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Supreme Court closes the book on Correia case

Former police lieutenant's final appeal rejected

October 13, 2009
ALTON — Former police Lt. Ed Correia's two-and-a-half-year legal battle against Alton's Board of Selectmen came to an apparent end on Oct. 2 with the state Supreme Court's decision to reject his final appeal.

The Court's ruling, penned by Chief Justice John Broderick with the support of Justices Linda Dalianis, James Duggan, Gary Hicks, and Carol Ann Conboy, upholds the selectmen's decision to fire Correia in March of 2007, and states that the Court found no evidence to support Correia's argument that his termination was unjust and unreasonable on legal grounds.

Correia was one of three officers placed on administrative leave (along with former chief Kevin Iwans and former captain Chuck Anderson) in the fall of 2006, following an investigation by the board of selectmen into accusations of misconduct on their part.

After Iwans was fired in January of 2007, Anderson and Correia were both offered an opportunity to resign from their positions. While Anderson accepted the offer, Correia chose to have the charges against him aired during an evidentiary hearing at Town Hall in March of 2007.

Following the three-day hearing, a panel of three selectmen (Pat Fuller, Steve McMahon, and Alan Sherwood) found Correia guilty of three of the six charges against him (including failure to report misconduct on the part of his superiors and physically threatening or intimidating residents while on duty), and voted 2-1, with Sherwood dissenting, to terminate his employment.

Correia appealed the selectmen's decision to Belknap County Superior Court, which overturned it on March 24, 2008 on grounds that the selectmen were obligated, under the provisions of RSA 43:7, to appoint replacements for then-selectmen Cris Blackstone and Pete Shibley (who recused themselves from the hearing due to personal differences with Correia).

Attorneys for the town then appealed Superior Court Judge Larry Smukler's decision to the state Supreme Court, which ruled in favor of the town last fall, prompting a series of appeals by both Correia and the selectmen that sent the case back and forth between the two courts for a period of several months.

In his final appeal to the Supreme Court, Correia argued that the selectmen's decision to allow Town Attorney James Sessler (who took part in the misconduct investigation) to preside over his employment hearing violated his right to procedural due process.

He also argued that the selectmen unlawfully found him guilty of reporting to private construction details when he was scheduled for duty as Alton's school resource officer because the practice of "double-dipping" (as it was described by town officials during his employment hearing) was sanctioned by Iwans — meaning that he was following the orders of his superior officer.

Addressing Correia's claim that Sessler's participation in the employment hearing deprived him of his right to due process, the Court states that under a precedent established by the case of SNCR Corp. V. Greene in 2005, "issues must be raised at the earliest possible time, because trial forums should have a full opportunity to come to sound conclusions and to correct claimed errors in the first instance."

Since Correia admitted that he did not object to Sessler's presence during the hearing, the Court's decision states that his "failure to object to the participation of the town's counsel during the proceedings before the board constitutes a waiver of that issue on appeal."

Turning to Correia's claim that he should not have been terminated for following the orders or his superiors, the Court notes that while the selectmen did consider Iwans' authorization of "double dipping" a mitigating factor, they also concluded that Correia was never "compelled or commanded to work those details."

The Court also notes that "double-dipping" was only one of the charges brought against Correia, the other two being that he "exhibited unprofessional and disrespectful behavior to members of the public while performing official duties by using obscene, rude, unprofessional, discourteous and insulting language" and that he "exhibited unprofessional behavior while performing official duties by intimidating and threatening members of the public with arrest, prosecution and unauthorized physical contact."

Referring to statements made by Fuller, McMahon, and Sherwood during Correia's sentencing in 2007, the Court quotes Fuller as saying that the remaining charges were "serious all by themselves and rose to the level of discharge," and that Correia's behavior toward residents exceeded the severity of any possible alternatives.

The Court's decision also quotes McMahon, who said at the time of Correia's termination that "it states right in our policy manuals that just one of these offenses is terms for being relieved of duty."

Even Sherwood, the Court notes, said at the time that, "the two [acts of misconduct] that had to do with interacting with the public were the most serious."

Since Correia presented no challenge to the selectmen's decision that he engaged in unprofessional conduct toward residents, and did not object to their determination that any one of the remaining charges against him would have been grounds for his termination, the Court's decision states that it cannot agree with his claim that he was "terminated for doing exactly what his superior officer told him to do."

"Because the petitioner has not shown that his termination was illegal, unjust, or unreasonable [under the standards established by the case of Cheney v. City of Somersworth], we affirm [the selectmen's decision]," the Court's ruling states.

Expressing her relief that the case appeared to be over, Fuller said during a telephone interview last week that she felt "completely vindicated" by the Court's decision.

"It's been a long road for the town, a long road for the board of selectmen, and a long road for the police department," she said, adding that she also viewed the Court's ruling as a "total vindication" for newly-promoted Police Chief Ryan Heath, who blew the whistle on Iwans', Anderson's, and Correia's alleged misconduct.

"I'm gratified that the Court once again said we treated [Correia] fairly, correctly, and with due process," Fuller added, offering her personal thanks to Sessler, Town Administrator Russell Bailey, attorney Melissa Guldbrandsen (who represented Bailey during Correia's employment hearing) and attorney Charles Bauer (who represented the town during the appeals process) for "all their hard work."

"We can move on and no longer have this hanging over our heads in any way, shape, or form," she said.

As of press time Tuesday, Correia had not returned a phone call asking for his reaction to the Court's decision.

Brendan Berube can be reached at 569-3126 or bberube@salmonpress.com

Matin Lord Osman
Salmon Press
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