(Updated 4 p.m.) New Haven will pay millions in cash and extra pension benefits to firefighters who took a bias claim to the Supreme Court—and pay $3 million to the firefighters’ lawyers.
That information is contained in notices filed Wednesday in the Ricci v. DeStefano case in New Haven U.S. District Court.
The 20 firefighters filed suit after the city threw out results from a 2004 promotional exam for captain and lieutenant. The firefighters argued that the city was unfairly favoring African-Americans; the city argued it was following established past practice.
The firefighters’ legal team, led by Karen Lee Torre, got $3 million in the arrangement filed in court this week.
“We’re all pleased. If we weren’t pleased we wouldn’t have done it. The terms are reasonable, acceptable,” Torre said in a phone conversation Thursday afternoon.
The firefighters themselves will get varying amounts of cash out of the $2 million total. On top of that, 18 of the 20 firefighters will have three years of service added toward their pensions; it’s believed that the worth of that extra provision could add $2 million to $3 million to the city’s cost in the future.
Ricci said he’s “elated” that the case is over.
“I think I can speak for the 20 of us when I say that ourselves and our families are happy that we can put this behind us and move back to the business of protecting the citizens of our great city,” he said in an interview. He said his 12-year-old son was 5 when the case began. Asked how he plans to celebrate, he said, “I’m going to work tonight.”
All 20 plaintiffs approved the agreement. They are: Michael Blatchley, Gregory Boivin, Gary Carbone, Michael Christoforo, Ryan Divito, Steven Durand, William Gambardella, Brian Jooss, James Kottage, Mathew Marcarelli, Thomas Michaels, Christopher Parker, Sean Patton, Frank Ricci, Edward Riordon, Kevin Roxbee, Timothy Scanlon, Benjamin Vargas, John Vendetto and Mark Vendetto.
Brian Jooss, for instance, will be paid $108,671 in cash and additional benefits. Click here to read the deal he agreed to.
James Kottage (the current union president), on the other hand, got only $27,266.85.
Nineteen of the firefighters are white. One, Benjamin Vargas, is Hispanic. His settlement: $135,632.79.
Frank Ricci himself, the named plaintiff in the case and the public face of the crew to the nation, picked up $125,518.99. Click here to read the breakdown from his settlement. Ricci testified about the case before the Senate Judiciary Committee when it was considering the nomination of Sonia Sotomayor to the U.S. Supreme Court. (Click here to read Melissa Bailey’s account of that day.)
The Ricci case became a national lightning rod for the debate over affirmative action; the split decision reflected a move by the court to undo decades of affirmative action law and consider more sympathetically arguments of “reverse discrimination” by whites. At the center of the case was how to interpret Title VII of the Civil Rights Act of 1964.
While the city was calling this week’s filings a “settlement,” Torre said that’s technically not the appropriate word, since the city offered to “take judgment” on all the claims the plaintiffs made, she said. Besides the Title VII question settled by the Supreme Court, other claims—such as conspiracy to violate the firefighters’ civil rights—remained outstanding. Until Thursday.
By offering this judgment, the city in effect accepted guilt on all claims and put forward an offer of what it was willing to pay—so that the case could end once and for all. And the plaintiffs all agreed to the terms the city proposed.
The DeStefano administration released a statement which said, in part: “The settlement allows the City to move forward and avoid the cost and uncertainty of further litigation that had been scheduled to commence in Federal District Court later this summer. The obligations will be paid for from the city’s budgeted public liability account funds, already reserved in fund balance for this case and insurance proceeds.”
In other words, the city is self-insured for lawsuits. And the high expected cost of outstanding lawsuits raised the concern of Moody’s Investor Services recently; it cited the precarious future of the public liability account when it downgraded to “negative” its “outlook” on city government’s finances.
The city release quoted Mayor John DeStefano as saying: ““In addition to recognizing that this resolution allows the city to move forward, I want to acknowledge the work of the New Haven firefighters who never allowed this debate to affect their performance on the fire grounds, or, with one another. Their service to the people of New Haven and to their units has been and remains, exemplary.”
Ricci noted that three African-American and two Hispanic firefighters were promoted along with members of the New Haven 20. “So it proves that no race has the corner on merit,” he said. “If you work hard you can succeed.” When people call 911 for a fire, they don’t care what the responding firefighters look like, just that they do their job, Ricci said.
Victor Bolden, the city’s corporation counsel, said the city last Wednesday made 21 individualized “offers of judgment”—20 to the plaintiffs and one to address the legal fees. Those offers were accepted this Wednesday, thus settling the case, Bolden said.
Bolden said the offers of judgment were designed to meet three goals: place a value on the claims made by the plaintiffs, bring the case to an end, and do so in a “fiscally prudent” manner. He said the resolution hit all three objectives.
He offered a breakdown of the city’s offers to the New Haven 20. The plaintiffs were separated into three groups—the 14 who were promoted in 2009, four who were not promoted but had passed the exam, and two who had not passed the exam.
The 14 who were promoted in 2009 were offered lump sums of back pay, adjusted for the tax implications of receiving the money all at once. They were also offered about $75,000 each for “other monetary claims,” including claims of “mental anguish and emotional distress.” And they were offered three years of service towards their future pensions.
The four in the second group were offered the three years of service and about $50,000 each in other monetary claims, but no back pay. And the final two were offered only about $25,000 each.
Now that the offers have been accepted, the city has to pay them. Bolden said the pay-out is to be split over two years, with 40 percent doled out by the end of August and the remaining $3 million paid in August 2012.
The $2 million to be paid next month is “already part of a line item” called the “public liability fund” in this year’s city budget, Bolden said. Some money, “a couple hundred thousand dollars,” will come out of the “public official insurance liability fund,” Bolden said. That’s money from a city insurer, not taxpayer dollars.
As for next year’s payment, “We’ll address it within the context of the budget next year,” Bolden said.
Asked about concerns that the new payments might worsen the city’s already declining bond rating outlook, Bolden said they will, on the contrary, have short and long term benefits. Ratings agencies like to know what they’re dealing with, and knowing now how much the city will owe—rather than having an unspecified amount of Ricci damages looming—might actually help the city’s rating outlook, Bolden said. “It will remove uncertainty.”
The city also faces future financial threat from ballooning pension and health care payments to city workers, the mayor has said. Asked about the pension portion of the Ricci settlement, Bolden said it will not break the budget.
The pension implications were calculated with the help of actuaries, Bolden said. He said the city will be on the hook for approximately an additional $90,000 to $99,000 per year in payments to the firefighter pension fund going forward. He characterized that as “an incredibly small percentage of the pension fund” and an even smaller piece of the city’s overall budget.
“This isn’t a budget buster,” he said.
The settlement of the Ricci case presented a “once in a lifetime” problem for the city, Bolden said. He said the city decided to make pension adjustments a part of the offers of judgment in order to make the offers more appealing to the plaintiffs. “We thought it might make a difference.”
“This wasn’t political,” he said. “This was a lawyer-driven thing.” The question was how to add value to the offers “in a fiscally responsible way.”
In a press statement released Thursday, mayoral contender Jeffrey Kerekes called the deal “yet another blow to New Haven taxpayers,” and an emblem of the city’s “chronic mismanagement.”
“This city’s inexcusable decision to deny the earned promotions is a poor as the choice to run up the legal bills fighting for the original bad decision,” Kerekes charged.
Attorney David Rosen, a local civil rights lawyer who represented a black firefighter who attempted to intervene in the Ricci case, said he wasn’t surprised the legal fees amounted to more than the cash settlement paid to the plaintiffs. (It amounted to far less once the future pension payouts are factored in.)
“The attorney’s fees were based on a huge amount of work being done for many years by not only attorney Torre but also by another law firm that handled the case in the United States Supreme Court,” Rosen said. “I’ve no information about how much time they spent or what they’re legal rates are, but for a case of that magnitude and that length and that effort I’m not surprised the legal fees are that high.”
Legal fees and damages are “apples and oranges,” Rosen said. The plaintiffs are entitled to reimbursement based on lost salary, while the attorneys’ fees represent legal work done over the course of the case.
“It’s not a big surprise that the legal fees are higher than the amount the plaintiffs got,” Rosen said. “It’s just a case of how much legal work was done.” In the Ricci case, there was a “whole lot of legal work.”
Rosen congratulated the lawyers and the plaintiffs on their victory. “I tip my hat to them.”
Steven D. Ecker, a private lawyer who worked on the case for the city, said that based on his understanding, Torre accepted less she might have been entitled to in fees based on the thousands of hours she put into the case.
Past stories on fire department promotions and the Ricci case:
• Arterton Asks 2nd Judge To Look At Ricci Conflict Claim
• Torre Blasts Ricci Judge For Consorting With “Feminists”
• Judge Swings Back; Ricci Case Stalls
• “Tinney Intervenors” Step Down In Ricci Case
• Ricci Victors Seek Damages
• After 6-Year Battle, Firefighters Get Badges
• Ricci Case’s “Tinney Intervenors” Try Again
• 10 More Firefighters Promoted
• Judge Blocks Black Firefighters’ Move
• Board Promotes 14 Firefighters
• Judge Orders Firefighter Promotions
• Black Firefighters Seek To Halt Promotions
• Promotions Pitched In Ricci Case
• Ricci’s Back In Court
• After Ricci Ruling, Black Firefighter Sues City
• Ricci Takes The Stand
• In D.C., Two Latino Views On Sotomayor
• Dems Swing Back On Ricci
• ConnectiCOSH Kibosh
• Sotomayor: I Didn’t “Hide” Ricci Case
• Is Ricci Being Smeared?
• Sotomayor Speaks On Ricci
• Ricci Takes Center Stage
• Watley: I’d Have Promoted Ricci
• Firebirds, NAACP: Ricci Won’t Stop Us
• “If You Work Hard You Can Succeed In America”
• Was He The Culprit?
• Supreme Court Overturns City On Ricci
• On Page 25, A Hint
• Minority Firefighters Vow Post-Ricci Unity
• Ricci Ruling Won’t End Quest
• Ricci, Sotomayor Brand DeStefano
• Firefighter Case Reveals Surprise Obama Stand
• Justices Zero In On Race-Based Distinctions
• Rights Groups Back Black Firefighters
• The Supreme Stakes: Title VII’s Future
• Dobbs v. Bolden
• Latino Group Backs White Firefighters
• Black Firefighters: Ricci Case Poses Grave Threat
• NAACP Backs City In Firefighter Case
• Paging Justice Kennedy
• Fire Inspectors Promoted
• Fire Inspector List Approved
• U.S. Supreme Court To Hear Firefighters’ Case
• Fire Promotions Examined in Supreme Court