Misconduct Debate Delays Cops’ Lawsuit

City cops suing over being bypassed for promotions have found their lawsuit stalled in court — because their own union has intervened to make sure their disciplinary histories aren’t revealed.

Six cops filed suit the suit in late 2015, claiming that then-chief Dean Esserman didn’t follow the normal process for assigning promotions, instead making up his own criteria for who should rise through the ranks.

The bench trial before Judge W. Glen Pierson was scheduled to start on Tuesday morning in Superior Court at 235 Church St., until a last-minute intervention by the police union derailed the proceedings.

The union’s lawyer, Marshall Segar, argued that the trial could not go forward until the parties resolved whether officers’ disciplinary histories could be introduced as evidence. Segar said the issue is so important that he had filed two complaints against the city for even asking to introduce the Internal Affairs reports.

The officers who filed suit are Richard Miller, Jason Koenig, David Guliuzza and John Wolcheski, who ranked 14th, 18th, 19th and 20th, respectively, on the civil service list for promotion to lieutenant. In a final round of hiring, they lost out to the candidates ranked 13th, 15th, 16th, and 17th. James Evarts and Caminer Lavache, who ranked 11th and 31st, respectively, on the list for sergeants, also joined in the litigation.

The case asks for a declaratory judgement, essentially laying out how the law says promotions should work within New Haven’s civil service system, plus damages for the cops who were passed over. Under a stipulation worked out last year, if the cops prevail, they will automatically be promoted and compensated ​“irrespective of any budget impact on the city.”

The cops question whether they were wrongly disqualified because of their disciplinary history. ​“There are some sins that cannot be forgiven,” Esserman allegedly told one applicant. The cops claim a judgment like that should be illegal in considering promotions.

But before the case gets going in earnest, Judge Pierson will need to rule whether he can even learn about what ​“sin” Esserman was talking about, byt revealing officer’s misconduct in the courtroom. Then, a larger policy question will come to the fore, with ramifications for future promotion decisions: Should the police chief be able to look at officers’ disciplinary history more than a year after their misconduct was substantiated?

Misconduct, Meant To Be Forgotten

On Tuesday afternoon, the parties battled about whether the police union contract prevents the city from ever rehashing an officers’ past misconduct.

In his motion to intervene, attorney Segar, a retired cop, pointed out that the union contract mandates that officers’ files be regularly expunged.

As long as there have been ​“no similar reoccurences” and an officer maintains an otherwise ​“good work record,” all written warnings are removed within a year. More serious disciplinary actions, like suspensions, are removed within three years.

“It simply and clearly says removal,” Segar argued. ​“Removal cannot be made to mean set aside for future review or resurrected upon the wishes of the employer.”

Segar said the time limit allows cops the chance to ​“redeem themselves and rehabilitate their careers, without the specter of prior misgivings following them forever.” That’s such an important principle, he continued, that it goes beyond the scope of this one dispute over promotions.

On behalf of the union, Segar asked Judge Pierson to prevent any of those records from being introduced at trial. Specifically, he asked the judge to ban not just disciplinary actions in personnel files, but also the underlying reports in Internal Affairs cabinets, which he called an ​“end run” around the union contract.

“The IA file would be an ​‘arrest’ record and the personnel file a ​‘conviction’ record,” he argued. ​“One without the other is misleading and incomplete.”

He called the city’s attempt to introduce evidence from the files an ​“obvious and deliberate encroachment” that could permanently limit the exemption for which police officers had bargained.

Patricia Cofrancesco, the attorney for the six cops, agreed with his arguments. She’d also tried to keep past misconduct out of the courtroom, arguing that it shouldn’t have factored into the promotional process and would thus be a distraction, ​“discrediting the plaintiffs and diverting the Court’s attention from the true issues at hand.”

Nicole Chomiak, the city’s hired outside counsel, fought back. She sought to keep the union out of the case, arguing that the collective bargaining agreement doesn’t require the department to also cull records from ​“internal investigations.”

Beyond that, she added, the contract should limit the use of disciplinary records only in the police department’s personnel decisions, not in what’s allowed in court as evidence. The records, she explained, would reveal factually what Esserman was considering at the time.

“We’re not looking to impose discipline or affect their careers down the line. The sole purpose of introducing this is to show, back at the time the promotions were being given, that they were not being recommended because they had disciplinary issues. The collective bargaining agreement doesn’t address that,” she said. ​“These records don’t hold them back in the future; they’re about what happened during that time frame.”

Whatever the merits, Segar concluded that his union’s complaint needed to be worked out before the trial could begin. ​“It’s hard to untie that knot, unring that bell and put the toothpaste back in the tube,” he said, if the records shouldn’t have been introduced.

Judge Pierson allowed the union to intervene, saying its members have a substantial interest in the case. But he didn’t resolve whether the disciplinary or investigative records should be admitted.

That leaves the case in limbo as the union seeks remedies elsewhere, with a complaint of prohibited practices to the state labor relations board and a grievance to New Haven’s labor relations director.

Suspended, Not Promoted

The records could make or break the case for Sgt. Miller, the lead plaintiff. He was most clearly beat out by candidates with lower scores, but he also had an outstanding disciplinary issue when the list expired.

Even the cops’ own expert witnesses, Jonathan Einhorn, a former police commissioner and city alderman, admitted that might make Miller ​“out of luck.”

Just before the promotions, Miller had been disciplined for signing off on a report that left out a rookie policewoman’s personal connection to a controversial traffic stop and drug arrest.

On Jan. 17, 2015, officers pulled over a man driving a white Honda Crossover with his lights off. The car belonged to a cop, who’d been warned by five of her superiors to stay away from the live-in boyfriend who was now behind the wheel.

Officers never searched the car, nor did they impound it. They called up the cop so she could come pick up the car; another officer drove to her home to deliver the keys.

Officers also claimed that they didn’t discover the boyfriend had a large amount of heroin and cocaine on him until they had transported him to 1 Union Ave. for processing, despite noticing a ​“bulge” in his pants ​“which was not part of the human anatomy” at the scene.

The report filed that night didn’t include information about who owned the Honda.

Sgt. Miller signed off on it. He later said he told the officer to file a supplemental report. Internal investigators found that claim to be untrue.

Esserman concluded that Miller had neglected his duties and put him on probation for six months, with a one-day suspension hanging over his head if he were disciplined for any other misconduct.

At the time, Miller’s name was near the top of a civil-service list of sergeants eligible for promotion to lieutenant. But his probation lasted until two weeks after the rankings expired.

Back then, Segar said that length of time was ​“very suspicious,” keeping Miller ​“in this discipline purgatory status” until promotions were handed down. But an assistant chief responded that Miller should be happy he got a ​“light ruling” in the matter.

Rules, Meant To Be Followed

Chomiak seeks to introduce evidence like that at trial, saying it’s ​“certainly relevant” to why cops were passed over.

Judge Pierson’s ruling on that evidentiary issue could play a crucial role in understanding whether Esserman wrongly hand-picked those he favored, as the aggrieved cops contend, or legitimately skipped those he determined weren’t cut out to be supervisors. That will color the rest of the plaintiffs’ evidence that Esserman didn’t follow the civil service rules in how he conducted interviews.

Instead of sending candidates to the Board of Police Commissioners for their input, Esserman interviewed a handful of candidates himself and forwarded his picks to the board, Cofrancesco said.

The commissioners ​“summarily approved said promotions, with no discussion or involvement,” Cofrancesco wrote in the complaint. She argued that violates a provision in the city charter that gives commissioners ​“sole power of appointment and promotion.”

Chomiak responded that commissioners still made the ultimate decision. She cited a Connecticut Supreme Court case that found no problem with the police chief making recommendations.

Cofrancesco also said that Esserman didn’t follow a so-called ​“Rule of Three.” Under that charter provision, which has been upheld by the courts, New Haven’s department heads are supposed to choose from among the three top-scoring candidates, before they proceed to the next group of three and so on down the list.

Esserman didn’t grant interviews to some of those candidates who were next in line; those who did get a sit-down were subjected to ​“improper or otherwise illegal” comments and questions, Cofrancesco said.

“He imposed his private, personal set of disqualifying criteria … thereby undermining the goal of a level playing field,” Cofrancesco wrote in the complaint.

Chomiak responded that nothing in the city charter or civil service rules prevents Esserman from skipping names on the list, as long as he still chose from among three top scorers.

In the past, the department cleared all three names from a ranking before going to the next three, Einhorn said. But Chomiak said that doesn’t mean Esserman was wrong to skip down, as long as one person was chosen from the three.

Chomiak added that the cops didn’t have standing to bring a case because they might not have gotten the promotion anyway. That’s especially true for two cops who ranked so low on the lists, at 19th and 20th, that they wouldn’t have gotten an interview by the Rule of Three, she said.