Police Commission Defends Itself In Lysaght Appeal

By Andrew Gorosko

In a legal brief supporting the Police Commission’s decision to fire James E. Lysaght, Jr, as police chief, the town argues that the grounds for his dismissal are “compelling” and urges that Mr Lysaght’s court appeal of the firing, which seeks his reinstatement, be dismissed.

In the legal brief submitted September 1 to Judge Dana Radcliffe in Danbury Superior Court, attorney David Zabel, representing the town, writes, “The grounds relied upon by the [Police Commission] for Mr Lysaght’s dismissal as Newtown’s Chief of Police are supported by the record, and are not arbitrary, frivolous, incompetent, capricious or whimsical. To the contrary, the grounds for dismissal are reasonable and in fact compelling. Mr Lysaght’s appeal should therefore be dismissed.”

Mr Zabel requests that the judge allow the town to make an oral argument in the case, adding that testimony is not required.

Mr Zabel filed the legal brief in response to a July 31 brief filed by attorney John Kelly on behalf of Mr Lysaght. In that filing, Mr Kelly argued that Judge Radcliffe should thoroughly review the record of Mr Lysaght’s termination hearing, and then, based on the evidence, should reverse a hearing officer’s finding that the Police Commission had “just cause” to fire Mr Lysaght as police chief.

In firing Mr Lysaght March 3, Police Commission members decided that he did not demonstrate the leadership, planning, and management skills necessary for the effective and efficient operation of the police department. Since July 1999, when the Police Commission placed Mr Lysaght on administrative leave, Captain Michael Kehoe has run the police department. Last April, the commission named Capt Kehoe acting police chief.

Mr Lysaght, 51, began work as Newtown’s police chief in July 1996, replacing former chief Michael DeJoseph, who had retired from the police department. Following an initial positive job performance review in early 1997, Mr Lysaght received three increasingly negative job reviews from the Police Commission, which found fault with his performance as police chief.

In the town’s legal brief, Mr Zabel argues that the record of Mr Lysaght’s termination hearing last December fully supports the Police Commission’s decision to terminate Mr Lysaght’s employment for “just cause.”

According to Mr Zabel, the findings of fact made by hearing officer Albert Murphy based on Mr Lysaght’s termination hearing established that: Mr Lysaght lied to First Selectman Herbert Rosenthal; Mr Lysaght failed to inform or misinformed the Police Commission about important matters concerning police department operations; and Mr Lysaght refused to follow specific directives issued to him by the Police Commission.

“Mr Lysaght’s lack of job performance was such that he received unsatisfactory performance evaluations for three years in a row, and utterly failed to perform tasks of the highest priority that were assigned to him, with the result that nothing got done for literally years,” Mr Zabel writes in the legal papers.

Four days of termination hearings were held in December 1999. In his February 2000 report, Mr Murphy found that “just cause” existed to terminate Mr Lysaght concerning some, but not all ten, of the allegations lodged against him in the Police Commission’s notice of grounds for dismissal. Although Mr Murphy reluctantly concluded that there was just cause to fire the chief, he strongly recommended that he be kept on as chief and that the commission and chief resolve their differences.

Under the terms of a previous agreement, Police Commission members agreed that they would be bound by Mr Murphy’s findings of fact, but not bound by his recommendations.   

 

Just Cause

“The record in this matter is completely devoid of any evidence which might even remotely suggest there was any political or other improper motive underlying the dismissal of Mr Lysaght. Instead, the record is replete with findings, based on the evidence presented, that the [commission] was rightfully dissatisfied with Mr Lysaght’s performance of his job, and that there was just cause for his dismissal,” Mr Zabel adds.

A pattern of misrepresentation by Mr Lysaght, coupled with his disregard for directives he received from the commission, plus his failure to achieve progress on high priority tasks shows, that there was just cause to dismiss him as police chief, according to Mr Zabel.

After reviewing Mr Murphy’s report on the termination hearing, the Police Commission decided that “Mr Lysaght, even after repeated intervention and direction by the [commission], acted in an inefficient, incompetent and insubordinate manner that constitutes ‘just cause’” for dismissal, according to Mr Zabel.

“The [commission’s] decision to dismiss Mr Lysaght, which was and is fully supported by the record, should not be overturned,” Mr Zabel writes.

In the legal papers, Mr Zabel challenges Mr Lysaght’s claim that the Police Commission did not give him an opportunity to address his proposed dismissal on March 3 before it voted to terminate Mr Lysaght. Mr Zabel writes that Mr Lysaght’s assertion is belied by the transcript of the March 3 meeting which indicates that Mr Lysaght and his lawyer, Mr Kelly, were in fact provided with the opportunity that Mr Lysaght claims he was denied, but voluntarily chose not to offer anything further to the Police Commission.

“As reflected in the transcript of the special meeting, Mr Lysaght, through his counsel, who was present with Mr Lysaght, declined the [commission’s] invitation and did not offer anything further for the [commission] to consider regarding the proposed dismissal:

“Chairman James Reilly: Mr Kelly, do you or the chief have anything further to offer to the [commission] at this time?

 “Mr Kelly: No. I presume that all the members of the [commission] have read the arbitrator’s award, and that you have made up your minds, and that you will act accordingly.”

In summarizing the town’s view of Mr Lysaght’s lawsuit, which seeks his reinstatement as police chief, Mr Zabel writes, “Mr Lysaght’s appeal has no merit and should be dismissed.”

Lysaght’s Appeal

In his July legal brief, Mr Kelly raises two basic issues about Mr Lysaght’s termination.

Mr Kelly asks whether Mr Murphy acted arbitrarily and in abuse of his discretion when he concluded that just cause existed for Mr Lysaght’s termination.

Mr Kelly also asks whether the Police Commission acted arbitrarily when it accepted the Mr Kelly’s findings of fact without providing Mr Lysaght with an opportunity to address the findings, which Mr Kelly maintains failed to establish just cause for termination.

Of Mr Lysaght’s court appeal through which he seeks to be reinstated as police chief, Mr Kelly writes, “This is not the typical case of limited judicial review of an arbitrator’s award.”

“Unlike the typical [narrow] arbitrator’s award, this court’s review of the record is not limited. The court must conduct a [broader] ‘de novo’ review, including errors of law,” according to Mr Kelly.

The court must examine the entire record of the termination hearings held by the arbitrator and decide whether the Police Commission proved there was substantial evidence justifying the police chief’s termination, Mr Kelly writes.

Mr Kelly maintains that the arbitrator’s findings of fact failed to establish “just cause” to terminate Mr Lysaght.

In the pending lawsuit, Mr Lysaght seeks back pay and fringe benefits, retroactive to his March 3 firing, plus interest. He also seeks to have the town assume costs, plus his attorney’s fees, stemming from his termination hearing and his court appeal.

In his court appeal, Mr Lysaght alleges that in terminating him, the Police Commission acted illegally because it:

• Failed to provide him with an opportunity to address the hearing officer’s findings of fact and recommendations, before voting to fire him.

• Failed to address the hearing officer’s recommendation that an attempt be made between the Police Commission and Mr Lysaght to re-establish a relationship leading to his reinstatement as chief, before voting to terminate him.

• Accepted the hearing officer’s findings of fact, which failed to establish “just cause” for his termination under applicable state law.

The hearing officer’s findings that Mr Lysaght: had defects in his ability to manage and administer the police department; did not sufficiently delegate authority; and was insubordinate on one occasion, do not collectively satisfy the “just cause” standard, according to Mr Lysaght’s lawsuit.