STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC. SUPERIOR COURT
[Filed: July 24, 2018]
LOUIS A. DEQUATTRO, JR. :
:
V. : C.A. No. PC-2015-3438
:
THE RHODE ISLAND PERSONNEL :
APPEAL BOARD and PAUL MCGREEVY, :
Individually and in his Official Capacity as the :
Former Director of the RHODE ISLAND :
DEPARTMENT OF BUSINESS :
REGULATION :
DECISION
TAFT-CARTER, J. Appellant Louis A. DeQuattro, Jr. (Appellant or DeQuattro) appeals the
August 31, 2015 decision of the Rhode Island Personnel Appeal Board (the Board or PAB)
upholding the discipline imposed by the Department of Business Regulation (DBR) on
DeQuattro. Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth in this
Decision, the Court affirms the decision of the PAB.
I
Facts and Travel
A
DeQuattro’s Work History
DeQuattro, an attorney and certified public accountant, began his career in state service
in 1992 as an insurance examiner for the Department of Business Regulation (DBR), Insurance
Division. (Decision 3; Hr’g Tr. 92:1-22, May 18, 2015.) Over the years, DeQuattro rose to the
positions of Deputy Chief Legal Counsel for the Department of Administration and Associate
Director and purchasing agent. (Decision 3.) At the time of the challenged disciplinary action, he
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served as Deputy Director of Legal Services at the DBR and “Executive Counsel.” (Decision 3-
4.) In these capacities, DeQuattro supervised the DBR’s staff attorneys, managed legal work for
the DBR, and addressed issues relating to gaming and banking (Decision 4; Hr’g Tr. 8-9, Apr.
16, 2015.) In addition to these duties, DeQuattro was a hearing officer in municipal liquor
licensing disputes, the agency’s public information officer, and the ethics officer for the DBR.
(Decision 4; Hr’g Tr. 9:15-11:6, Apr. 16, 2015.) In addition to his work in state service,
DeQuattro held the part-time position of North Providence Municipal Court Judge since July
2011. (Hr’g Tr. 179:14-22, May 18, 2015.)
In 2010, while employed as Associate Director and purchasing agent in the Department
of Administration, DeQuattro received a letter of reprimand from Rosemary Booth Gallogly, the
Director of the Department of Administration. (Decision 4.) The letter of reprimand admonished
DeQuattro for “us[ing] poor judgment and violat[ing] purchasing procedures” when he
considered an untimely filed contracting bid from H.V. Collins while acting in his capacity as a
purchasing agent on November 25, 2008. (State’s Ex. 11.) The letter was not included in
DeQuattro’s personnel file, but was kept in Human Resources records. (Hr’g Tr. 236:4-11, May
18, 2015; Hr’g Tr. 41:1-42:10, May 20, 2015.)
At all times relevant to this appeal, the DBR and the Division of Lotteries, Department of
Revenue (Lottery) worked together to regulate the gaming industry in Rhode Island. (Hr’g Tr.
51:11-52:10, Feb. 26, 2015.) Together, they jointly held “full operational control” of the
regulation of the Twin River Casino (Twin River)1 in Lincoln, Rhode Island. (Decision 2, citing
1 Twin River is owned and operated by Twin River Management Group.
3
§ 42-61.2-2.1(c); Hr’g Tr. 7:4-13, Apr. 16, 2015.)2 In order to ensure the State’s investment in
the casino remained within Rhode Island, Twin River was subject to a compliance agreement
with the Lottery and the DBR. (Hr’g Tr. 54:17-55:14, Feb. 26, 2015.) The agreement set forth
specific procedures and required disclosures regarding the transfer of assets or debts of Twin
River. Id.
The Rhode Island State Police exercised oversight of Twin River through its Gaming
Enforcement Unit. The unit is charged with “[c]onducting due diligence . . . and background
investigations with respect to entities and individuals required to be licensed by the division
and/or the department of business regulation.” Sec. 42-61.3-1; Decision 2-3, citing State’s Ex. 7
and Hr’g Tr., Apr. 7, 2015.
As a result of the regulatory interplay among the three government entities, DeQuattro
frequently collaborated with the Lottery and the State Police to regulate Twin River. (Decision 2-
3; Hr’g Tr. 53:9-21, Feb. 26, 2015.) He was the DBR’s contact person for Lottery Director
Gerald Aubin and Craig Eaton, chief legal officer at Twin River. (Decision 4; Hr’g Tr. 53:9-21,
Feb. 26, 2015; Hr’g Tr. 14:10-22, Apr. 7, 2015.)
B
The 2013 Liquor Board Hearing
This appeal concerns two instances of misconduct. The first instance of misconduct
concerns a 2013 Liquor Board hearing. On August 1, 2013, DeQuattro served as a hearing
officer for the DBR in the matter of RMP Investment Group v. City of Providence, DBR No.
2 The Court notes that the March 4, 2016 enactment of P.L. 2016, ch. 6, § 2 modified § 42-61.2-
2.1(c) to grant full operational control to only the Lottery. For the purposes of this administrative
appeal and all underlying facts, however, the previous language of § 42-61.2-2.1(c) controls.
4
13LQ063, regarding the appeal of a grant of a liquor license to RMP Investment Group, LLC
(RMP). (State’s Ex. 5; Decision 7.) During the hearing, DeQuattro admitted into the record a
letter from Dino Autiello, Vice President of the North Providence Town Council, advocating for
the approval of the liquor license. (State’s Ex. 5.) The letter was addressed to “Judge DeQuattro”
and endorsed “the character, business acumen, and professionalism” of the applicants for the
license, based on the letter writer’s experience as a former employee of the applicants. (July 30,
2013 Letter from Dino Autiello, State’s Ex. 5.) DeQuattro stated on the record that he had
received the letter by mail and accepted the letter into the record without disclosing to the parties
his position as a North Providence Municipal Judge. (RMP Investment Group v. City of
Providence Hr’g Tr. 6:11-23, Aug. 1, 2013, State’s Ex. 5.) On October 4, 2013, DeQuattro
issued a recommendation that the DBR uphold the grant of a liquor license to RMP. (In the
Matter of Liquor License Application of RMP Investment Group, LLC, Decision and Order, Oct.
4, 2013, State’s Ex. 5.) DBR adopted the recommendation as its decision, dated October 7, 2013.
Id.
The decision was appealed to the Superior Court. In the appeal, it was argued that
DeQuattro had failed to disclose his employment as a Municipal Court Judge for North
Providence. (State’s Ex. 5.) On September 30, 2014, the DBR moved for remand of the RMP
matter in part to address the issue of alleged bias resulting from DeQuattro’s failure to disclose
his professional relationship with Autiello. (State’s Ex. 5; Findings of Fact, Decision ¶ 64.) The
DBR personnel and legal team brought this issue to the attention of Paul McGreevy, the DBR
Director, during the March 2015 investigation into the second instance of DeQuattro’s
misconduct. (Hr’g Tr. 17:18-18:5, Apr. 16, 2015.)
5
C
Twin River and Fertitta
The second instance of misconduct concerns an issue involving Twin River. On February
13, 2014, while conducting a background investigation pursuant to § 42-61.3-1, Corporal
Timothy Allen of the State Police met with Tilman Fertitta, CEO of Fertitta Entertainment, in
Houston, Texas to discuss the investor’s interest in increasing his investment in Twin River.
(Hr’g Tr. 117:1-8, Apr. 7, 2015.) During the interview, Fertitta mentioned a 2012 conversation
he had with John Taylor, Board Chairman of Twin River Management Group. Id. at 117:19-
118:1. Fertitta stated that he had set up the 2012 meeting with Taylor because he was interested
in acquiring Twin River Management Group. Id. at 123:5-8. According to Fertitta, Taylor told
him that “Rhode Island was unlike anywhere else,” and that he would have an issue with the
regulators. Id. at 123:17-18. According to Allen’s testimony, Fertitta “repeatedly stated” that he
thought Taylor was “hiding behind the regulators” and was “upset” about the way the meeting
went. Id. at 123:19-20, 125:8-9; Excerpt, Fertitta Inc. Background Investigation, Appellant’s Ex.
B.
Fifteen days later, on February 28, 2014, Lt. Flaherty told Aubin about his meeting with
Fertitta and the comment Fertitta had made about his 2012 conversation with Taylor. (State’s Ex.
3.) Lt. Flaherty advised Aubin he wished to contact the DBR to ask if they had knowledge of this
potential purchase. Id.
On March 3, 2014, Lt. Flaherty contacted DeQuattro to schedule a meeting. (Hr’g Tr.
128:18-129:2, May 18, 2015.) At the meeting, Flaherty asked DeQuattro a number of questions
concerning companies interested in purchasing Twin River and whether DeQuattro was aware of
a company offering to purchase Twin River in late 2012. Id. at 130:12-131:24. Flaherty informed
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DeQuattro about Fertitta’s offer and the ensuing conversation between Fertitta and Taylor. Id.
DeQuattro gave Flaherty his thoughts on what Taylor might have meant. Id. at 132-33. During
the conversation, Flaherty questioned DeQuattro concerning the compliance agreement and
whether it required Twin River to disclose this offer. Id. at 136:1-16. DeQuattro concluded it
would not. Id. at 136:1-22. Later that day, DeQuattro had separate conversations with McGreevy
and Maria D’Alessandro. Id. at 134:10-23.
Lt. Flaherty met with Aubin and Marilyn McConaghy, legal counsel for the Lottery. At
that meeting, he cemented his conclusion that Twin River was not obligated to report the offer.
(State’s Ex. 3; Hr’g Tr. 75:1-22, Feb. 26, 2015.) Flaherty spoke with Aubin about the details of
his conversation with DeQuattro. (State’s Ex. 3.) Aubin told Flaherty that he planned to call a
meeting with Taylor and other members of Twin River leadership because he was “very, very
concerned” about Fertitta’s comment and wanted to “determine what was said at the . . .
meeting.” (State’s Ex. 3; Hr’g Tr. 76:2-3, Feb. 26, 2015.) Aubin was particularly “concerned”
that a “potential purchaser” of the casino had indicated to the State Police that he was not going
forward with a purchase because he believed “the regulators were preventing him from doing
so.” (Hr’g Tr. 76:2-16, Feb. 26, 2015.) Aubin emailed Taylor to set up a meeting for March 14,
2014, but did not advise Taylor of the reason for the meeting. (State’s Ex. 3; Hr’g Tr. 76:16-
77:5; 78:19-23, Feb. 26, 2015.)
Aubin testified that he spoke to DeQuattro by telephone the next day. (Hr’g Tr. 78:21-
79:1, Feb. 26, 2015; Hr’g Tr. 138:19-24, May 18, 2015.) Aubin told DeQuattro he was “very
concerned about the alleged allegations made by Mr. Taylor” to Fertitta. (Hr’g Tr. 81-1:11, Feb.
26, 2015.) Furthermore, he told DeQuattro that he was scheduling a meeting with Taylor at the
Lottery but that he had not disclosed the topic of the meeting because he did not want Taylor to
7
“have a prepared” answer. Id. DeQuattro disputes the conversation and maintains that Aubin
told him he “might want to chat with” Twin River leadership about the deal. (Hr’g Tr. 144:12-
16; 139:20-140:6, May 18, 2015.)
On a routine business call on March 13, 2014, Craig Eaton, General Counsel for Twin
River, told DeQuattro he and Taylor had a meeting the next day with Aubin and had not been
given a reason for the meeting. (Hr’g Tr. 19:18-23, Apr. 7, 2015.) Eaton asked DeQuattro if he
had any idea what the call might be about. Id. at 19:22-23. Eaton recalled that DeQuattro told
him “between me and you, I think they’re going to—they want to ask you about Fertitta; you
might want to—you might . . . just . . . make yourself familiar [with] the Fertitta meeting.” Id. at
20:1-7. According to Eaton, when he asked what the Fertitta meeting was, DeQuattro told him,
“I’m not going to say anymore.” Id. at 20:21-24. DeQuattro disputes this characterization of the
conversation and testified that when Eaton asked him what the meeting might be about
DeQuattro responded that Aubin “might have some questions on . . . the proposed deal and the
offer that was made between Fertitta and Taylor.” (Hr’g Tr. 154:18-22, May 18, 2015.) The next
day, Aubin, Allen and Marilyn McConaghy met with Taylor, Eaton, and Craig Sculos, general
manager of Twin River. DeQuattro spoke to Eaton after the meeting. (DeQuattro and Eaton
Hr’g Tr. 161:5-8, May 18, 2015.) Eaton later informed Taylor of his conversation with
DeQuattro, telling him, “I think they’re going to ask us about Fertitta tomorrow; I don’t really
. . . know what that is.” (Hr’g Tr. 21:5-8, Apr. 7, 2015.) According to Eaton, Taylor then
“refreshed his memory” about the New York meeting with Fertitta. Id. at 22:3-4.
The next day, Aubin, Allen, and Marilyn McConaghy met with Taylor, Eaton, and Craig
Sculos, general manager of Twin River. (Hr’g Tr. 161:5-8, May 18, 2015.) Aubin spoke to Eaton
after the meeting. Id. at 162:8-10.
8
On March 18, 2014, Allen met with Eaton to ask him three questions concerning the
March 14, 2014 meeting. Id. at 142:18-19. Allen sent an interdepartmental memorandum to
Flaherty documenting the March 14, 2014 meeting, including his assessment that “[i]t was
readily apparent” that the Twin River representatives knew the topic of the meeting prior to the
meeting. (State’s Ex. 4; Hr’g Tr. 91:16-92:9, Feb. 26, 2015.) It also documented Allen’s March
18, 2014 conversation with Eaton, as follows:
“This detective asked Mr. Eaton the following questions:
“Did any member of the State Police contact you regarding the
topic or scope of the questions for John Taylor prior to the meeting
on Friday, March 14th: response: No
“Did any member of the RI lottery contact you regarding the topic
or scope of the questions for John Taylor prior to the meeting on
Friday, March 14th: response: No
“Did any member of the Department of Business Regulation
(DBR) contact you regarding the topic or scope of the questions
for John Taylor prior to the meeting on Friday, March 14th:
response: Yes
“Who contacted you? Lou DeQuattro
“How did he contact you? Telephone conversation- Was not sure if
he called Mr. DeQuattro or if Mr. DeQuattro called him.
“When was this phone conversation? Either the Wednesday or
Thursday prior to the date of the scheduled meeting at RI Lottery.
“What was said? Mr. DeQuattro said ‘between you and me’ a
‘heads up’ regarding the meeting with John Taylor and the RI
lottery. Familiarize yourself prior to the meeting with the offer
from [Fertitta—] an issue may come up.” (State’s Ex. 4.)
After receiving the memorandum, Lt. Flaherty delivered a copy to Aubin. (Hr’g Tr. 91:16- 92:9,
Feb. 26, 2015.)
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D
Investigation and Discipline
On March 24, 2014, Aubin drafted a memorandum documenting his March 18, 2014
conversation with Lt. Flaherty. (State’s Ex. 3; Hr’g Tr. 66:9-20, Feb. 26, 2015.) He sent this
memorandum, along with Allen’s interoffice memorandum (State’s Ex. 4), to McGreevy. (Hr’g
Tr. 12:20-22, Apr. 16, 2015.) Upon receipt of the documents, McGreevy immediately called
Tony Bucci, Personnel Director, and advised him of the personnel issue. Id. at 13:14-16.
The following day, McGreevy held a meeting with the personnel and legal team
concerning DeQuattro. (Hr’g Tr. 13:23-14:7, Apr. 16, 2015.) At the meeting, McGreevy asked
the team to conduct an investigation and report back their findings. Id. The team concluded that
DeQuattro should be placed on paid administrative leave. Id. at 14:12-23. The following day,
McGreevy’s secretary called DeQuattro to tell him that McGreevy wanted to meet with him.
(Hr’g Tr. 165:1-7, May 18, 2015.) A meeting was scheduled for Friday, March 28, 2014. Id.
On March 28, 2014, DeQuattro met with McGreevy and Kathleen Lanphear. (Hr’g Tr.
164:20-23, May 18, 2015). At the meeting, he was placed on paid administrative leave and was
relieved of all his duties. Id.; Hr’g Tr. 13:23-15:1, Apr. 16, 2015.
On June 5, 2014, DBR issued two disciplinary charges against DeQuattro (Appellant’s
Ex. H; See Hr’g Tr. 81:5-14, May 18, 2015.) The first charge read as follows:
“it has been reported that, during a telephone conversation a day or
two before the [March 14] meeting . . . you told the General
Counsel of the regulated gaming facility that, during the upcoming
meeting, the Director of the Division of Lotteries might ask the
[Twin River] Chairman about his earlier discussion with the
prospective purchaser of the regulated facility . . .
“By alerting the representatives . . . to the topic of discussion ahead
of time, you undermined the purpose of the meeting and the
10
Director’s strategy and failed to demonstrate proper judgment and
an ability to maintain confidences entrusted to you.” (Appellant’s
Ex. H.)
The second charge alleged that DeQuattro failed to disclose a potential conflict of interest during
the RMP liquor board hearing on August 1, 2013, and that the failure to disclose his relationship
with the author of the letter, which, “whether a deliberate concealment or a lapse of judgment,
created an appearance of impropriety which strikes at the integrity of the Department’s
administrative appeals process.” Id.
On June 10, 2014, the DBR conducted its pre-disciplinary/Loudermill hearing. See
State’s Ex. 8. On advice of counsel,3 DeQuattro did not take an oath at the Loudermill hearing.
(Hr’g Tr. 231:4-11, May 18, 2015.)
On June 17, 2014, the DBR Human Resources (HR) department issued its
recommendation for DeQuattro’s discipline. (Appellant’s Ex. F.) In the draft letter, HR
recommended a ten-day suspension without pay. Id. Later that month, Jennifer Sternick4 was
assigned to McGreevy as legal counsel for this case. (Hr’g Tr. 66:18-24, Apr. 16, 2015.)
McGreevy spoke with Sternick in determining the appropriate level of discipline for this case.
(Hr’g Tr. 48:22-49:5, May 18, 2015.) McGreevy testified that in addition to the recommendation
of HR, he used pages five through eight of the transcript from the RMP hearing (State’s Ex. 5),
Aubin’s memorandum (State’s Ex. 3), Allen’s memorandum (State’s Ex. 4), and the transcript
from DeQuattro’s June 10, 2014 Loudermill hearing (State’s Ex. 8) to make his decision to
demote DeQuattro. (Hr’g Tr. 31:20-32:4, Apr. 16, 2015.)
3 DeQuattro was represented by counsel for all proceedings relevant to this appeal after the
Loudermill hearing.
11
The final disciplinary letter was issued to DeQuattro on July 3, 2014. (PAB R. 13, July 3,
2014 Letter; See Hr’g Tr. 87:1-13, May 18, 2015.) The letter asserted that DeQuattro created an
“appearance of impropriety” with his actions at the RMP liquor board hearing, and further stated
that
“despite being directly informed by the Director of the Division of
Lotteries that he would be meeting with the Chairman of the
regulated facility and had not disclosed the subject of the meeting
ahead of time because he hoped to elicit a spontaneous and
unrehearsed response to questioning, prior to the March 14, 2014
scheduled meeting between the Director of the Division of
Lotteries and the Chairman of Twin River, you alerted the
representatives of the regulated facility to the topic of discussion,
you undermined the purpose of the meeting and the Director’s
strategy and failed to demonstrate proper judgment, and also failed
to keep confidences entrusted to you in your position as Executive
Counsel.” (PAB R. 13, July 3, 2014 Letter.)
The letter also included the State’s disciplinary action: “Based on the foregoing information and
the seriousness of your actions, you are hereby suspended without pay for thirty (30) working
days . . . and furthermore, demoted to the position of Chief Licensing Examiner . . .” Id.
Sometime during July or August 2014, the union steward at DBR informed McGreevy
that DeQuattro was not eligible for the position of Chief Licensing Examiner. (Hr’g Tr. 39:18-
40:16, May 18, 2015.) The issue was put into abeyance pending DeQuattro’s appeal. Id. at
40:21-41:2.
DeQuattro filed a timely notice of appeal to the Board on July 17, 2014, attaching
McGreevy’s July 3, 2014 letter. (PAB R. 14.) A hearing began on February 19, 2015. (Decision
12.) On February 19, 2015, the Board heard three preliminary motions: the State’s motion to
4 Sternick has served as counsel for the State in this case both before the Personnel Board and
this Court.
12
dismiss5; the State’s motion to compel a witness list, a statement of facts, and hearing exhibits;
and Appellant’s motion for subpoenas to the Departments of Administration, Business
Regulation and Revenue. (Hr’g Tr. 4:1-18, Feb. 19, 2015.) Hearing on the merits began on
February 26, 20156 and continued on March 10, 2015; April 7, 2015; April 9, 2015; April 16,
2015; May 18, 2015; and May 20, 2015. (Decision 2.)
Four witnesses testified on behalf of the State. Gerald Aubin and Craig Eaton, chief legal
officer of Twin River, testified on February 26, 2015; Corporal Timothy Allen testified on April
7 and April 9, 2015; and Paul McGreevy testified as the State’s fourth witness on April 16 and
May 18, 2015. DeQuattro testified on May 18 and May 20, 2015, and was the sole witness to
testify on his behalf.
On July 7, 2015, the Board issued its decision upholding DBR’s demotion and
suspension of DeQuattro on the grounds that he improperly revealed confidential information to
5 On January 8, 2015, the State moved to dismiss Appellant’s appeal to the Board for lack of
jurisdiction, asserting that because G.L. 1956 § 36-3-10 restricts appeals to the Board to
members of the classified system and to employees alleging discriminatory action, the Board has
no jurisdiction over DeQuattro, who served as an unclassified employee as a legal advisor and
did not allege discrimination. (PAB R. 37 at 2, Jan. 8, 2015.) Subsequently, DeQuattro filed his
objection to the State’s motion to dismiss through counsel on February 7, 2015, asserting that his
role of Deputy Director was a classified position and, as such, falls within the Board’s
jurisdiction. (PAB R. 39.)
The Board unanimously voted to deny the State’s motion to dismiss and issued a bench decision
finding that DeQuattro was a classified employee and that there was no record that he occupied a
position in state service as executive counsel (Hr’g Tr. 75:16-76:11, Feb 19, 2015). On February
24, 2015, the State filed a motion to stay proceedings before the Board in Superior Court on the
same grounds (PAB R. 40.) DeQuattro filed an opposition to the State’s motion the next day,
February 25, 2015. On February 26, 2015, the Superior Court heard arguments on and denied the
motion. 6 Before proceeding to the first day of the hearing on the merits, the Board preliminarily granted
Appellant’s request for a subpoena to the State Police for all correspondence regarding
13
Twin River, and that he failed to disclose a potential conflict of interest while presiding as a
Hearing Officer at the RMP liquor board appeal.7 Noting that there was a dispute regarding the
content of the March 14, 2014 conversation between Aubin and DeQuattro, the Board found
Aubin to be the more credible witness. The Board based its credibility determination on
observations during the hearing and the fact that Aubin memorialized his conversation with
DeQuattro “within a reasonable amount of time after it had taken place, when his memory was
still fresh.” (Decision 14; State’s Ex. 3.) In contrast, the Board noted, DeQuattro did not
memorialize his conversation and misrepresented his state service record as “unblemished.”
(Decision 14; State’s Ex. 11.) The Board stated that despite his claim, DeQuattro had received a
2010 letter of reprimand for failure to adhere to bidding procedures. Id. The Board further noted
that even if they found DeQuattro’s account of his conversation with Aubin to be more credible,
his actions “were still manifestly improper under the circumstances.” (Decision 14.)
With regard to DeQuattro’s alleged failure to disclose his position as a North Providence
Municipal Court Judge, the Board found that there were no material facts in dispute. (Decision
16.) After finding that DeQuattro had failed to disclose this potential conflict of interest, the
Board found that McGreevy’s “entirely legitimate concern” had been that this failure to disclose
created the appearance of impropriety, not that it created an actual conflict of interest. Id. The
Board noted that DeQuattro’s response to Attorney Litwin created “the appearance of downright
evasiveness,” and that his failure to disclose any potential conflicts of interest on the record
DeQuattro, Eaton, Aubin, and McConaghy. (Hr’g Tr. 25:6, 20:22-23, Feb 26, 2015.) The State
requested and was granted subpoenas for the testimony of Eaton and Allen. Id. at 27:23-28:22. 7 The Board also included its findings of fact and conclusions of law from its February 19, 2015
bench decision to deny the State’s motion to dismiss in its written July 7, 2015 decision. Neither
party has challenged this portion of the Board’s decision.
14
“‘opened the door’ to challenges on the basis of bias, and thus called the integrity of the DBR
hearing process into question.” Id. at 17-18.
Finally, the Board found that the level of discipline McGreevy imposed on DeQuattro
was “entirely appropriate to the circumstances.” (Decision 18.) Noting that the role of Deputy
Director required both McGreevy and Aubin to have “a high degree of trust and confidence” in
him, the Board found that DeQuattro’s actions demonstrated he was unable to fulfill that trust.
Id. Furthermore, the Board found that DeQuattro had demonstrated an inability to appreciate the
severity of his conduct. Id. The Board based this finding on DeQuattro’s repeated
characterization of his comment to Eaton as a misunderstanding, his continued defense of his
failure to disclose his status as a Municipal Court Judge, and his inability to articulate how he
would restore the trust required for his position. Id. at 19. The Board noted that when DeQuattro
was asked to explain Aubin’s testimony about their conversation, he stated that he believed
Aubin had “a misunderstanding of what we talked about and what the conversation entailed.”
(Hr’g Tr. 52:21-23, May 20, 2015.) DeQuattro subsequently appealed the decision to this Court
on August 6, 2015, seeking reinstatement to his former position and salary.
II
Standard of Review
The Superior Court’s review of an administrative decision is governed by § 42-35-15 of
the Administrative Procedures Act (APA), which provides as follows:
“(g) The court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of fact. The
court may affirm the decision of the agency or remand the case for
further proceedings, or it may reverse or modify the decision if
15
substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error or law;
“(5) Clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record; or
“(6) Arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.” Sec. 42-35-15(g).
In reviewing an administrative decision, “the [C]ourt must confine itself to review of the
record to determine whether ‘legally competent evidence’ exists to support the agency decision.”
Baker v. Dep’t of Emp’t & Training Bd. of Review, 637 A.2d 360, 363 (R.I. 1994) (citing Envtl.
Sci. Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993)). Essentially, “if ‘competent evidence exists
in the record, the Superior Court is required to uphold the agency’s conclusions.’” Auto Body
Ass’n of R.I. v. State Dep’t of Bus. Regulation, 996 A.2d 91, 95 (R.I. 2010) (quoting R.I. Pub.
Telecomms. Auth. v. R.I. State Labor Relations Bd., 650 A.2d 479, 485 (R.I.1994)).
Regarding issues of credibility, the Superior Court “is not privileged to assess the
credibility of witnesses and may not substitute its judgment for that of the [agency] concerning
the weight of the evidence on questions of fact.” Liberty Mut. Ins. Co. v. Janes, 586 A.2d 536,
537 (R.I. 1991). Accordingly, the Court must sustain the decision of the agency “unless it finds
that the decision was clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record.” Id. (quoting § 42-35-15(g)(5)).
16
III
Analysis
A
DeQuattro’s Resignation
As an initial matter, the Court will address an issue raised by the State: whether
DeQuattro has waived his right to reinstatement in public service by resigning from his position.
In support of this argument, the State proffers correspondence between DeQuattro and the Office
of Personnel Administration (“Sept. 9, 2015 Letter from DeQuattro” and “Sept. 14, 2015 Letter
from Office of Personnel Administration,” respectively) where DeQuattro informed the State he
will not be returning to employment, and the State accepted. The State posits that an employee
who resigns from state service relinquishes his right to employment in state government. R.I.
Pub. Telecomms. Auth. v. Russell, 914 A.2d 984 (R.I. 2007).
However, Russell involved a voluntary retirement, while the correspondence before the
Court does not. Unlike the appellant in Russell, who accepted voluntary retirement after a layoff
for reasons unrelated to his job performance, DeQuattro alleges that he was wrongfully demoted.
The Russell Court carefully distinguished voluntary retirement from wrongful discharge. See
Wilkinson v. State Crime Lab. Comm’n, 788 A.2d 1129 (R.I. 2002) (holding that an employee
who alleged that he was wrongfully discharged and then reinstated at a lower, unclassified
position did not waive his right to reinstatement in his original position); Russell, 914 A.2d at
994 (distinguishing Wilkinson by noting that the appellant in that case had alleged wrongful
termination). The Court thus finds that DeQuattro has not waived his right to reinstatement by
resigning from state government.
17
B
Evidentiary Issues
1
The Twin River Meeting Charge
DeQuattro challenges the Board’s finding that he disclosed the topic of the March 14,
2014 meeting to Eaton in violation of the confidence placed in him by Aubin. Specifically,
DeQuattro contends that no evidence on the record supports the Board’s finding because “not a
single witness” testified that he informed Eaton that the purpose of the March 14, 2014 meeting
was to discuss the comment Taylor made to Fertitta in 2012. DeQuattro further avers that
McGreevy changed his testimony on this issue between the April 16 and May 18, 2015 hearings,
and the Board erroneously relied upon this inconsistent testimony in making its decision.
Title 36, chapter 4, § 38 of the Rhode Island General Laws sets out the conditions under
which an agency may terminate an employee in state service. A classified employee with
permanent status “may be dismissed by an appointing authority whenever he or she considers the
good of the service to be served thereby, stated in writing, with full and sufficient reason, and
filed with the personnel administrator.” Sec. 36-4-38. Our Supreme Court has determined that
the phrase “the good of the service” places the burden of proof on the appointing authority to
establish that a personnel action is “for cause,” by establishing “substantial grounds” via “legally
sufficient evidence.” Hardman v. Pers. Appeal Bd., 100 R.I. 145, 151-52, 211 A.2d 660, 664
(1965) (citing Aniello v. Marcello, 91 R.I. 198, 207, 162 A.2d 270, 274 (1960)).
DeQuattro notes that “not a single witness” testified in support of the charge that he
disclosed the issues involved in the March 14, 2014 meeting. However, the issue before the
Board was the July 3, 2014 final employment decision. This July 3, 2014 final decision letter
18
included the finding that DeQuattro “alerted the representatives of the regulated facility to the
topic of discussion,” “undermined the purpose of the meeting and the Director’s strategy and
failed to demonstrate proper judgment, and also failed to keep confidence entrusted to [him] in
[his] position as Executive Counsel.” (PAB R. 13, July 3, 2014 Letter.) As such, the June 5, 2014
charge is not relevant to this appeal. Here, the Board had competent evidence before it—most
notably, Eaton’s testimony—to support its finding that DeQuattro informed Eaton of the topic of
the March 14, 2014 meeting.
DeQuattro also asserts that the Board erred in relying on McGreevy’s testimony in
upholding DBR’s disciplinary action. He asserts that McGreevy testified inconsistently at the
April 16, 2015 hearing and the subsequent May 18, 2015 hearing about his specific concern
regarding DeQuattro’s alleged disclosure. Specifically, DeQuattro contends that the
inconsistencies between McGreevy’s April 16 and May 18, 2015 testimony regarding his beliefs
about DeQuattro’s conversation with Eaton indicate that the witness had “obviously” been told
in the interim between his testimony “that the evidence showed that DeQuattro had not revealed
the purpose of Aubin’s meeting.” Counsel for DeQuattro began his cross-examination of
McGreevy on April 16, 2015, during which he questioned the witness about what he believed
DeQuattro had said to Eaton:
“MR. DEMAGISTRIS: Okay. What is it you believe Mr.
DeQuattro said to Mr. Eaton?
“PAUL MCGREEVY: He informed him of the nature and the
purpose of the—or the subject matter of the meeting that Director
Aubin was planning to have with John Taylor and Craig Eaton.
“MR. DEMAGISTRIS: And the subject matter of . . . the meeting
was, what?
“PAUL MCGREEVY: The subject matter was a conversation or
exchange between Fertitta, an individual or an entity that had
talked to—independently talked to Twin River about purchasing it.
. . . .
19
“MR. DEMAGISTRIS: And anymore [sic] specific than that?
. . .
It is true that the issue, as you understood it, that was to be
addressed at that meeting between Twin River and the Lottery was
a comment made by Mr. Taylor to Mr. Fertitta in response to Mr.
Fertitta’s offer to purchase?
“PAUL MCGREEVY: Correct.
“MR. DEMAGISTRIS: Okay. And the response of Mr. Taylor was
something to the effect, don’t bother, the regulators would not
approve that?
“PAUL MCGREEVY: Correct.
“MR. DEMAGISTRIS: Okay. It was not the meeting in general,
correct, that was the focus of Mr. Aubin’s interest?
. . . .
“PAUL MCGREEVY: The facts of the meeting, I don’t think that
was Director Aubin’s concern.
“MR. DEMAGISTRIS: Okay. So you believe that Mr. DeQuattro
revealed that . . . through Mr. Eaton, . . . the regulator’s comment
would be addressed at that meeting.
“PAUL MCGREEVY: Taylor’s comment would be addressed at
that meeting.
. . . .
“MR. DEMAGISTRIS: If Mr. DeQuattro had not, in fact, said to
Mr. Eaton this comment made by Mr. Taylor about the regulators
is going to be brought up, if he had not said that to Mr. Eaton,
would that factor into your discipline?
“PAUL MCGREEVY: If he had not said that, I don’t think any of
this would have started.
“MR. DEMAGISTRIS: So it was the fact that you believe Mr.
DeQuattro specifically mentioned Mr. Taylor’s comment to Mr.
Fertitta about the regulators, that is at issue?
“PAUL MCGREEVY: The comment he made to Craig Eaton
about that, yes.” (Hr’g Tr. 101:23-104:21, Apr. 16, 2015.)
Later on the same day, counsel for DeQuattro further questioned McGreevy on the
specifics of what DeQuattro had relayed to Eaton:
“MR. DEMAGISTRIS: Would it be relevant to your consideration
of Mr. DeQuattro’s discipline, if you were aware that Mr. Eaton
did not hear about Mr. Taylor’s comment from Lou DeQuattro?
“PAUL MCGREEVY: If he denied it?
“MR. DEMAGISTRIS: Yup.
“PAUL MCGREEVY: That would be significant.” (Hr’g Tr.
114:3-15, Apr. 16, 2015.
20
DeQuattro continued his cross-examination of McGreevy at the May 18, 2015 hearing. At the
hearing, McGreevy testified that he was concerned by the way DeQuattro had conducted
himself, in that “[h]e disclosed confidential information to a regulated entity, and subsequent to
us finding that out, failed to disclose his relationship to somebody who had submitted evidence
in a hearing.” (Hr’g Tr. 26:18-22, May 18, 2015.) When counsel pressed McGreevy about his
concerns that DeQuattro had disclosed that the meeting would be about Taylor’s comment to the
regulator, McGreevy responded that “the bigger issue here is that Lou should not have conveyed
[any] information that he was specifically told not to convey, in any form.” Id. at 27:14-17.
The Court is instructed to review the evidence on the “whole record” to determine
whether any clear error or other violation has resulted in prejudice to the substantial rights of the
appellant. Sec. 42-35-15(g); Baker v. Dep’t of Emp’t & Training Bd. of Review, 637 A.2d 360,
365 (R.I. 1994). McGreevy did testify on cross-examination during the April 16, 2015 hearing
that he believed that DeQuattro had specifically told Taylor that the meeting would be about the
comment Taylor had allegedly made during the 2012 meeting with Fertitta, and asserted that if
DeQuattro had not made such a comment, it would have impacted his disciplinary decision. See
supra n.6; Hr’g Tr. 101:23-104:15, Apr. 16, 2015. However, McGreevy also testified on April
16, 2015 that his concern with regard to DeQuattro’s comments was broader. During cross-
examination, McGreevy expounded on his understanding of Aubin’s memorandum (State’s Ex.
3), stating that he believed Aubin “wanted to have a meeting with Taylor and Eaton” and discuss
“in a surprise mode” whether Twin River was “taking the regulator’s position of being able to
talk or speak to the regulators.” Id. at 109:6-17. This statement was consistent with McGreevy’s
May 18, 2015 testimony. See Hr’g Tr. 26:18-22; 27:14-17, May 18, 2015. Thus, even if the
21
Board were to disregard McGreevy’s May 18, 2015 testimony as inconsistent, it would still have
had to resolve the aforementioned conflicts in the witness’s April 16, 2015 testimony.
Even assuming arguendo that the Board improperly relied on inconsistent testimony in
affirming the findings regarding the Twin River charge, the Board’s ultimate decision to uphold
DBR’s disciplinary decision would not be clearly erroneous, given the other reliable, probative,
and substantial evidence on the record. See § 42-35-15; Baker, 637 A.2d at 364 (finding that
while evidence did exist on the record to support the appellants’ claims, the Superior Court did
not err in upholding the agency’s decision in light of the competent evidence on the record
supporting the agency’s findings). Most notably, McGreevy testified that he based his final
disciplinary decision on three concerns: DeQuattro’s disclosure of confidential information to
Twin River; DeQuattro’s failure to disclose a potential conflict of interest in his role as a hearing
officer; and DeQuattro’s failure to take accountability for his actions in his statement at the June
10, 2014 Loudermill hearing. (Hr’g Tr. 34:5-35:14, Apr. 16, 2015.) Specifically, McGreevy
testified that he felt that the evidence in the documents sent to him by Aubin on March 24, 2014
indicated “a breach of confidence” on the part of DeQuattro. Id. at 14:9. McGreevy also testified
that DeQuattro’s failure to disclose his status as a Municipal Court Judge during the RMP
hearing—despite multiple opportunities to do so—concerned him, because it was “necessary for
the Department to be seen as being fair and impartial.” Id. at 24:6-24. McGreevy opined that if
DeQuattro had put the potential conflict of interest on the record, there “may not have been
grounds for a conflict of interest.” Id. at 27:2-13.
As noted in section III(B)(2) infra, there was no material evidence in dispute with regard
to whether DeQuattro had failed to disclose a potential conflict of interest; on the contrary,
DeQuattro testified he “didn’t feel that [he had] any conflict . . . or any duty to disclose anything
22
[at the RMP Hearing.]” (Hr’g Tr. 187:7-13, May 18, 2015.) Furthermore, DeQuattro did not
provide evidence before the Board to dispute McGreevy’s third concern.8 As the Board noted in
its decision, “[g]iven the level of trust and confidence placed in DeQuattro, and the betrayal of
that trust and confidence wrought by each action, either of DeQuattro’s acts of misconduct
would have supported this action.” (Decision 19.) Accordingly, the Court finds that the Board’s
decision to affirm the DBR’s finding regarding DeQuattro’s conduct on the Twin River charge is
not clearly erroneous in light of the reliable, probative, and substantial evidence on the record.
2
The RMP Liquor Board Hearing Charge
DeQuattro also asserts that the Board erred in finding that he failed to disclose a potential
conflict of interest while presiding as a hearing officer in the RMP liquor board hearing.
Specifically, he claims that the evidence at hearing revealed that McGreevy was mistaken about
three facts with regard to the 2013 RMP liquor board hearing; first, that McGreevy mistakenly
thought that the letter from Councilman Autiello had been written about applicants for the
8 With regard to McGreevy’s stated third concern, the Board noted in its decision that during his
testimony, DeQuattro
“demonstrated that he is apparently unable to appreciate the
severity of his misconduct, remediate his conduct, or repair the
damage done thereby. He continually attempts to characterize his
behavior with respect to Twin River as a mere ‘misunderstanding.’
He continually defends his failure to disclose his status as a North
Providence Municipal Court judge. He was unable to articulate
how he could go about restoring the trust that was essential to his
position.” (Decision 18-19.)
23
license; second, that McGreevy mistakenly believed that the North Providence Town Council
had the power to hire and fire DeQuattro; and third, that McGreevy mistakenly believed that the
parties objecting to the liquor license only appealed after learning that DeQuattro was a
municipal judge in North Providence. He further argues that the Board erred in finding that
DeQuattro failed to disclose a conflict of interest at the 2013 RMP liquor board hearing because
there was no actual conflict of interest.
There is legally competent evidence to support the Board’s conclusion that McGreevy
had just cause for removing DeQuattro from his position as Deputy Director. See Baker, 637
A.2d at 363. Although McGreevy did admit that he was mistaken regarding the above facts, there
is reliable, probative, and substantial evidence on the record to support the Board’s finding that
the mistaken beliefs were not relevant to DeQuattro’s discipline, resulting in no substantial
prejudice to DeQuattro. Throughout his testimony, McGreevy remained clear that his concern
with DeQuattro’s failure to disclose his professional relationship with the author of the letter was
not one of an actual conflict of interest, but rather that of the “impression of impropriety.” (Hr’g
Tr. 34:14-15, Apr. 16, 2015.) McGreevy testified that “[i]t was less a concern” of his that there
was an actual conflict of interest and that he believed that if DeQuattro had “simply declar[ed]”
. . . for the record, that “he worked for [the City of North Providence],” the conflict of interest
“probably would have been a non-issue.” Id. at 81:4-9, 80:20-23. As the Board noted in its
decision, DeQuattro’s failure to disclose a potential conflict of interest still “‘opened the door’ to
challenges [to the DBR’s authority] on the basis of bias, and thus called the integrity of the DBR
hearing process into question.” (Decision 17-18.)
DeQuattro also raises the issue of recusal sua sponte in this appeal. He maintains that
recusal in the RMP hearing would have been inappropriate and unnecessary given the lack of an
24
actual conflict of interest. This argument is of no moment. The July 3, 2014 disciplinary letter
asserted the State’s position that DeQuattro had “failed to disclose” his employment to the
parties in the RMP hearing and did not mention recusal. Furthermore, at no point during his
testimony did McGreevy suggest that DeQuattro should have recused himself from the hearing;
rather, McGreevy stated that he believed DeQuattro could have avoided the appearance of
impropriety simply by disclosing his employment on the record. (Hr’g Tr. 80:20-22, Apr. 16,
2015.)
Accordingly, the Court finds that the Board’s decision to uphold the DBR’s finding that
DeQuattro failed to disclose a conflict of interest and created the appearance of impropriety is
not clearly erroneous. The Court further finds that there is reliable, probative, and substantial
evidence to support this portion of the Board’s decision. See § 42-35-15(g).
3
Hearsay in Allen’s Memorandum
DeQuattro further argues that the Board erroneously admitted and relied upon Allen’s
March 19, 2014 memo (State’s Ex. 4) in making its decision. Specifically, he alleges that the
memorandum contains unduly prejudicial “rank hearsay.” 9
The Rhode Island APA governs the admission of hearsay in administrative appeals. It
provides as follows:
“Irrelevant, immaterial, or unduly repetitious evidence shall be
excluded. The rules of evidence as applied in civil cases in the
superior courts of this state shall be followed; but, when necessary
to ascertain facts not reasonably susceptible of proof under those
rules, evidence not admissible under those rules may be submitted
9 Our Supreme Court has defined “rank hearsay” as hearsay which is “inadmissible under any
exception to the hearsay rule.” State v. Conway, 463 A.2d 1319, 1324 (R.I. 1983).
25
(except where precluded by statute) if it is of a type commonly
relied upon by reasonably prudent men and women in the conduct
of their affairs.” Sec. 42-35-10(1).
Although § 42-35-10(1) provides a relaxed application of the rules of evidence in
administrative appeals, our Supreme Court has approached the admission of hearsay in such
proceedings cautiously. See Wood v. Ford, 525 A.2d 901, 903 n.2 (R.I. 1987) (“[W]e caution
that administrative tribunals may make use of hearsay evidence only within a limited context and
in circumstances when it is necessary to ascertain facts not reasonably susceptible of proof under
the normal rules of evidence.”) However, admission of hearsay evidence by a fact-finder does
not automatically constitute clear error. See Toribio-Chavez v. Holder, 611 F.3d 57, 66 (1st Cir.
2010) (finding that admission of letter containing hearsay was not prejudicial because the finder
of fact was “compelled not by the letter but by the documentary evidence” and other admissible
evidence and further noting that “the hearsay nature of a document affects weight, not
admissibility”); Belisle v. Lisk, 16 F.2d 261, 264 (1st Cir. 1926) (holding that the admission of
hearsay in a civil trial was “negligible and nonprejudicial,” even if improperly admitted); cf.
Richardson v. Perales, 402 U.S. 389, 402 (1971) (holding that hearsay evidence “may constitute
substantial evidence supportive of a finding by the hearing examiner”).
As noted infra, Allen’s memorandum contained a record of the questions he asked Eaton
about the March 14, 2014 meeting between Twin River and the Lottery, as well as Eaton’s
answers. (State’s Ex. 4.) At the hearing, over objection of opposing counsel, the State used the
memorandum to refresh Eaton’s recollection. (Hr’g Tr. 34:22-35:16, Apr. 7, 2015.) At the close
of its direct examination of Allen, the State moved to admit the exhibit in full. Id. at 145:18-19.
Counsel for DeQuattro objected on the grounds that it was “rank hearsay” and that Eaton had
presented conflicting testimony, testifying both that the memorandum was accurate but also that
26
he did not fully recall the conversation. Id. at 145:20-146:9. The Board declined to admit the
exhibit in full on the grounds that it contained hearsay that was neither reliable nor probative, but
stated that it would “sort through” Eaton’s testimony. Id. at 150:19-151:8.
Toward the close of its direct examination of McGreevy, the State moved once again to
admit the memorandum as a full exhibit, as McGreevy had relied upon the document in making
his decision to place DeQuattro on leave. (Hr’g Tr. 40:17-21, Apr. 16, 2015.) Counsel for
DeQuattro again objected on the grounds that it contained hearsay and was an incomplete record
of the conversation according to Eaton’s testimony. Id. at 40:12-15. The Board admitted State’s
Exhibit 4 in full, on the grounds that it was not being admitted for the truth of the matter asserted
within. Id. at 43:2-9.
Allen’s memorandum contains hearsay that is inadmissible under the rules of evidence
and lacks the reliability that would justify its admission in an administrative hearing. The
memorandum is essentially a police report containing hearsay within hearsay, which is
inadmissible under Rhode Island law. See Mercurio v. Fascitelli, 116 R.I. 237, 240, 354 A.2d
736, 739 (1976) (establishing that hearsay in a police report is not admissible as a past
recollection recorded); Quint v. Pawtuxet Valley Bus Lines, 114 R.I. 473, 482, 335 A.2d 328, 333
(1975) (holding that hearsay statements in a police report are not admissible under the business
record exception). Moreover, the hearsay in the memorandum lacks probative value, as both
Allen and Eaton testified before the Board.
However, even assuming arguendo that the Board erroneously relied upon the hearsay in
the memorandum, DeQuattro’s substantial rights were not prejudiced given the other reliable,
competent, and substantial evidence on the record. See § 42-35-15(g). Notably, the Board
included one citation to Allen’s memorandum in the analysis of its decision, as follows: “In his
27
interview with Corporal Detective Allen, and at hearing, Eaton confirmed that during a telephone
conversation of March 13, 2014, DeQuattro had told Eaton ‘between you and me’ that Aubin
would be asking about the Fertitta meeting.” (Decision 13.) The Board relied upon and cited
Eaton’s testimony at hearing in the same sentence as its reference to Allen’s memorandum. Id.
Moreover, DeQuattro’s emphasis on the inclusion of the allegedly prejudicial phrase
“between you and me” is misplaced; a careful reading of the decision reveals that the Board
placed no weight upon DeQuattro’s phrasing in making its determination. In its decision, the
Board indicated that the precise language DeQuattro used in the conversation was not relevant to
whether DeQuattro engaged in conduct warranting discipline, noting that “[e]ven without the
benefit of the March 4, 2014 conversation [with Aubin], DeQuattro ought to have instantly
realized that Aubin may well have had his reasons for keeping silent about the purpose of the
meeting.” Id. at 14. Rather, the Board found that based on the evidence before it, “[a]n
individual with DeQuattro’s level of responsibility in this joint regulatory structure knew or
should have known of the need to coordinate and cooperate with the Lottery.” Id. at 15. These
determinations by the Board are consistent both with the July 3, 2014 disciplinary letter and
McGreevy’s testimony regarding his reasons for disciplining DeQuattro. See PAB R. 13, July 3,
2014 Letter (“you alerted the representatives of the regulated facility to the topic of discussion,
you undermined the purpose of the meeting and the Director’s strategy and failed to demonstrate
proper judgment, and also failed to keep confidences entrusted to you in your position as
Executive Counsel”); Hr’g Tr. 34:5-22, Apr. 16, 2015 (McGreevy’s testimony that DeQuattro’s
“breach of confidentiality” in providing information to Twin River’s general counsel and
DeQuattro’s subsequent failure to address the reasons behind this breach at his Loudermill
hearing factored into his determination of the appropriate discipline). Accordingly, the Court
28
finds that DeQuattro was not prejudiced by any reliance the Board placed on Allen’s memo and
further finds that there is reliable, probative, and substantial evidence to support this portion of
the Board’s decision. See § 42-35-15(g).
4
Credibility Determinations
DeQuattro next challenges the Board’s credibility determination with regard to both his
own and Aubin’s testimony. He avers that the Board erred in finding Aubin to be a credible
witness, as Aubin refreshed his memory to testify, in comparison with himself, who testified
from memory. DeQuattro further asserts that the Board erred in using Rosemary Gallogly’s letter
as evidence to determine his credibility as a witness, as the letter was not included in his
personnel file.
When reviewing an agency’s decision, the Superior Court places great weight on an
agency’s credibility determination. This Court “is not privileged to assess the credibility of
witnesses and may not substitute its judgment for that of the director concerning the weight of
the evidence on questions of fact.” Janes, 586 A.2d at 537. See also Mendonsa v. Corey, 495
A.2d 257, 263 (R.I. 1985) (finding that the board of an administrative agency, “who had before it
the individual witnesses and had the opportunity to judge their credibility, was in a better
position than the court to resolve” any evidentiary conflicts); Ryan Iron Works, Inc. v. N.L.R.B.,
257 F.3d 1, 7 (1st Cir. 2001) (asserting that the court must sustain an agency finder of fact’s
credibility determinations as long as the finder of fact’s position “represents a choice between
two fairly conflicting views”). Accordingly, the Court must sustain the agency’s credibility
determinations “unless it finds that the decision was clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record.” Janes, 586 A.2d at 537.
29
Under this deferential standard, DeQuattro’s challenge to the Board’s credibility
assessment of his own and Aubin’s testimony must fail. See Labor Ready Ne., Inc. v.
McConaghy, 849 A.2d 340, 346 (R.I. 2004) (holding that where competent evidence exists to
support an agency’s determination or interpretation, the reviewing court must uphold that
determination, regardless of whether another interpretation is possible). DeQuattro challenges the
Board’s credibility assessment on the grounds that Aubin’s refreshed recollection made his
testimony less reliable than DeQuattro’s own testimony, because DeQuattro testified without
needing to refresh his memory.
The APA charges an administrative agency with following “[t]he rules of evidence as
applied in civil cases in the superior courts,” with exceptions to “ascertain facts not reasonably
susceptible to proof under those rules.” Sec. 42-35-10(1). Rhode Island Rules of Evidence 612
allows a witness to “use[] a writing to refresh his or her memory for the purpose of testifying.”
R.I. R. Evid. 612. Given that refreshing recollection is an established method of introducing
competent evidence before a finder of fact in Rhode Island, the Court finds no clear error in the
Board’s determination that Aubin was a more credible witness than DeQuattro based on Aubin’s
use of his memorandum to refresh his recollection. The Court further finds that the credibility
determination was not made on improper procedures or clearly erroneous.
DeQuattro challenges the Board’s use of the Gallogly letter in weighing his credibility as
a witness. During its cross-examination of DeQuattro, the State introduced DeQuattro’s
statement from his Loudermill hearing: “I have an impeccable and unblemished record of serving
as a state employee for 22 years, a Municipal Court Judge for three years, a licensed certified
public accountant for 20 years, and a licensed attorney for almost 15 years.” (State’s Ex. 8 at
33:20-25; see Hr’g Tr. 232:12-18, May 18, 2015.) The State then introduced a March 25, 2010
30
memorandum from Rosemary Gallogly, then director of the Department of Administration, to
DeQuattro while he was working in the agency. (Hr’g Tr. 234:20-235:2, May 18, 2015; See
State’s Ex. 11.)
DeQuattro testified regarding the circumstances surrounding Gallogly’s March 25, 2010
memorandum. (Hr’g Tr. 30:15-31:16, May 20, 2015.) DeQuattro stated that the Supreme Court’s
commentary on the late opening of the bid was dicta and not controlling because the Court found
that the case was moot, and that the earlier Superior Court decision had “vindicated” the
department, because that Court found no abuse of discretion in opening the late bid. Id. at 35:19-
36:23. DeQuattro also testified that after receiving the memorandum from Gallogly, he met with
her and explained it was common practice for the Department of Administration to open all late
bids at that time, and they both agreed the memorandum would not be placed in his file. Id. at
40:22-42:10.
On appeal, DeQuattro claims that the Board erred in finding that he contradicted himself
at hearing with his statement that he had an “impeccable” record of serv[ice] because the
document the State used to impeach his credibility was not included in his personnel record. The
State counters that because DeQuattro did not object to the admission of the document at the
time of its admission, he has effectively waived any objection to the Board’s use of the document
in determining his credibility.
The Court notes that DeQuattro does not appeal the Board’s admission of the Gallogly
letter, but rather its reliance upon the letter in making the credibility determination. It is well
settled that the Court must defer to an agency’s credibility determinations so long as there is
competent evidence on the record in support of those conclusions. Janes, 586 A.2d at 537
(holding that because the Superior Court is not privileged to assess the credibility of witnesses, it
31
must uphold the judgment of the agency if competent evidence exists on the record to support the
agency’s conclusions); Berberian v. Dep’t of Emp’t Sec., Bd. of Review, 414 A.2d 480, 483 (R.I.
1980) (finding that on appeal, the Court does not “weigh the evidence” but rather “examine[s]
the record to determine whether there is legally competent evidence” to support the decision of
the finder of fact). As noted above, the Board based its credibility determination upon other
competent evidence beyond the inconsistency it perceived between DeQuattro’s statement that
he had an “unblemished record” and the letter written by Rosemary Gallogly. Specifically, the
Board also made its credibility determination based upon its observations of the witnesses during
the hearing, as well as the fact that Aubin memorialized his recollection of the conversation
within a short time of the event, while DeQuattro did not. (Decision 14.) Accordingly, the Court
finds that there is no clear error, and there is substantial evidence in the record to support the
Board’s credibility determinations. See Janes, 586 A.2d at 537.
C
DeQuattro’s Demotion to a Union Position
Finally, DeQuattro argues that the Board’s affirmation of his demotion to the union
position of Chief Licensing Officer which he could not hold is per se arbitrary and capricious
and requests that this Court reinstate him in his role. In opposition, the State contends that the
Board lacked jurisdiction to consider whether DeQuattro could properly hold the position to
which he was demoted, and that that issue would need to be resolved by the two relevant parties:
the State and the union.
The jurisdiction of the Board is limited to whether an appellant has been wrongfully
disciplined or terminated by his or her employer. The Board “may confirm or reduce the
demotion, suspension, layoff, or dismissal of the employee or may reinstate the employee and
32
the board may order payment of part or all of the salary to the employee for the period of time he
or she was demoted, suspended, laid off, or dismissed.” Sec. 36-4-42.
Our Supreme Court has interpreted the scope of § 36-4-42 narrowly, finding that the
Board may not modify the employing authority’s penalty when it has accepted the authority’s
findings. Hardman v. Pers. Appeal Bd., 100 R.I. 145, 153, 211 A.2d 660, 665 (1965) (finding
“no authority in the statute empowering the board to modify the penalty imposed by the
employing authority” where the Board has accepted the charges made by the employing
authority). The Court’s interpretation is supported by the well-established principle that an
agency’s choice of sanction or penalty is entitled to deference on review. See Broad St. Food
Market, Inc. v. U.S., 720 F.2d 217, 220 (1983) (the choice of a sanction is “‘peculiarly a matter
for administrative competence’” (quoting Kulkin v. Bergland, 626 F.2d 181, 184 (1st Cir.
1980))). The Court has additionally limited the Board’s consideration of collateral issues. See
Masyk v. Parshley, 94 R.I. 282, 289, 180 A.2d 314, 318 (1962) (finding that the Board lacked the
jurisdiction to determine whether physician had been wrongfully deprived of his certificate of
limited registration from the licensing board). Thus, given its limited jurisdiction and that the
Board affirmed the DBR’s charges against DeQuattro, its decision to decline to modify the
penalty imposed by DeQuattro was not arbitrary, capricious, or an abuse of discretion.
IV
Conclusion
After review of the whole record, the Court finds that the Board’s decision was not
clearly erroneous in view of the reliable, probative, and substantial evidence on the record, not
made on improper procedure, and not arbitrary or capricious. The Court also finds that the
33
decision was not rendered in violation of constitutional or statutory provisions and was not an
abuse of discretion. Substantial rights of DeQuattro have not been prejudiced.
Counsel shall submit a judgment in conformity with this Decision for entry.
34
RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
Louis A. DeQuattro, Jr. v. The Rhode Island Personnel Appeal
Board, et al.
PC-2015-3438
Providence County Superior Court
July 24, 2018
Taft-Carter, J.
Martin K. DeMagistris, Esq.
Jennifer Sanborn Sternick, Esq.; Steven B. Merolla, Esq.
TITLE OF CASE:
CASE NO:
COURT:
DATE DECISION FILED:
JUSTICE/MAGISTRATE:
ATTORNEYS:
For Plaintiff:
For Defendant: