Dismissals sought in city police case
By Brent Curtis
and Gordon Dritschilo
STAFF WRITERS | March 04,2013
A lawsuit brought by a former Rutland police officer is being challenged by city officials who say the claims lack legal standing and include material that should be stricken because of its ‘‘scandalous’’ content.
Last month, Andrew Todd, a former corporal who is now a Vermont State Police trooper, filed a complaint that accuses his former department and its top officials of covering up a long-standing practice of abuse in the department.
The abuses he described in his claim involve multiple officers engaged in conduct ranging from thefts and drunkenness on the gun range to on-duty sex, racial discrimination and a death threat that Todd said he received from a fellow officer.
But as part of a motion filed recently seeking to dismiss the case, the city’s legal counsel argues that Todd’s claims of “corrupt culture” inside the department should be stricken from the record.
“Such matters are, for purposes of plaintiff’s wrongful-discharge or (Fair Employment Practices Act) claims, ‘immaterial,’ ‘impertinent,’ and indeed ‘scandalous,’” wrote Philip Woodward, a Burlington attorney representing the city of Rutland in the case.
In a footnote included on the first page of the motion, Woodward said the city denied Todd’s claims but could not respond to them in detail because they were part of a confidential internal affairs investigation.
“The city adamantly denies that there was any ‘corrupt’ culture,” Woodward wrote. “While understanding the interest some members of the public might have in those investigations, the city is not in a position to further elaborate on those internal affairs investigations, or the measures taken as a result.”
City Police Chief James Baker, who is a defendant in the case, referred questions about the lawsuit to city attorney Andrew Costello, who issued a statement on behalf of the municipality and every city official named in the complaint.
In addition to the department’s chief, its captain, Scott Tucker, Lt. Kevin Geno, Police Commission Chairman Larry Jensen and former officers John Johnson and Earl “Frank” Post are named in the complaint.
The statement released by Costello reads: “The allegations Mr. Todd makes have been previously addressed through internal affairs investigations within the department. Due to the legally confidential nature of those investigations, the city is precluded from elaborating on their results. However, the city adamantly denies that any ‘corrupt’ culture exists within the Rutland City Police Department, and stands by the men and women who serve there.”
Todd’s attorney, John Faignant, hasn’t filed a response to the city’s motion to dismiss, but the Rutland Town lawyer said the various misdeeds he described in the complaint were relevant to the case because the conduct of the department was intended to intimidate Todd into not reporting those incidents.
Faignant said the examples are also needed to prove Todd’s claim of a corrupt culture — an element that supports an obstruction of justice claim.
Referring to a claim in the lawsuit that Geno once came to the department’s firing range after he had been drinking and then accidentally discharged a firearm, Faignant said: “The shooting incident shows there was a culture where people were afraid to complain about the command staff ... The evidence is pretty broad in a case like this and you’re allowed to use circumstantial evidence. This is part of the circumstantial evidence showing what the culture was.”
Faignant argued in his lawsuit that the city officials named in the complaint — and former state Public Safety Commissioner Thomas Tremblay, who conducted an internal investigation of two city officers last year — were complicit in allowing or covering up the misconduct of Johnson and Post.
In the lawsuit, Todd said he was forced to resign from the department last year and take a job with lower pay and benefits with the state police after harassment from his superiors that included a claim that Geno was building a file and interviewing other officers to justify Todd’s firing.
But in the motion filed by the city and a similar motion to dismiss filed by Tremblay, lawyers for the defendants in the case said no adverse actions were ever directed at Todd by his employers.
“Nowhere ... does (Todd) allege that any actual disciplinary action was ever actually taken against him much less the initiation of termination proceedings,” Woodward wrote.
Todd said in his lawsuit he brought complaints about Post and Johnson to Geno in September 2010.
Johnson and Post became the subject of an internal investigation conducted by Tremblay more than a year later in December 2011.
The reason for the investigation was never made clear and no evidence of criminal wrongdoing was found. However, Johnson and Post left the department in early 2012.
After bringing his complaints about the officers to Geno, Todd became the subject of “unprofessional, derogatory and racist” comments from Geno, Johnson and Post, Faignant wrote in the lawsuit. In May 2010, Todd received a death threat from Post, according to the lawsuit.
In November 2011, Todd brought his complaints to Jensen, and a month later he informed Mayor Christopher Louras of his complaints, according to the lawsuit.
Todd said he complained to Tucker that Geno had failed to respond to his complaint and was retaliating against him for making a complaint. Tucker responded, Faignant wrote, by saying Todd “was being ‘brash’ and insubordinate to a superior officer.”
Faignant wrote that Baker and Tremblay, who he said have a close relationship, also covered up the conduct of Johnson and Post.
But while the complaint presented various examples of alleged misconduct in the department, Woodward and the attorney representing Tremblay argued that none of the claims added up to any harm or damages that Todd could sue for.
“While (Todd) goes on at length about how his internal complaint was handled, his complaint does not allege any specifics about how any alleged ‘corrupt culture’ was directed at him. Rather, the complaint alleges an atmosphere about which (Todd) was unhappy,” Woodward wrote.