Victor Pucci v. Police Officer Standards and Training Council (2010)

MEMORANDUM OF DECISION

The plaintiff, AFSCME Council 15 (the union) appeals from a September 10, 2009 decision of the police officer standards and training council (the council), approving an August 14, 2009 report of a hearing officer of the council, that revoked the police officer certification of a union member, and Wallingford police officer, Victor F. Pucci (Pucci).¹

The record shows that a disciplinary investigation of Pucci was commenced by the Wallingford police department in March 2009, alleging that Pucci did not properly inspect a building for a possible burglary on January 14, 2009.   (Return of Record, ROR, p. 219.)   Pucci had visited the building twice due to two separate alarms received by the Wallingford police.   In response to a request by his supervisor, Pucci wrote out a statement on January 15, 2009 explaining his actions, and this statement was made a part of the internal investigation.   The police department concluded that the results of the investigation called for Pucci's termination.  (ROR, p. 221.)   On March 18, 2009, the police chief notified the council of the termination.  (ROR, p. 222.)

The council notified Pucci of his right to a hearing on the issue of his certification (ROR, p. 5) and Pucci asked for a hearing.  (ROR, p. 8.) A union attorney informed the council staff that he was to represent Pucci at the hearing.  (ROR, p. 9.) After the hearing on May 26, 2009, a hearing officer issued a final decision on August 14, 2009.  (ROR, p. 246, as amended.)

The hearing officer found that Pucci “engaged in conduct that constituted False Statement in the Second Degree as defined in Sec. 53a-157b in that he intentionally made at least one false statement under oath which he did not believe to be true and which was intended to mislead a public servant in the performance of his official function, to wit:

a.  With regards to the first alarm at 0444 hours, Off. Pucci's signed, sworn statement reports, I then stepped from my cruiser and proceeded to physically check approximately sixteen doors and approximately four large windows on the south, east and west side of the building [where the burglary was suspected];” and

b. In Off. Pucci's signed, sworn statement he reports with regards to the second alarm, “At that point, I slowly drove east bound along the south driveway of the building and prior to leaving the property I exited my vehicle.   I physically checked all the doors and windows on the entire south and east side of the building.

(ROR, p. 253.)

The hearing officer found that the evidence did not support Pucci's statements in his letter of January 15, 2009.   Among other things, a Wallingford police sergeant saw no tracks in “pristine snow” when he arrived on the scene shortly after Pucci.   Also a video tape of the building did not show Pucci checking portions of the building.   Finally Pucci testified that he “did not check everything.”  (ROR, pp. 119, 253.)   The hearing officer recommended that Pucci's police officer certification be revoked.  Id.

This recommendation was placed on the agenda of the council for September 10, 2009.   A member of the council moved that the council revoke the police officer certification of the plaintiff under the authority of § 7-294d(c)(2)(I).   In the discussion of the motion, a member inquired if the revocation could be ordered even though the plaintiff was not arrested for a violation, but only discharged by the Wallingford police department.   The executive director replied that there was precedent for such action by the council.   Thereupon the council voted with three abstentions in favor of the motion.  (Supplemental Record, filed October 8, 2010.)   This appeal followed.²

The union claims that there is no indication in the revocation decision that the hearing officer or the council employed the “clear and convincing evidence” standard required by § 7-294d(c)(2).³  The court under the UAPA, even where the agency is to decide pursuant to clear and convincing evidence, must decide factual issues on appeal under the substantial evidence test.  “Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable.”   This review is “very restricted.”  (Bracket omitted;  citation omitted;  internal quotation marks omitted.)  Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 803, 942 A.2d 305 (2008);  Brunswick v. Statewide Grievance Committee, 103 Conn.App. 601, 608, 931 A.2d 319 (2007) (substantial evidence standard to be utilized by court to review attorney grievance proceeding, conducted under “clear and convincing evidence standard.”).

Alternatively, with regard to a matter of law, “[i]t is the function of the courts to expound and apply governing principles of law.”  Jim's Auto Body v. Commissioner of Motor Vehicles, supra, 285 Conn. 804.

The court rejects the union's claim, whether based on a factual or legal error by the council or the hearing officer.   Factually, Pucci was informed of the statute (§ 7-294d(c)(2)) under which the revocation was to occur (ROR, p. 5).   The union attorney appearing at the hearing was aware of the clear and convincing standard, and so advised the hearing officer at the conclusion of the evidence.  (ROR, p. 139.)   Legally, the standard was “implicit” in the proposed final decision and its subsequent adoption by the council.  Elf v. Dept. of Public Health, 66 Conn.App. 410, 424, 784 A.2d 979 (2001).

Therefore the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. Section 7-294d(b) provides:  No person may be employed as a police officer by any law enforcement unit for a period exceeding one year unless he has been certified under the provisions of subsection (a) of this section or has been granted an extension by the council.Section 7-294d(c)(2)(I) provides:  “The council may cancel or revoke any certificate if:  ․ the holder has been found by a law enforcement unit, pursuant to procedures established by such unit to have committed ․ false statement in the second degree in violation of section 53a-157b.   Whenever the council believes there is a reasonable basis for cancellation or revocation of the certification of a police officer ․ it shall give notice and an adequate opportunity for a hearing prior to such cancellation or revocation.   The council may cancel or revoke any certificate if, under a de novo review, it finds by clear and convincing evidence ․ (ii) that the holder of the certificate committed an act set forth in subparagraph ․ (I) of this subdivision.”   This section allows for re-application after two years..  FN1. Section 7-294d(b) provides:  No person may be employed as a police officer by any law enforcement unit for a period exceeding one year unless he has been certified under the provisions of subsection (a) of this section or has been granted an extension by the council.Section 7-294d(c)(2)(I) provides:  “The council may cancel or revoke any certificate if:  ․ the holder has been found by a law enforcement unit, pursuant to procedures established by such unit to have committed ․ false statement in the second degree in violation of section 53a-157b.   Whenever the council believes there is a reasonable basis for cancellation or revocation of the certification of a police officer ․ it shall give notice and an adequate opportunity for a hearing prior to such cancellation or revocation.   The council may cancel or revoke any certificate if, under a de novo review, it finds by clear and convincing evidence ․ (ii) that the holder of the certificate committed an act set forth in subparagraph ․ (I) of this subdivision.”   This section allows for re-application after two years.

FN2. The plaintiff is aggrieved by the revocation approved by the council..  FN2. The plaintiff is aggrieved by the revocation approved by the council.

FN3. At oral argument, the union abandoned two arguments set forth in its brief.   It initially claimed that the council was obliged to set forth its final decision pursuant to Practice Book § 6-1.   Rather, the Uniform Administrative Procedural Act §§ 4-179 and 4-180 control the issuance of the final decision.   In addition, the union declined to argue that the hearing officer had erred in evaluating the evidence and concluding that the “clear and convincing” standard had been met..  FN3. At oral argument, the union abandoned two arguments set forth in its brief.   It initially claimed that the council was obliged to set forth its final decision pursuant to Practice Book § 6-1.   Rather, the Uniform Administrative Procedural Act §§ 4-179 and 4-180 control the issuance of the final decision.   In addition, the union declined to argue that the hearing officer had erred in evaluating the evidence and concluding that the “clear and convincing” standard had been met.

Cohn, Henry S., J.