Las Vegas POA

‘Mere Technical’ Violations Of Bill Of Rights Not Basis To Reverse Termination

Written on 11/06/2020
Will Aitchison

Eric Hiller was a police officer with the Rehoboth Beach Police Department in Delaware.

In July 2018, Hiller was advised that he must complete a computer voice stress analyzer exam (CVSA) so that the Department might examine the truthfulness of Hiller’s statements made during his initial interview involving the events of a prisoner transport. A private CVSA examiner, Mike McQuillen was selected to administer the CVSA and Lt. Jaime Riddle was present during the examination. Hiller’s wife accompanied Hiller to the CVSA.

Riddle asked Hiller and his wife if they were recording the examination, which was prohibited. The following exchange ensued:

Riddle: Well, you are refusing because I am asking you questions.
Hiller: You asked me, and I answered it.
Riddle: Is anyone other than me recording this interview? I am asking you that question.
Hiller: Just as you stated right there, I am permitted to ask questions as it relates to my job. Correct?
Riddle: Is anyone in this room besides me recording this interview?
Hiller: Not me and I don’t know whether that is the only recording he has, I have no idea.
Riddle: To your knowledge is anyone else in this room besides me and Mr. McQuillen…
Hiller: I am prepared to go forward.
Riddle: I asked you a question. Besides me and Mr. McQuillen, is there anyone in this room to your knowledge…
Hiller: I can speak for myself and me and I am here prepared to go forward. I am here willing to do the interview as asked. I have complied with everything that I am responsible for. And I am here to proceed forward. And if suddenly now you are trying to use me as that I am refusing to do what is asked of me.
Riddle: You are making this complicated.
Hiller: I am not making it complicated.

Following the above conversation, Hiller announced he would like to seek counsel and the interview was ended. A three-member Disciplinary Hearing Panel found that while Hiller was not dishonest, he failed to answer direct questions and was “circuitous” in his responses. The Panel also found the Department violated Hiller’s rights under Delaware’s Law Enforcement Officers’ Bill of Rights. The violations included insufficient notice of the CVSA, allowing an outside contractor to question Hiller, and questioning Hiller for an unreasonable amount of time.

When the City terminated Hiller, he sued, contending the violation of the Bill of Rights required the reversal of his termination. The Court disagreed and upheld Hiller’s termination.

The Court noted that “not every Bill of Rights violation will support issuance of mandamus. Hiller received a hearing and the Panel absolved him of dishonesty and conspiracy, noting the Bill of Rights violations. Ultimately, Hiller was terminated because of the pre-CVSA colloquy, which was preliminary in nature.

“Hiller knew he was being investigated concerning the transport of the prisoner and would have to submit to a CVSA. Further, he brought his wife as his representative to the CVSA. Hiller was circuitous and semantical when asked whether he or his wife were recording the interview. Recording the interview was prohibited, and Hiller knew of that prohibition.

“In certain circumstances, mandamus may address Bill of Rights violations, including reinstatement; however, the violations must be substantial in nature. Bill of Rights violations that do not rise to the level of procedural or substantive due process violations do not warrant mandamus. For example, failing to schedule a hearing and preventing an officer to be heard would be such a violation for mandamus.

“The violations put forth by Hiller are mere technical ones. Hiller received a hearing and was aware of the charges against him. Hiller was further afforded an appeal of the Chief’s decision to terminate him. The Court finds Hiller does not allege violations sufficiently egregious or compelling to warrant the Court interjecting in the routine disciplinary proceedings of a state agency.”

Hiller v. City of Rehoboth Beach, 2020 WL 5637053 (Del. 2020).

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