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Briscoe Settlement Approved, With A Warning

by Melissa Bailey | Apr 11, 2014 8:10 am

(16) Comments | Commenting has been closed | E-mail the Author

Posted to: Legal Writes

Melissa Bailey Photo Amid concern that New Haven is inviting baseless lawsuits, a panel voted 3-1 to approve a contentious $285,000 settlement with a firefighter who was losing a legal battle with the city.

The city’s Litigation Settlement Committee voted to approve that payment to Michael Briscoe, a New Haven firefighter who sued the city after failing to win promotion to lieutenant based on a 2003 exam, one of a series of controversies involving alleged racial discrimination in the fire department’s testing process. Read about his case here and here. Briscoe has lost twice in court; the most recent judicial decision came down in the city’s favor.

Board Alders President Jorge Perez, who cast the sole “no” vote, asked why the city would settle with someone who was losing in court.

Facebook Photo “I am totally against paying this person one penny,” Perez protested. “This is a bad precedent. You’re telling people that when you sue, you’re going to get money,” regardless of the merits of the suit.

Victor Bolden, City Hall’s top lawyer, said New Haven’s insurance company, AIG, is paying the full cost of the suit. AIG considered it a wise risk-management decision to settle rather than continue to let the case drag out in court, he said.

After four and a half years of legal battles with the city seeking a promotion, Briscoe this week won a different, bigger promotion—to oversee the city’s 911 call center. Mayor Toni Harp put him in that job and agreed to pay him $285,000 in return for dropping his suit. The appointment drew criticism from the fire union president, who questioned its legality.

Bolden explained the settlement Wednesday afternoon to four members of the Litigation Settlement Committee as well as to new Chief Administrative Officer Michael Carter, who just started his job Monday.

“Obviously, we prevailed twice on this matter,” Bolden conceded.

Briscoe first filed his case in October 2009 in U.S. District Court. That court tossed out the case. Briscoe, represented by attorney David Rosen, took the case to a three-judge panel in the Second Circuit Court, which reversed the lower court’s decision. The city appealed, and ended up re-trying the case before U.S. District Court with a different argument. The lower court again threw out the suit.

Briscoe was in the process of appealing the case to the Second Circuit again before Wednesday’s settlement was approved.

Technically, AIG had already agreed to the deal. Bolden was asking the committee to approve a pass-through of the AIG settlement money: AIG plans to pay $225,000 directly to Briscoe and pay the city $60,000, which the city would pay to Briscoe through the payroll department for IRS tax purposes.

Bolden (at right in photo) said the city’s insurance company, AIG, had been paying outside counsel from Nuzzo and Roberts, LLC to handle the case on behalf of the city. “AIG was willing to accept the offer and make it go away,” Bolden said. He said he supported the settlement because the insurance company is paying for it and made a reasonable calculation about its risk management.

Perez rejected that argument. He balked at settling a case that the city was winning. “We would probably prevail again,” he said.

He said the settlement won’t really be free for the city.

“Who do you think pays the insurance company premiums?” Perez asked.

Bolden replied that the city had exhausted its premium payments, so the insurance company at this point was bearing the full cost of the litigation.

“I do believe that the city was right” in the lawsuit, Bolden said, but “the principles of risk management” suggest that settling is a good idea.

Perez insisted against settling a lawsuit that does not have a strong legal basis.

“It’s going to give people the feeling that all you’ve got to do is sue,” and “you will get money.”

Stacey Pitcher (pictured), an attorney from Nuzzo & Roberts LLC who is handling the case on behalf of the city, stepped in to offer her take.

As a general premise, she said, it’s not a good idea to settle on “frivolous lawsuits.”

But “I think this is a very, very different situation,” she said. The Second Circuit did side with Briscoe once, she noted, so it could do so again.

“This is by no means a slam dunk” case, Pitcher said. And there is a “large exposure” if the city loses, she said, in part because Briscoe’s lawyer has been racking up “exorbitant” legal fees.

Perez was not convinced: “This is the wrong message to send to people,” he said.

When it came time to vote, Deputy CAO Jennifer Pugh cast a “reluctant” yes. So did Edward Zack of the Office of Management and Budget. Joe Clerkin, the city’s budget chief, also voted yes. Perez voted no.

Carter observed without comment.

After the meeting, Bolden further explained his position. He said he personally argued the city’s case in court and believes the city did nothing wrong.

“I believe we’re going to win at the end of the day,” he said, “but the real question is, when is the end of the day?”

Even if the city ended up winning the case, Bolden noted, the insurance company would still shell out money to file briefs and argue the case. With the settlement, he said, it’s “one check, and done.”

Briscoe’s attorney offered a similar argument in an email message to the Independent: “The first loss was reversed by a unanimous Court of Appeals, whose decision was sustained by the Supreme Court of the United States. The second round was the subject of the same appeal process that had resulted in the previous loss for the City, as well as its loss in the Ricci case, the other case arising out of the 2003 tests. The City’s insurance company decided to pay the cash settlement after sizing up the odds that it would have to pay much more by not setting. For the City to oppose that decision would have exposed the City to a large uninsured liability.”

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posted by: robn on April 11, 2014  8:38am

I don’t always agree wit Perez but I think he’s right on this one. This is mostly upside for the insurance company and mostly downside for the city who has now given hope to finaglers.

posted by: absolutmakes on April 11, 2014  8:56am

The city should be ashamed of itself. Like Robn, I don’t typically agree with Perez but he’s absolutely on-point here.

I don’t care what risk-management principles recommend in this case. Rewarding Briscoe with a 285k settlement and a promotion sends a terrible message to city residents.

Not to mention the merits of said promotion, which will see Briscoe supervising his ex-wife, which was apparently a surprise to the city’s administration.

posted by: The Professor on April 11, 2014  9:57am

Such a zero-sum game.

posted by: ctguy on April 11, 2014  9:57am

Have to agree with Mr Perez this time. I would also be concerned with how this will impact his future pension. It is also surprising this decision was made by staff and not the Alders who will have to deal with the political ramifications of the action. I have also never been told by an attorney that bringing a case was without risk. Attorney Pitcher is I am sure very cautious but two decisions seem to indicate the legal basis of the case is faulty.

posted by: Shaggybob on April 11, 2014  10:14am

Wait, your winning, proven twice, and you give up, rollover & pay. What are we missing?

How high will our premiums-I mean taxes- go up to recover that cost?

BTW where can I file for a lawsuit?- I feel as though I have been discriminated against by the City and who cares if it has no merit - The AIG cash cow is giving money away.

Not even DeStefano would have authorized throwing in the towel on this one.

posted by: SwampfoxII on April 11, 2014  10:31am

All agree it’s generally a bad idea to pay anything to a plaintiff and his lawyer for losing a suit, especially one a judge thought so bad it should be thrown out before any trial. But Perez is right. It doesn’t matter if the insurance co. agrees to pay something. Whether and for how high a premium the city can continue to get insured depends on how many suits the insurer can expect to get hit with. And that is a legitimate concern to residents whose taxes keep getting hiked. You don’t want to send a message to lawyers that the city is a mark for shake downs. That just encourages more such suits. 

I prefer the city be more aggressive with such people, and instead demand they either go away or face being made to reimburse the city for all costs of defense. On the other hand, Perez and others should at least congratulate and be appreciative to the city’s lawyers for their success in getting this thing thrown out. No question the city faced having to pay millions in attorney fees if Briscoe managed somehow to win his case. So all in all, it was a good result.

posted by: Hmmmmm on April 11, 2014  10:46am

Just wondering how this will all work out considering that the City has a policy prohibiting family members, including spouses, from being supervised by other family members. 

Link to the policy:  http://www.cityofnewhaven.com/HumanResources/pdfs/Policies/Hiring of Relatives.pdf

What this policy doesn’t address, however, is what happens when you supervise not only your ex-spouse but her current “friend”?  It’s really unfair to put the ex in this situation as well as the rest of her co-workers who I would think will feel uncomfortable with this situation.  I mean the people in that room as well as the officers on the street are handling life or death situations - very stressful environment without additional and unnecessary drama.  How do you get around this issue - how can the City violate its own policy in this situation?  I would think that this opens the City up to considerable liability but I’m certainly no legal expert. Good luck to all!

posted by: Hmmmmm on April 11, 2014  11:34am

Sorry about that, try this:

http://www.cityofnewhaven.com/HumanResources/pdfs/Policies/Hiring of Relatives.pdf

posted by: Bobbe Bellamy on April 11, 2014  6:19pm

Wow!!!!!  Are you kidding?  Briscoe laughing all the way to the bank.

posted by: SwampfoxII on April 11, 2014  6:36pm

@BobbeBellamy:  Might be true in some other place, but the story says the 60,000 he’s getting out of it is gonna be through a city payroll check. Once the state and federal income plus other taxes are taken out, my guess is it’ll be a small giggle to the bank. At least that’s the case with my weekly paycheck. Another reason to move to a state with no income taxes.  CT is pricey place to live.

posted by: DEZ on April 12, 2014  8:06am

I just can’t help but think, out of ALL the qualified professionals out there, that there is NO OTHER qualified person than Michael Briscoe?  Wouldn’t the fact that there is pending litigation from him against the city (where the city is clearly winning the case) make you want to choose another?  I’m perplexed.  Dumbfounded.  Is this not common sense?

posted by: CapitalAndy on April 12, 2014  3:22pm

And this is why nothing will ever change in New Haven and in City Hall. Its only going to get worse. This is one of the major reasons the city is broke and people continue to exit.

posted by: budman on April 12, 2014  6:29pm

Right on Perez.  I agree 1000000%.  Thank you for watching out for our money in the long term. I’m glad to see someone is doing it.  Just one more thing.  No new positions. Please make that known in this upcoming budget.

posted by: Threefifths on April 12, 2014  8:54pm

Study Finds Settling Is Better Than Going to Trial.


http://www.nytimes.com/2008/08/08/business/08law.html?_r=0

posted by: Threefifths on April 12, 2014  8:57pm

The Cost of Going to Trial.

http://www.nytimes.com/imagepages/2008/08/10/business/10lawgraphic.ready.html

posted by: beyonddiscussion on April 13, 2014  12:17am

I’m glad Perez made this point. But it seems like the right thing to do. The score is 2-1: the courts already ruled once in favor of Briscoe. They easily could again - you never know. It hurts, but it seems like it was prudent to settle before it went to the next round.

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