Lawyer Falsely Accuses City Of Leaking Docs

After reading a news article she found ​“hugely problematic,” a lawyer asked a judge to stop the city from releasing a range of public records about police officers to the press until her case is decided.

The attorney, Patricia Cofrancesco, represents six cops who were snubbed promotions in 2015 and are now suing over that. She has been trying to keep the officers’ past misconduct out of the courtroom as she argues that her clients were wrongly denied access to the force’s higher ranks.

The city, on the other side, argues that Internal Affairs reports would show why then-Chief Dean Esserman didn’t think certain officers were ready to become sergeants and lieutenants. That’s the information Cofrancesco doesn’t want a judge to consider.

Two weeks ago, in this article written by this reporter, the Independent detailed one of those instances of misconduct. Sgt. Richard Miller was given a one-day suspension, held in abeyance for six months, after signing off an incomplete police report that left out details about a rookie policewoman’s personal connections to the suspect in a controversial traffic stop and drug arrest.

In a motion filed last week in state court, Cofrancesco asserted that the article contained ​“information that is not in the public domain.” She implied — falsely — that the city had leaked the information, writing that it ​“could only have come from these municipal defendants.”

In fact, everything the Independent wrote was based on reporting the organization already published three years ago, sourced from public records obtained in routine ways and from interviews at the time.

Cofrancesco — who was fired from her job as New Haven corporation counsel in 1998 amid a corruption scandal and has been repeatedly suing the city ever since then on behalf of employees — asked a judge to block all city employees from disclosing any information about personnel matters or internal investigations (except for what she requested in discovery), at least until the judge decides whether to admit the misconduct records as evidence.

Superior Court Judge W. Glen Pierson said he will hear oral arguments on July 30 before making his ruling.

Outside the courtroom, the motion raises a bigger issue: How far back should citizens be able to know when cops didn’t follow the rules? Can the police union, through its collective bargaining agreement with the city, bury the public’s right to know?

Based on the union’s contract, police officers’ disciplinary history must be removed from their personnel files within three years, as long as the cops have ​“no similar reoccurrences” and an otherwise ​“good work record.”

That provision led the union to intervene in the court case last month, after the city’s hired counsel, Nicole Chomiak, asked to introduce Internal Affairs reports in her defense.

Though the internal investigations are a different class of records from the personnel history, the union said Chomiak was making an ​“end run” around the collective bargaining agreement. The union filed a complaint to the state, putting the court case on hold until the labor relations board decides whether the city was wrong to even ask about introducing the files.

In her latest motion, Cofrancesco is trying to wall off misconduct records even further, asking a judge to limit the city’s ability to provide information to the public.

Cofrancesco said that this reporter (whose name she misspelled) had written a story that was ​“incomplete, false and misleading.” She argued that the information the Independent reported could be found only in the Internal Affairs file.

According to Cofrancesco, Esserman told Miller about his punishment in a ​“private meeting.” Union representatives then grieved the discipline and the city ​“exonerated” Miller, she said. Evidence of the discipline was later removed from Miller’s personnel file, she said.

(The city reached a settlement with Miller, converting the discipline from a one-day suspension to a written warning and removing it from the personnel file, said Scott Nabel, a human resources manager for public safety employees.)

Cofrancesco said that internal investigators were wrong to conclude that Miller signed off on an incomplete report. ​“This inaccurate information is not in the public domain,” she argued.

She didn’t cite any statute to back up that argument.

The Connecticut Freedom of Information Act (FOIA) allows anyone to request a copy of misconduct records from their local police department.

If someone asks for an Internal Affairs report, the city, by law, would have to hand it over, Chomiak explained in a response brief.

Chomiak cited a 1986 precedent, when a judge forced the Hartford Police Department to release files from its internal investigations. That case established that the public has ​“a legitimate interest in the integrity of local police departments,” particularly in how they investigate alleged misconduct.

The Independent’s story drew on one of those Internal Affairs reports. Running at over 400 pages, this document comprehensively reviewed an incident that resulted in the firing of one cop and suspension of two others.

In 2015, Paul Bass, the Independent’s editor, sent in the FOIA request and paid the city $50 to print out the pages.

Adam Marshall, a staff attorney at the Reporter’s Committee for Freedom of the Press, said a public record like that could not retroactively become exempt.

“That doesn’t go away. Your articles are there. It’s not like the government can come destroy the copies you have. They can’t prevent you from publishing or talking about them,” he said. ​“In that sense, it all seems kind of silly if everyone already knows about this.”

Contrary to Cofrancesco’s insinuation that the city leaked documents, the story also pulled on-the-record quotes that an assistant chief and the police union’s own lawyer made in 2015.

In her brief, Chomiak said — correctly — that no one from the chief’s office or her law firm had spoken to the Independent about the lawsuit.

(The Independent did email Chomiak one question about timing. She confirmed a scheduled hearing had been cancelled, but she did not respond to a follow-up email about why. The Independent also contacted five city employees, including Cain, to obtain a copy of the police union’s complaint to the state labor relations board, but in providing the document, no one discussed the lawsuit.)

Saying her clients didn’t want ​“their cases litigated in the media,” Cofrancesco asked Judge Pierson to stop any further disclosures of personnel records.

“The Court may not have jurisdiction or control over a reporter from The New Haven Independent, but the Court can clearly exercise such authority over the parties,” she said.

Chomiak argued, in response, that it is ludicrous to ask the city to stop carrying out its legal obligations under FOIA, just because the plaintiffs didn’t like an article.

“[T]he Plaintiffs should not be able to circumvent our statutes requiring disclosure of public records simply because a lawsuit is pending or they do not want information concerning Internal Affairs investigation made public,” she wrote.

Legal experts agreed that Cofrancesco’s request didn’t square with America’s notion of open government. Marshall, of the Reporter’s Committee for Freedom of the Press, said her ask struck him as ​“crazy.”

“You have to comply with public-records laws,” he explained. ​“A government can’t contract away its obligation. It’s not going to be sufficient to say we can’t give it to you because we told someone else we wouldn’t.”

Activists said that fights like this, with the police union doggedly insisting on keeping misconduct records secret, diminished citizens’ trust in law enforcement.

“It’s terrible for transparency and accountability,” said Dan Barrett, legal director of the state’s American Civil Liberties Union chapter. ​“If the only place information [about misconduct] is available is wiped clean periodically, then we the people have no idea whether the police department is reining anyone in,”

These ​“disappearing discipline clauses” are fairly common in police union contracts throughout Connecticut, Barrett said.

In some cases, police departments like New Haven do keep two separate file cabinets, preserving the public’s access to Internal Affairs reports for decades, even long after an officer retires.

But that can sometimes be tricky for journalists, lawyers and activists filing Freedom of Information Act requests.

“If you tried to get it today and it disappeared down the memory hole, the city might tell you that there was no such information,” Barrett explained. ​“If you don’t know what to ask for and where it’s stored, it might seem like they’re squeaky clean.”

Barrett said he understood why the unions didn’t want long-ago mistakes to keep officers from being promoted, but he didn’t get why that meant the records had to be removed from files.

“We can have both. The collective bargaining agreement can say that the employer is not permitted to consider discipline for something that happened longer than x years ago and also retain all the disciplinary info,” he argued. ​“That is totally fair. The problem now is that it’s been arranged so we can’t look back.”

(The contract, which expired two years ago, is currently being renegotiated. After the union membership near-unanimously rejected the city’s last best offer, the parties are headed to state arbitration.)

Barrett added that this case doesn’t even touch on a more central issue for policing reformers. Even if the public can find out about proven misconduct, those documents won’t say anything about the other times cops weren’t punished for crossing the line.

“There’s a whole other topic of whether the police can actually discipline themselves,” he said.