Judge sounds skeptical of call to block Boston police commissioner firing
'I'm not sure what I have to review here,' she tells Dennis White's lawyer
EMBATTLED BOSTON POLICE COMMISSIONER Dennis White went to court on Thursday seeking to block his dismissal by Acting Mayor Kim Janey, but a Suffolk Superior Court judge indicated she was wary of weighing in on the case at this stage.
Nicholas Carter, the lawyer for White, asked Judge Heidi Brieger to stop a “rush to judgment.” He said that White has been “accused of having committed serious crimes 20 to 30 years ago, and on no actual evidence he’s been convicted by the acting mayor and the city and the media. His reputation, livelihood, and life are on the line here.”
Brieger sounded skeptical of Carter’s contention that there is a role for her at this stage, appearing to agree with the lawyer for Janey and the city that any court jurisdiction would come after a termination if White wanted to challenge his dismissal.
“I am not in the cause-finding business when it comes to mayoral appointments and removals,” Brieger said at one point.
White was sworn-in as police commissioner on February 1 by then-Mayor Marty Walsh, but placed on administrative suspension two days later after the Boston Globe reported on allegations in 1999 of domestic abuse against him by his then-wife. Walsh commissioned an independent investigation of the charges. The results of that probe, which included details of the 1999 allegations as well as a second case of alleged domestic violence from 1993 involving a 19-year-old niece, were released last Friday.
Janey told White that morning that she intended to dismiss him, but he went to court to try to block the move.
Thursday’s hearing came a day after a dizzying volley of claims and counterclaims about the controversy that effectively pitted two former Boston police commissioners against the city’s former mayor and a third ex-commissioner.
When he placed White on leave, Walsh said he had no knowledge of the domestic abuse allegations when he named him commissioner. But in an affidavit filed Wednesday in the case, former police commissioner William Gross, whose abrupt retirement led to White’s appointment, said Walsh was briefed on White’s internal affairs file, which included reports on both the 1993 and 1999 incidents, as part of the standard practice when he approved his elevation to the department’s command staff in 2014.
Walsh, now the US labor secretary, issued a statement Wednesday refuting that claim.
“Neither the allegations nor the internal affairs files were shared with me in 2014, or during any other consideration of Dennis White,” Walsh said. “Had I known, I would not have chosen him for police commissioner or any other role.”
Former police commissioner William Evans, who served prior to Gross, backed him up. WBUR reported that Evans claims neither he nor Walsh knew of the past allegations against White. But Ed Davis, another former Boston police commissioner, told the Globe and WBUR that it was standard practice during his tenure for the mayor to be briefed on all command staff appointments.
Kay Hodge, an employment lawyer hired by the city to handle the case, said what Walsh knew or didn’t know when he appointed White has no legal relevance to White’s effort to seek a restraining order preventing the city from firing him.
Although Carter has argued that White took no actions during his two-day tenure as commissioner that would warrant his dismissal, Hodge said White’s conduct during the ensuing investigation, which White was resistant to cooperating with, provided Janey with sufficient grounds to fire him.
In a letter from Janey to White last Friday, which was included in the city’s response to his legal filing, she also said he “failed to demonstrate an appreciation for the reasons for the public’s concern” about the two incidents from the 1990s. She further criticized him for going to the commissioner’s office at police headquarters to take part in a video interview with the investigator while he was on administrative leave, saying it gave the impression “at the very least” that he was still in charge of the department and, at worst, may have “intimidated some of the witnesses” within the department not to cooperate with the probe.
Carter asked Brieger to allow for an evidentiary hearing, and argued that White is entitled to a judicial proceeding “with witnesses and cross examination” while still commissioner.
Brieger suggested that would set an unreasonable standard for employment disputes in the public sector. She said she agrees with Carter that White is entitled to have his side heard, but seemed to suggest the place for that, at this stage, is with the mayor.
“What I am troubled by is your suggestion that I should sit in judgement, along with all of my colleagues, in every termination decision made by every public official across the Commonwealth,” Brieger said. “Our business would grind to a halt.”
The state law concerning the Boston commissioner’s appointment says he may be removed “for cause” by the mayor “after notice and hearing.”
Brieger said her understanding of the current “legal state of play” is that Janey has signaled an intent to remove White, that she believes she has cause, and intends to hold a hearing. “I gather that at this hearing Commissioner White is entitled to rebut that evidence and offer his own,” she said. “But none of that has happened. I’m not trying to be coy, but I’m not sure what I have to review here.”Brieger gave no timeline for a ruling on White’s motion, but suggested she would try to issue a decision soon.
In a statement after the hearing, Janey said she respects the judge’s decision “to take more time before issuing a ruling in this case and appreciate[s] her intent to rule as soon as possible. The people of Boston and the Boston Police Department deserve leadership that shares our goal of safety, healing, and justice.”