Judge stays her order on Boston police commissioner
Ruling allows White to take his case to Appeals Court
Not so fast.
Any plans Boston Acting Mayor Kim Janey may have had to move swiftly to fire embattled Police Commissioner Dennis White following a court ruling in her favor were put on hold Wednesday morning by the same judge who sided with the acting mayor. One day after denying White’s motion for an injunction to block his firing, Suffolk Superior Court Judge Heidi Brieger agreed to put her order on hold while White appeals the ruling.
Janey informed White earlier this month that she planned to fire him over allegations of domestic violence dating to the late 1990s that publicly surfaced in February, just two days after he was sworn in and put on administrative leave. White went to court to block the move, arguing that he was entitled to a full judicial hearing in court before any termination. Brieger denied his motion in a ruling issued late Tuesday, but on Wednesday she agreed to stay her order while White takes his case to a single justice of the state Appeals Court.
“Without a stay, Commissioner White will suffer irreparable harm as Defendants have made it clear they intend to terminate him without the constitutionally-mandated trial-like, name-clearing hearing,” White’s lawyer, Nicholas Carter, wrote in his motion seeking a stay.
State law governing the Boston police commissioner’s position says the city’s top police official “may, after notice and hearing, be removed by the mayor for cause.” The dispute largely revolves around what type of hearing is required.
The city has argued White is entitled only to a meeting with Janey, where he can offer his arguments against being terminated.
Brieger, in her ruling on Tuesday, agreed. “The plain language of the provision clearly provides that the fact-finder — or ‘cause-finder’ in this case — is the Acting Mayor, not this Court,” Brieger wrote. She added that nothing in the statute requires that the hearing by the mayor “be evidentiary or trial-like.”
Carter argued, in his filing Wednesday with the Appeals Court, that White is entitled to a full judicial hearing prior to termination, especially because he says White has been defamed by the city’s public release of an investigator’s reports that documents domestic violence allegations based on interviews with unnamed witnesses who often provided only hearsay statements.
White denies any wrongdoing in the incident involving his then-wife in 1999 as well as in a second allegation of physical abuse the investigation reported on from 1993 involving a 19-year-old niece.
Carter’s filing with the Appeals Court said such a hearing should be in Superior Court to “ensure due process and the protection of Commissioner White’s constitutional and statutory rights.” That may involve the need to subpoena witnesses and cross-examine “adverse witnesses.” If the court doesn’t order such a judicial proceeding, however, Carter says Janey and city should be required in any city-run hearing to present the witnesses in the investigator’s report who provided “adverse” information about White so that he can cross-examine them.
The city’s lawyer, Kay Hodge, wrote in her filing earlier this month opposing White’s effort to secure an injunction blocking his removal that Janey was prepared to move quickly to bring the issue to a close. “Assuming that Court does not issue an injunction, within 48 hours of the Court’s decision, the City intends to renew its offer to Commissioner White (and his attorney) to meet with the Acting Mayor to provide any information he wishes her to consider before making her final decision,” Hodge wrote.
“I respect Judge Brieger’s decision to review her ruling, and as such, I have postponed the hearing for Dennis White,” Janey said in a statement. “I stand ready to move forward on behalf of the residents of Boston and the Boston Police Department, as soon as the court allows.”
Janey’s office had not responded by mid-afternoon to a request for comment on the latest development in the case.
The plight of the city’s police commissioner is a tangled mess that landed in Janey’s lap when she took over from former mayor Marty Walsh in late March, when he left office to become US labor secretary.
Walsh appointed White to the commissioner’s post with no vetting or interview after William Gross abruptly retired as commissioner. Gross recommended that Walsh appoint White, his deputy.
Gross has stood by White and signed an affidavit saying Walsh was provided with internal affairs reports on the domestic violence allegations in 2014 when he approved White’s promotion to a command staff position in the department.Walsh says he had no knowledge of White’s past history, and would not have named him commissioner if he had been aware of the allegations