Court Rejects Lysaght’s Termination Appeal

By Andrew Gorosko

DANBURY — A Danbury Superior Court judge this week rejected former police chief James E. Lysaght, Jr’s administrative appeal of his March 2000 firing by the Police Commission, endorsing the Police Commission’s decision to terminate Mr Lysaght for inadequate job performance.

In a 17-page decision issued Monday, Judge William Holden ruled, “The court has considered all of the claims advanced by the plaintiff and they are not persuasive. The decision by the [commission] was fully supported by the evidence, and the [commission] did not act illegally, arbitrarily, in abuse of its discretion, or with bad faith or malice. The [commission] had just cause, based on the record, to dismiss Lysaght from his position of chief of police of Newtown in accordance with the provisions” of applicable state law.

Through his appeal, Mr Lysaght had sought to be reinstated as police chief, receive back pay, and collect legal expenses from the town.

In a prepared statement issued Tuesday, Mr Lysaght said he will not pursue further legal action against the town.

“After conferring with my attorney, Jack Kelly, I have decided not to pursue any further legal action in the matter of my termination from employment with the Town of Newtown,” he said.

State law allows decisions of Superior Court judges to be appealed to the Connecticut Appellate Court within 20 days.

In his statement, Mr Lysaght, 51, said, “As you can imagine, this has been a difficult time for my family and me. It has, however, provided us with an opportunity to observe first-hand just how kind many of the citizens of Newtown can be. I would therefore like to thank all the members of the public, who over the course of the last four years came forward and shared various acts and words of concern and support with us.”

“I would like to wish the hard-working men and women of the Newtown Department of Police Services best wishes for the future,” the Sandy Hook resident added.

The Police Commission hired Mr Lysaght in July 1996. He had previously worked as a captain at the Bristol Police Department, where he was second-in-command.

Police Commission Chairman James Reilly said Tuesday, “The [commission’s] just pleased that our actions were upheld by the judge.”

Mr Reilly said that after the commission confers with its attorneys on the judge’s decision, its members will decide what actions to take in terms of creating permanent supervisory posts at the police department.

Since July 1999, when the Police Commission placed Mr Lysaght on paid administrative leave, Captain Michael Kehoe has run the organization. Shortly after the commission fired Mr Lysaght in March 2000, it named Mr Kehoe as the police department’s acting chief, a post which he still holds. After the commission named Mr Kehoe the acting chief, it named Sergeant Joe Rios as the acting captain. No one has filled the sergeant’s vacancy created when Mr Rios became the acting captain.

Police officer Robert Koetsch, president of the Newtown Police Union, said Wednesday in a prepared statement, “We are very pleased that a final decision has been rendered in the Lysaght matter. The department may now move forward. The union members have been in a holding pattern since July 1999.”

Officer Koetsch said that the union membership has been denied a promotion to the rank of sergeant because the Police Commission did not want to make such a promotion until the Lysaght litigation concluded. Koetsch added the union now expects the commission will make that promotion.

The union president pointed out that the union conducted a vote of confidence in then-Chief Lysaght in September 1997, in which its membership almost unanimously voted “no confidence” in the chief, foreshadowing events which would later transpire. “We are pleased that Mr Lysaght will not seek an appeal and the Newtown Police Department will now move forward,” Mr Koetsch added.

First Selectman Herbert Rosenthal said Tuesday, “I was pleased for the town that the court supported our position in the case.”

Considering that Mr Lysaght plans no additional legal action against the town over his termination, the police department appears to have a good future, the first selectman said. “I would anticipate a bright future for the department,” he said.

“I wish the former chief and his family well,” Mr Rosenthal said.

The first selectman said he has been impressed with the performance of Mr Kehoe and Mr Rios in their respective roles of acting chief and acting captain.

Court Appearance

Judge Holden convened a court session April 12, which Mr Lysaght attended.

Judge Holden asked Mr Lysaght basic questions about the administrative appeal to establish that his court has clear jurisdiction to rule on the matter.

At that session, Mr Kelly, representing Mr Lysaght, said that “just cause” did not exist to terminate Mr Lysaght, citing the state law under which the Lysaght appeal was filed.

“I want to hear [from] the plaintiff on the [witness] stand. I want to make sure all bases are touched here,” Judge Holden said.

“Were you aggrieved?” Judge Holden asked Mr Lysaght.

“Yes, sir,” Mr Lysaght responded.

 Judge Holden said that he had thought there might have been a jurisdictional problem in his issuing a ruling on the appeal.

But then, apparently satisfied that his court has the jurisdiction to rule, the judge adjourned the brief court session, saying, “The decision will be filed by Monday, April 16.”

In its August 1999 “notice of grounds for dismissal” to Mr Lysaght, the Police Commission stated that Mr Lysaght had failed to receive a satisfactory job evaluation for two consecutive periodic evaluations; had received an aggregate of three unsatisfactory evaluations during a three-year period; had violated or failed to adhere to various police department rules and regulations; had violated or failed to comply with an order of the commission; and had violated reasonable and ordinary standards of good conduct, among others.

The commission and Mr Lysaght later agreed that an arbitrator, who would serve as a neutral party in the case, would conduct his termination hearing. The commission would be bound by the arbitrator’s finding of facts, but not bound by his recommendations.

The town held termination hearings, which lasted four days, in December 1999. In a February 2000 report, arbitrator Albert Murphy listed 147 findings of fact, including that Mr Lysaght knowingly lied to Mr Rosenthal; that Mr Lysaght had failed to follow directives issued by the Police Commission; and that Mr Lysaght had gotten nothing accomplished on two high priority projects which had been assigned to him by the commission.

Just Cause

Based on testimony at the termination hearing, Mr Murphy concluded that the Police Commission had “just cause” to terminate Mr Lysaght. The arbitrator strongly recommended, however, that the commission and Mr Lysaght reconcile their differences and that he be kept on as police chief.

On March 3, 2000, the Police Commission held a meeting at which it unanimously voted to fire Mr Lysaght.

In his March 28, 2000, appeal of his termination, Mr Lysaght alleged that the Police Commission had not provided him an opportunity to speak on his own behalf at the March 3 session, when, in fact, the commission had offered Mr Kelly and Mr Lysaght an opportunity to speak, Judge Holden wrote in his decision.

Judge Holden also ruled that the Police Commission was not legally required to consider Mr Murphy’s recommendation that the commission and Mr Lysaght reconcile their differences and that he be kept on as chief.

Commenting on his review of the termination case, Judge Holden wrote, “The review by this court consists of an examination of the [written] record, and if the decision of the [commission] is reasonably supported by the record, then this court must sustain that decision… Whether this court would have reached the same decision as did the [commission] is of no consequence. The issue is whether the decision of the [commission] is supported by the record.”

“In reviewing the record, there can be no doubt that the plaintiff violated a number of the [police] department’s rules and regulations and the [commission] was dissatisfied with the plaintiff’s performance as police chief… It is important to note that this is not a case where the plaintiff was charged with committing criminal or illegal acts. Indeed, the arbitrator, calling the plaintiff ‘a competent, energetic and enthusiastic police officer’ only reluctantly recommended that just cause existed to terminate the plaintiff. Nevertheless, it was the [commission’s] responsibility to decide whether termination was justified on the record and ‘wide discretion must be lodged in the [commission] in determining what conduct on the part of members of the [police] force is injurious to the efficiency of the department,’” Judge Holden wrote, citing a past court appeal.