Lead, Park, Ricci Suits Enter New Phases

The city appears on the brink of settling a lead paint lawsuit, while preparing to argue who has the right to sue whom over the fate of a Dwight playground and a retired fire union president’s pension.

The new activity in those lawsuits occurred as city government seeks to stay on top of a crushing caseload of lawsuits piling up during the pandemic.

At a March 30 departmental budget workshop hosted by the Board of Alders Finance Committee, city Corporation Counsel Patricia King told the alders that the city is currently involved in 450 active legal cases.

King said that the city has taken on 126 new cases so far this fiscal year. That’s compared to 26 cases that have been resolved so far this fiscal year.

“We’ve taken in more than have been resolved,” King told the committee alders. ​“Things will pick up once court starts functioning a little more” as the state court system continues to catch up on the many cases that were delayed during the early months of the pandemic.

“I’m very proud of my team and they do great work,” she added during that committee hearing. Earlier in the fiscal year, ​“the pandemic was the number one issue, and interrupted a lot of work. We were thrust into drafting emergency orders, telework policies, [and other legal agreements related to] housing first responders, homeless individuals, feeding them, making arrangements.”

As the city moves further away from the earliest days of the pandemic, here’s a look at where it stands on the three above-mentioned high-profile cases.

Lead Class Action: 23 Months Later

One of the longest and highest-profile lawsuits still facing the city appears — yet again — to be nearing a conclusion.

That’s Nyriel Smith v. City of New Haven, a class action lawsuit first filed in May 2019 by New Haven Legal Assistance Association attorneys against the administration of then-Mayor Toni Harp.

On April 9, legal aid attorneys Amy Marx and Shelley White and city Deputy Corporation Counsel Rod Williams filed a joint status report with the state housing court.

The one-paragraph update marked the first filing in two months, and the first hint since last October that ongoing negotiations may soon yield an actual settlement between the two parties.

The original class action lawsuit alleged — and Harp health department officials admitted in state housing court — that the city violated city law when the local health department stopped mandating lead paint inspections and issuing lead paint abatement orders when children tested at blood lead levels between 5 and 20 micrograms per deciliter (μg/dL).

The class action suit offered manifold examples of state judges siding against the city in how it enforced its lead laws. The suit also inspired alders to clarify and strengthen the city lead poisoning ordinance. It provided a campaign critique for now-Mayor Justin Elicker when he successfully challenged Harp for the office in 2019. And it has sparked an apparent overhaul in how the city Health Department handles child lead poisoning cases.

On Oct. 8, 2020, the legal aid and city attorneys wrote that they ​“expect to have a proposed settlement agreement to submit to the Court within the next two weeks, to be approved by the Court after a notice to the class and a final hearing.”

The next joint status report came on Feb. 9, 2021.

The two sets of attorneys said then that ​“they continue to be engaged in constructive settlement negotiations and expect to have a proposed settlement agreement to submit to the Court shortly.

“The parties have reached agreement on all major substantive issues and have been delayed in finalizing the submission of the proposed settlement agreement on account of the unprecedented burden of the pandemic and some recent time off for personal reasons for counsel. The parties have reconnected and expect to finalize the necessary court submissions forthwith.”

Then, silence for another two months.

In the April 9 joint status report, both sides indicated would likely be the last before a settlement is finalized and made public.

“The parties hereby submit a joint status report that they have been and continue to be engaged in constructive settlement negotiations and remain on the verge of submission of the settlement agreement to the Court,” Marx, White, and Williams wrote.

“The unprecedented burden of the pandemic and some time away from the office have prevented the parties from finalizing the submission; however, the parties have been actively discussing and refining the seventeen exhibits to the settlement agreement. The parties anticipate this to be the last Joint Status Report that will be filed prior to submission of the necessary settlement documents.”

During her presentation to the aldermanic Finance Committee at a departmental budget workshop on March 31, city Health Director Maritza Bond told local legislators that — even as her department spent most of last year responding to the Covid crisis — it also managed to bring up to speed how it handles child lead poisoning cases.

“We developed standard operating procedures so that all staff were following the same exact inspection process and documentation process,” she said.

The city currently has six lead inspectors ​“out doing inspections throughout the community,” she said.

She noted that the Elicker Administration also convened the Lead Paint Advisory Committee. It has millions of federal dollars still on hand to help support lead abatement efforts thank to a multi-year HUD grant pulled in by the former Harp Administration.

“On lead inspection, have we onboarded all inspectors that we’re budgeted to have?” asked Westville Alder and Finance Committee Vice-Chair Adam Marchand at that late March meeting. ​“Do we anticipate new” inspectors being hired?

“When I first came on board [in early 2020], I wanted to be conscious about budget, about whether we needed to use general fund or special fund dollars, [about] cases per inspector,” Bond replied.

“We are right now in a good place with our six lead inspectors based on current case load and projections currently calculated,” she said. ​“We’re very happy that all of our inspectors are in the field.”

How has the pandemic affected the department’s ability to actually conduct lead paint inspections in the field? asked East Rock Alder Anna Festa.

“When we hit the first surge, everybody was closed, including pediatrician offices,” Bond said. ​“We were not getting lead reports because nobody was getting tested.”

After getting through the first surge last spring, ​“things started opening up, we started seeing cases coming in, and we were back in the field.” Since last summer, city inspectors have been out responding in person to lead poisoning alerts, and issuing abatement orders.

Fight Continues Over Kensington Park

Court arguments in a lawsuit against the city for selling a public park in the Dwight neighborhood to an affordable housing developer, meanwhile, will soon be heard by a state judge. A remote hearing in the case is newly scheduled for June 2.

That case is Friends of Kensington Playground v. City of New Haven.

On Monday, April 12, state Superior Court Judge Robert Young issued an order to schedule arguments around the city’s bid to dismiss the lawsuit. City-hired attorney James Perito claims that lead plaintiff Patricia Wallace and the group Friends of Kensington Park do not have ​“an interest, title or right in the controversy,” and therefore do not have standing to sue.

Wallace and the park support group first filed the lawsuit against the city on Nov. 11, 2020, three weeks after the Board of Alders approved the city’s sale of Kensington Playground to The Community Builders (TCB) for $1 so that the developer could build 15 new affordable apartments atop the public greenspace.

The lawsuit alleged that the city failed to follow state-mandated public meeting guidelines and approved an ​“unreasonable impairment of natural resources” with the land swap.

On Feb. 26, city-hired attorney Perito filed a motion to dismiss the case.

In a memorandum in support of that filing, Perito wrote that, even though Wallace has claimed that she is affected by the potential land transfer because she is a resident of the city, the property is owned by the city, and the space has been used for decades as a public park, ​“none of the aforementioned allegations demonstrate a specific, personal or legal interest in the transfer of the land owned by the City.

“In fact, the allegations demonstrate Plaintiff is affected no differently than any other member of the general public or those living in the general vicinity of the Property.”

The same inability to prove proper legal standing is true for the group Friends of Kensington Park, Perito wrote.

“The members of the association are affected no differently than the general public and thus, do not have standing to bring this action on their own.”

Perito went on to write that the park is not protected by any sort of local, state, or national historic preservation laws.

And that the proposed land transfer does not qualify as a ​“taking” of park land because the property at issue is already owned by the city. ​“All the City has done is authorize the transfer of its ownership interest in the Property to a third party.”

On March 13, Wallace and the Friends of Kensington Park filed an objection to the city’s motion to dismiss.

Local attorney Keith Ainsworth, representing Wallace and the park association, argues that the plaintiffs do indeed have standing ​“to protect the public trust in urban park land.”

And that what the city is trying to do by selling the public greenspace is exactly what state statute related to ​“taking” open-air land is meant to address — ​“preventing the net loss of park land where a municipality takes a park and utilizes it for non-park purposes.”

In a March 30 reply, city-hired attorney Perito pushed back again on the plaintiff’s argument that they have proper standing to sue at all.

All the while, the developer — through its holding company Kensington Square II Limited Partnership — has sought to intervene in the case on the grounds that it is directly affected by this court case because the prospective apartments they plan on building at the site are at stake.

On March 8, Judge Young put a pause on TCB’s bid to join the case until the city’s motion to dismiss is decided.

And on April 12, he ordered the scheduling of arguments around that very motion by the city to scrap the case.

City V. City, & Ricci

And then there’s the ongoing case where the city is, well, suing itself.

That’s Board of Alders, City of New Haven v. City of New Haven

In that lawsuit, originally filed by the Board of Alders on June 29, 2020, local legislators alleged that Mayor Justin Elicker overstepped his bounds when he struck an agreement with former fire union president Frank Ricci that requires the city to pay for a $386,659.92 annuity on top of Ricci’s existing pension benefits.

Elicker responded that the city is legally required to make the extra retirement payments because of a memorandum of understanding (MOU) first signed in 2006 between the DeStefano Administration and the fire union, and then amended in 2019 by the Harp Administration to specifically provide for Ricci.

On Sept. 2, 2020, the fire union — which is also listed as a defendant in the case, along with Ricci himself, Ricci’s wife Christine, and the Metropolitan Life Insurance Company— filed for the court to pause the legal proceedings until the city and the union work out any pension-related disagreements via grievance procedures outlined in the union’s collective bargaining agreement.

On Oct. 1, the alders — represented by local attorneys Jonathan Einhorn and Steven Mednick—objected to the union’s motion to stay on the grounds that the Board of Alders is not a party to the agreement between the city and Local 825.

They also argued that they have not raised any issues that need to be resolved via a formal union grievance procedure, but have only raised ​“issues of law that go to the balance of authority between the Plaintiff and the Defendant Mayor”.

On Jan. 22, 2021, State Superior Court Judge James Abrams ultimately denied the union’s motion for a stay to the case, siding against the union and with the alders.

“The plaintiff’s alleged claims against the Union in counts three and nine, and Frank Ricci in four and nine, do not constitute disputes concerning the ​‘interpretation or application’ of the CBA, the ​‘wages, hours, and conditions’ of Frank Ricci’s employment, or ​‘any matter or condition arising out of the employer-employee relationship,’” Judge Abrams wrote.

“Instead, in counts three, four, and nine, the plaintiff brings claims against the Union and Frank Ricci for their respective roles in allegedly failing to ensure that the City and Mayor submit the annuity contract to the plaintiff for its prior approval. In essence, these claims arise out of the separate governmental functions of the plaintiff and the defendant City. Accordingly, the plaintiff has not alleged any claims between itself and the Union or Frank Ricci that are referable to arbitration pursuant to Article VI of the CBA.”

The insurance company Met Life, meanwhile, filed on Oct. 5, 2020 to have themselves removed from the case as the dispute does not directly concern their company, which only provided a quote for and administers Ricci’s annuity.

On March 30, 2021, Judge Abrams ordered that a hearing be scheduled for arguments around Met Life’s motion to strike.

And on March 9, city-hired attorneys Paula Anthony and Paul Testa filed a motion to strike the complaint filed against the city and against the mayor on the grounds that the alders fail to ​“state claims upon which relief can be granted as a matter of law.” The fire union followed up one day later with a nearly identical motion to remove them from the case for those same reasons.

Meanwhile, the city-hired attorneys state in their early March motion to strike, Ricci is already getting paid the enhanced retirement benefits in question.

The ​“May 2020 Agreement has already been entered into and payments pursuant to the Agreement have already been made,” the city-hired attorneys wrote. ​“Therefore, the alleged potential harm has already occurred such that providing injunctive relief would [be] meaningless.”