Judge sides with selectmen in Winchester police chief's suit

By ALYSSA DANDREA and MEGHAN FOLEY Sentinel Staff

A judge has ruled that Winchester selectmen did not violate state law when they voted last fall to suspend the town’s police chief without pay for three days. Cheshire County Superior Court Judge John C. Kissinger Jr. wrote in his Feb. 2 decision that Winchester Police Chief Gary A. Phillips was not entitled to summary judgment in the civil lawsuit he brought against the town in September. The town, Kissinger said, did nothing wrong.

Phillips has 10 days to file a motion with the court asking Kissinger to reconsider his decision. He can also take his case to the N.H. Supreme Court on appeal.

Phillips, who has served as chief since 2005, argued in court documents that state law requires selectmen to provide him with written notification of their intent to vote on his suspension prior to taking action.

Kissinger disagreed.

“Logically, the specific reasons underlying the decision to suspend cannot be fully and specifically known until the decision is discussed and made,” Kissinger wrote. “Otherwise, the reasons are merely speculative and may not underlie the final decision at all.”

Selectmen met in a nonpublic meeting Sept. 9 and voted to suspend Phillips for three days — Sept. 21 through Sept. 23 — without pay. They provided Phillips with the reasons for their decision in a letter dated Sept. 10.

Selectmen allege in court documents that Phillips had made a retaliatory threat against Winchester police Officer Brooke Sharra during a nonpublic meeting of the board in August. Sharra was not at that meeting; rather, selectmen held it with Phillips to discuss his work performance.

Phillips said, “Officer Sharra will be on the Laurie List before I’m done with her,” according to an affidavit prepared by Town Administrator Shelly Walker.

The Laurie List is a statewide record of law enforcement officers whose credibility could be called into question if they testify in criminal trials. Officers are placed on the Laurie List at the discretion of local police chiefs.

Sharra, who no longer works for the town, is the daughter of Margaret Sharra, Winchester’s land use administrator.

Phillips threatened Officer Sharra because he believed selectmen’s recent negative evaluation of his performance was the result of feedback he thought Sharra gave to them during her exit interview, according to an affidavit prepared by Walker. However, selectmen told Phillips that their evaluation of him was completed before they met with Sharra, according to the affidavit.

Phillips unsuccessfully appealed his suspension to the board in a nonpublic session Sept. 16. Five days later, he filed a civil lawsuit against the town.

Kissinger issued his decision last week on the heels of a 15-minute hearing Jan. 29, during which both sides presented their arguments.

Phillips’ attorney, Joseph S. Hoppock of Keene, told Kissinger that if selectmen had followed state law, they would have notified Phillips that its members were going to suspend him — and for what reasons — before they took a vote.

Instead, town officials gave Phillips a letter after the nonpublic vote to say they were taking disciplinary action against him, Hoppock said.

He maintained state statute is clear that a “chief shall be subject to suspension without pay, and only for cause, after he or she has been presented with a written specification of the reasons for the disciplinary action to become subject to that disciplinary action in a vote.”

The town’s attorney, Andrew B. Livernois of Concord, disagreed, saying police chiefs are treated differently than police officers under state law.

Police officers can’t be suspended or terminated until after they’ve received a notice and have had an opportunity to be heard, he said.

Police chiefs aren’t entitled to pre-deprivation notice, instead they’re told why they’re being suspended or terminated, and then are allowed to appeal the decision to superior court, he said.

Kissinger agreed with Livernois in his ruling, saying, “Boards of selectmen must be able to remove chiefs of police from their posts quickly, but still provide adequate due process.”

Livernois and Hoppock could not be immediately reached for comment this morning about Kissinger’s decision.

Alyssa Dandrea can be reached at 352-1234, extension 1435, or adandrea@keenesentinel.com. Follow her on Twitter @ADandreaKS.