Officer Cannot Waive Hearing That Is Never Scheduled

A Delaware statute requires that whenever an employer imposes monetary discipline on a police officer, a hearing must “be scheduled within a reasonable period of time from the alleged incident, but in no event more than 30 days following the conclusion of the internal investigation, unless waived in writing by the charged officer.”

The Town of Cheswold, Delaware suspended one of its police officers, Elliot Rosario. The Town attempted to contact Rosario by mail but never reached him because Rosario changed addresses. As a result, the Town never scheduled a hearing.

Rosario challenged his suspension through the court system. The Delaware Supreme Court found that “the statute simply leaves no doubt that a hearing must be scheduled within 30 days. Here, the Town should have scheduled Rosario’s hearing within 30 days and attempted to notify him, at his last known address, of the hearing’s time and date. If at that point Rosario failed to respond to the notice or to appear at the hearing, then the Town would have met its obligation to schedule a hearing and Rosario would have waived his right to the hearing by not appearing. Rosario’s failure to keep an updated address on file with the Town is irrelevant to an alleged waiver of a right to a hearing the Town never scheduled.”

Town of Cheswold v. Rosario, 2008 WL 853541 (Del. 2008).

This article appears in the July 2008 issue