On April 26, 2021, the ACLU-NH filed an amicus brief in this case concerning the narrow question of whether a law enforcement agency has the ability to maintain the termination of a police officer who has engaged in misconduct implicating the officer’s trustworthiness and credibility. New Hampshire law enforcement agencies must be able to hold their police officers to the highest ethical standards and terminate officers under these circumstances. However, as this amicus brief argues, under the Personnel Appeals Board (“PAB”) decision in this case, law enforcement agencies cannot effectively do so.
When a law enforcement agency cannot maintain the termination of an officer who has engaged in misconduct implicating the officer’s credibility or trustworthiness, not only does this impact whether the officer can meaningfully do his or her job as a testifying witness in criminal cases, but it also undermines the public’s faith and confidence in the criminal justice system more broadly. This is because the public expects officers to be truthful and, if an officer lies, that the department will terminate the officer.
Here, the New Hampshire Department of Safety has tried to maintain the termination of Trooper Thomas Owens given his admission “that he adjusted the hours for October 30, 2018 to avoid a policy violation.” Despite this admission, the PAB took it upon itself to overrule the Department’s termination decision and reinstate the officer. But what the PAB failed to recognize is that this is not a garden-variety employment dispute, nor does this appear to be a case concerning mere sloppy recordkeeping. Rather, this is a unique situation where the misconduct at issue concerns the ability of an officer to effectively perform his or her job and serve the community.
This case is important because it could have a significant impact on the ability of police departments to maintain the termination of officers who have engaged in misconduct affecting their credibility and trustworthiness. Here, the PAB did not appreciate the magnitude of the misconduct Owens engaged in. Instead, the PAB viewed such misconduct as essentially trivial in the context of a standard employment dispute. But when an officer engages in dishonest behavior, this behavior can never be viewed as trivial given their unique role in the criminal justice system. For these reasons, this amicus brief argues that the Court should reverse the PAB’s decision.
On February 11, 2022, the New Hampshire Supreme Court issued a decision disagreeing. The Court affirmed the PAB's decision.