2015-0062, Officer John Gantert v. City of Rochester & a.

Police Commission, on the plaintiff’s claims of tortious interference with the City of Rochester, the Rochester Police Department, and the Rochester Superior C ourt (Wageling, J.) granting summary judgment to the defendants, LYNN, J. The plaintiff, Officer John Gantert, appeals an order of the

attorney general, on the brief and orally), for the State, as amicus curiae. Joseph A. Foster, attorney general (Patrick J. Queenan, assistant

for the defendant s. Terence M. O’Rourke, city attorney, by memorandum of law and orally,

brief and orally), for the plaintiff. Wilson, Bush, Durkin & Keefe, P.C., of Nashua (Charles J. Keefe on the

No. 2015 - 0062 Rockingham

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any 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

court. The court relied upon these facts in its order, and they are part of the record on appeal. The parties submitted an “Agreed Statement of Facts” and accompanying exhibits to the trial p. 2 2 See State v. Laurie, 139 N.H. 325 (1995). 1

behaviors. many of the questions on the LAP, which mainly ask about past acts or only to the inc ident for which the a ccused had been arrested, did not cover could not be so answered, he answered “no.” The interview, which pertained answered affirmatively based upon the video, he answered “yes”; if a question information he learned from the interview. If a question on the LAP could be of the victim by the arresting officer an d comp leted a second LAP ba sed upon the arresting officer or the victim, the plaintiff watched a videotaped interview the rest of the arrest paperwork. After unsuccessfully attempting to contact to department al policy, it was required to be sent to the county attorney with aware that the LAP had been completed and incorrectly believed that, pursuant completed the LAP, and sent it to the county attorney. The plaintiff was not Before ending his shift, the arresting of ficer had interviewed the victim,

conditions of bail. The LAP is also used to assist the court in determining the amount and higher risk of lethal violence, and a protocol of assisting the victim is triggered. number of questions are answered “yes,” the victim is considered to face a questions can be responded to with yes, no, or not answered. If a certain committed by the acc used, and the accused’s access to weapons. The The LAP consists of a series of questions about past threats or violence

ga u ging the degree of violence and potential danger to the victim. and fill s out a Lethality Assessment Protocol form (LAP), which assists in operating procedure in domestic violence cases, an officer int erviews the victim individual arrested for domestic violence. As part of the department’s standard p. 2 2011, t he plaintiff was instructed to assist another officer in booking an actions reflected in his personnel file. Upon beginning his shift on March 24, years he was viewed as a “good and productive officer” and had no disciplinary plaintiff began working as a police officer in Rochester in March 2005. For six Th e trial court found, or the parties agreed to, the following facts. The 2

affirm the trial court’s judgment. find that the procedures afforded to the plaintiff in this case were adequate, we List” without affording him sufficient procedural due process. Because we 1 defendants’ a lleged wrongful placement of the plaintiff on a s o - called “Laurie process rights, and damage to his reputation. All of his claims arise out of the prospective advantageous business relations, violations of his procedural due p. 3 3

commission made a final decision. would not notify the county attorney of the Laurie issue until after the police the plaintiff declined to at tend. The chi ef and the union agreed that the chief personnel file could contain Laurie material; citing advice from union counsel, intent to notify t he county attorney’s office of the fact that the plaintiff’s with the plaintiff to provide him with an op portunity to discuss the c hief’s that he intended to notify the county attorney. The chief scheduled a meeting c hief also notified the plaintiff that his act ions could be “Laurie material” and “Nothing you can say or do will make me change my mind about this.” The possible resolution to the matter, to which he recalls the chief responding, to the police commission. The plaintiff asked the chief if there was another letter to the plaintiff notifying him that he intended to reco mmend termination This decision was forwa rded to Chief Dubois, who concurred and wrote a

terminated. agreed with the findings and recommended that the plaintiff ’s employment be statement s.” His report was forwarded to Deputy Police Chief Allen, who reports, time records, leave records, or knowingly mak [ing] any false official “F alsification of any reports, such as, but not limited to, vouchers, official P erformance”; and Standard Operating Procedure 26.1.4, Subsection D. p. 3 3.e, Sta ndard Operating Procedure 26.1.4, Subsection D.1.d, “U n satisfa ctory Job Toussaint found that the plaintiff violated two departmental policies:

be sent to the County Attorney’s Office.” information to work with and that he knew that the LAP form was required to incorrect information on the LAP, the plaintiff stated that “he had no of the victim in the videotaped statement.” When asked why he had put and “that he made his best guess about the answers based upon the demeanor that “none of the LAP questions had been covere d” in the recorded interview answered in the interview” that he reviewed. The plaintiff “stated that he knew” Toussaint’s report, the plaintiff “admitted that the LAP form questions were not conducting interviews with th e plaintiff and other officers. According to matter to the Rochester Police Department. Li eutenant Toussaint investigated, The county attorney discovered the conflicting LAPs and referred the

had no knowledge of the answers to many of the LAP questions. superior or another employee as to how to proceed in light of th e fact that he second LAP to the county attorney. At no time did the plaintiff consult with a the protocol. The plaintiff signed the arresting officer’s name and sent the completed by the plaintiff had almost all “no” answers, which would not trigger questions being answered “yes,” which triggered the protocol; the LAP completed with information from the victim, resulted in almost all of the different from the one completed by the arresting officer. The original LAP, This resulted in the LAP completed by the plaintiff being materially p. 4 4

followed. found that the plaintiff had received sufficient due process. This appeal due process. A fter bala ncing the competing interests at stake, however, it plaintiff had a constitutionally protected interest and was therefore entitled to judgment and ruled in favor of the defendants. T he court found that the court construed the parties’ memoranda of law as cro ss - motions for summary remove his name from the “Laurie L ist.” The defendants objected. The tria l proper procedural due process, and sought damages and injunctive relief to court. He claimed that the defend ants placed him on the “Laurie L ist” without The plaintiff then brought this suit against the defendants in superior

declined. and the county attorney remove his name from the “Laurie L ist.” Both After the arbitrator’s decision, the plaintiff requested that both the chief

authority.” “[w] hether [the plaintiff] shall remain Lauri e listed is beyond the Arbitrator’s 2011. The arbitrator did not rule on the “Laurie List” issue, stating that reduce the discipline to a suspension without pay fr om June 16 to November 7, plaintiff had no other disciplinary problems in the past, led the arbitrator to that the submission of the inaccurate LAP was an isolated incident and the Laurie was much more severe. These circumstances, coupled with the fact the di scharge of untruthful officers and noted that the conduct by the officer in an officer on the “Laurie L ist,” the arbitrator stated that Laurie does not require incorrect. Although acknowledging that the c hief stated that he would not hire intent to deceive, he did know that he was providing information that could be investigation, we interpret this to mean that, although the plaintiff had no intentionally falsify the LAP form.” Given the plaintiff’s statements during the plaintiff’s actions implicated his honesty and integrity, but he “did not “discharge [was] too great a penalty in this case.” The arbitrator fou nd that the information [on] the LAP report and not following p roper protocol,” but that Department “had just cause to discipline [the plaintiff] for entering false arbitrator. Following a hearing, the arbitrator found that the Rochester Police Hampshire Public Employee Labor Relations Board (PELRB), which selected an and the police union, the plaintiff challenged his discharge before the New Pursuant to the co llective bargaining agreement (CBA) between the city

contain issues relevant to State v. Laurie. This file affects [the plaintiff].” Department has an internal a ffairs file which could possibly be construed to chief sent a letter to the county attorne y stating that “the Rochester Police chief’s decision to terminate the plaintiff’s employment. After this decision, the On June 16, 2011, the Rochester Police Commission voted to uphold the p. 5 5

prosecutors must rely upon police departments to identify Laurie i ssues. He RSA 10 p. 5 5:13 - b (2013), the Attorney General r ecognized in the Memo that Because police personnel files ar e generally confidential by statute, see

disclosure to a defendant in a criminal case.” personnel file so that it is available for in camera review by a court and possible Pursuant to the M emo, s uch material “must be retained in the officer’s

offic er for evaluation or treatment. department to take some affirmative action to suspend the  any instance of mental instability that caused the police  any sustained complaint of excessive use of force; egregious dereliction of duty . . .;  any sustained instance that an officer engaged in a n fraud;  any sustained instance that an officer committed a theft or evidence;  any sustained instance when an officer falsified records or proceeding, in a police report, or in an internal investigation; during a court case, administrative hearing, other official  any sustained instance where an officer deliberately lied

material: categories o f conduct that should generally be considered potential Laurie personnel files and internal investigations files.” The M emo identified several Laurie material,” including “information contained in confidential police “develop a standardized method for identifying and dealing with potential county attorneys and law enforcement agencies in the state, which aimed to In 2004, the Attorney General issued a me morandum (M emo) to all

and prosecutors. Duchesne, 167 N.H. at 778 - 79. “Laurie Lists” to share information regard ing officer conduct between police 327, 333 (199 p. 5 5), law enforcement authorities in this state began developing police officer’s employment files and records, see State v. Laurie, 139 N.H. 325, a new trial due to the p rosecution’s failure to disclose information found in a Duchesne, 167 N.H. at 777 - 78, 781 - 82. After we granted a criminal defendant such as information located in police officers ’ confidential personnel files. This duty extends to information known only to law enforcement agencies, witnesses.” Id. at 777; see also Brady v. Maryland, 373 U.S. 83, 87 (1963). information and information that may be used to impeach the State’s (2015). As relevant here, prosecutors have a duty to disclose “both exculpatory Lists.” See Duchesne v. Hillsborough County Attorney, 167 N.H. 774, 777 - 82 We have recently explained the background and operation of “Laurie

requirements of constitutional due process. Because this argument raise s a argument — whether the process he received in this case comports with the more process in this case. We thus need ad dress only the plaintiff’ s second contemplated by the Memo and that which occurred here, the plaintiff received reason, to the extent there is a meaningful difference between the procedure Memo and an a dditional hearing be fore the police commission. For this As noted above, the plaintiff received the procedures established by the

defendants. sufficient and that the trial court properly granted summary judgment to the defendants argue that the process afforded the plaintiff is constitutionally plaintiff received sufficient procedural due process in this case. Th e C onstitution, before an officer is pl aced on the “Laurie L ist”; and (2) the sufficient due process, pursuant to Part I, A rticle 15 of the N ew H ampshire (1) the procedures establi shed by the Attorney General’s M emo provide On appeal, the plain tiff argues that the trial court erred in finding that:

that his file contained potential Laurie material. the Rochester Police C ommission before the chief notified the county attorney the procedure utilized in this case is that he had an additional hearing before that the only difference between the procedure provided for in the M e mo and the Memo in its Standard Operating Procedures. The plaintiff acknowledges The Rochester Police Department has adopted the procedu re outlined in

constitute a Laurie issue. notifies the co unty attorney if the incident i s ultimately determined to present facts or evidence. After the chief makes a final decision, the chief notifies the officer involved, who may request a meeti ng with the chief to determines whether the incident constitutes a Laurie issue. If it does, the chief If so, the deputy chief sends a memo randum to the chief, who reviews it and involves any of the categories of conduct identified as potential Laurie material. conducted by other police personnel, and determines whether the incident deputy chief reviews all internal investigation files, including investigations departments to identify and retain La urie material in their files. First, the The M emo included a sample policy and procedure for police

her law enforcement agency for another position. L ist.” The county attorney is also informed if on e of these officers leaves his or county who are subject to possible Laurie disclosure — the so - called “Laurie attorneys to compile a confidential, comprehensive list of officers within each conduct that constitutes Laurie material.” He placed responsibility on county writing, “whenever a determination is made that an o fficer has engaged in advised that law enforcement agencies should notify the county attorney, in p. 7 7

and a ssociations in the community.”); cf. Clark v. Manchester, 113 N.H. 2 p. 7 70, may be impaired when governmental action seriously damages his standing Bagley, 128 N.H. 275, 284 (1986) (“Th e general rule is that a pers on’ s liberty affecting it require due process. S ee Veale, 158 N.H. at 638 - 39; Petition of particularly in one’s profession, is significant and that governmental actions Duchesne, 167 N.H. at 783. We have held that an interest in one’s reputation,

on a regular basis. professional standing with those with whom they work and interact criminal c ase, thus potentially affecting their reputations and defendants or their counsel any time the officers testify in a about the officers will be disclosed to trial courts and/or generally, placement on the list all but guarantees that information Although the “L aurie List” is not available to members of the public

we stated in Duchesne: “reputation and ability to continue to work un impeded as a police officer.” As The private interest affected, as the trial court found, is the plaintiff’s

particular situation demands.” Id. (quotation omitted). of due process are flexible and call for such procedural protections as t he additional procedural requirements. Doe, 16 p. 7 7 N.H. at 414. “The requirements interest, including the fiscal and administrative burdens resulting from of any additional or substitute procedural safeg uards; and (3) the government’s deprivation of that interest through the procedure used and the probable value factors: (1) the private interest that is affected; (2) the risk of erroneous what process is due. To determine what process is due, we balance three sufficient to entitle him to due proces s. The q uestion before us, therefore, is Here, the defendants do not disput e that the plaintiff has an interest

of justice, decency and fair play.” Id. fairness requires that government c onduct conform to the community’ s s ense Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 320 (2004). “Fundamental a due process claim is the notion of fundamental fairness.” Saviano v. v. State of N.H., 16 p. 7 7 N.H. 382, 414 (2015). “The ultimate standard for judging and second, if such an interest exists, we determine what process is due.” Doe individual h as an interest that entitles him or her to due process protection; addressing procedural due process claims: first, we determine whether the of law. Veale, 1 58 N.H. at 636. “We engage in a two - part analysis in CONST. pt. I, art. 15. We have held that “law of the land” means due process deprived of his life, liberty, or e state, but by. . . the law of the land.” N.H. subject shall be . . . deprived of his propert y, immunities, or privileges . . . or Part I, Article 15 of the New Hampshire Constitution provides that “[n]o

N.H. 632, 636 (2009). qu estion of constitutional law, our review is de novo. See State v. Veale, 15 p. 8 8 8

The procedure he advocates might be more in - depth, but it is not clear that it be that he does not agree with the decisions made by these various officials. and the police commission. His real complaint about the procedure appears to multip le opportunities to be “heard” — by the investigating officer, the chief, against him, we do not find this argument persuasive. T h e plaintiff had To the extent the plaintiff argues that this process is inherently biased

biased. make the initial findings, which the plaintiff does not claim were unfair or police commission. M oreover, the chief did not conduct the investigation or chief did not have the fi nal word, as the ultimate decision was made by the could raise concerns about the fairness of the proceeding — we note that the scheduled meeting that his mind was already made up — a circumstance that Even accepting the plaintiff’s assertion t hat the chief told him before their had the opportunity to meet with the chief before a final decision was made. and had the opportunity to explain his version of what had occurred. He also The plaintiff spoke with the officer conducting the internal investigation

of erroneous deprivation of his interest s. the Rochester police were unfair; nor has he shown that there was a true risk The plaintiff has not clearly articulated how or why the procedures followed by any additional or substitute procedural safeguards.” Doe, 167 N.H. at 414. of [the private] interest through the procedure used and the probable value of The second factor tasks us to consider “the risk of erroneous deprivation

of a matter” regarding a “Laurie List” issue. would be a proper procedure and would be the best method to “reach the truth evidence of his own, cross - examine witnesses, and be represented by counsel, hearing that provides the ability to review evidence offered against him, present neutral given its ties to the police department. The plaint i ff contends that a Rochester Police C ommission, but he argues that the police commission is not before an impartial tribunal. In his case, the plaintiff had a hearing before the these conclusions. He further argues that officers are never given a hearing levels of the department, lea ving the officer with the task of trying to undo this occurs only after findings and determinations have been made at other opportunity to meet with the chief prior to being placed on the “Laurie L ist,” opportunity to be heard.” He contends that, although officers have an erroneous deprivation of his interest because he did not have “a full and fair The plaintiff argues that the procedure used “creates a great risk” of

pr ivate interest is significant. practice his chosen profession” (q uota tion omitted)). Here, we agree that the impose a stigma upon the employee that will foreclose future opportunities to seriously damage his standing and associations in this community . . . [or] because he failed to show “that the gover nmental conduct likely will . . . 274 (1 p. 9 973) (holding that an employee was not entitled to due process, in part, 9

prosecutor’s obligation to disclose such information to a court for in camera enough of a reflection on the plaintiff’s general credibility to trigger at least a LAP that he knew he had no basis to believe were true. This is certainly the LAP, it is clear from his own admission that he supplied answers on the list. Altho ugh the arbitrator found that the plaintiff did not intentionally falsify Here, unlike in Duchesne, there is a basis for keeping the plaintiff on the

justification for keepi ng the office rs on the “Laurie L ist.” Id. at 784 - 85. Because the initial decision of the chief of police was reversed, there was no engaged in the conduct for which they were placed on the list. Id. at 784. by the arbit rator and the attorney genera l showed that the officers had not be without basis. Duchesne, 167 N.H. at 784 - 85. In Duchesne, the findings relief if the circumstances that gave rise to the placement are clearly shown to after an officer is placed on the “Laurie L ist,” he may have grounds for judicial in substance, as was the case in Duchesne. In Duchesne, we recogni zed that List” if the grounds for placement on the list are thereafter shown to be lacking placement mechanism available to an officer to seek removal from the “Laurie in their reputations and careers is such that there must be some post - However, as we explained in Duchesne, the interest of individual officers

officer is placed on the “Laurie Lis t.” T here is no need for a more formalized hearing or additional process before an opportunity to meet with the chief, and a hearing before the police commissi on. improperly conducted — two layers of review within the department, an internal investigation — which the plaintiff does not allege was unfairly or implemented in this case struck the proper balance. Here, there was an its interest in not delaying placement of officers on th e list, the procedures government’s strong interest in meeting it s constitutional Brady obligation, and afforded sufficient process befo re he was placed on the “Laurie L ist.” Given the After balancing these interests, w e conclude that the plaintiff was

affected the verdict). reasonable doubt that the undisclosed exculpatory evidence would not have protection to criminal defendants and requires the State to prove beyond a 13 p. 9 9 N.H. at 330 (holding that New Hampshire Constitution affords greater confidential personnel files may contain exculpatory information. See Laurie, government has a g reat interest in placing on the “Laurie List” of ficers who se ‘Laurie Lists’ is of constitutional magnitude.” Duchesne, 167 N.H. at 780. The recognize that “the prosecutorial duty that spawned the creation and use of Next we exa mine the government’s interest. Doe, 167 N.H. at 414. We

arbitrator, did not offend due process). was made by the school board rather than a neutral third party, such as an that procedure whereby final decision on termination of public school teacher already in place. See Appeal of Silverstein, 163 N. H. 1 p. 9 92, 200 (2012) (holding would add significant ly to the accuracy of outcomes versus the procedure p. 10 10

defense attorney. exculpatory information, and ordered that parts of the file be disclosed to the prosecutor and determined that portions of the record contained potentially relevant and/or potentially The record shows that three judges, after reviewing the plaintiff’s personnel records in camera, 3

available procedures, the courts can provide a remedy to an aggriev ed officer. that there are no valid grounds for his being on the list, and that, absent other fairness require that an officer must be removed from the list when it is clear use of “Laurie Lists.” Instead, we merely recogn ized that basic notions of law enforcement or prosecutorial authorities must follow in connection with the O ur decision in Du chesne did not pr e scribe any specific procedures that

serve little purpose. “Laurie List.” Having a n additional hearing to examine the same facts would did not establish that there was no basis for the plaintiff’s placement on the List.” However, in contrast to Du chesne, the arbitrator’s decision in this case Duchesne, i.e., providing a basis for removing the plaintiff from the “Laurie h is findings been different, they could have had the same ramifications as in upon the same information t hat led to the plaintiff ’s placement on the list. H ad decision did not focus specifically on the Laurie issue, his decision was based had no authority over the plaintiff’s placement on the “Laurie List,” and his The same is true here. Although the arbitrator in this case noted that he

we therefore held that the decision affected the Laurie issue. Id. at 784 - 85. dealt with the facts of the incident underlying their placement on the list, and take disciplinary action against the officers. Id. at 775 - 76. The arbitration placement on the “Laurie List,” but rather whether the city had just cause to files.” Id. at 784. T he arbitration in Duchesne did not examine the officers’ references to the incident [had] been removed from the petitioners’ personnel procedures agreed to in the CBA,” and “[a] s a result of these determ inations, arbitrator, a neutral factfinder, followin g a full hearing conducted pursuant to 85. Crucial to our holding was that “th e chief’ s decision was overturned by an sustained basis for the petitioners’ placement on the ‘Laurie List.’” Id. at 784 misconduct “ha[d] been determined to be unfounded,” so there was “no removal of officers from the “Laurie List” because the original allegation of In Duchesne, we held that the trial court erred in not ordering the

underlying conduct of the plaintiff. the discipline and the “Laurie List” designation were predicated on the same solely with the Laurie issue. We find this argument unpersuasive because both process and, as such, officers should be provided a separate hearing dealing culminating in the arbitration is distinct from the “Laurie List” designation T he plainti ff suggests that the employment disciplinary process

783 - 84. review in a case in which the plaintiff will appear as a state witness. See id. at 3 p. 11 11

DALIANIS, C.J.