Thomas Breen Photo
Rose at Monday night’s hearing.
Can the city’s chief legal adviser deny representation to a department head who refuses to heed his advice? Should the city have to foot the bill when a city employee then seeks outside counsel?
These two questions occupied the first half of a nearly three-hour meeting held by the Board of Alders Finance Committee at City Hall Monday night.
A unified front of alders pushed and pulled with city Corporation Counsel John Rose Jr.over just how far the city’s legal department should go to defend municipal employees caught up in legal disputes, especially when those clients disregard the advice offered by the city’s appointed attorneys.
The debate arose out of a motion that the alders at first found little to squabble over: Whether City Clerk Michael Smart be allowed to transfer $15,000 from his department’s “Other Contractual Services” account to his department’s “Legal Services” account. This money would be used to retain outside legal counsel in case his department should find itself in court over an ongoing dispute with former Deputy City Clerk Sally Brown, whom Smart put on indefinite paid leave last July for alleged insubordination.
Smart reassured alders that the money would be coming from within his department’s own existing budget, and that the money, if not used by the end of the fiscal year, could be deployed by the city’s budget director to shore up shortfalls elsewhere in the city’s budget. The alders unanimously approved the transfer request.
“I understand your department ended last year with a budget surplus, and that you’re projecting to end this year with another surplus,” Annex Alder and recently elected State Rep. Al Paolillo Jr. said with appreciation to the city clerk. “Thank you for being a good steward of your budget. That’s not always the case with departments in this city.”
Then the conversation shifted, quite dramatically, as the alders reviewed a letter sent from Corporation Counsel Rose’s office, which strongly advised Smart to issue Brown a letter of reprimand for allegedly altering a document (which Brown denied doing) and then bring her back to work rather than keep her on leave. To date, Smart has kept Brown on the payroll but out of the office.
Rose’s letter, as read aloud by Dixwell Alder Jeanette Morrison, ended with the following warning:
“If you should choose to ignore our legal advice and pursue further punishment or extend [Brown’s] administrative leave, let this letter serve as a warning that the City of New Haven may elect to deny coverage to you for any claimed damages by this employee should she file any suit or action against you in your individual or official capacity.”
“Is that legal?” Morrison asked with a start, raising a concern throughout the committee that any city employee could be left out to dry by the city’s top lawyers if he or she decides not to heed their advice.
Smart at the hearing.
Rose, who was already present in the aldermanic chambers, came to the front of the room to make his department’s case.
For the next hour or so, the alders and Rose went back and forth, back and forth, over just what the city’s legal department is required to do when city officials reject their advice but still expected representation.
For Rose, the point was moot, because Smart is not even involved in a lawsuit yet. Therefore, he argued, the budget transfer request was premature, ill-advised, and would establish bad precedent.
“I am not aware of any threatened or actual proposed litigation against the office of the city clerk at this time,” Rose said to the committee, explaining that neither Smart nor Brown had initiated or threatened any lawsuits to date. “This application [is] not something that this committee ought to be entertaining.”
“But that’s not the point,” Morrison offered in return. “Your office said, ‘If something comes up, we may elect not to defend you.’ So your office is being premature, saying that, whatever’s going on in this case, if a person decides to go at you, we may elect not to defend you.”
“If we give legal advice to a client, and that client determines not to take that legal advice, then that client may go outside and pay his own legal counsel, not using city funds,” Rose replied. “If you choose to ignore the legal advice from corporation counsel, and if you decide to seek outside counsel, you should do that on your own stick. It should be your own money, not the city’s money.”
Ultimately, the alders remained resolute in their decision to approve the motion, sympathetic to Smart’s argument that the budget transfer in preparation for a potential lawsuit was proactive rather than premature, especially considering that the case is now under review by the State’s Election Enforcement Committee and may indeed result in litigation soon. The fund transfer matter now goes to the full Board of Alders for approval.
But they left the chambers on slightly less certain ground as to whether or not the corporation counsel or city money has to support continuing to defend a city department head who declines to follow the office’s legal advice. That assurance, neither in explicit conflict or accordance with the corporation counsel’s charter, was left ambiguous as the committee adjourned for the night. Rose is expected to follow up with alders with a clarification of his office’s responsibilities in cases like these.
If MIchael Smart wants to reject the legal advice of his employer, he should be on his own. Has he ever been in the spotlight for doing something wise?