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City Seeks To Settle With Injured Firefighter
by Melissa Bailey | Mar 15, 2010 11:19 am
(15) Comments | Commenting has been closed | E-mail the Author
Posted to: Legal Writes
City officials met behind closed doors about the fate of a firefighter and didn’t bother telling him. Now they’re going to have to pay.
Just how much they’ll have to pay is the subject of ongoing negotiations between the city and Gerald Fanfarelli, a 23-year veteran of the city’s fire department.
The case, which centers on an injured firefighter whom the city tried to kick off the force, has turned into the latest freedom of information embarrassment for the DeStefano administration.
Fanfarelli, who’s 55, threw out his back while stepping off a fire truck in October 2006. He spent over a year on medical leave.
When he tried to come back to his job as a driver of the elite Squad One truck, he found the city had other plans for him. The city claimed it had conflicting medical evidence that the firefighter was able to work—and had caught him on videotape at a paid side gig in a jazz band while he was supposed to be on medical leave.
Fanfarelli denied the latter claim. He hung onto his seat on the force only after hiring a lawyer and unleashing a barrage of legal complaints.
The city made an offer a couple weeks ago to put a years-long battle to rest.
It offered to pay Fanfarelli $18,250 if he withdraws numerous legal actions—including two Freedom of Information complaints that produced damning findings against the DeStefano administration. Under the terms of the deal, the city would agree to let Fanfarelli stay on the job—and not charge him with worker’s compensation fraud for his alleged paid guitar-playing.
As of Friday, Fanfarelli and the city were still discussing the settlement.
Meanwhile, a legal battle was scheduled to continue Monday morning in a hearing before the Commission on Human Rights and Opportunities (CHRO), one of several arenas in which the firefighter is fighting for his job. The CHRO has found merit in at least one complaint and is holding a fact-finding hearing, according to one of Fanfarelli’s lawyers, Scott Lewis of West Hartford.
The city and its pension board have hired three law firms, and spent tens of thousands of dollars, to defend against this firefighter’s various cases.
Fanfarelli is a 23-year veteran of the force with a clean record, specialized skills and a host of commendations, Lewis said. Fanfarelli barely held onto his job after the city tried to kick him out of the department—and has been “harassed” for the past one and a half years by being placed in a lower-paying job with frequent transfers, and by being “forced” to take a “demanding” physical exam, Lewis charged.
“You have the city trying to railroad a firefighter, a 23-year veteran, decorated, with no prior problem on the force—when they know that he is deemed OK to go back to work full-time,” Lewis said. “There’s an element of retaliation.”
Fanfarelli never lost a day’s pay throughout his fight with the city. He remains on the force, paid 50 cents less per hour because he is no longer assigned to a specialized tactical rescue truck.
Reached at the Lighthouse Road firehouse where he now works, Fanfarelli declined to be interviewed for this story.
So far, the city has lost two rounds of a nearly two-year legal fight. In two decisions issued last summer, the Freedom of Information Commission (FOIC) rebuked top city officials, including the fire chief and fire commissioners, over a historical practice of holding “secret meetings” to push injured firefighters toward termination.
It was the latest mar on the record of the Board of Fire Commissioners, which was admonished for flouting FOI law just months before this saga unfolded.
“Secret Meetings”
Fanfarelli’s complaints centered on a series of meetings of the Fire Commission and the Pension Board of the Policemen’s and Firemen’s Retirement Fund in April and May of 2008. Here’s how the turn of events unfolded, according to findings of fact provided by the FOIC:
Fanfarelli was injured in October of 2006. He was out for 14 months. In January 2008, he returned to light duty in the fire marshal’s office. In April, he presented a doctor’s note clearing him to return to full duty. He told his bosses he was eager to come back to work. However, the department had different plans for him. In meetings on April 3, and “very likely” on April 30, the Fire Commission discussed Fanfarelli’s medical condition during closed-door meetings. The commission had received conflicting evidence on Fanfarelli’s health: One physician said Fanfarelli was ready to come back to full duty; another disagreed. The commission was concerned he would throw his back out again and leave his unit one man down, according to the FOIC decision.
The problem with the meetings, in the FOIC’s eyes: Fanfarelli’s name wasn’t on the agenda, and he wasn’t notified, so he didn’t find out about those meetings until eight months later.
On May 14, the Fire Commission again discussed his case in executive session without providing proper notice. It moved to recommend him for involuntary medical retirement. The pension board met the next morning at 8 a.m. and took up the application. It recommended Fanfarelli get a medical opinion.
Not until after all those meetings did the firefighter find out, “through the grape vine,” that he was on the track to an early retirement.
He kept his spot on the force by passing a physical test called a “functional capacity exam.”
In August, he returned to work full-duty. But he kept on fighting an FOI case he had filed in June.
Not until an FOI hearing in December of that year did Fanfarelli find out that the Fire Commission had met to talk about him in April.
“A Desire To Conceal”
The FOI hearing officer, Victor R. Perpetua, released a harshly worded report in May 2009. It charged that the Fire Commission and pension board, which are made up of mayoral appointees, both held “secret” meetings in violation of FOI law.
Perpetua found that top fire officials were less than forthcoming with records and information about the firefighter’s case.
Both boards “were motivated by a desire to conceal their actual meetings and deliberations from the complainant,” wrote Perpetua.
The Fire Commission claimed that it recommended Fanfarelli for involuntary retirement based on a “genuine misunderstanding.” Perpetua disagreed. “Rather, the Fire Chief and at least some members of the Fire Commission were very aware of the complainant’s interest in, and opposition to, his retirement, and nonetheless proceeded without any notice to him,” Perpetua found.
City officials failed to provide Fanfarelli with records in a prompt manner, and in one case the city pension fund waited a month before providing minutes to a public meeting, Perpetua also concluded.
The full FOIC last June upheld Perpetua’s findings that the two boards had violated FOI laws. In a separate ruling in August, the commission found that the Fire Commission made similar violations in two previous meetings, too. The Fire Commission broke state law when it “failed to give the complainant notice that his medical condition and medical records would be discussed in executive session,” the FOIC found.
The commission declined to impose civil penalties against the board members. It only instructed them to abide by FOI rules. Click here and here to read the decisions.
Unwanted Precedent
The city wants those decisions nullified, said Carolyn Kone (pictured), a private attorney brought on to represent the pension board on the FOI case. The board appealed the FOI decision against it “because the FOIC made certain findings that we thought were wrong”—and because the findings set a dangerous precedent, she said.
The two FOIC decisions give more ammunition to Fanfarelli for his other legal actions—such as the CHRO case due to be discussed Monday at a hearing in Waterbury.
Besides the two FOI complaints, Fanfarelli has filed three CHRO complaints and one workmen’s compensation lawsuit, and he’s ready to pull the trigger on a complaint to the state labor relations board—all about the same set of events. The complaints center on the actions of the fire chief, fire commissioners and the police and fire pension fund. (One CHRO complaint against the fire union has been dismissed.)
The FOIC decisions open the door to liability for the city because by the doctrine of collateral estoppel, the FOIC’s findings against the city boards could be used in other proceedings, according to Kone. That means unless the city appeals, those findings could be used in Fanfarelli’s other legal actions, or potentially by other firefighters who faced a similar situation.
The pension board has appealed the FOIC findings in state Superior Court in New Britain.
Kone said the pension board has paid her $36,000 in public money from the pension fund to work on this case. That didn’t cover her full legal fees. She was paid an additional amount, which she declined to disclose, by an insurance agency retained by the board, she said. Lewis estimated that as of last summer, her fees had exceeded $50,000. The pension board has since decided to use cheaper, in-house counsel to defend against the CHRO complaints. Kone remains assigned to the FOIC appeal.
The DeStefano administration did not answer an FOI request as of press time for information about the full cost to the city of the various suits.
The Settlement
Meanwhile, City Hall lawyers are negotiating with Fanfarelli to make all the cases go away. The city is seeking a “global settlement” to address all the claims Fanfarelli brought against the city, according to City Hall’s top lawyer, Victor Bolden (pictured).
As of Friday, two sides were still discussing the terms of the settlement.
The city’s Litigation Settlement Committee voted Feb. 24 to make an offer to Fanfarelli. The vote was 5 to 1, with Hill Alderman Jorge Perez dissenting. Reached Friday, Perez said he disagreed with the recommendation, but was directed by corporation counsel not to discuss the case.
Under the terms of the settlement, the city would pay Fanfarelli $18,250 if he drops his CHRO complaints and reopens the FOI cases to nullify the decisions. In return, the city would let Fanfarelli remain on the force—and would agree not to pursue a workmen’s compensation fraud claim against him, according to sources familiar with the deal.
The potential fraud claim has to do with Fanfarelli’s role in a band called the Waterfront Jazz Project. The band plays Brazilian and American jazz. Fanfarelli (pictured) plays guitar. The city claimed that in 2007, while Fanfarelli was out on medical leave and was accepting workmen’s compensation, a city worker spotted him working at least one paid gig for the band. Working a paid side job would qualify as an abuse of the workmen’s compensation system. Fanfarelli’s lawyer confirmed he is part of the band, but denied he ever worked a side job while he was out on leave.
Bolden declined to comment on details of the case, citing pending negotiations.
Lewis said the money is “minuscule” compared to the firefighter’s legal fees, out of pocket costs, and the personal time he spent to get his job back. All the money would go to the lawyers, he said.
He said his client originally rejected the offer because it was missing one piece: A suitable job placement. Before his injury, Fanfarelli was the driver on Squad One, the fire department’s unit that handles specialized calls such as tactical rescues and environmental spills. Now he’s at a non-specialized job in the Morris Cove firehouse, which pays 50 cents per hour less than the job he had before he got injured.
Since he returned to the force in August 2008, he has been bounced around, transferred four to five times, his lawyer said. Now he’s at Engine 16, but he’s there as a temporary transfer. He has lost money and prestige, his lawyer argued. “They’re trying to make his work life miserable to force him out.”
Fanfarelli has requested a more stable job and a shot at being a driver if a spot opens up.
“It’s about peace,” Lewis said, “restoring Mr. Fanfarelli to a respectable position.”
Fanfarelli has a bachelor’s degree in fire science from the University of New Haven, according to Lewis..
“He loves the job. He has dedicated his life to New Haven, which is his hometown,” Lewis said. “He’s exactly the kind of guy you want: Homegrown and loyal.”
“This guy’s squeaky clean,” Lewis added. “They picked the wrong guy to fool around with.”
Tags: freedom of information, FOIC
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Comments
posted by: catye on March 15, 2010 12:01pm
More troubling is the City’s dishonest approach to its FOIA obligations and game-playing when it comes to FOIC hearings. When is the state’s FOIC going to stop wrist-slapping the city and impose some meaningful fines or sanctions? Right now, there is no effective remedy or deterrant for the City’s pattern and practice of blatantly violating both FOI laws and its duty to be forthcoming before the FOIC when its conduct is challenged. Disgraceful. The FOIC is a weak body, tolerating all the garbage it tolerates.
posted by: Squad 1 on March 15, 2010 12:57pm
... The city should counter sue and get back every penny. Im a little confused, Here you have a Firefighter who’s out of work for a extended period of time who possibly commits workers comp fraud and he’s making demands. I’m totally for Legal Reform. What a waste of time and money.
posted by: Insider98 on March 15, 2010 2:46pm
perhaps it’s the bigger picture that is being missed here. i speak for both police officers and firefighters in new haven….TIME TO GET JOHNNY BOY AND HIS SIDEKICKS OUTTA HERE. the city has cost taxpayers hundreds if not millions of money regarding backdoor politics and tactics and fruitless attempts to ruin the careers of a few very dedicated people who put their lives on the line everyday. his administration doesn’t and has never “played” by the rules,...taxpayers of new haven,..time to wake up ,..time to demand a change at the top,..!!!!!
posted by: Bruce on March 15, 2010 4:38pm
This seems ridiculous to me. If playing a gig or two is a “job”, I would like to file a few complaints as I can’t remember the last time I made minimum wage. Also, strumming a guitar hardly shows he’s taking advantage of his injury. Sounds like someone was out to get rid of him.
posted by: Stabbed in the back for working hard on March 15, 2010 4:54pm
If you think this is dishonest…you should see the intimidation tactics they are using against the custodians for their new contract.
posted by: brother firefighter on March 15, 2010 6:10pm
sounds like the city was on one of their typical headhunting jobs. What a joke! Hey Gerry, GO FOR BROKE!
posted by: anon on March 16, 2010 1:37am
Do you at City Hall know how disgusted tax payers are with your inane, expensive fights? Obviously not, because you not because you’re pedaling the same propoganda to us.
And in the new budget, the mayor says the solution to litigation exposure is simply to hire more lawyers? Nothing about refraining from stupid behavior, nothing about accountability and actually admitting mistakes before they become expensive.
Does City Hall have any idea how obvious it is to residents how stupidly they handle these things?
And FOIC, has never met a government official it has the heart to fine.
People are sophisticated enough to know that playing guitar while on leave for a back injury is evidence of exactly zilch. Lots of people have back injuries and they know the difference between jumping around in burning buildings and off fire trucks and strumming a guitar. What’s he supposed to do, lie in bed with a thermometer in his mouth for 12 months? Wouldn’t that be a little wierd?
Incompetent. You don’t need more lawyers, you need to stop spending our money fighting your way out, dishonestly at that, of the bad acts you have no right to do in our name in the first place. You are going to wear Victor Bolden out. ...
posted by: City Hall Watch on March 16, 2010 9:54am
Here we go again. After all the promises made and broken by this administration re: transparency, open government, and due process, we are still falling woefully short and for some reason, drag our feet on settlement. Why? There is still active retaliation. Why? Taxpayers pay over and again for treating our employees shabbily and for making hasty decisions that always seem to come back and bite us. This is a disturbing pattern and practice. It’s also expensive.
posted by: anthony lane on March 16, 2010 3:18pm
As a current New Haven firefighter I applaud Jerry for his victory. Jerry is one of the most knowledgeable person on the job. This type of intimidation is done often, It takes alot of courage to fight ... Jerry just wasn’t on the team. ... Jerry GO BOY.
posted by: Chief (Ret.) Victor Sampietro on March 16, 2010 9:15pm
As a retired Fire Chief and one who has known Firefighter Fanfarelli for 50 years, I am so happy he has prevailed in his quest to prove his integrity and honor…he never has had ro prove that to me…or his friends…he is a man that stands up for what he believes…even aginst all odds. Gerry…you make me proud to be a firefighter….Right ALWAYS triumphs over might!!!..God Bless you Gerry
posted by: ex new havener on March 16, 2010 10:23pm
Jerry go for the pot of gold. I know what you been through for the past few years. Don’t let the city intimate you. This city is in trouble due to the large payouts for lawsuits. And its not over yet, remember the New Haven 20. Take the cash and get out of here. There is a nice lot next to me down yonder.
posted by: C.A. on March 17, 2010 3:19pm
If he passed the physical, then it proves he was more than able to return to his job - if my house were on fire, I’d want someone like this guy who obviously CARES about his job, wouldn’t you?
posted by: DingDong on March 17, 2010 6:19pm
It is truly disappointing to hear this news during Sunshine Week. http://www.sunshineweek.org/About.aspx
posted by: Chief (Ret.) Victor Sampietro on March 17, 2010 11:00pm
To Squad 1,
Obviously you owe your job to some political hack…some people like Firefighter Fanfarelli get there jobs on merit…but…also obvious is your hiding behind name of “squad1”...just like a coward does….your not fit to be mentioned in the same breath as Firefighter Fanfarelli!
