Fired constable Jeff Smiley won't be back in uniform if commission has its way

A former Fredericton police constable whose dismissal for misconduct was quashed by a judge remains off the city payroll, a city hall spokesman said Thursday.

Jeff Smiley lost his job last Dec. 2 after a New BrunswickPolice Commission disciplinary hearing, when an arbitrator found him guilty of four complaints of misconduct and ordered his firing.

That decision was quashed last Friday after a judicial review by Justice JudyClendening, who questioned the severity of the punishment and called it unreasonable.

Smiley is still off the payroll, according to city spokesman WayneKnorr, and on Thursday, the police commission said it will challenge the former constable's reinstatement.

Must choose next step

SteveRoberge, the executive director of the commission, said it won't abandon its case against Smileyand has two options it can pursue.

The commission can restart the arbitration process with a new arbitrator or it can file an appeal ofClendening'sdecision,Robergesaid. He expects a decision by the end of November.

Smiley went through aweek-long police commission hearing a year ago over anallegationof discreditable conduct by committingdomestic violence and three complaints related to firearms.

ArbitratorCedricHainesupheld the claim of domestic violence and breaches of the police code of conduct and ordered Smiley fired from the Fredericton Police Force.Smiley applied for a judicial review of the decision.

Clendeningagreed with most of the arbitrator's reasoning behind upholding the claims against Smiley, but she saidHainesdidn't set out his reasons for such a "severe disciplinary action"and called this a "fatal flaw." She awarded $3,000 to Smiley for legal costs.

Assistant law professor HowardKislowiczsaid Thursday that in administrative law, everything is about "reasonableness,"but how much an arbitrator has to explain is a debate going on now in legal circles.

"It's a bit of a live question in administrative law right now, as to what kind of reasons are adequate to sustain a reasonable decision," he said.

"The Supreme Court has said things like, 'The court should not go on a line-by-line treasure hunt for error in an administrative decision,' and the arbitrator's decision in this case is one of those kinds.

"So the question arises: What level of reasons is adequate? Some would say you have to look at the whole record together and see if the arbitrator, in this case, made their reasons clear, so that a court on review, can decide whether the reasoning was reasonable."

$120,000 spent on case

Robergetold CBC News last year that the pursuit of Smiley's dismissal cost the commission and the city about $120,000.

He said money will not be a factor in the commission's decision whether to file an appeal or hold another discipline hearing.

As to whetherClendening'sruling makes him concerned about the outcome of a judicial review underway in the dismissal of another Fredericton police officer,CherieCampbell,Robergesaid, "No."

"CherieCampbell's case is very different than Smiley's case. And arbitratorHaines, I believe in that case, articulated his reasons for dismissal."

Campbell's firing was related to an alleged shoplifting offence in Maine.