Briscoe Settlement Approved, With A Warning

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.

“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.”