Judge sides with city and denies White’s bid to block firing
Boston police commissioner asks for 'robust' public hearing by city with witnesses
A SUFFOLK SUPERIOR COURT judge on Tuesday denied a motion by Boston Police Commissioner Dennis White for a temporary restraining order and preliminary injunction to block his dismissal.
Acting Mayor Kim Janey moved earlier this month to fire White following the release of an investigator’s report that looked into allegations from 1999 of domestic abuse against him by his then-wife. 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 of White’s, were released on May 14.
In a decision issued late Tuesday afternoon, Judge Heidi Brieger said White failed to meet either of the standards necessary for her to block his firing — a likelihood that he would “succeed on the merits” of his case and a demonstration that he will suffer “irreparable harm” if an injunction is not granted.
White was never charged in connection with either incident, but the investigator’s report detailed accusations that he had physically assaulted his wife and threatened to shoot her and a male companion and it described a physical encounter with his niece in which White is alleged to have punched her and thrown her down stairs. White, in an interview with Tamsin Kaplan, the attorney hired by the city to conduct the investigation, denied all of the allegations.
Janey told White on the morning the investigator’s report was released that she intended to dismiss him and she scheduled a hearing with him for later that day, but he went to court instead to try to block the move.
In an hour-long hearing last Thursday on White’s motion to block the firing, Brieger expressed doubts about the claim by White’s lawyer, Nicholas Carter, that his client was entitled to a judicial hearing in Superior Court, where he could call and cross examine witnesses, before he could be terminated.
The state statute governing the Boston police commissioner’s post says a commissioner “may, after notice and hearing, be removed by the mayor for cause,” Brieger wrote in her ruling.
“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,” wrote Brieger. She added that nothing in the statute requires that the hearing by the mayor “be evidentiary or trial-like.”
Brieger also rejected White’s contention that he is entitled to a judicial hearing on constitutional grounds that protect his due process rights under the 14th Amendment because he has a “property interest” in the commissioner’s post. Brieger agreed that he has such an interest in the position but said the “pretermination process to which he is entitled is quite minimal.”
Finally, Brieger rejected White’s argument that he’s entitled to a “trial-like hearing” in court to clear his name from the defamatory allegations he said were made in the publicly-released investigator’s report. Brieger said the law is unclear about when such a hearing must take place, “but it appears clear that whenever it does take place, it is before the relevant appointing authority, not the Superior Court.”
She said White also failed to show he would suffer irreparable harm if the injunction is not granted. If his removal is found to be “defective in some fashion,” she wrote, “he can be compensated with money damaged for any lost earnings.”
Carter said his client will appeal the judge’s ruling. While the ruling clears the way for Janey to reschedule a hearing as part of the process of dismissing White, Carter called for a “robust” public hearing in which the city brings forth witnesses it is relying on to support a decision to terminate White. He also called for release of the files compiled by Kaplan and other materials related to the case.
In a letter to the city’s corporation counsel, Henry Luthin, Carter said it is become “clearer” that Kaplan was biased and approached the investigation “seeking a pre-determined outcome.”
“Acting Mayor Janey has emphasized the need for transparency concerning police matters,” Carter wrote. “Consistent with that policy goal, the hearing regarding Commissioner White should be public with the press and members of the community allowed to attend.”
The showdown over the commissioner has quickly become the biggest challenge facing Janey, a second-term Roxbury city councilor who took the reins as acting mayor by virtue of her position as City Council president when Walsh resigned in March to become labor secretary.
Carter argued that his client was a victim of a “rush to judgment,” with Janey moving to fire him based on allegations from unnamed witnesses in Kaplan’s report, who often provided hearsay evidence. Based “on no actual evidence he’s been convicted by the acting mayor and the city and the media. His reputation, livelihood, and life are the line here,” Carter said during last week’s hearing.
In her May 14 letter informing White that she intended to dismiss him, Janey cited the abuse allegations in Kaplan’s report and 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.
Walsh appointed White without any vetting or interview when William Gross abruptly announced his retirement as commissioner. Gross recommended that Walsh tap his deputy for the job.
Gross submitted an affidavit last week saying Walsh would have been briefed on White’s internal affairs record, which includes the domestic violence allegations, as part of the process of the mayor signing off on White’s 2014 promotion to a command staff position.
Carter argued in court last week that Gross’s affidavit undercuts the city’s effort to fire White. “The city cannot hire him knowing something and then fire him for these issues they knew about,” he said.
Walsh insists that he did not know at the time he appointed White of the past domestic violence allegations.
“Neither the allegations nor the internal affairs files were shared with me in 2014, or during any other consideration of Dennis White,” Walsh said in a statement. “Had I known, I would not have chosen him for police commissioner or any other role.”
William Evans, who was commissioner at the time, has backed Walsh’s version of events, saying he also was unaware of White’s history.But Brieger did not address the issue in her ruling.
In last week’s hearing, she waved off efforts by Carter to raise issues related to the city’s handling of the case, suggesting repeatedly that she saw no role for the court until the city process has played out. “I am not in the cause-finding business when it comes to mayoral appointments and removals,” Brieger said at one point.