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lSTATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE SC.                                                                               Filed 12/20/10   SUPERIOR COURT
JOHN DOE, a Providence Police Officer                                                        :
                                                                                             :
                                                                                             :
v.                                                                                           :
                                                                                             :
                                                                                             :                C.A. No. PC 10-5626
PROVIDENCE POLICE DEPARTMENT                                                                 :
(David Esserman, Chief) and                                                                  :
DAVID CICILLINE, in his capacity as                                                          :
Commissioner of Public Safety                                                                :
DECISION
GIBNEY, P. J.    Before this Court is a Motion for Temporary Restraining Order,
Preliminary Injunction, and Expedited Hearing filed by John Doe (“Doe” or “Plaintiff”).
The Providence Police Department and David Cicilline  (“City” or  “Defendants” or
“Department”) object to this motion.   For the reasons discussed herein, this Court denies
the Plaintiff’s motion.
I
Facts and Travel
John Doe is a Providence Police Officer.   On November 3, 2009, the Department
informed Doe that it was investigating him for allegedly committing eight violations of
the Department’s rules and regulations regarding conduct, courtesy, and truthfulness.  On
November 29, 2009, the defendant conducted a Garrity interview of the Plaintiff in order
to further investigate the matter.
On August 31, 2010, the Department issued twelve separate Disciplinary Action
decisions.    Each decision referenced the Law Enforcement Officer’s Bill of Rights
[“LEOBOR”]  Summary  Process  statute  G.L.                                                  1956             §42-28.6-13(b)  and  issued  a
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suspension of either one or two days, along with the specific date that the suspension was
to  be  served.    Together,  the  suspensions  amounted  to  twenty-one  days.    Doe  was
permitted to return to work October 3, 2010.
In his motion, Doe asked this court to issue an order
“1)Halting the suspension of Patrolman Doe, and returning
him to full duty immediately; 2) Declaring the defendants
practice and use of the “summary punishment” procedure,
as it has been done here, illegal and in violation of the
LEOBOR; 3) Permanently enjoin[ing] the defendant from
using “summary punishment,” §42-28.6-13(b), as a means
for suspending Patrol Officers for more than two
consecutive days; 4)  Permanently enjoin[ing] the
defendant from splitting charges from a single incident, as
has been done here, and then using “summary punishment,”
§42-28.6-13(b), to issue suspensions for each alleged
charge, as a means for suspending Patrol Officers for more
than two consecutive days; 5) Any and all further relief as
this Court deems meet [sic] and just.”
This Court heard oral arguments with respect to this motion on Monday, September 27
and Thursday, October 21, 2010.
II
LEOBOR
The  LEOBOR  requires  that  an                                                                 “investigation  or  interrogation  of  a  law
enforcement officer [that] results in the recommendation of some action . . . which would
be considered a punitive measure” be accompanied by “notice to the law enforcement
officer that he or she is entitled to a hearing on the issues by a hearing committee.”   Sec.
42-28.6-4.   An exception to this hearing requirement exists for “[s]ummary punishment
of two (2) days’ suspension without pay . . . for minor violations of departmental rules
and regulations.”  Sec. 42-28.6-13(b).
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III
Mootness
Because  Doe’s  suspension  ended  October                                                         3,   2010,  Plaintiff’s  Motion  for
Temporary Restraining Order is moot.   Nevertheless, our Supreme Court has held that
Rhode Island Courts will not “adjudicate a moot case unless the issues raised are of
extreme public importance, which are capable of repetition but which evade review.”
Cicilline v. Almond, 809 A.2d 1101, 1106 (R.I. 2002) (quoting Sullivan v. Chafee, 703
A.2d 748, 752 (R.I. 1997)).   Our Supreme Court has explained that “cases demonstrating
extreme public importance are usually matters that relate to important constitutional
rights, matters concerning a person’s livelihood, or matters considering citizen voting
rights.”   Associated Builders and Contractors of Rhode Island, Inc., et al. v. City of
Providence, 754 A.2d 89, 91 (R.I. 2000) (emphasis added).   The instant case concerns
John Doe’s employment as a police officer and therefore his livelihood.  The short nature
of the “Summary Punishment” suspensions could allow the City to repeat similar actions
in a manner which evades the review of this Court.   Therefore, this Court will adjudicate
this case despite its mootness.
IV
John Doe’s Requests
A
Halt the Suspension
Doe has asked this Court to halt his twenty-one day suspension.   This suspension,
however, ended on October 3, 2010.   Although this Court may rule upon moot causes of
action  for  potential  future  repetition,  this  Court  cannot  halt  a  suspension  that  was
completed months ago.
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B
Declare Procedure Illegal
Doe’s  Motion  next  asks  this  Court  to  declare  the  Department’s  use  of  the
Summary Punishment procedure illegal and in violation of LEOBOR.   In other words,
the Plaintiff has asked the Court for a judgment declaring that the use of the one and two-
day suspensions is illegal.
The Rhode Island Supreme Court has held that “a hearing committee under the
[Law Enforcement] Officers’ Bill of Rights possesses quasi-judicial authority similar to
that exercised by state agencies under the Administrative Procedures Act” despite the fact
that such a committee is not a state agency as defined in the Administrative Procedures
Act.    In re Denieswich,  643 A.2d  1194,  1197  (R.I.  1994).    The Denieswich Court
explained  that                                                                               “[t]he  clear  purpose  behind  the  requirement  that  hearing  committee
members be ‘active law enforcement officers’ is to afford protection to those charged
with departmental violations by ensuring that the hearing committee is composed of
individuals who are familiar with departmental practices and procedures during the
appropriate time frame.”   Id. (quoting Coalition of Black Leadership v. Cianci, 570 F.2d
12, 14 (D.R.I. 1978) (emphasis added).   In other words, the Rhode Island Supreme Court
has recognized that police procedure, enforcement, and penalties are within the expertise
of active law enforcement officers.   When the meaning of a statute is unclear, this Court
“will defer to the interpretation given by the agency charged with administering the
statute, unless the agency’s interpretation is unreasonable in light of the prevailing law,
inconsistent with the statute or plainly erroneous.”  DCX v. District of Columbia Taxicab
Commission, 705 A.2d 1096 (D.C. 1998).
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In the instant matter, the LEOBOR statute does not specifically provide that
consecutive “summary punishment” penalties are punitive.   In the context of so-called
accumulated penalties, the Rhode Island Superior Court  (Rogers, P.J.) has held that
“[b]ecause the statute [creating LEOBOR] is silent on whether accumulated penalties are
punitive, it is for the Legislature and not for this Court to decree that a hearing is
required.”    International  Brotherhood  of  Police  Officers,  Local                           369  v.  Town  of
Burrillville Police Department, 2001 WL 1685593 (R.I. Super. Ct. 2002).   This Court
does not disagree.   The plaintiff in Town of Burrillville had been suspended one day for
each day he violated the town’s policy that police officers live in Burrillville.   Similarly,
John Doe has received several small suspensions for various discrete infractions—each of
which amounted to two days or less and, thus, fell within the exception to LEOBOR’s
hearing requirement.
Significantly,  the  actions  of  the  Department  fail  to  reach  the  threshold  of
“unreasonable in light of the prevailing law, inconsistent with the statute or plainly
erroneous” necessary for a court to overturn the decision of an administrative agency.
This Court will not substitute its opinion for that of the administrative agency without a
clear finding of abuse of discretion.   Therefore, this Court declines to issue a judgment
declaring the Department’s use of Summary Punishment illegal in this situation.
C
Permanently Enjoin Procedure
For the same reasons that the Court declines declaring the Department’s use of
Summary Punishment illegal, the Court declines to enjoin the Department from using
Summary Punishment as a means for suspending Patrol Officers for more than two
consecutive days.   Again, the LEOBOR does not deem cumulative suspensions to be
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punitive.   This Court will therefore not issue an injunction forbidding the Department
from using Summary Punishment to suspend employees for more than two consecutive
days when the suspension stems from multiple one and two-day suspensions.
D
Permanently Enjoin Splitting Charges
Additionally,  the  Plaintiff  has  asked  this  Court  to  permanently  enjoin  the
Department from splitting charges from a single incident into smaller charges in order to
avoid a LEOBOR hearing.   This Court denies this request because the Court disagrees
with Doe’s claim that the department split a single incident into multiple incidents.
Doe  served  twelve  separate  one  or  two-day  suspensions.    Eight  of  these
suspensions were for improper comments or improper conduct.   Four of the suspensions
were for Doe’s failure to be truthful when answering questions pertaining to his improper
comments and behavior.   The eight suspensions for comments and conduct clearly come
from eight distinct instances of impropriety.   Failing to tell the truth is a distinct violation
of the Department’s Rules and Regulations.   Furthermore, a false statement regarding an
action is recognized by courts as an incident distinct from the underlying action itself.
See, e.g.,  18 U.S.C.  §1001.   Therefore, Doe’s twelve suspensions arose from twelve
different violations of the Department’s Rules and Regulations.   The Plaintiff’s request
for injunction is, therefore, denied.
III
Conclusion
For the reasons stated herein, the Plaintiff’s Motion for Temporary Restraining
Order and Preliminary Injunction is denied.   Doe has failed to show a likelihood of
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success on the merits of his claim.   Counsel shall submit the appropriate orders for
judgment.
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