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Brittingham v. Town of Georgetown

Supreme Court of Delaware

April 7, 2015

SHAWN BRITTINGHAM, and CHRISTOPHER STORY, Petitioners Below, Appellants,
TOWN OF GEORGETOWN, municipal corporation, WILLIAM TOPPING, Chief of Police for the Town of Georgetown, and RALPH HOLM, Captain of Police for the Town of Georgetown, Respondents Below, Appellees

Submitted: March 11, 2015.

Case Closed April 23, 2015.

Court Below: Superior Court of the State of Delaware, in and for a Sussex County. C. A. No. S10M-09-023-RFS.

Bruce A. Rogers, Esquire (argued), Law Offices of Bruce A. Rogers, Georgetown, Delaware, for Appellants.

James E. Liguori, Esquire, and Gregory A. Morris, Esquire, Liguori & Morris, Dover, Delaware; Stephani J. Ballard, Esquire (argued), Law Offices of Stephani J. Ballard, LLC, Wilmington, Delaware, for Appellees.

Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.


Page 520

VALIHURA, Justice:

In this appeal, we are asked to consider whether the Superior Court abused its discretion by declining to exercise its mandamus jurisdiction to remedy various alleged violations of the Law Enforcement Officers' Bill of Rights (" LEOBOR" ). Petitioners-below Shawn Brittingham (" Brittingham" ) and Christopher Story (" Story" ) (collectively, the " Appellants" ) sought mandamus relief for several alleged violations of LEOBOR while they were police officers with the Georgetown Police Department (" GPD" ). Respondents-below Town of Georgetown (" Georgetown" ),

Page 521

Georgetown Chief of Police William Topping (" Chief Topping" ), and Captain Ralph Holm (" Captain Holm" ) (collectively, the " Appellees" ) moved for summary judgment. The Superior Court granted the motion, thereby denying Brittingham and Story's petition for a writ of mandamus.[1]

On appeal, Brittingham and Story argue that the process afforded them did not comply with LEOBOR, and that their only remedy is a mandamus writ ordering vacatur of the resulting disciplinary decisions. Appellees respond that they did not violate LEOBOR, that Appellants' claims are now moot, and that the Superior Court did not abuse its discretion in denying the requested relief. We find that Brittingham and Story are correct that a technical violation of LEOBOR occurred, but we reject their claims as to all other alleged violations. However, as to the one meritorious claim, the matter is moot because neither Brittingham nor Story are presently employed by the GPD, and because the relief they seek is not relief that is available to them in a mandamus proceeding. Accordingly, for the reasons stated herein, we AFFIRM the Court's decision below as to all claims but one, and as to that claim, we hold that the claim is moot.


During the relevant time periods, Brittingham and Story were police officers employed by Georgetown in the GPD. In 2007, Chief Topping issued an oral order prohibiting GPD officers from meeting or speaking with the mayor or members of the Town Council to discuss internal police business without first obtaining his permission and going through the chain of command. In spite of this order, on December 23, 2009, seven off-duty officers met with Town Council Member Sue Barlow (" Barlow" ) at her home to discuss police department issues.

The scope of Chief Topping's order and the subjects discussed at the meeting have been the principal focus of a separate civil action and appeal, and were thoroughly examined in a separate opinion of the Superior Court, which we have affirmed in a separate Order.[2]

When Captain Holm learned of the meeting, he informed Brittingham, Story, and the other officers involved that they were being investigated for violating GPD Rules and Regulations. Chief Topping requested that the Dover Police Department send someone to do the internal investigation because so many GPD officers were either under investigation or otherwise involved in the matter.[3] The Dover Police Chief assigned Sergeant Eric Richardson for this purpose. On March 18, 2010, the officers under investigation were provided with a Notification of Professional Standards

Page 522

Inquiry. Sergeant Richardson interviewed each of the officers involved. Transcripts of those interviews were submitted to Captain Holm for review.

After reviewing the transcripts, Captain Holm determined that only one charge--insubordination--was substantiated. A written reprimand was offered to each of the officers, including Brittingham and Story. Although a written reprimand was below the matrix of permissible punishments for insubordination, Chief Topping testified that he and the Town Council offered a sanction below the penalty matrix[4] in an effort to resolve the matter.[5]

Rather than accept the written reprimand, Brittingham and Story elected to request a hearing as to the allegations made against them. Chief Topping contacted the Criminal Justice Council (" CJC" ) to form the panel. Prior to the hearing, Brittingham and Story filed a motion with the CJC to compel discovery of documents, evidence, and proof. The CJC denied the motion because it lacked authority to compel production and the officers failed to identify any exculpatory documents that had not been produced.

At a hearing before the CJC panel on September 9, 2010, Brittingham and Story acknowledged that they were aware of Chief Topping's order regarding contact with council members. After hearing the evidence presented by both sides, the CJC panel found substantial evidence to support the insubordination charge. The panel noted, " [t]he Board is cognizant that this case may raise First Amendment issues regarding the right of free speech and to petition the government for redress." However, the CJC panel did not address the constitutional question because its jurisdiction under 11 Del. C. § 9207 " is limited to making findings of fact." [6] The CJC quoted the United States Court of Appeals for the Ninth Circuit: " Resolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board." [7] The CJC panel was not asked to recommend a penalty.

Page 523

In October 2010, Chief Topping imposed discipline against Brittingham and Story. Brittingham received a four-week suspension without pay and a fourteen-day reduction in rank to Patrolman First Class, and was placed on disciplinary probation for one year. Story received a two-week suspension without pay, a seven-day reduction in rank to Patrolman, and disciplinary probation for one year. The officers appealed to the Town's Disciplinary Action Appeals Board. At a hearing held on October 18, 2010, the Appeals Board upheld the findings of the CJC panel.[8]

On September 24, 2010, Brittingham and Story filed a petition for a writ of mandamus in the Superior Court ( Brittingham I ).[9] In filing their mandamus petition, Brittingham and Story sought an order for a new hearing, additional production of documents, restoration of their employment status quo ante, and to have all records associated with the insubordination charge removed from their employment files. In addition, on January 4, 2011, they filed a civil complaint against Georgetown, Chief Topping, and Captain Holm in ...

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