The Supreme Court Considers How the State Must Handle Investigations Into Employee Misconduct in the Case of a Delay of State Action

In In re Grievance of John Lepore, 2016 VT 129 (Dec. 9, 2016), the State appealed a decision from the Labor Relations Board, which reversed the State’s terminated the employment of John Lepore for his conduct as a juror in the federal capital murder trial of Donald Fell.

Issue: The question before the Court is whether the State terminated Lepore within a reasonable time, and had just cause to do so, according to the State employees’ union collective bargaining agreement. Lepore worked as an environmental biologist for the Vermont Agency of Transportation in a role which required a considerable amount of interaction, maintenance of trust, and collaboration with other state employees and agencies. However, in his capacity as a juror for the Fell trial, he deliberately disobeyed instructions to the jury by travelling with his then-girlfriend to the crime scene and other locations relevant to the trial. He then reported his observations from this trip to his fellow jurors, who eventually found Fell guilty of all charges and sentenced him to death. Five years after sentencing, Lepore told attorneys working for Fell at that time about his actions as a juror, about which he then made a sworn statement, but later recanted these statements at a subsequent hearing. Lepore’s actions ultimately resulted in a new trial for Fell. The AOT learned about his conduct due to media coverage, but did not notify him about the investigation into his conduct or otherwise suspend him in any way. Lepore was informed of disciplinary charges, and was given an opportunity for a hearing, which was the first notice he had that the State was concerned about his actions as a juror relative to his employment status. He was terminated following the hearing. Upon appeal, the Board found that the State abused its discretion in terminating Lepore, given that the State had continued to employ him despite the serious violations it charged him with. The State then appealed the Board’s reversal of Lepore’s termination.

Holding: The Court reinstated the State’s termination of Lepore, holding that the Board overstepped its authority in reversing the State’s decision, which was objectively reasonable and based on the appropriate standard under the Colleran factors. The Board was only entitled to a review of the State’s decision under an abuse of discretion standard, which did not include developing its own interpretation of the State’s intent to reach its own conclusions.