In re Grismore

1

2024 VT 70

In re John Grismore

No. 24-AP-001

Supreme Court of Vermont

November 8, 2024

On Appeal from Vermont Criminal Justice Council September Term 2024 William Sorrell, Chair

Kim McManus, Associate General Counsel, Vermont Criminal Justice Council, Pittsford, for Plaintiff-Appellee.

Robert J. Kaplan, Burlington, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

CARROLL, J.

¶ 1. Respondent, Franklin County Sheriff John Grismore, appeals from a Vermont Criminal Justice Council order concluding he engaged in gross professional misconduct and permanently revoking his law-enforcement officer certification. On appeal, respondent does not challenge the merits of the Council's decision. He argues the order should be reversed because the Council erred in denying his motion to disqualify or recuse itself from the proceedings. He contends that because the Council was acting in a quasi-judicial capacity and the prosecuting attorney for his contested case also serves as associate general counsel for the Council on other matters, the Council was required to recuse itself pursuant to the V ermont Code of Judicial Conduct. Alternatively, he argues even if the Code does not apply to the Council, due process required the Council to disqualify or recuse itself. We affirm.

¶ 2. The Council has authority to maintain standards of "professional conduct" for law-enforcement officers in Vermont by accepting and tracking unprofessional-conduct complaints, "adjudicating charges of unprofessional conduct" and "imposing sanctions on the certification of an officer who the Council finds has committed unprofessional conduct." 20 V.S.A. § 2351(b)(2); id. §§ 2406-2407 (listing permitted sanctions and limitations). The Council accepts complaints alleging officer misconduct from all sources. Id. § 2404(a)(2)(A). Law-enforcement agencies are required to investigate certain allegations of unprofessional conduct., id. § 2404(a)(1)(A), and to report to the Council certain complaints of misconduct, including "credible complaint[s]" of Category B misconduct. Id. § 2403(a)(1)(B)(i).^[1]

¶ 3. The Council adopted procedures for conducting investigations of complaints in accordance with its statutory authority. Id. §2411; see Rules and Regulations, Code of Vt. Rules 80 070 001 [hereinafter VCJC Rules], http://www.lexisnexis.com/hottopics/codeofvtrules. The Council established the Professional Regulation Subcommittee to recommend procedures for investigating complaints. VCJC Rules, Rule 26. The Professional Regulation Subcommittee, comprised of members of the Council appointed for the purpose of acting on the Subcommittee, investigates allegations of misconduct directed to the Council. Vermont Criminal Justice Council, Professional Regulation Subcommittee Unprofessional Conduct Complaint and Investigation Procedures § 6.1 (2021), [hereinafter PRS Procedures], https://vcjc.vermont.gov/sites/vcjtc/files/ documents/PRSProceduresClean 120821 Approved091521 .pdf [https://perma.cc/2BFW-296P]. Once the Subcommittee completes an investigation of a complaint alleging unprofessional conduct by an officer, the Subcommittee may close the investigation and take no further action, propose a settlement, or provide notice of a hearing. PRS Procedures § 8.1. If, after consulting with the Executive Director and assigned legal counsel, the Subcommittee finds a sufficient basis to allege unprofessional conduct for which the Council may impose a sanction and settlement cannot be reached or is not warranted by the facts, the Subcommittee directs the Executive Director to file a notice of a hearing, commencing unprofessional conduct proceedings. PRS Procedures § 8.1.3. No member of the Subcommittee may serve as a "voting member[] of the Council or participate or appear in any deliberative or executive session of the Council, related to any unprofessional conduct proceeding that implicates any matter related to the Respondent considered during such member's service on the Subcommittee." PRS Procedures § 8.1.5.

¶ 4. The Council is required to "conduct its proceedings in accordance with the Vermont Administrative Procedure Act [VAPA]," 20 V.S.A. § 2405, which requires parties to a contested case be provided with "an opportunity for [a] hearing after reasonable notice." 3 V.S.A. § 809 (outlining requirements for notice and proceedings in contested cases); id. § 801(b)(2) (defining "contested case").

¶ 5. In June 2023, respondent received a notice of hearing accompanied by a cover letter signed by Attorney Kim McManus, associate general counsel for the Council. The letter advised respondent the Subcommittee found a sufficient basis to support an allegation of unprofessional conduct against him. Enclosed with the letter was a notice of hearing and an explanation of the allegations signed by the Executive Director. Respondent was charged with "Category B gross professional misconduct" for violating the Statewide Policy on Police Use of Force. See 20 V.S.A. §§ 2368(b), 2404(a)(1)(A).^[2] Specifically, respondent was alleged to have "recklessly and unnecessarily kicked a person in police custody for no legitimate reason and caused that person pain." The notice advised respondent the hearing would be held in accordance with the VAPA, 3 V.S.A. §§ 809-816, and that the Council would also be considering the imposition of sanctions, including permanently revoking his certification. The notice advised him of the procedures and his right to contest the allegations, including the opportunity to present evidence on his behalf.

¶ 6. Respondent, through his attorney, filed a motion requesting the Council recuse or disqualify itself from the proceedings. Respondent argued the Council was subject to the Vermont Code of Judicial Conduct because it was adjudicating the charged misconduct and acting in a quasi-judicial capacity. He maintained the Code prohibited the Council from presiding over the matter because Attorney McManus was simultaneously prosecuting the case and acting as associate general counsel for the Council, creating "the impression of bias" and an "appearance of impropriety." See Vt. Code of Judicial Conduct, Rules 1.2, 2.4. Respondent argued the Council's familiarity with and loyalty to Attorney McManus would prevent the Council from acting impartially during the hearing. Respondent pointed to Attorney McManus's act of signing his hearing notice, emails in which Attorney McManus inquired of the Council Chair and respondent's attorney about the applicable law and rules for the proceedings and deadlines for procedural motions, and Attorney McManus's objection to respondent's motion to recuse or disqualify the Council via email to the Council Chair. Respondent's attorney was included on these emails. Alternatively, respondent asserted even if the Council concluded it was not subject to the Code, it should nonetheless disqualify or recuse itself because Attorney McManus's role as both prosecuting attorney in this proceeding and legal advisor to the Council on other matters violated his due-process rights.

¶ 7. The Council denied respondent's motion. First, the Council concluded the Code did not apply to proceedings before the Council, relying on our decision in In re Crushed Rock, Inc., 150 Vt. 613, 557 A.2d 84 (1988). Second, the Council noted respondent would be afforded a fair hearing consistent with the procedural requirements for contested cases outlined by the VAPA. The Council concluded respondent received reasonable notice of the allegations and would receive an opportunity to respond to such allegations at the contested hearing, including the right to present evidence on his behalf and be represented by an attorney. Additionally, the Council indicated it was represented by conflict counsel in matters involving the proceedings and this attorney "played no role in the investigation, Professional Regulation Subcommittee proceedings, and/or the charging of any violations." The Council further noted this attorney was under contract with the Council for these purposes. Finally, the Council indicated no members of the Council who would take part in the decision following the contested hearing "will have played any role in the investigation of this matter, will have participated in the Professional Subcommittee's review of this matter or will have been involved in this matter's referral to the Council for adjudication."

¶ 8. The contested hearing was held over two days during November and December 2023. Prior to the start of the merits of the hearing, the Council Chair alerted the other Council members to respondent's motion to recuse or disqualify the Council. He encouraged the members of the Council to recuse themselves if any member of the Council felt they would not be impartial toward respondent. The hearing proceeded with no member of the Council recusing themselves. The Council heard testimony, and documentary and video evidence from both sides.

¶ 9. Following the hearing, the Council issued a written order, pursuant to 3 V.S.A. § 812. The Council unanimously found, by a preponderance of the evidence, that respondent engaged in unprofessional conduct. Specifically, the Council concluded respondent's use of force constituted Category B misconduct because the force used "was objectively unreasonable, unnecessary, punitive, and demonstrative of a failure to use reasonable alternatives," and thus inconsistent with the Statewide Policy on Police Use of Force. A majority of the eligible Council members voted to permanently revoke respondent's law-enforcement officer certification. No member of the Subcommittee took part in the Council's decision.

¶ 10. Respondent appealed the Council's decision to this Court. See 3 V.S.A. § 815(a) (...