Date: Fri 03-Sep-1999

Publication: Bee

Author: ANDYG

Quick Words:

police-Lysaght-termination

Full Text:

Arbitrator To Conduct Police Chief's Termination Hearing

(with photo)

BY ANDREW GOROSKO

In a compromise move, the Police Commission and Police Chief James E. Lysaght,

Jr, have agreed to have an independent arbitrator conduct the hearing through

which the commission is seeking to fire the chief.

Attorney John Kelly, representing Chief Lysaght, filed a motion which sought

to have all five Police Commission members disqualify themselves at the

chief's termination hearing Monday night.

That meeting was to have been the first of six sessions scheduled to air the

commission's allegations against the chief. Police Commission members allege

that Chief Lysaght has neither the management nor leadership abilities to

effectively run the police department, and thus are seeking to terminate him.

Mr Kelly had subpoenaed all five commission members as witnesses to testify on

behalf of Chief Lysaght. Mr Kelly argued that because all five commission

members will be witnesses, they cannot also be impartial adjudicators at the

hearing.

In the motion which was submitted before any opening statements were made, Mr

Kelly argued, "It is impossible for the members of the board to provide Chief

Lysaght with an impartial hearing where they will be witnesses and their

credibility will have to be judged."

"The members of the board cannot be both fact witnesses and adjudicators of

the facts," the motion states.

Chief Lysaght believes that the testimony to be provided by the commission

members will show that there is no just cause to terminate his employment, the

motion adds. In his defense, Chief Lysaght plans to have the commission

members testify on his behalf concerning the job evaluations of him which they

prepared and on the specifications of their notice of the grounds for his

dismissal.

Mr Kelly presented the motion to attorney David Zabel and attorney Frederick

Dorsey in the session at Town Hall South attended by about 40 people. Mr

Zabel, who represents the Police Commission, is acting as the "prosecutor" in

the administrative case. Mr Dorsey, the town's labor lawyer, is advising the

commission on legal matters.

On receiving the motion from Mr Kelly, commission members entered a 60-minute

closed session to discuss the issues it raised. After returning to open

session, members approved the compromise which calls for an independent

arbitrator to conduct the termination hearing, but leaves the decision on

whether to fire the chief up to the commission.

Having an arbitrator step into the proceedings is expected to delay the start

of the termination hearing by four to eight weeks, but may expedite the

proceedings once they start.

It was unclear if a termination hearing held by an arbitrator will be in open

session.

Ever since the Police Commission began its action against Chief Lysaght in

April, the chief has maintained he wants a public airing of the case. Chief

Lysaght said Tuesday he has nothing to hide and wants the proceedings held in

open session.

Mr Kelly said Tuesday he wants the sessions open to the public. "Right now, I

foresee it being public," he said.

Mr Dorsey said Monday the parties in the case will discuss how the termination

hearing will be conducted with the arbitrator who is chosen to preside.

Mr Zabel said Wednesday he would be comfortable with either open or closed

sessions at the termination hearing. "I have no preference," he said. Whether

the proceedings are open or closed will be up to Chief Lysaght and the Police

Commission, Mr Zabel said.

Based on testimony presented at the termination hearing, the arbitrator will

render findings of fact and make recommendations to the Police Commission. The

commission will be bound by those findings of fact, but not bound by the

recommendations.

At the conclusion of the hearing, the commission will deliberate, deciding

whether Chief Lysaght should be terminated.

If the commission votes to fire the chief, the chief may appeal the

termination in Danbury Superior Court.

Compromise

The compromise prevents an immediate court appeal by Chief Lysaght over Police

Commission members serving as both witnesses and adjudicators at a termination

hearing, Mr Dorsey said.

The compromise allows the commission to disqualify itself from holding the

factual hearing portion of the process in which testimony is heard. The

compromise allows the commission to delegate that authority to an arbitrator.

The process to be used is similar to that used in termination proceedings

against a tenured teacher, Mr Dorsey said. It is one of several procedures

which have been used by other police commissions seeking to terminate other

police chiefs in the state, he said.

"The (commission) feels it is perfectly capable of discharging its duties in a

fair and equitable fashion, but to eliminate any appearance of impropriety,

the board is willing to enter this compromise which doesn't delegate the

decision making authority," Mr Dorsey said.

"This is a process that I'm familiar with that I know can work," he said. "I

think this will definitely expedite the hearings."

In a Tuesday statement, Chief Lysaght thanked the many residents who attended

the Monday night session on his behalf.

"A number of people who attended last night's meeting did so as a personal

expression of their support for my family and me. I believe, therefore, that

their attendance at the hearing was an open display of both their compassion

and courage."

"I firmly believe that the fact that so many concerned citizens attended the

meeting served to remind the Police Commission of the importance of the

public's perception of the police department's operations. Ultimately, I think

that it was the audience's presence that helped the Police Commission to focus

on the need to create and enact a hearing process that is more fair and

impartial," he said.

Police Commission members August 17 issued a "notice of grounds for dismissal"

to Chief Lysaght explaining the reasons why they believe he should be fired.

The notice lists five grounds for the chief's dismissal and provides examples

of his conduct, plus incidents which the commission will use in evaluating

whether there is "just cause" for his termination.

The grounds listed for Chief Lysaght's dismissal include:

Failure to receive a satisfactory job performance evaluation for two

consecutive evaluations.

Receipt of an aggregate of three unsatisfactory evaluations during a

three-year period.

Failure to adhere to various police rules and regulations.

Failure to comply with any lawful order of the commission.

Violation of reasonable and ordinary standards of good conduct.

Mr Kelly has said the conflict between the Police Commission and the chief

amounts to "philosophical differences" over how to run a police department and

that the chief is the victim of "petty politics."

Police Commission members July 6 placed Chief Lysaght, 50, on administrative

leave with full pay and benefits until pending commission charges of

ineffective management and lack of leadership against him are resolved, along

with the question of the chief's possible dismissal. Captain Michael Kehoe is

running the police department in the chief's absence.