Court Appeal Seeks To Reinstate Lysaght As Police Chief

By Andrew Gorosko

In a memorandum to Judge Dale Radcliffe, attorney John Kelly, representing former Newtown police chief James E. Lysaght, Jr, argues that the judge should thoroughly review the record of Mr Lysaght’s termination hearing, and then, based on the evidence, should reverse an arbitrator’s finding that the Police Commission had “just cause” to fire Mr Lysaght as police chief.

 Mr Kelly filed the memorandum of law July 31 in Danbury Superior Court in support of Mr Lysaght’s court appeal of his March 3 firing by the Police Commission. Through that lawsuit, Mr Lysaght is seeking to be reinstated as police chief.

In firing Mr Lysaght, 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.

In the memorandum, Mr Kelly writes, “Taking the record as a whole, the arbitrator’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 arbitrator’s finding of just cause,” Mr Kelly adds.

In his report, Albert Murphy, the arbitrator, 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 July 1999, the Police Commission placed Mr Lysaght on paid administrative leave as it began termination proceedings against him. 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 an arbitrator conduct Mr Lysaght’s termination hearing, stipulating that the arbitrator 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 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 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.

In March 2000, following a brief meeting, the commission unanimously voted to fire Mr Lysaght based on the arbitrator’s findings of fact.

In the memorandum, Mr Kelly raises two basic issues about Mr Lysaght’s termination.

Mr Kelly asks whether the arbitrator 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 arbitrator’s findings of fact without providing Mr Lysaght with an opportunity to address such 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.”

Mr Kelly notes that the Police Commission had excused itself from conducting the termination hearing as a result of Mr Lysaght’s motion to disqualify the commission from doing so, because each commission member had been subpoenaed as a witness in the case by Mr Lysaght.

“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 an arbitrator’s findings of fact and recommendations, before voting to fire him.

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

The arbitrator’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 the lawsuit.

The town is scheduled to file a response to Mr Kelly’s memorandum of law by August 14.