Racial justice advocates want 3 Burlington police officers fired. What can the city legally do?

Racial justice advocates have been calling for months for the city of Burlington to fire three police officers involved in use of force incidents, mostly involving Black men.

The unmet demand has culminated in daily marches, protesters camping out in Battery Park right next to the Burlington Police Department and the resignation of a Burlington Police Commission member. Demonstrators hold signs calling out the three officers — Jason Bellavance, Cory Campbell and Joseph Corrow — who are defendants in lawsuits brought by the citizens who allege excessive force and racial bias. 

Protesters march through Battery Park on Aug. 27, 2020, calling on the Burlington Police Department to fire officers Joseph Corrow, Jason Bellavance and Cory Campbell.

All three officers have already been disciplined for their conduct, the police department said. However, racial justice advocates say the discipline was insufficient and they’re determined to stay at Battery Park until the officers are terminated.

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“I am concerned that their asks are not being considered in light of the 401 year-old problem of racism, the current racial reckoning of a nation or the commitment to change in the City of Burlington,” now-former police commissioner Mark Hughes said in his resignation letter. Hughes serves as executive director of Justice For All and is on the Steering Committee of the Vermont Racial Justice Alliance, which has been pushing for racial justice reform in the state. 

“The flat out dismissal of their demands is hypocritical as we declare racism as a public health emergency as the top concerns for danger or death of black folks like me in Burlington is interaction with a police officer,” he added.

The question at the heart of this: Is the city legally able to meet protesters’ demands?

Vermont is an at-will employment state. Does that matter here?

The short answer is no. 

Burlington’s police officers are represented by a union, the Burlington Police Officers Association, which has a collective bargaining agreement with the city. The union contract prevents the city from disciplining or firing officers without cause.

State law also establishes a process for all police officers in Vermont to be advised of the allegations against them, be represented by a lawyer, and to have a hearing to respond to the accusations. 

Signs hanging along the intersection of North Ave. and Sherman St. in Burlington on Aug. 27, 2020. Protestors have camped nearby in Battery Park since Tuesday, demanding in part the firing of three Burlington police officers involved in incidents of force against Black residents.

Who decided the officers’ discipline? 

According to the Burlington city charter, the final decision on discipline for officers rests with the chief of police. Officers can file an appeal to the Burlington Police Commission, which then may affirm, modify, or vacate the decision. In each of the three officers’ cases, there was no appeal.

Bellavance, who had the most severe punishment of the three officers, was suspended without pay for two weeks, police said. Bellavance approached a Black man without announcing his presence and shoved the man against a wall, knocking him unconscious, a lawsuit states.

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Rich Cassidy, the lawyer for the Burlington Police Officers Association, said the cases were fully investigated and were reviewed by the Chittenden County State’s Attorney and, in one case, the Vermont Attorney General. The city completed internal investigations into the officers’ conduct.

“The cases are closed as a matter of law,” Cassidy wrote in a statement.

Disciplinary decisions should not be at the sole discretion of the police chief, Burlington Mayor Miro Weinberger said on Wednesday. He has floated the idea of a charter change that would open up the process. 

“The way in which our discipline is done currently is constrained in our charter,” Weinberger said. He added, “That’s a frustration for me.” 

People gather in Burlington in protest of the police shooting of Jacob Blake in Kenosha, Wisconsin, and against police brutality on Aug. 25, 2020.

Can the officers’ disciplinary cases be reopened?

Burlington City Attorney Eileen Blackwood said the cases can only be reopened if new information about the incidents comes to light. Otherwise, reopening them would violate the union contract, which states, “Once the measure of discipline is determined and imposed, the City shall not increase it for the particular act or misconduct unless new facts or circumstances become known.”

In an email to City Councilors in July provided to the Burlington Free Press by Blackwood, she added that re-examining the affidavit or video footage that was available at the time of the initial investigation would not amount to “new facts or circumstances.”

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“It is my legal opinion that the city cannot take further action against these officers for these incidents without exposing the city to significant legal actions and potentially substantial damages, as well as possible reinstatement of the officers or other injunctive remedies,” Blackwood wrote.

Cassidy said the union would likely demand arbitration if the city decided to take further action against the officers.

“An arbitrator would find the matter had already been resolved under the contract and that no further discipline could be imposed,” Cassidy wrote in a statement. “The city would be ordered to reinstate the officers, or to pay the equivalent of their salary and benefits for the rest of their careers. Millions of dollars would be wasted.” 

Double punishment for the same offense goes against general labor law, and is referred to as “double jeopardy,” according to Tim Noonan, the executive director of the Vermont Labor Relations Board. Noonan spoke about labor laws in Vermont generally as he has no jurisdiction over the Burlington police case. 

“Discipline has been received, so that would be the end of it,” Noonan said.

Hughes: City is choosing not to take action

In his resignation letter, Hughes said the city of Burlington has the ability to take action on the protesters’ demands — it is just unwilling to do so because of the potential cost.  

Mark Hughes with the Vermont Racial Justice Alliance speaks at a news conference in which racism is declared a public health emergency. July 16, 2020.

“This administration is unwilling to consider that cost that black bodies have paid throughout history or the pornographic levels of wealth acquired by white people as a result of it – unwilling to consider the cost that the folks of the BIPOC-led Movement in Battery Park are willing to pay,” Hughes wrote.

Hughes called on the City Council and Police Commission to convene emergency meetings, and for Weinberger to prioritize the safety of Black community members over money.

The city can always choose to negotiate with the officers and offer them a payout to leave the police department, Vermont Law School Professor Joan Vogel, who specializes in employment law, said. However, this option would be dependent on the cooperation of the three officers. 

“Sometimes it’s worth taking on something if you can, in fact, just pay somebody off and get rid of them,” Vogel said. “There are times when an employer will do that.”

Looking forward

The place where the city of Burlington may have the most legal leeway right now is in fixing the system that allowed for this situation to occur in the first place, Vogel said.

“If the demonstrators are perceiving, ‘They’re finding excuses to do nothing here, they’re not listening to us,’ that won’t help,” Vogel said. “(The mayor) needs to be as proactive as he can be.” 

Most immediately, the city should work to change the disciplinary structure so the mayor and police commission can give input on potential punishments, she said. Oversight of the officers at the center of the protests could be increased or they could be given different assignments where they are dealing less with the public.

The disciplinary structure for officers should be progressive, Vogel said, adding that it could be adjusted so past insufficient punishments are no longer the norm. 

“Part of this is a due process concern,” she said. “You want (officers) to know what they’re expected to do, and understand what will happen if they don’t follow those things.”

Contact Elizabeth Murray at 802-651-4835 or emurray@freepressmedia.com. Follow her on Twitter at @LizMurrayBFP.

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