviewed documents and interviewed numerous statements regarding the ammunition. Next, the record shows that the evidence a report from Sobel that attests to the first two examples of Park’s