By Mike Donoghue, Senior Correspondent
Woodstock Police Chief Joe Swanson’s appeal of his demotion by Municipal Manager Eric Duffy will be heard Wednesday March 19 by the Village Trustees.
The session is set for 10 a.m. at the town hall and it is expected to be available on Zoom for the public unable to make it to the hearing. The appeal is predicted to last most of the day and could go into part of a second day.
The public hearing will be conducted much like a jury trial is in court. The Village Trustees will serve as the jury. Witnesses will be sworn in and Duffy will start with why he wants to demote Swanson. Swanson’s lawyer will be able to cross examine witnesses. Once Duffy is done presenting his case, Swanson can call his witnesses, who can be cross examined by Duffy’s lawyer.
After the hearing closes, both sides will be allowed to submit summaries or memos about the case before the Trustees deliberate. The Trustees will issue a written decision. There is no known deadline.
Lawyers for both Swanson and Duffy have been disagreeing in recent days over the proposed ground rules and procedures for the public hearing, and for access to documents.
Duffy sent Swanson a letter last week saying he planned to demote the veteran lawman, who has been on paid leave since last fall. It followed secret complaints filed by police officers and dispatchers.
The Vermont Standard noted Duffy’s letter never said what rank the manager planned to try to place Swanson in the police department. Duffy has since disclosed he wants Swanson returned to the rank of patrol officer. The move would knock Swanson down past two previously held ranks in the department: corporal and sergeant.
Duffy selected Sgt. Swanson in July 2023 after a national search to replace retiring Police Chief Robbie Blish.
Duffy placed Swanson on paid leave Oct. 15, 2024, two days after a traffic incident on High Street involving a confrontation between two drivers, including Swanson’s husband, local lawyer Nicholas “Nico” Seldon, officials said.
An independent investigation by the Vermont State Police eventually determined on Nov. 5 that no charges could be filed against either driver or were warranted. Swanson was a passenger in Seldon’s car and reportedly helped separate the two men.
Duffy never allowed Swanson to return to work, and the Vermont Standard learned Duffy had hired a private detective on Oct. 25 to get statements from village police officers and town emergency dispatchers about the chief’s management of the department.
The manager used the statements from the employees and the 17-page summary report by private detective William Burgess as the basis for the demotion.
Duffy, through his new lawyer, John Klesch of Burlington, has filed objections to several hearing requests made by Swanson through his defense lawyer Linda Fraas of Manchester, N.H.
The Village Trustees have hired Burlington lawyer Brian Monaghan to serve as the hearing officer and will help make legal rulings for the board both before and during the hearing.
“With all due respect, time is obviously of the essence,” Fraas said in an email to Klesch on Monday. “I am currently without the underlying officer and dispatcher statements relied upon by Mr. Duffy that I have been requesting for weeks.”
She goes on to say, “If the ruling is in our favor requiring the release of these materials, our preparation time is shortened by every continued delay.”
In her email, Fraas added Chief Swanson remains in limbo as to how the case should proceed “as there have been ongoing delays and refusals to respond to requests to clarify various positions for over four months now.”
The two sides have several issues that they say they need resolved before the hearing. They include:
- Klesch said in a filing that Duffy does not want Swanson to be able to have transcripts and the recorded statements from the witnesses interviewed by Burgess. Fraas maintains she needs them to help prepare for the hearing.
- Duffy also is objecting to a request by Swanson to ensure the Village provides a stenographer to produce a transcript of the hearing. Fraas has asked for the stenographer to ensure a proper record is available in case there is an appeal to Vermont Superior Court. Duffy’s lawyer said he assumes the trustees will have an audio recording and will provide a copy to Swanson.
- Swanson wants two Village Trustees to recuse themselves from the hearing because of their possible involvement in the case. The chief believes both are likely to be witnesses and have the appearance of a conflict of interest. Klesch said he does not intend to call either.
Fraas maintains emails from Chair Seton McIlroy show she “participated in the pre-termination investigation and decision-making process to an extent that creates bias and/or the appearance of impropriety in the quasi-judicial hearing to determine the outcome of this matter.”
Duffy said McIlroy was never involved.
Fraas also wants Vice Chair Jeff Kahn to step aside because one of the claims used by Duffy stems from a road rage incident that the trustee was involved in.
“Chief Swanson will testify under oath that Mr. Kahn pressured him to dismiss tickets he received as a result of that incident,” Fraas wrote in her appeal to McIlroy.
Klesch, in his written response, says Duffy takes no position on the recusal request, but then goes on to say neither trustee was involved in the investigation or the demotion determination. Klesch adds Duffy does not plan to call either as a witness.
It is unknown if Fraas plans to call one or both to the stand.
She said due process requires disclosure of underlying documents and witnesses giving rise to a letter that termination or demotion was being considered.
Klesch maintains Swanson is overreaching by asking for the identity of witnesses who have provided information whether they ended up being called to the stand or not.
“Chief Swanson/Atty Fraas has provided no logical explanation of why the requested information is necessary in order for Chief Swanson to be afforded due process rights in connection with preparing for the hearing,” Klesch wrote.
“The only assertion which seems to come close is the statement in the memorandum that receipt of the interviews is necessary ‘in order to verify or impeach their testimony at a post-termination hearing,'” Klesch said.
“The hearing will not concern witness interviews. It will concern evidence presented to the Trustees during the hearing to allow them to determine whether to affirm or reverse the Manager’s decision to demote Chief Swanson,” he said.
“Atty Fraas will have the opportunity to cross examine the evidence. She will have the opportunity to present evidence,” Klesch said.
Duffy, through Klesch, also wants to make sure that if Swanson is provided copies of witness transcripts that they be severely limited by imposing four restrictions.
Duffy said Fraas should be the only person to view the transcripts, and that Swanson should be denied access, Klesch wrote. He also does not want them used for a defamation lawsuit or other legal claim.
The transcripts can only be used for the demotion hearing and only the very minimum be disclosed, he said.
Duffy also said he does not want Swanson’s lawyer to retain the witness transcripts. “They must be promptly deleted or destroyed following a decision by the Trustees.”
Klesch, who is still catching up on details of the case, wrote to Fraas that he thought there had been no discussion about whether the hearing would be in public or private. Matt Bloomer, another lawyer in his office, had handled much of the legal proceedings until about the time Swanson filed his appeal.
Swanson has maintained for months that any attempt to discipline him would result in his appeal being held in public. Swanson has said he is seeking full reinstatement to chief is the only outcome he will accept.
The standard for proving the demotion case is “preponderance of the evidence” and not “beyond a reasonable doubt,” Fraas said.
Fraas said there is no basis for a reduction in rank. She said she expects to cross examine Duffy and various members of both the police union and dispatchers union that provided statements.
Fraas has said Duffy apparently gave a false promise to public safety employees that provided statements against the police chief that as manager he would not disclose their identity. Swanson has a Constitutional right to face his accusers, she said.
If McIlroy and Kahn step down, that would leave Trustees Brenda Blakeman, Frank Horneck and Lisa Lawlor to decide the case.
Duffy was dealt a major setback last month when the Vermont Criminal Justice Council ruled that nothing in the Burgess investigation rose to the level of unprofessional conduct under state regulations.
The municipal manager had secretly sent the Burgess report to the Vermont Police Academy to see if it would find any misconduct to help support taking action against Swanson.
Fraas said Swanson had asked multiple times to have the police academy investigate the claims for the Village. The chief only learned Duffy had secretly sent the Burgess report to the academy when he got a letter clearing his name.
In a one-page letter, Chris Brickell, the council’s executive directive, said a review of Swanson’s conduct as outlined in the Burgess report did not warrant any action.
Duffy, in his letter to Swanson dated Feb. 23, said his demotion had nothing to do with the Oct. 13 traffic incident on High Street and was focused solely on the findings in the Burgess report.
In the letter, Duffy said since a closed-door session, known as a Loudermill hearing, on the Burgess report on Jan. 22 “additional concerning conduct has come to light.”
The manager invited Swanson and his lawyer for a second Loudermill hearing on Feb. 20.
Fraas decided not to attend the second hearing, but sent a written response that noted there was really no new information, except Duffy had added a few more claims, including the reports of Swanson’s failure to keep his office clean and to keep his police cruiser clean, records show.
“It is clear based on reliable evidence that your performance and conduct have been poor. Due to the nature, seriousness, and breadth of the issues, I have no confidence in your ability to lead a prominent Village department, and I have determined that some lesser discipline would not lead to the improvement of your performance and conduct to a satisfactory level for the rank of police chief,” Duffy wrote in his 1.5 page letter.
Swanson will continue to draw his salary — about $2,030 a week — as police chief until the case is decided, Duffy has said.
Swanson’s paid leave, which went into week 21 as of Tuesday, appears to be unprecedented for a police chief or administrator in Vermont. A check with some public officials, including chiefs and managers, was unable to find such a long benching.
Duffy has filed 14 administrative counts against Swanson, including nine charges of specific unsatisfactory job performances since he became chief in July 2023.
Two counts center on public statements and expectations of privacy, Duffy said. There is one count for conduct unbecoming an officer, one count for an off-duty police claim and one count dealing with accountability.
Fraas and Swanson have taken strong exception to each charge.
Burgess, who was paid $7,000 for his report, was asked to inquire about complaints “regarding the activities, behavior and administrative practices of Police Chief Joe Swanson.”
Burgess also was asked to review other complaints that might surface from his initial inquiry.
After filing charges, Duffy was unable to come to a decision when presiding over the first Loudermill hearing behind closed doors on Jan. 22.
Three weeks later he asked for mediation, which also proved unsuccessful. Fraas said the only acceptable outcome would be reinstatement, but Duffy still did not make an immediate decision.
The village paid an estimated $2,000 for veteran mediator Gregory Clayton of Maine.