By Mike Donoghue, Senior Correspondent
The Village of Woodstock has said it wants to schedule a new evidentiary hearing this fall about the demotion of Police Chief Joe Swanson as the two sides continue their legal battle over his removal. However, Swanson’s lawyer Linda Fraas told the Standard this week that it’s premature and they don’t intend to particpate until there are more rulings by the judge.
Vermont Superior Court Judge H. Dickson Corbett ruled that the village trustees erred in the previous demotion process with a 14.5 hour hearing conducted March 19 and the eventual ruling a month later. The board voted 5-0 to uphold the demotion order by municipal manager Eric Duffy.
“It appears to the court that the reasoning of the village trustees was erroneous,” Corbett said in his three page ruling last month. “Here, it appears that the village trustees failed to apply the correct legal standard before removing petitioner from the office of police chief.”
Burlington attorney Brian Monahan, who represented the village trustees for the proceedings, sent an email to interested parties on Friday afternoon proposing a new hearing on Thursday Nov. 6. The time and location are still to be determined if that date works for everybody, he said.
“The trustees understand that the Court indicated that a new evidentiary hearing ‘would not be required.’ Nevertheless, given that the matter has been remanded, the trustees are providing the opportunity for the parties to present any other evidence they wish to provide, so long as it is limited to the time period for which Mr. Swanson served as Chief,” Monaghan said.
Any evidence about issues when Swanson was not chief would not be relevant, he wrote.
Fraas said she questions why the trustees are moving now for another hearing when the court needs to make other findings. Judge Corbett only made a passing reference to remand the case while ruling in favor of Swanson’s request for a preliminary injunction, she said.
Swanson had asked for the preliminary injunction to ensure he would not suffer irreparable harm from the village by it naming a new police chief before the court ruled on his case. Otherwise Woodstock taxpayers could end up with two police chiefs.
“The village continues to demonstrate no interest in mitigating its damages, following the law, and ending this ongoing fiasco,” Fraas said.
“As set forth in my motion, we believe that the law supports reinstatement rather than remand based upon the facts of this case. The village is apparently seeking yet another opportunity to remove Chief Swanson from his position after a failed unlawful demotion attempt,” Fraas said in a public email to lawyers and others in the case this week.
“Advice provided to the village by all of you regarding demotion was based upon unorthodox novel theories unsupported by law and was clearly erroneous. Whatever is currently being advised regarding just cause termination appears to be equally flawed,” she told the lawyers.
“We are confident that no allegations or evidence against Chief Swanson can support just cause termination as a matter of law. It seems obvious that several lawyers must have come to the same conclusion when the decision was made not to seek termination or address the legal requirements for this course of action in any way,” Fraas said.
“Even if the court does order remand, we will be right back in court following any decision to establish that once again the village has exceeded its authority, abused its power, and committed serious errors in an effort to remove Chief Swanson for malicious reasons unsupported by the facts and law,” she wrote.
“The actions that have been taken against Chief Swanson since his unlawful demotion, including this ongoing attempt to unlawfully remove him from a constitutionally protected right to employment, provide additional evidence of retaliation, discrimination, malice, and total disregard for the law,” Fraas said.
“The ongoing harassment and persecution Chief Swanson has been subjected to by Sgt. O’Keeffe (as outlined in the attached recent email as well as the Second Amended Complaint in the civil suit) occur in the context of an unlawful demotion that should never have occurred. Chief Swanson has been forced to work as a patrol officer under the supervision of an officer who hoped to obtain his job,” Fraas wrote.
“Sgt. O’Keeffe’s increasingly unhinged retaliation efforts and creation of a hostile work environment dramatically escalated following the court’s granting of the preliminary injunction which interfered with Sgt. O’Keeffe’s and Manager Duffy’s plans to quickly install Sgt. O’Keeffe as the new chief,” Fraas wrote.
“Even after the village has become aware that it is not going to prevail in its unlawful demotion, it has decided to keep Chief Swanson in the demoted position and to allow Sgt. O’Keeffe to place him on involuntary medical leave for manufactured reasons and to discipline him based on concocted allegations,” she said.
Fraas also questioned whether some lawyers in the case have a conflict of interest by representing multiple defendants.
“It is also surprising that the same counsel are planning to resume their roles in any future proceedings. The order written by Attorney Monaghan for the Board contains numerous errors, bizarre theories unsupported by facts or law, as well as mean-spirited, derogatory, and inflammatory gratuitous commentary evidencing the utmost disrespect for Chief Swanson,” she said.
Fraas noted that Attorney John Klesch and his Burlington law firm have represented Duffy, Sgt. O’Keeffe, the trustees and the village in both the demotion appeal and the contemporaneous $5 million civil action, but “appear to take the position that no conflict arises from their continued role as advocates for all in whatever form that takes.”
Swanson had offered to settle the lawsuit and demotion appeal, but the village trustees apparently never considered the written offer. The board let the offer come and go without calling a meeting to discuss ending the lawsuit, officials said and village records show.
The proposal included requirements that McIlroy and Duffy step down from their positions.