Court Takes Up Appeal Of Lysaght Firing

By Andrew Gorosko

Lawyers for the town and for former police chief James E. Lysaght, Jr, Monday morning appeared in Danbury Superior Court for oral arguments in Mr Lysaght’s administrative appeal of his firing by the Police Commission, through which he seeks reinstatement as chief of police.

Judge William Holden’s decision in the case is expected by the end of this year.

Judge Holden asked the four lawyers present in Courtroom 3 to confer with him in his chambers before the hearing. The judge spoke with attorney George Kelly, representing the Police Commission; attorneys David Zabel and Monte Frank, representing the town; and attorney John Kelly, representing Mr Lysaght.

After a brief discussion, all returned to the courtroom.

“The materials in this matter are voluminous,” Judge Holden said, referring to the huge amount of legal documents that have been submitted to him.

Before the hearing had begun, George Kelly, representing the Police Commission, had walked into Courtroom 3 with three massive white plastic binders holding the record of the case. The three binders were about as voluminous a load as one man could carry.

The case record contains a transcript the four-day Lysaght termination hearing held last December; the Police Commission’s notice of its grounds for Mr Lysaght’s dismissal; plus Mr Lysaght’s massive response to a 1999 negative job performance evaluation of him by the commission. That response contains 164 documents including the commission’s meeting minutes dating back to January 1996, letters, memoranda, contracts, diagrams, and documents concerning police training, radio communications, computers, job performance evaluations, citizen complaints, and internal investigations within the police department, among other items.

In firing Mr Lysaght from the $65,280 annual position last March, Police Commission members decided the 51-year-old Sandy Hook resident did not demonstrate the leadership, planning, and management skills necessary for the effective and efficient operation of the police department.

Judge Holden told the lawyers that he is reviewing the record of the case and plans to perform legal research before issuing his decision.

“I see nothing the court needs,” Judge Holden said of the thoroughness of the material that has been submitted.

The judge asked all attorneys whether they had any comments on the case, and all four men declined.

If more information is needed to help him decide the appeal, he would contact the attorneys and schedule a hearing, Judge Holden said.

John Kelly, representing Mr Lysaght, said, “I don’t envision [submitting] any additional testimony or exhibits,” but thanked the judge for leaving the matter open-ended.

Noting the extensive record concerning Mr Lysaght’s termination, Mr Zabel said he believes testimony in the case is complete.

Judge Holden said that unless unforeseen circumstances arise, he expects to issue a decision in the case by December 29, the Friday before the start of the New Year’s weekend holiday.

“We are in recess,” the judge said, concluding the brief court appearance.

Following the hearing, Mr Zabel said the documents, which already have been submitted in the case, describe the termination matter in great detail.

John Kelly, representing Mr Lysaght, said of the case’s outcome, “We’ll just have to see how it goes.”

 So far, the town has run up approximately $111,000 in legal fees in connection with the termination of Mr Lysaght and with the town’s challenge to his pending unemployment compensation claim.

The town held four days of termination hearings last December. In a February report, hearing officer Albert Murphy found that “just cause” existed to terminate Mr Lysaght concerning some, but not all ten, of the allegations lodged against him in the 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.

At a brief March meeting, the Police Commission unanimously voted to fire Mr Lysaght based on Mr Murphy’s findings of fact.

Since July 1999, Captain Michael Kehoe has been in charge of the police department. The Police Commission named Mr Kehoe “acting police chief” last April.

Police Commission Chairman James Reilly has said the commission does not plan to select a permanent police chief until the outcome of the Lysaght appeal is clear.

Lysaght View

In a legal brief, Mr Kelly, representing Mr Lysaght, argues that the court should thoroughly review the record of Mr Lysaght’s termination hearing, and then, based on the evidence, should reverse the hearing officer’s finding that the Police Commission had “just cause” to fire Mr Lysaght as police chief.

In his report, Mr Murphy, the hearing officer, wrote that Mr Lysaght was a competent police officer, but that there were defects in his ability to manage and administer. Mr Murphy faulted Mr Lysaght for not delegating more of his authority, adding that Mr Lysaght had chafed under the strictures of civilian control.

Mr Lysaght 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 his lawsuit, besides reinstatement, 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.

 

Town View

In a response brief, the town argues that the grounds for Mr Lysaght’s dismissal are “compelling” and urges that Mr Lysaght’s appeal be dismissed.

“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,” according to a brief filed by Mr Zabel.

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.”

“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.

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.

Superior Court decisions may be appealed to the Connecticut Appellate Court, and potentially to the Connecticut Supreme Court.