Urges Reconciliation, However –

Arbitrator Finds ‘Just Cause’ To Fire Lysaght

By Andrew Gorosko

The hearing officer who presided at Police Chief James E. Lysaght, Jr’s job termination hearing has found there is “just cause” to fire Chief Lysaght.

The hearing officer, independent mediator and arbitrator Albert G. Murphy, however, recommends that the Police Commission and Chief Lysaght make an effort to reconcile their differences, with the goal of reinstating the chief to his post, possibly on a probationary basis. Such a reconciliation would allow the chief to avoid a painful and disruptive career change, and spare the Police Commission the expense and uncertainty of finding a new police chief, Mr Murphy writes in his arbitration report on the chief’s December termination hearing.

Police Commission Chairman James Reilly had nothing to say about the termination hearing report. “There’s no comment on it,” he said Monday.

The Police Commission was scheduled to conduct a special meeting to discuss and act on Mr Murphy’s report at 7 pm, Friday, March 3, in the Town Hall South conference room at 3 Main Street. The  meeting agenda states a portion of the discussion is expected to be held in closed session.

First Selectman Herbert Rosenthal said of Mr Murphy’s report, “I thought he produced a balanced document. It was thorough.”

“This whole incident was unfortunate,” the first selectman said.

The Newtown Police Union had no comment on the report. In September 1997, the union conducted a vote of confidence on Chief Lysaght’s leadership of the police department. Of those voting, 29 officers expressed “no confidence” in the chief; one officer expressed confidence; and two officers abstained.

In a prepared statement, Chief Lysaght said Wednesday, “Hopefully, the Police Commission will accept Mr Murphy’s strong recommendation that we make a sincere attempt at re-establishing a positive working relationship. After putting this matter behind us, we can all get back to properly serving our community.”

“I am gratified that the arbitrator, Mr Murphy, concluded that the hearings demonstrated that I am a competent, energetic and enthusiastic police officer, who did the best he could under adverse circumstances. The hearing process also confirmed that I have always been willing to work hard and perform whatever task is needed for the good and welfare of the [police] department and the people of Newtown,” he added.

The Police Commission placed Chief Lysaght on administrative leave, with full pay, plus benefits, last July after deciding it would seek to terminate him. The police chief is paid $65,280 annually. Police Captain Michael Kehoe has been running the police department in Chief Lysaght’s absence. The town has spent about $70,000, so far, on legal fees in connection with the Lysaght affair.

 Last April, Police Commission members provided Chief Lysaght with his third consecutive negative job performance evaluation, setting in motion their effort to dismiss him from the post he has held since July 1996.  The Police Commission hired Chief Lysaght from a field of 118 applicants, following extensive interviews and background checks. Last summer, the chief and the commission agreed to submit the question of the chief’s job future to a hearing conducted by a neutral party. Both sides agreed that the commission would be bound by the hearing officer’s findings of fact, but would not be bound by his recommendations, in deciding whether to terminate the chief. A termination would be subject to appeal by Chief Lysaght in Danbury Superior Court.

Police Commission members allege Chief Lysaght has not demonstrated the leadership or management skills necessary for the effective and efficient operation of the police department, and are thus seeking to terminate him. Chief Lysaght’s lawyer, John Kelly, has responded that the commission’s allegations against the chief are based on “philosophical differences” over how to run a police department, adding that the chief has become the victim of “petty politics.”

Report

In a 32-page report based on Chief Lysaght’s mid-December job termination hearing, Mr Murphy, a Hartford attorney, writes, “The record demonstrates that Chief Lysaght is a competent, energetic and enthusiastic police officer.”

“If the first [job] evaluation [in January 1997] were a forerunner of what was to follow, he would be regarded as some species of miracle worker. However, as the record demonstrates, such was not the case. The town has shown defects in the chief’s ability to manage and administer, which cannot be ignored,” he adds.  

“The chief was told at the outset [by the Police Commission] that he needed to delegate more [authority.] His first [job] evaluation hinted at this drawback; the second [evaluation] was more emphatic. The record bears it out. Report after report shows him climbing hills, looking for [radio] tower sites, crunching numbers with computer vendors, etc., all matters more suitable for either subordinates or experts. The result was that, in several areas, notably the [radio] tower and the [police] computers, nothing got done for, literally, years,” Mr Murphy writes.

“Another repetitive criticism is [the chief’s] failure to communicate with the [Police Commission]. The suspicion, undocumented, persists that the chief chafed under the strictures of civilian control, [which] he may have felt didn’t appreciate the problems of a day-to-day police officer. If that be the case, the answer is that the [Police Commission] is the body charged by the electorate with governing the department. The electorate is comprised of the people who pay the taxes that pay the salaries, etc. Like it [or] not, the [commission] is in charge,” Mr Murphy adds.

Ten Points Reviewed

In the report, Mr Murphy reviews the ten points made by the Police Commission in its notice of grounds for dismissal of the chief. Mr Murphy sides with the commission in some cases, dismisses its claims in others, and terms some of the allegations made against the chief as minor.

In balancing his findings, the hearing officer found “just cause” for the chief’s termination, but strongly recommends that the commission and chief reconcile their differences and that he be reinstated as chief.

“In matters involving the misrepresentation to the first selectman of the [commission’s] position on acting sergeants, the chief was insubordinate,” Mr Murphy writes. In other cases, the chief came close to being insubordinate, he adds.

“There were, it is true, instances where members of the [commission] indulged in what might be termed micro-management. However, such instances as there may have been do not rise to the level of conduct interfering with the ability of the [police] department to do its job, and are to be expected in the arena of municipal government,” he adds.

“I reluctantly conclude, therefore, that, on the record, just cause exists for the termination of the chief’s contract,” Mr Murphy states.

“However, I equally strongly recommend that a sincere attempt be made between the [commission] and the chief to re-establish a relationship reinstating the chief which will… benefit both of them and, more particularly, the people of Newtown. Such might be done on a probationary basis. Surely, by now, each knows what to expect of the other. In this way, the chief will avoid a painful and disruptive career change and the [commission] will be spared the expense and uncertainty of finding a new chief of police,” Mr Murphy writes.

In his report, Mr Murphy makes 147 findings of fact based on the testimony and evidence presented to him at the four-day termination hearing. Those findings focus on the allegations contained the ten-point notice of grounds for dismissal issued to Chief Lysaght last August by the Police Commission.

Criticism

In its notice of grounds for dismissal, the Police Commission stated the chief failed and/or refused to keep the [commission] timely and fully advised of, or misinformed the board or the first selectman with respect to matters of concern to the [police] department.

A major commission complaint against the chief is that he did not keep commission members apprised of internal affairs investigations of police officers, and of public complaints against police officers.

“This complaint against the chief epitomizes the basic flaw in the relationship between the [commission] and the chief,” Mr Murphy writes in reference to several minor discipline cases against police officers that the chief handled without informing the commission.

“The excuse or explanation offered by the chief was that the matters might have eventually come before the [commission] in its capacity as an appellate review [agency] of internal affairs determinations, and the [commission] would be ‘tainted,’” Mr Murphy wrote.

“Whether or not that is a valid reason for not advising the [commission], and I agree with the [commission] that it is not, the fact of the matter is that the [commission] has the ultimate responsibility for department affairs. If the [commission] did become ‘tainted’ in a particular case, that is the [commission’s] problem, not the chief’s,” according to Mr Murphy.

In November 1998, an internal affairs investigation was conducted concerning a complaint by a dispatcher of alleged abusive conduct by a sergeant, but the chief made no report to the Police Commission on the matter until March 1999, according to Mr Murphy.

Also in November 1998, an internal conflict arose concerning a police officer’s use of a police patrol car on a private duty job, but the chief provided no information on the matter to the commission until after the internal affairs investigation was complete, Mr Murphy states.

In January 1999, an incident occurred involving a small child calling 911 to which police responded. An internal affairs investigation was conducted and no culpable conduct was found to have occurred, but no report was made to the Police Commission until April 1999, according to Mr Murphy.   

“In February 1998, the chief made a strong argument that an officer be assigned to the Statewide Narcotics Task Force, a cooperative body sponsored by the state police… Five months later, the chief withdrew the officer, but did not advise the board until the following December, citing manpower problems,” Mr Murphy writes.

 “The [commission’s] right and need to know what is going on within the department, which the electorate of the town [has] determined to be governed by the [commission], is near absolute, subject only to precisely defined rights of others, privacy rights, collective bargaining agreements, etc.,” the hearing officer writes.

 When a sergeant’s vacancy occurred in early 1999, there were no immediately eligible candidates for the post, according to Mr Murphy. The Police Commission had earlier expressed a desire to avoid making “acting” appointments, he adds.

 “Nonetheless, the chief did so, on the grounds of saving overtime payments to other sergeants filling in. Then, as part of the process, he submitted a payroll change form to the first selectman’s office… First Selectman [Herbert] Rosenthal asked the chief if the [commission] was aware of the appointment, since he knew the [commission] opposed acting appointments. The chief said the [commission] knew of the appointment. The chief later defended the action on the grounds of saving money, and made a remark to the effect he didn’t want the [commission] to get upset,” Mr Murphy wrote.

“He [the chief] had the obligation, first, to clear his action with the [commission], and secondly, certainly not to misrepresent the facts to the first selectman. I regard this as insubordination, a serious transgression and a breach of the chief’s duty to his employer,” Mr Murphy writes.

Test Results

Mr Murphy also is critical of Chief Lysaght in a case where the chief, for several months, had failed to inform the commission that a recently hired police officer had received negative results on the psychological testing that is performed on police officer candidates. “Obviously this information was of crucial significance to the [commission] in its assessment of the suitability of the candidates for appointment and the chief was in error in not so advising it. It appears to be another situation where the chief felt he was in a better position to appraise a situation than the [commission],” Mr Murphy writes.

Mr Murphy dismissed a commission complaint that the chief failed to evaluate and set goals for the sergeant assigned to the detective bureau, stating the matter had “no substantial weight.”

In reviewing the commission’s allegation that Chief Lysaght failed to develop a detailed, written plan for police officer training, Mr Murphy writes, “The chief has presented evidence of having provided the [commission] with ongoing reports of training in various areas over the course of his tenure. The [commission] for its part has shown that it, from time to time, demanded detailed training plans. What is missing is the slightest indication of an attempt to dovetail these two positions. The two sides, chief and [commission], were as ‘ships passing in the night,’ dimly aware of the other’s presence… Rather than ignoring the board’s requests, it would have been signally more prudent on the chief’s part had he asked the board to provide him with a precise blueprint of the type of plan it wanted.”

“His failure to do so constitutes a flaw in his executive capabilities. While this shortcoming would not in itself be cause for discipline, it can be considered as part of an overall picture of non-communication,” Mr Murphy writes.

In reviewing the commission’s allegation that the chief failed to present plans and make meaningful progress in a longstanding radio communications tower construction project, Mr Murphy observed that problems with the project stemmed from both the chief and the Police Commission.

“The [commission] early on cited the chief for failure to delegate responsibility, and this [communications tower project] is a prime example. …Under the peculiar circumstances of this situation, where the [commission] was well aware of what was going on over a period of years, it is my opinion that the [commission] is not without fault,” he writes. While the communications tower situation reflects negatively on the chief’s performance, the matter must be judged in light of the commission’s own reticence in dealing with an obvious problem, according to Mr Murphy.   

In his findings of fact, Mr Murphy notes that Chief Lysaght’s resume indicates that he was familiar with radio communications improvement work, based on his experience at the Bristol Police Department. However, during Chief Lysaght’s job interview in 1996, the Police Commission did not seek further information about his background in radio communications, nor did the chief enlarge on that resume item, according to Mr Murphy.

In reviewing the commission’s allegation that the chief failed to develop and implement a plan to upgrade the police department’s computer system, Mr Murphy observed, “The chief stated in his resume that he had what would appear to be extensive computer expertise, but [he] was never questioned about the extent thereof by the [commission].”

Eventually “the chief conceded that he did not have the expertise to develop and implement a computer plan, despite the entries in his resume referring to computer literacy,” Mr Murphy writes.

“It does not well become the [commission] that [it] did not, over a period of two years, either ask the chief is he was in over his head, or simply direct him to seek the aid of a professional computer expert,” he adds.

“Willingness and/or ability to recognize when outside help is needed is part and parcel of any executive’s arsenal of talents, [and] the chief’s failure to do so in this instance must be regarded as a negative factor to be considered when assessing the sufficiency of just cause for termination,” writes Mr Murphy.

In response to the radio communications and computer system issues, Chief Lysaght said, in his prepared statement, “It is readily understandable that when the police department became short-handed of management personnel, it became necessary for me to devote much of my own time to working on the computer system replacement project and the radio antenna relocation project, the high priority projects identified by the Police Commission.”

 

Manpower

The hearing officer also comments on Chief’s Lysaght’s manpower scheduling efforts.

Although the chief told the commission in January 1998 that he would schedule five police officers per shift, he did not do so, according to Mr Murphy. “If he felt he could not maintain such a schedule, his duty was to report that fact to the [commission], not simply to evade the issue. His attempt to rationalize this inaction on the basis of flawed interpretation of the collective bargaining agreement does not help the situation. It is but another negative factor to be added to the assessment of ‘just cause’ for termination,” Mr Murphy writes.

Mr Murphy dismisses an allegation by the Police Commission that Chief Lysaght was wrong not to report to commission members three instances of violations of police department rules. Mr Murphy terms them “minor violations” which the chief could handle by himself.

The hearing officer also dismisses a commission allegation that Chief Lysaght abused his official position for personal gain, benefit or favor by using police department resources to respond to his unfavorable April 1999 job performance evaluation.

 The commission told the chief to respond to the evaluation, which he did, producing a huge volume of paperwork for review by commission members, Mr Murphy notes. “It is incomprehensible to me that such utilization [of police department equipment and personnel] might be construed as a departure from department business,” Mr Murphy writes.

In reviewing the Police Commission’s claim that Chief Lysaght violated the town charter by incurring a liability or expense which obligated the town to spend in excess of an approved police department budget line item account, Mr Murphy found, “Other than constituting a nuisance to that [finance] office, no material harm, and certainly no loss of money, has occurred.”