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,- ' ,,- --STATK 'OF NEWHA!1~$HIRE

ROCKINGHAM, SS. JUL 2J 3 18 AH '3Z SUPERIOR COURT

Docket No. 90-E-00573

RICHARD SIMPSON

v.

THE TOWN OF EPPING, CHIEF GREGORY DODGE, AND THE EPPING BOARD OF SELECTMEN, LORRAINE RAUH,

PAUL SPIDLE, AND MICHAEL JEAN

AFFIDAVIT OF GREGORY DODGE

I, Gregory Dodge, being duly sworn according to law, do say as

follows:

1. I am currently employed as the Chief of Police for the

Town of Epping, New Hampshire.

2. I have been employed in this capacity since 1980. I held

the title of Chief o f Police during the relevant period of this

lawsuit.

3. After an incident that occurred in West Epping, New

Hampshire, on April 23, 1990, I received citizens' complaints

regarding alleged police misconduct on April 24th and April 26th,

1990. On May 2, 1990, I formally requested to have the incident

investigated by the state police. On July 3, 1990, I received the

incomplete state police investigation report.

4. After learning of the citizens' complaints made against

Officers Todd and Simpson through a newspaper article, the members

of the Board of Selectmen for the Town of Epping (the board)

requested that I provide them with the state police report on the

incident.

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5. When the board requested to see the state police report,

that report was still incomplete. At that time the report

contained all of the investigations and interviews conducted by the

state police, but did not include any conclusions or recommenda-

tions. I gave the incomplete report to the chairman and then to

the other board members on July 9, 1990. The board members had

limited access to the report in that they each retained it only for

a few hours. The board did nor revier,] the stat.e police report

again until the officers' disciplinary hearing.

6. The only communications I had with the Board of Selectmen

regarding personnel issues prior to the officers' disciplinary

hearing were in executive sessions on July 9 , 1990, and July 16 ,

199 0-. During those two sessions my disciplinary options with

regard to the officers were discussed, but I did not indicate what

disciplinary actions I would recommend. As of July 16, 1990, I had

not personally decided what disciplinary actions I would be

recommending to the board. Thus, I could not have been lobbying

the board members, nor did I lobby the board members to "acquiesce"

to my position with regard to discipline.

7. It is my firm belief that the Board of Selectmen were

impartial and fair in their review of my disciplinary actions. The

board did not in fact "rubber stamp" my recommendations, • as ~s

evidenced by the fact that they added a probationary period and an

exclusion from overtime and details to the two week suspension I

proposed for Officer Simpson.

,) ( , ,

8. The foregoing statements are true and accurate to the

best of my knowledge, information and belief.

STATE OF NEW HAMPSHIRE COUNTY OF \ Co . \0 : ll~

Subscribed and sworn 1992.

\

before me this -". ,-'>4 day of ~ ~

\ CL~ C. ~ Notary Public/Justice of the Peace

PATRICIA A, WOOD,. Notary Public My Commlsolon E>l>iru December 18, 1996

,

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c THE STATE OF NEW

ROCKINGHAM COUNTY

************************* RICHARD SIMPSON

v.

TOWN OF EPPING, et al

* * * * *

*************************

DECREE

HAMPSHIRE tlov 13 8 10 ~H '95 .

SUPERIOR COURT .- . .', . .

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90-E-573

Plaintiff, Richard Simpson, a police officer for the Town of I

Epping, filed this Petition for writ of certiorari alleging that

certain disciplinary action taken against him by the Town of Epping

was 01 illegal, improper, without cause, and an arbitrary, capricious -abuse of power. 01 (Pet., paragraph 7). certiorari was granted

(Mohl, J.) and the parties thereafter agreed to submit this matter

for disposition on the state of the certified record of proceedings

held before the Board of Selectmen. The decision of the Board is

AFFIRMED.

By letter of July 23, 1990, Police Chief Gregory Dodge

informed Officer Richard Simpson that as a result of (1) citizen

complaints alleging use of unnecessary force and unprofessional

conduct in the apprehension and arrest of Thomas Grenier and Paul

Guy, (2) a review of the ensuing Report of New Hampshire State

Police Investigation of this incident, and (3) Simpson's employment

history with the Epping Police Department, it was,

01 ••• both appropriate and necessary to take disciplinary action against you ... and order your suspension .•• for a period of two weeks

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without pay. If you do not agree to accept the disciplinary action which I have taken ... you have the right to request a hearing before the Board of Selectmen ... ". (CR Exh 1)

A hearing was subsequently conducted before the Board of Selectmen

on August 6, 1990. (CR Exh 4). Following hearing, the Board

decided on August 9, 1990 (CR Exh 5) that upon consideration of all

the evidence presented to them, the two (2) week disciplinary

suspension imposed by Chief Dodge was appropriate, and in addition

thereto, the Board placed Officer Simpson on,

• " •. . probation until August 8, 1991 and that you will not be eligible for overtime work or details until October 7, 1990 ... "

Review on certiorari is not an ordinary remedy, but rather an

extraordinary remedy usually available only in the absence of a

right to appeal and then only at the ~ •• • dlscretlon of a court to

determine whether another tribunal has acted illegally in respect

to jurisdiction, authority or observance of law, or has abused its

discretion or acted arbitrarily or capriciously. In re Doe, 126 NH

719. In certiorari proceedings, unless otherwise provided for by

statute or rule, an administrative agency (or board), its officers,

or agents should not be named as parties defendant except • ln

special and extraordinary circumstances. See Melton v. Personnel

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90-E-573 Simpson v. Town of Epping

•

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• don 119 NH 272. No such special circumstances are present

s case. Accordingly, with respect to Chief Gregory Dodge,

~pPing Board of Selectmen, Lorraine Rauh, Paul Spidle, and

j Chael Jean, the petition as to them is DISMISSED. The proper

,Party defendant remains the Town of Epping. Apart from a

I consideration of errors of law, this certiorari ,

reVlew of ' the

record is limited to a determination of whether the findings made

by the Board could reasonably be made. The fact that a contrary

finding could have been made is not a ground for vacating the

Board's findings. See: Carling Brewing Co. v. state Liquor

commission, 102 NH 284, 288; Quinn v. City of Concord, 108 NH 242.

~ Upon , ,

revlewlng the certified record of proceedings ,

· In

connection with Officer Simpson's disciplinary proceedings there is

ample documentation to support the findings as determined by the

Board of Selectmen. I do not find from this record that the Board

acted illegally in respect to jurisdiction, authority, or

observance of law; nor do I find that they have abused their

discretion or have otherwise acted arbitrarily or capriciously.

The plaintiff further alleges in his petition (paragraphs 5,

6)· that the Board of Selectmen were biased as a result of some

unspecified "ex parte" ,communications from Chief Dodge prior to ,

Plaintiff's hearing which, it is charged, convinced the Board to

"rubber stamp" Chief Dodge's suspension of this plaintiff. The

record fails to support this contention. To the extent the Board

may have been aware of any investigative reports of this incident

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90-E-573 Simpson v. Town of Epping

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/ /prior to hearing, the party alleging that such reports biased the

administrative hearing has the burden of presenting a spec ific

foundation "for suspecting that the Board has been prejudiced ... or

I would be disabled from hearing and de ciding ... ", Peti tion of Grimm,

128 NH 42, 52, citing withrow v. Larkin, 421 US 35, 55 (1975). The

record fails to disclose the presence of any such foundation.

"Administra tive officials who serve in an adjudicatory capacity are presumed to be of conscience and capable of reaching a just and fair result. Appeal of Maddox, 133 NH 180, 182 ... ,see also Appeal of Beyer, 122 NH 934,941 ... , Withrow, 421 US at 55. The burden is upon the party alleging bias to · present sufficient evidence to rebut this presumption . Appeal of Maddox, 133 NH at 182 ... , see also Ostrer v. Luther, 668 F. Supp 724, 734 ... To disqualify an administrative official, the party should file a motion for recusal supported by a sufficient affidavit of personal bias or other disqualification. See R. Wiebusch, 5 NH Practice, civil Practice and Procedure, s. 2074, at 512-13 (1984 and Supp 1992)." Petition of Grimm 138 NH at 52.

A review of the certified record of proceedings indicates that the

plaintiff failed to meet that. burden on the issue of alleged bias.

The relief sought by plaintiff in his Prayer B is DENIED. The

decision of the Board of Selectmen is AFFIRMED.

FREDERICK D. GOODE, Presiding Justice

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90-E-573 Simpson v. Town of Epping

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