LACONIA — A trial to determine whether Gilmanton selectmen exceeded their authority when they mandated that Chief of Police Matt Currier abide by written formal policies they adopted has been scheduled for January.
At issue is whether the selectmen’s December 2017 adoption of 17 so-called “directives” infringes upon Currier’s statutory authority as chief. Currier was granted a temporary restraining order by the court in February 2018, barring the selectmen from implementing the directives related to scheduling police shifts; the use of police cruisers, including when they could be taken home by officers; and other directives.
The selectmen at the time, Stephen McWhinnie, Michael Jean and Marshall Bishop, informed Currier that he had to implement and enforce the directives by Feb. 12, 2018. Believing that his compliance with them would violate his statutory authority, Currier filed a civil suit seeking a permanent injunction as well as monetary damages.
Currier told selectmen that a police chief’s authority comes from RSA 105:2-a, which says he “shall have authority to direct and control all employees of his or her department in their normal course of duty and shall be responsible for the efficient and economical use of all department equipment.”
The town countered that Currier’s authority is “subject to such written formal policies as may be adopted by the appointing authority,” which in this case is the selectmen. Under RSA 41:8, the selectmen have the authority to “manage the prudential affairs of the town and perform the duties by law prescribed.”
Last November, Currier’s lawyer, Ed Philpot of Laconia, filed a motion for contempt asserting that actions taken by the town were in direct violation of the temporary restraining order. He argued that the town withdrew a number of the directives at issue, amended the town’s Personnel Policies and Procedure Manual and adopted an Administrative Code in order to implement the directives and circumvent the court’s prior order.
The town asserted that the changes codify common-sense rules that apply to any municipal department.
In a 13-page ruling dated Nov. 22, 2019, Judge James D. O’Neill III found there was no evidence that the town willingly failed to comply with the prior court order and denied Currier’s request for sanctions.
O’Neill granted the town’s request to bar former police chief Vincent Baiocchetti and current Franklin Chief of Police David Goldstein from testifying on Currier’s behalf.
Philpot had argued the testimony of both men “who have spent their careers living with these statutes and who have actual experience applying these principles to the day-to-day operations of a police department will surely assist the trier of fact in reaching a conclusion in this case.”
But O’Neill disagreed, finding Baiocchetti’s and Goldstein’s testimony would amount to their interpretation of state law and what they believed their authority encompassed. He ruled that that would encroach on the court’s province.
“The interpretation of 105:2-a and whether the directives were proper under the statute and RSA 41:8 involved a question of law and is for the court to decide,” the ruling reads.
O’Neill decided that Currier can testify as a fact witness with respect to his experience as current Chief of the Department, however he can’t speak to the ultimate issue of whether selectmen exceeded their authority by adopting the directives or whether they infringe upon Currier’s statutory authority as chief.
The judge denied the town’s request to vacate the restraining order. The town argued that since the restraining order was issued, the selectmen have withdrawn 10 of the 17 directives. The town further argued that an operational assessment of the Gilmanton Police Department, completed by Municipal Resources Inc., demonstrated that many of the directives were “proper and necessary.”
The town also asserted that Currier’s behavior and operation of the police department during the pendency of the case undermined any continued right to an injunction, alleging that the court’s order effectively allowed Currier to leave town without notice, to not show up for work without notice, to understaff the department, and to allow free reign of town property to police officers.
O’Neill held that it was in the best interest of justice to maintain the status quo pending a final resolution of the matter. The bench trial, to be heard by a judge, not a jury, is scheduled for the first week of January.
Meanwhile, a lawsuit filed in U.S. District Court by the chief’s parents, Brett and Brenda Currier, against the town of Gilmanton and Marshall Bishop — both individually and doing business as Gilmanton Winery & Vineyard — remains pending. The suit, which alleges violations of the Right to Know law, violations of the Curriers’ right to free speech and defamation, was dismissed, but a judge allowed an amended complaint to be filed.
In dismissing the suit, a judge observed that the 291-paragraph complaint was “unnecessarily lengthy and convoluted,” and that there were many allegations that were immaterial to the claims such as the “minutiae” of the dispute between Bishop and the town.
The court characterized the initial complaint as a “quintessential shotgun pleading,” saying that it put the onus on the court to cull through the allegations, identify the claims and select allegations that appear to be germane to that claim.
In response to the newly filed complaint, the town noted the amended document filed Oct. 12 remains 51 pages long.
“Had the defendant not repeatedly violated (the Curriers’) rights on innumerable occasions, and defamed them which apparently continues up to the present time, months after the original lawsuit was filed, obviously, the complaint would have been correspondingly shorter,” wrote the Curriers’ lawyer, Leslie Johnson of Sandwich, in response to the court’s order.