The Scene Of The Crime

The Vermont Supreme Court found that a state employee’s conduct as a juror in a capital case merited termination, reversing the order reducing sanction by the Labor Relations Board

Grievant worked as an environmental biologist for the Vermont Agency of Transportation (AOT) from 1992 until his dismissal in July 2015. In this position, grievant evaluated the potential impact of proposed transportation projects, created reports, and coordinated with others to apply for and prepare environmental permits. Grievant interacted with numerous other state and federal employees, and it was important that he gain and keep the trust and respect of his peers.

In 2005, grievant served as a juror in the federal criminal trial of Donald Fell and engaged in conduct that eventually led to his dismissal from State employment. Fell was charged with two capital offenses, and prosecutors sought the death penalty. In direct contravention of the federal court’s repeated instructions to the jury, grievant and his then-girlfriend traveled to Rutland during trial to view the crime scene and the home and neighborhood where Fell’s mother lived. Grievant then shared his observations with other jurors during deliberations. The jury found Fell guilty of all charges, and sentenced him to death on the capital counts.

Five years later, grievant told Fell’s post-conviction attorneys about his actions during trial. The attorneys drafted a statement for grievant to sign. Grievant made changes and additions to the statement, and reviewed and initialed each paragraph before signing it. Fell’s attorneys then sought to vacate Fell’s convictions, alleging juror misconduct. In sworn testimony before the federal court, grievant denied visiting the crime scene during trial, or telling other jurors about his observations.

In a July 2014 ruling, the federal court concluded that grievant violated the fundamental integrity of Fell’s trial by deliberately undertaking an independent investigation. The court found this definitively established by grievant’s sworn declaration, the testimony of his then girlfriend who traveled with him to the crime scene, and the testimony of a later girlfriend with whom he shared his plans. The court explained that grievant had traveled over two hours to view the crime scenes in knowing violation of the court’s orders. While there, he viewed extra-record information that was highly relevant to the aggravating and mitigating factors presented at trial. After breaching his oath as a juror, he returned to the courtroom where he purposely neglected to inform the court of his transgressions. And years later, during a post-trial proceeding convened specifically to assess the fairness of Fell’s trial, grievant openly lied to the court about whether he had committed these acts. The court concluded that grievant’s “extraordinary and continuous defiance of the [c]ourt’s directives . . . tainted the integrity of Fell’s trial and violated his constitutional right to an unbiased jury.” Despite the significant resources that had been invested in Fell’s trial, grievant’s behavior required the court to vacate Fell’s convictions and schedule a new trial. 

A Vermont newspaper reported that the juror was a state employee. He was terminated in 2015. 

The Labor Relations Board reversed

Following a hearing, the Board concluded that the State abused its discretion in dismissing grievant. At the outset, it agreed with grievant that the State did not “act promptly to impose discipline . . . within a reasonable time of the offense” as required by the CBA. It found that although AOT became aware of the bulk of grievant’s alleged misconduct from an August 2014 newspaper article, it took seven months to complete an investigative report, and several more months elapsed before grievant was dismissed.

The court

First, as the Board found, grievant committed serious misconduct that related to his fitness as a state employee. He defied a federal court’s instructions in a capital murder case, conducted an improper outside investigation, informed fellow jurors about his discoveries, and then lied about his actions under oath. He exhibited extremely poor judgment and brazen dishonesty. He refused to admit wrongdoing either to the federal court or to AOT officials. His misconduct and his status as a state employee were well-known throughout AOT and other state and federal agencies that interacted with AOT. Grievant lost the trust of his coworkers and peers, and his actions brought discredit to the State. The facts, as found by both the State and the Board, support the State’s conclusion that based on grievant’s serious misconduct, his credibility could not be restored and that the State’s reputation would be severely undermined absent his dismissal. It was objectively reasonable for the State to conclude on these facts that it had just cause to dismiss grievant.

On delay

The DHR investigator had twenty-six other active investigations, and it took him seven months to complete the report. There is nothing in the record that links this investigative delay with the State’s level of concern about grievant…

In sum, the record evidence provided reasonable grounds for AOT’s decision not to suspend grievant during the investigation, and reasonable grounds—wholly divorced from AOT’s beliefs about the seriousness of grievant’s misconduct—why there was a delay in imposing discipline. The Board erred in speculating, contrary to the evidence, that AOT did not actually believe its own rationale for dismissing grievant. As the State points out, moreover, the Board’s approach runs contrary to sound public policy. It would essentially require an employer to discipline an employee immediately, even based on incomplete information, in order for it to prove that it had serious concerns about an employee’s conduct. This approach would encourage a rush to judgment, with negative repercussions for employees, especially in cases where dismissal results from the conduct.

…the touchstone of the Board’s review is the “reasonableness” of the State’s decision, and the facts here objectively demonstrate that this standard is satisfied. In light of grievant’s extremely serious misconduct and the deference that the Board must afford to the State in exercising its management function, the State’s disciplinary decision must be upheld.

The Burlington Free Press reported  on the story. Their original story is linked here. (Mike Frisch)