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Vt. Police Board Releases Few Records

Burlington — How much can the public find out about internal investigations of police wrongdoing in Vermont? Very little, according to advocates for greater government transparency.

What’s worse, they complain, is that the commission being touted as the statewide model for public accountability of law enforcement — the State Police Advisory Commission — actually conducts most of its business behind closed doors and releases almost nothing about its own findings.

Last year, state lawmakers asked the Department of Public Safety’s Law Enforcement Advisory Board to consider whether the results of investigations of police misconduct should ever be made public. Currently, those findings are confidential unless an officer is charged with a crime.

On January 15, LEAB released a 51-page report recommending, among other things, that all law enforcement agencies in Vermont adopt a body “mirroring” SPAC. The seven-member civilian board, which typically meets every other month and reviews all internal affairs investigations of state troopers, provides nonbinding disciplinary recommendations, as well as other policy advice, to the commissioner of public safety.

“They’ve certainly given me some very useful information, which in some instances caused me to pause and look differently at the discipline I was going to impose,” says Vermont Public Safety Commissioner Keith Flynn.

By law, the all-volunteer SPAC has discretion to release any of its findings to the public. In reality, however, that almost never happens. Robert Appel, the outgoing executive director of the Vermont Human Rights Commission, told the Senate Judiciary Committee recently that adopting a SPAC-like model for all police agencies in Vermont would be a big mistake.

“I would caution against going down that road unless there’s significant reform to SPAC,” Appel told the committee, which is considering legislation to expand public access to police records. “The Vermont constitution says that public officials are accountable to the people. To me, this is not a viable scheme of accountability.”

SPAC was created in 1980 following a state police scandal that became known as the “router bit affair.”

An employee of a Lyndonville tool company who moonlighted as a state trooper was accused of giving fellow troopers router bits he’d stolen from the company.

The internal affairs review — and subsequent cover-up by a St. Johnsbury police sergeant and other troopers — prompted a wider investigation into VSP’s internal affairs and ultimately led then-governor Richard Snelling to demand the resignation of state police commissioner Francis Lynch in 1979. Later that year, Corporal Howard Gould, a trooper implicated in the router bit case, committed suicide at the Statehouse to protest the negative publicity that ruined his career.

SPAC was envisioned as a citizen board that would improve public oversight of police internal affairs reviews. But its own PR effort has been virtually nonexistent. SPAC’s website lists its members but includes no biographical information about them. The commission’s minutes are considered public information, but they’re not available online and can only be viewed by visiting Flynn’s office in Waterbury.

Several people in the criminal justice arena — including one prominent defense lawyer — had never even heard of the group.

A review of SPAC’s minutes dating back to 1994 — the earliest year for which the Department of Public Safety has records — confirms Appel’s claim that most of the commission’s business happens in executive session, during which no official notes are taken.

As Appel told the Senate Judiciary Committee, SPAC has released the findings of its investigations only once in its 30-year history. That case involved an allegation that Trooper Jared Hatch violated the state police bias-free policy when he detained two illegal immigrants during a September 13, 2011, traffic stop on Interstate 89 near Middlesex.

That highly publicized arrest sparked protests by Vermont’s civil libertarians and immigrant-rights groups, who accused the trooper of racial profiling. Critics noted that Hatch never cited the driver, a U.S. citizen with a valid driver’s license, with speeding, even though he was clocked going 88 miles per hour in a 65-MPH zone.

Instead, the trooper questioned the vehicle’s passengers, both of whom were migrant farm workers from Mexico, and asked for proof of U.S. citizenship. When they couldn’t produce any, Hatch notified Border Patrol, which initiated deportation proceedings.

In its review of the case, the Vermont Human Rights Commission concluded that racial profiling had occurred. The incident prompted Gov. Peter Shumlin to enact a new state policy prohibiting troopers from asking individuals about their immigration status unless they’re suspected of a crime.

But SPAC reached a different conclusion about Hatch’s behavior. In an undated letter issued shortly after the traffic stop, SPAC exonerated the trooper, concluding that his actions were “free of improper bias and in compliance with all applicable policies.”

It wasn’t the first time Hatch had been accused of racial profiling — or that SPAC had been asked to weigh in on his conduct. One year earlier, Appel referred a case to then-commissioner of public safety Thomas Tremblay in response to a phone call Appel’s office received from an interracial couple who alleged that Hatch had racially profiled them.

According to the trooper’s own affidavit, on July 16, 2010, he stopped a rental car, driven by an African-American man, for backing up on the Exit 7 northbound onramp to I-89 near Berlin. The driver wasn’t issued a ticket, but the trooper interrogated the driver’s partner, a white woman, about their travel plans, origins and how much cash they were carrying. The couple’s young children were in the back seat of the car at the time.

When the woman informed the trooper that they had $1,200 on hand and were headed for a flea market in Queens, N.Y. — as well as a mall in Holyoke, Mass. — the trooper contacted a K-9 unit to search the vehicle for drugs.

“Based on my training and experience,” Hatch wrote in his affidavit, “I know that Queens, N.Y. is a source city for narcotic traffickers. Further, I know that Holyoke Mall ... is a location that is commonly used by drug traffickers as a location to obtain narcotics and conduct drug transactions.”

A drug-sniffing dog subsequently discovered an eighth of an ounce of marijuana in the car. The driver was charged with drug possession, convicted and sent to court diversion.

Last week, Appel told lawmakers that the couple, fearing police retaliation, declined to file a formal complaint with the VSP or the Human Rights Commission. Appel declined to identify the couple and redacted their identifying information from the affidavit.

Shortly after receiving the call, however, Appel filed his own complaint on the couple’s behalf and requested an internal affairs review by the public safety commissioner and SPAC. He said it went nowhere.

“Despite my repeated efforts to find out what, if anything, happened with that investigation, I never heard. Stonewalled, zero, nothing, no outcome,” Appel told lawmakers. “If I, as executive director of the Human Rights Commission in my official capacity, can’t get an answer, what’s a general citizen going to get out of this process?”

Appel also questioned the diversity of SPAC’s membership. According to the Department of Public Safety website, “By statute, SPAC is made up of independent Vermont citizens who have no connection the Vermont State Police.” The problem, Appel explained, is that membership on SPAC is “highly stacked” with criminal justice insiders.

The chairwoman of SPAC is Nancy Sheahan, a partner with the Burlington law firm of McNeil, Leddy and Sheahan. She serves as counsel for the Vermont League of Cities and Towns and routinely represents municipalities that get sued for, among other things, police misconduct.

(Sheahan has represented the town of Hartford in two high-profile cases involving allegations that police used excessive force and repeatedly said the town did not have to release records from those incidents to the Valley News and other media outlets.) Sheahan didn’t return a call seeking comment.

Other SPAC members include Ugo Sartorelli, a former parole board member; Patti Pallito, a managing director at the captive insurance firm Aon Corp and the ex-wife of Corrections Commissioner Andy Pallito; Tom Crowley, a former state senator and retired judge; Shirley Jefferson, an associate dean at Vermont Law School; Laura Williams, a retired state employee; and Leo Willey, a retired state trooper who left the force in 1996. Only one member of the group returned a phone call from Seven Days.

SPAC member Willey, who spent 25 years as a state trooper — and was Flynn’s commanding officer when Flynn was on the force — confirmed that most of SPAC’s business, including all of its internal affairs discussions, happens behind closed doors. Asked about the Taser death of Macadam Mason case, for example, he said he could “neither confirm nor deny” that the commission ever discussed it.

Willey, who was appointed to SPAC by former governor Howard Dean, also confirmed that the commission doesn’t compile statistics on the number of cases it reviews or which ones result in disciplinary action or criminal charges.

Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said he’s never seen anything produced by SPAC other than its exoneration of Hatch. Such sparse reporting, he said, doesn’t instill much public confidence in the process. As he puts it, “It’s kind of hard to have faith that the internals are getting some sort of independent review and a good judgment is being made, because we don’t know what the recommendations are.”