Thomas Breen photo
Mayor Elicker, city attorneys King & Sullivan Monday.
A state judge Monday ordered Renee Dominguez to vacate the position of acting police chief, in a decision that lambastes the Elicker Administration for advancing an “illogical” argument around indefinite acting appointments.
State Superior Court Judge Michael Kamp issued that nine-page decision Monday in the state court case Bosie Kimber v. Renee Dominguez.
Mayor Justin Elicker vowed to appeal the decision and to keep Dominguez in her position until her successor is found.
The “clear import of the city charter is that an acting police chief cannot remain in place indefinitely,” Kamp wrote in Monday’s court order. “To conclude otherwise would completely thwart and eliminate the Board of Alders’ advice and consent role in approving the mayor’s nominee. Indeed, if the argument advanced by the defendant’s counsel were adopted by this court, there would be nothing that would prevent this mayor, or any other mayor of the city of New Haven, from appointing a temporary police chief, having that nominee rejected by the Board of Alders, then allowing the rejected nominee to serve for the rest of the mayor’s administration.
“Such a position is illogical and it is contrary to the express and implied language of the New Haven charter. Therefore, the court must reject the argument as a sufficient basis to support the defendant’s position that she is entitled to hold her current office.”
In conclusion, Kamp wrote, Dominguez “has failed to meet her burden to establish that she is entitled to hold her current office as the New Haven chief of police. Therefore, she is ordered to vacate the position.”
Click here to read the judge’s decision in full. Click here, here and here to read previous Independent articles about this case.
Thomas Breen file photo
Acting Police Chief Renee Dominguez, with CAO Rush-Kittle and Mayor Elicker at a recent press conference.
In an email statement Monday, Board of Alders President Tyisha Walker-Myers called on the mayor to “respect the decision” and name someone else to serve as interim chief, or submit another name for consideration for aldermanic approval for the position.
“Today’s decision in Boise Kimber, et al. v. Renee Dominquez regarding the interpretation of the charter language is clear. The authority to approve or deny a police chief sits solely with the Board of Alders. The city should respect the decision of the judge and name an interim chief or submit a name for consideration as chief. Again, the City Charter is clear about the powers of city officials and should be followed and respected,” Walker-Myers argued in a statement released by the board.
Elicker addressed the decision at a 3 p.m. press conference. He stood outside the police station to speak with reporters, surrounded by the city’s top lawyer and other City Hall officials, but no police officials or other cops. City police spokesperson Scott Shumway stood in the wings, away from the podium.
Elicker said he “strongly believes” he did follow the charter in leaving Dominguez in place indefinitely following the rejection of her nomination by the alders.
He said that Dominguez will remain as chief as his administration appeals Kamp’s ruling and as he continues the process for finding a successor, a process that is now in its fourth month.
“It will be business as usual” at the police department with Dominguez at the helm, Elicker said. He dismissed the lawsuit as “politically motivated.”
The mayor was asked if the judge’s decision, which agreed with the lawsuit, was politically motivated as well.
“I’m not going to say the decision is politically motivated,” he responded.
He added that his administration has kept Dominguez in the role of acting police chief “to ensure continuity and stability as we work to identify a new chief of police, and strongly believe we have followed the charter in doing so.” He said the charter requires the mayor to “run an organized and efficient city government, and that is exactly what we will be doing.”
Elicker refused to reveal how many people have applied for the chief’s position at this point.
In an email statement sent to the Independent Monday afternoon, Dominguez said, “I have been focused and committed to performing my duties as Police Chief since I was named Acting Chief in March 2021. This ruling has no effect on me continuing to successfully perform my job for the officers and the community.”
The full press conference can be viewed above.
Judge: "Simply Not Authorized"
Kamp’s decision comes less than two weeks after city Assistant Corp Counsel Blake Sullivan and plaintiff attorney Jerald Barber duked it out in remote court during the most recent hearing in the so-called quo warranto case — and, more broadly, about the respective authorities of executive and legislative branches of local government.
The case itself involves Mayor Justin Elicker’s interpretation of the city charter in his choice to keep Acting Police Chief Dominguez in an interim/“acting” role even after the Board of Alders rejected her nomination last December. Soon thereafter, Dominguez formally withdrew her name from consideration for the permanent role, and announced her plans to retire after the city finds a replacement. The mayor has since kept Dominguez in charge well beyond the charter-mandated six months for an“acting” appointee as a deliberative search process for a replacement plods forward.
Newhallville Revs. Bosie Kimber and Donarell Elder filed a lawsuit in state court on Jan. 7, alleging that Elicker’s decision to keep Dominguez in an acting role indefinitely violates Article IV, Section 1(A)(3) of the city charter, which requires that the mayor submit an acting police chief’s name to the Board of Alders for confirmation as permanent chief within six months of her taking over in an acting capacity.
Kimber and Elder’s attorney argued that the mayor’s decision to leave Dominguez in the acting role indefinitely violated the clear intention of the charter to impose a six-month cap on acting police chief appointments barring an approval by the Board of Alders.
The city’s attorney argued that the mayor satisfied the clear requirement of the charter — that the mayor submit Dominguez’s name for confirmation within six months of her taking over as acting chief — and that the resulting silence in the charter permitted the mayor to keep her in the acting role for longer than that.
Kamp’s decision on Monday shows just how persuaded the judge was by the plaintiff — and how skeptical he was of the city — in this balance-of-powers case.
“The plain language of the New Haven city charter is clear,” he wrote.
“Although the mayor has the general authority to nominate the chief of police, that power is subject to the approval of the Board of Alders. Moreover, while the mayor can appoint an individual to be police chief in an acting capacity, that person must be submitted to the Board of Alders for approval within six months.”
Although the city charter does clearly allow a temporary appointee to remain in office for more than six months in some situations, Kamp wrote — for example, if the mayor chooses to resubmit an appointee’s name after an initial rejection by the Board of Alders — an acting police chief cannot remain in place indefinitely.
“When making the decision, the court has duly considered the weighty public safety concerns articulated by the office of the New Haven Corporation Counsel,” Kamp continued. “The police chief is no doubt one of the most important offices in the city of New Haven and leaving it vacant is certainly less than desirable. Nevertheless, the New Haven charter sets forth a clear process for filling this position. While the mayor has the authority to nominate an individual to be police chief, the Board of Alders eventually has to approve the individual if she is to serve as the permanent holder of that office. Although the defendant was rejected by the Board of Alders on December 6, 2021, she has continued in office for nearly five months without any definite end date in sight. Such a course of events is simply not authorized by the current New Haven charter.”
YouTube photo
In virtual court earlier this month: Assistant Corp Counsel Blake Sullivan, Judge Michael Kamp, plaintiff attorney Jerald Barber.Acting Police Chief Renee Dominguez, with CAO Rush-Kittle and Mayor Elicker at a recent press conference.
In a footnote on page of the judge’s decision, Kamp points out that he is not specifically accusing Elicker of trying to circumvent the charter-mandated aldermanic advice and consent process and of intending to keep an acting police chief in that role for the rest of his time in office.
“In making this observation, the court is in no way indicating that the current mayor is intentionally attempting to avoid the approval of the Board of Alders,” that footnote reads. “Rather, the court is simply stating that such a course of action is theoretically possible in light of the position espoused by the defendant’s counsel.”
And in another footnote on the final pace of the decision, the judge wrote, “In reaching this decision, the court is not making any comment on the defendant’s job performance of her abilities to hold the position of police chief. Rather, the court is only focusing, as it must, on the language of the New Haven charter and whether the charter’s legal requirements have been followed.”
King V. Judge
Top city attorney Patricia King at Monday presser.
At Monday’s press conference, top city attorney Patricia King made the case for why she believes the Elicker Administration is on sound legal footing in its interpretation of the charter — and, therefore, in its to-be-filed appeal of Kamp’s decision.
She said keeping Dominguez in the role of acting chief as the mayor seeks out a new permanent police chief pick is “consistent with the purpose and intent of the city charter, which is to run an organized and efficient city government.”
“In addition,” King said, “the charter does require that all department head positions remain in their positions until their successor is found and qualified.”
She said the charter “does not tolerate vacant city department head positions. And that, again, is consistent with the intent of the charter that we have an organized and efficient city government.”
Kamp identifies this argument as one that city Assistant Corporation Counsel Blake Sullivan has already made in his previous briefs and arguments before the court in this case.
Kamp then goes on to refute it in his Monday decision.
The judge wrote that the city pointed in its defense to Article II Sec. 8 of the charter, which states that: “Whenever any office of an Appointed Public Official shall become vacant by reason of the death, resignation, inability, disability or removal of the person appointed to fill the same, said vacancy may be filled by the authority which made the former appointment, subject to the provisions of this Charter.” (Emphasis added by judge.)
“This provision clearly does not apply to the present situation,” Kamp wrote, “because it presupposes that the office at issue became vacant by either death, resignation, inability, disability or removal. In this matter, the office of police chief became vacant in July, 2021 when the former police chief retired. Moreover, Article II Sec. 8 requires that the opening be filled in accordance with the other provisions of the charter and that did not occur here.”
Kamp then points to Article II Sec. 13(b), which states: “All Public Officials, unless prevented by death, inability or suspension or removal, shall hold their respective officers until their successors shall be chosen and shall have duly qualified.”
“This provision of the charter likewise cannot be used to support the current situation in New Haven,” the judge concluded, “because it necessarily implies that the public official at issue was appointed in accordance with the law. Otherwise, this section of the charter could also be utilized to bootstrap a mayor’s attempt to avoid the review of the Board of Alders.”
City Assistant Corp. Counsel Blake Sullivan on Monday.
King was asked during Monday’s presser to respond to the judge’s rationale. She was also asked about Kamp’s criticism of the city’s legal argument as resulting in the “illogical” outcome of an indefinite acting chief.
“This isn’t the type of situation where the mayor is not doing anything to find a new police chief,” she said. “That’s not the situation that we have here. That really is looking at this in the abstract, and we’re dealing with reality.”
Thank you Board if Alders. You really Screwed up this time!