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Vermont Supreme Court again has cause to define ‘cause’ for termination

Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

WRONGFUL DISCHARGE

by Karen McAndrew

In a recent decision involving the dismissal of a police officer “for cause,” the Vermont Supreme Court again tackled the difficult question of what constitutes grounds for termination when “cause” is required but not fully defined.

A police officer is, of course, a public employee, and as such, his terms of employment are governed by state statute. One section of the law states that an officer “shall hold office during good behavior, unless sooner removed for cause,” and another provision says that an officer may be suspended or removed, after a hearing, when he is found to have “become negligent or derelict in [his] official duty, or is guilty of conduct unbecoming an officer.”

That precise language is unlikely to be found in a private-sector employer’s employee handbook or employment contracts, but many private-sector agreements expressly require cause for termination (often after a specified probationary period). In cases where employee handbooks include a step disciplinary process, courts have found that there’s an implied agreement that an employer will not terminate an employee without following the disciplinary process and having some measure of “cause.”

The facts in this particular case are interesting, and may even leave you scratching your head over how so much time and ink could have been expended over the legitimacy of the officer’s termination, but the court’s decision provides some insight into how far the courts are willing to go to ensure that employees’ rights are respected.

Police officer admits to criminal conduct

Adam Hubacz was employed by the village of Waterbury as a police officer. While he was still working for Waterbury, he applied for a similar position in another town. In connection with his application for employment, he was asked to take a polygraph, which, by statute, may be required of an applicant for a law enforcement position.

As part of the standard protocol, Hubacz was given a copy of the questions that would be asked during the polygraph. In the prepolygraph interview about the questions, he admitted that he had cheated on a police exam, engaged in insurance fraud, taken uniforms from a former employer, failed to report income on his tax returns, and impersonated a police officer to obtain retail discounts and intimidate his high-school classmates. After those admissions, the polygraph was scrapped.

The officer who conducted the interview shared the information with Hubacz’s current employer, the Waterbury police chief, who forwarded the report to the Washington County State’s Attorney. The state’s attorney concluded that Hubacz’s past conduct so undermined his credibility that the state couldn’t use him as a prosecuting witness. (It was part of Hubacz’s job to present cases to the prosecutor and testify in court.) Waterbury then placed him on administrative leave, provided him notice of its decision to terminate him, scheduled a hearing, and ultimately terminated his employment.

Sounds like the kind of history that should convince a police officer to look for another line of work, right? Well, not so fast. Six years later, the Vermont Supreme Court was still wrestling with whether Waterbury had cause to terminate Hubacz.

Case bounces back and forth in the courts

Hubacz filed claims in both state and federal court, followed by appeals, dismissals, and remands for

further hearings. He appealed to superior court after the village trustees again found cause for his termination, this time based on a determination that he had become “negligent and derelict in his official duties” because the state’s attorney’s decision meant he couldn’t bring his cases to prosecution.

The trustees also found that the conduct Hubacz revealed in the prepolygraph interview was a sufficient basis for the state’s attorney’s conclusion that he engaged in conduct unbecoming an officer that eroded public trust in law enforcement. The trustees determined that the state’s attorney’s refusal to prosecute Hubacz’s cases meant that he effectively suffered from a “legal disability” that rendered him unable to perform the essential functions of his job.

The superior court concluded that because the trustees’ ruling was based on the state’s attorney’s decision rather than any independent finding of negligence, dereliction of duty, or conduct unbecoming an officer, it could not stand. The village asked for and was granted a special appeal. The Vermont Supreme Court agreed to consider whether the section of the statute that refers to “cause” provides a stand-alone basis for termination or whether the enumeration of three specific grounds—negligence, dereliction of duty, and conduct unbecoming an officer— means that cause is limited to those three grounds.

This is where a private-sector employer’s handbook language may come in. Many handbooks list various offenses or types of misconduct that constitute cause without making clear that the list isn’t exhaustive. If the specific conduct that led to his termination isn’t on the list, a disgruntled former employee may sue the employer, claiming wrongful discharge.

Supreme court kicks it back to the trial court

The supreme court found that the “cause” referred to in one section of the statute wasn’t limited to the three grounds listed in the other section, and Hubacz’s inability to perform the duties of his office—whatever the reason— constituted good cause for termination. Thus, the trustees didn’t have to make an independent determination about whether Hubacz had in fact engaged in the conduct he admitted to at the prepolygraph interview. (We have to wonder whether the truth of Hubacz’s admitted offenses is even relevant. Is a police officer who falsely boasts of engaging in felonious conduct any more reliable and credible than one who actually engaged in such conduct?)

The court’s decision is limited by a couple of caveats, however. First, the village must determine whether Hubacz’s inability to perform his duties because of the state’s attorney’s findings could be reasonably accommodated by other means, such as assigning him other duties or ensuring that his arrests were witnessed. The court recognized that factors such as the size of the police department would weigh in the evaluation of potential accommodations.

Another concern seemed to be that the statute vests town officials with the authority to hire and fire police officers and doesn’t give the state’s attorney control over those decisions. In that regard, the court held that the state’s attorney’s decision not to prosecute an officer’s cases must be premised on valid grounds. (Again, shouldn’t the officer’s admission that he engaged in misconduct be sufficient, whether or not it’s true?) Because a prosecuting attorney is generally required to disclose any evidence that’s favorable to the defense, it’s possible that the prosecutor would have to turn over evidence that could undermine Hubacz’s credibility—and therefore harm the state’s cases.

In light of those caveats, the court sent the case back to the superior court for a determination on whether the Waterbury Police Department could accommodate Hubacz’s inability to aid in the prosecution of cases and whether the state’s attorney’s decision not to prosecute his cases was “premised on valid grounds.” So six years after he was terminated, he still doesn’t know whether he will wear a Waterbury badge again. But the rest of us may know a little bit more about what constitutes “cause” for termination.

What are the lessons for employers?

First, and probably most important, if you promise employees, through handbook language or otherwise, that they can be terminated only for cause, you would be well-advised to provide some examples of conduct that may amount to cause. But be sure you make it absolutely clear that the list is not exhaustive. You might say something like, “The following examples of conduct may constitute cause and lead to immediate termination, but this list is not exclusive and is not intended in any way to be complete or to limit the types of conduct that may lead to discipline, up to and including termination.”

The other lesson from this decision has to do with the level of scrutiny courts will give your termination decisions. As we’ve often said, if you’re going to terminate an employee for cause, you should have a wellarticulated explanation and be able to demonstrate that you’ve followed whatever prerequisite steps are laid out in your handbook or employment contract. If you haven’t followed those steps, it’s usually much less costly in the end to go back and give the employee a warning or reprimand before resorting to termination. If he then corrects the behavior, the problem will be resolved; if the behavior continues, you will have laid the appropriate groundwork for termination—which will hopefully allow you to avoid a nightmare like the six-plus years of litigation Waterbury has faced in the Hubacz case.

Karen McAndrew can be reached at kmcandrew@dinse.com or 802-864-5751.

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