By NANCY WEST, InDepthNH.org
LEBANON – Two police officers, Lt. Richard Smolenski and Senior Officer Paul Gifford, have been placed on paid administrative leave, according to Lebanon Police Chief Richard Mello, who declined to say why the action was taken.
One of the officers – Smolenski – is a target of longtime efforts by Scott Traudt to obtain information from personnel records he believes reveals evidence favorable to him that should have been turned over before his trial for assaulting a police officer during a traffic stop 13 years ago. Traudt said Gifford had nothing to do with his arrest.
After Traudt’s battle in state and federal courts since his conviction to prove his innocence – including a recent state Supreme Court appeal – ACLU-NH filed a right-to-know request on Smolenski to the Lebanon Police Department on July 9.
ACLU-NH requests, “All reports, investigatory files, and disciplinary records concerning the specific incident involving Richard Smolenski referenced in the attached affidavits filed in Traudt v. City of Lebanon…”
Gilles Bissonnette, ACLU-NH’s legal director, wrote, “In conducting public interest balancing with respect to an internal audit report that documented misconduct of officers within the Salem Police Department, the Rockingham County Superior Court concluded:
“A balance of the public interest in disclosure against the legitimate privacy interests of the individual officers and higher-ups strongly favors disclosure of all but small and isolated portions of the Internal Affairs Practices section of the audit report.
“…The analysis is no different here.”
Bissonnette pointed to the May 29 state Supreme Court opinion Union Leader Corp. and ACLU-NH v. Town of Salem overruling the 1993 Fenniman decision “in holding that the public’s interest in disclosure must be balanced in determining whether the ‘internal personnel practices’ exemption applies to requested records.”
The state Supreme Court ruled in two public records cases that day – the other filed by Seacoast Newspapers – after both were denied in separate cases access to documents involving alleged police misconduct under the “internal personnel practices” exemption of RSA 91a, the state’s right-to-know law.
State Supreme Court Justice Patrick Donovan wrote, “An overly broad construction of the ‘internal personnel practices’ exemption has proven to be an unwarranted constraint on a transparent government.”
Right-to-know advocates view the rulings as a major sea change in favor of the public holding police and other government officials accountable.
Traudt, 54, was convicted of disorderly conduct and assaulting Lebanon police officer Phillip Roberts, who is now deputy chief, on Jan. 14, 2007. An altercation ensued after Traudt’s then-wife’s was pulled over for allegedly going through a red light with Traudt in the passenger seat.
Traudt has maintained his innocence and said he was pepper sprayed and hit with a police baton when he got out of the car to check on his wife during her field sobriety test.
Traudt was found not guilty of assaulting Smolenski but spent 364 days in state prison for the Roberts assault, which police said involved him punching Roberts in the head. Both testified against Traudt at trial.
In his state Supreme Court filing, Traudt’s attorney Jared Bedrick argues that the prosecutor told the jury to believe the officers because they didn’t have any disciplinary records when that wasn’t true.
Assistant Attorney General Elizabeth Woodcock argued in the state’s filing that it was too little too late.
“The defendant has provided this Court with a record that is not sufficient to decide the issue that he has raised. He has provided only redacted copies of affidavits that include no information that would be subject to disclosure under State v. Laurie,” Woodcock wrote. “Therefore, the record that he has provided is insufficient to decide the issue.”
The two affidavits referenced in ACLU-NH’s right-to-know request include redacted documents from U.S. District Court in Concord in 2013 in which Traudt had sued the city of Lebanon. One is a sworn confidential statement by a Lebanon police officer with the officer’s name blacked out.
The second is an affidavit jointly filed by then-interim police chief Gary Smith and former police chief M. James Alexander signed April 24, 2013.
During their tenure as deputy police chief and chief from March 1, 2006 to Feb. 28, 2013, they said they notified the county attorney and courts on three occasions when police conduct and behavior involved deliberate lying during an administrative hearing or other official proceeding and twice for civilians, but in each case the individual was separated from employment.
Their redacted sworn statement then mentions the complaint lodged against the officer. They said they found him to be “forthright, credible, truthful, and honest during the internal investigation.”
“He acknowledged and admitted his mistakes…” He had no other discipline, and they said based on their professional judgement his conduct and behavior “was not and is not Laurie material.” Laurie material would be exculpatory evidence that is constitutionally required for prosecutors to turn over to criminal defendants before trial.
It went on to say the officer had been involved in many criminal arrests and cases, and testified numerous times in court in criminal matters, including the Traudt matter. “We have had the utmost faith and confidence in his character and reliability,” Smith and Alexander wrote.
The affidavit also said the discipline was removed from the officer’s personnel file by union contract 48 months later but added that the disciplinary records and investigation remain in a separate confidential file that is sealed at the Lebanon Police Department.
The officer in his redacted affidavit said, “I have had no other disciplinary issues in my law enforcement career,” stating that he was honest and forthright with his supervisors during the internal investigation. “I acknowledge my mistakes” and “I was wrong and am very sorry.” It was sworn April 25, 2013.
InDepthNH.org has filed a right-to-know request for any internal investigations in the personnel files of Richard Smolenski, Paul Gifford and Phillip Roberts.
Attorney Charles Bauer, representing the department, said he will need until Wednesday, July 29 to respond to the requests, the same day he will respond to ACLU-NH’s request on Smolenski.