New Haven Register (New Haven, CT)
‘All options are on the table’
Ex-official wins court case over job; lawyer says it’s not settled
NEW HAVEN — After more than five years and losses for the city, both administrative and legal, the labor case brought by former Mayor Toni Harp is not over yet.
The state Supreme Court is the latest to weigh in, upholding Nichole Jefferson’s Board of Mediation and Arbitration award that reinstates her as chief executive at the Commission on Equal Opportunities, with back wages and benefits from August 2017.
But where the case might go from here remains a question as the city seeks a comparable position and Jefferson’s legal team considers her next move.
“I’m happy with the ruling, but disappointed it took so long,” Jefferson said.
The parties have 20 days to put the ruling into effect or file a motion with the court for reconsideration. Mayor Justin Elicker said in an interview New Haven does not intend to take any such legal action.
“The city needs to and plans to abide by the court’s ruling. I have always enjoyed working with Nichole and look forward to working with her again,” Elicker said.
But the parties are far apart on what a settlement should encompass.
Elicker said he estimates Jefferson’s back wages at around $300,000. This does not include calculations of lost benefits such as health care costs and pension contributions.
Jefferson’s personal attorney, Jeff Bagnell, said, in an interview, that he wants a mediator — possibly a retired judge — “to sit with the parties and resolve this situation once and for all. There are any number of excellent retired judges that could bring the parties to a position that would resolve the matter.”
He would not comment on the possibility of a new legal filing, but added, “all options are on the table at the moment until we settle this.”
As with all cases before the Supreme Court, there was a settlement conference, which Elicker said he sought after he took office in January, something that was delayed in scheduling because of the pandemic.
The Harp administration’s last legal move, an appeal to the high court to fire Jefferson, had been filed in November 2019.
“Nichole’s final settlement offer was $2.9 million and that was something that, while we were very open to settling, was too much to be financially responsible” Elicker said.
Elicker said that is why they let the challenge at the high court proceed. “It was clear there was an impasse.”
The litigation before the Supreme Court then continued until the court’s ruling favorable to Jefferson on March 4.
Bagnell said the specifics of a settlement were supposed to remain confidential. He disagreed with the $2.9 million figure. “That was not Nichole’s number,” Bagnell said. “I’m not going to comment on the earlier negotiations.”
“The city has full authority to settle this in a global fashion,” he said.
Elicker said the city’s “interpretation of the court’s ruling is that we need to give Nichole her job or a position that is commensurate with her previous job and we are assessing that right now.”
The current equal opportunity executive director, hired by Harp, is Angel Fernandez-Chavero. His salary is listed at $101,858.
Bagnell said the investigation, started by the Harp administration in 2014, its decision to bring in the FBI, the fight over unemployment benefits and two court challenges - one at the Superior Court and then the Supreme Court “took a real emotional, physical and mental toll on Nichole.”
In addition to the court deliberations, Jefferson won the two appeals over unemployment claims and the FBI, in January 2016, a year after looking into possible improprieties, at the behest of the former administration, found no wrongdoing and dropped its investigation.
Bagnell said they had an “actuary analyze every item of loss financially that she (Jefferson) has incurred along the way. That report has been disclosed to the city. We now stand by it and it will be brought forward ... in terms of what the back pay number is now.”
Jefferson was represented over the 18 months of hearings and deliberations to the arbitration findings released in April 2018, by staff at Local 3144, Council 4 of the American Federation of State, County and Municipal Employees. It’s attorneys, Kimberly Cuneo and William Gagne Jr., represented her in court.
Jefferson, however, said she hired separate counsel for the unemployment fight and the FBI investigation and cashed in her life insurance to pay for health coverage.
Cuneo’s only comment was that she and Gagne were happy with the Supreme’ Court’s ruling. New Haven’s Corporation Counsel Patricia King said the city has not heard yet from Jefferson’s legal team.
King said the employment reinstatement order by the court “will take a little time, but that is all I can say about that.” The determination that the city can offer a comparable position is on the advice of its labor relations office, she said. The back pay is a straight forward math calculation, she said.
King said they are working to resolve the issues within 20 days of the ruling.
The city, under Harp, had hired outside counsel to bring the case against Jefferson in the numerous meetings before the arbitration board, as well in the unemployment appeals and in the case Jefferson and members of her staff had filed with the state Commission on Equal Rights and Opportunities.
Former Corporation Counsel John Rose, in a partial accounting of the cost to the city as of April 2018, had said it had spent $337,207 on the unemployment issue, as well as the investigation and arbitration. The two court battles took place after that.
Jefferson, who worked for the city for two decades and was CEO’s executive director for 14 years, was put on paid leave in March 2015.
The former administration fired her five months later, charging her with ethics violations in her administration of the Construction Workshop 2, a job training program that provided a pool of workers to be tapped by contractors hired for city projects.
The city brought 11 charges against her to the arbitration panel, eight of which she won, including the two most serious — alleged threatening and bribery, thrown out for lack of evidence.
The Supreme Court addressed two of the three remaining, which the city tailored its arguments around as it pressed its case to fire her, charging that she violated its ethics code and her reinstatement violates public policy that would lead to a lack of public trust in government.
The Supreme Court, in the unanimous opinion written by Justice Christine Keller, focused on two charges.
One involved donations versus fines for contractors who did not follow the hiring rules governing city projects, while the other covered a private consultant company Jefferson had established.
The court said the arbitrators found that the city had authorized Jefferson to solicit donations for the CWI 2 training program from the companies she oversaw and allowed her to perform consultant work for one of them, Gilbane, Inc, in New York.
“Thus the city is hardly blameless in this matter. Indeed, it is evident that the city’s own policies and decision making at critical junctures created for Jefferson an ethical tight-rope that could only end in the ethical lapses and errors of judgment of which the city now complains,” the court wrote.
On the acceptance of donations in lieu of fines leveled for failing to follow the hiring rules, a deputy corporation counsel issued a memorandum stating that “in the absence of specific (legal) authority” arranging for these charitable contributions “could expose the commission, the city … to civil claims and potential criminal charges of bribery or solicitation of bribery … notwithstanding their lack of criminal intent,” the court wrote.
Jefferson had gotten general approval from the Board of Alders to accept charitable donations to CWI 2 and they were reported to the board, the court wrote that the arbitrators found. The arbitration panel determined the issue of donations and donations in lieu of fines were two separate issues, the court wrote.
The Supreme Court, in its narrow review of the case, accepts the fact-finding of the arbitration panel, but it did question the argument.
“Because CWI 2 was itself a city program operated by the commission, and because the memoranda merely allowed the contractors to donate to CWI 2 directly in lieu of paying fines into the commission’s general fund, it is difficult to discern the basis for the city’s contention that the memoranda exposed the city and commission staff to ‘potential criminal charges for bribery and solicitation of bribery,’” the court wrote.
Jefferson, after receiving permission from the city to do consultant work with contractors in New York, formed a private company, Career Compliance Placement, LLC. She testified that she incorporated it in Connecticut because she thought she had to do so as a resident here.
The city said she did not have permission to do this and it could lead to the appearance of impropriety and a conflict of interest. The arbitration panel determined that there was no evidence she did consultant work in Connecticut or intended to hide the company, which was a matter of public record.
The high court said, after reviewing the record, it agreed with the arbitration panel that “Jefferson’s acts, though serious, were not so egregious that an award reinstating her employment but making her whole (in 2017,) essentially docking her two years pay, could not vindicate the public process issues at stake and send a powerful message to other municipal employees and the public at large that similar conduct will not be tolerated.”
The court said the city failed to cite a single Connecticut case or from any other jurisdiction that would justify termination as the “sole acceptable punishment for similar conduct.”
Keller, in the ruling, also cited Jefferson’s employment record over two decades with the city, noting numerous awards and citations, as well as promotions and positive performance evaluations.