Fired Police Chief’s Appeal Due In Court Nov. 20

By Andrew Gorosko

Former police chief James E. Lysaght, Jr, and the town are scheduled to meet in Danbury Superior Court Monday, November 20, at a hearing before a judge for oral arguments in Mr Lysaght’s administrative appeal, through which he seeks to be reinstated as Newtown’s chief of police.

Judge William Holden is slated to preside at the hearing at which Mr Lysaght’s attorney, John Kelly, is expected to tell the judge why Mr Lysaght should be given back his job.

In firing Mr Lysaght last March, 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.

Attorney David Zabel, representing the town, is expected to tell the judge why the town considers it was justified in firing Mr Lysaght, 51, from his $65,280 annual post last March.

Following his termination, Mr Lysaght filed the administrative appeal in seeking his reinstatement.

The town has appealed an unemployment compensation claim filed by Mr Lysaght. That claim is still pending.

In July 1999, the Police Commission placed Mr Lysaght on paid administrative leave as it began termination proceedings against him for “just cause.” In August 1999, the commission issued Mr Lysaght a notice of grounds for dismissal. In September 1999, the commission and Mr Lysaght agreed to have a neutral hearing officer, also known as an arbitrator, conduct Mr Lysaght’s termination hearing, stipulating that the hearing officer would make findings of fact and recommendations. The commission would be bound by the findings of fact, but not bound by the recommendations.

Four days of termination hearings were held in December 1999. In a February 2000 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 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.

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.

Mr Kelly writes, “Taking the record as a whole, the [hearing officer’s] finding that the plaintiff was a ‘competent’ police chief who had some managerial defects cannot be equated with ‘just cause’ [to terminate Mr Lysaght].”

“This court should reverse the [hearing officer’s] finding of ‘just cause,’” Mr Kelly adds.

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 the 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 Mr Murphy’s findings of fact, which Mr Kelly maintains failed to establish just cause for termination.

“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 hearing officer and decide whether the Police Commission proved there was substantial evidence justifying the police chief’s termination, Mr Kelly writes.

In his 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.

 

Town Response

In a response brief filed by the town, 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.”

According to Mr Zabel, the findings of fact made by Mr 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.

“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 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.”

Judge Holden will have 120 days to issue a decision in the case, or more time, if needed.

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