Judge Presses City On ​“Indefinite” Acting Chief

A mayor may keep someone in a top job indefinitely even if the Board of Alders exercises its right to reject her appointment — as long as the mayor keeps getting reelected.

A city lawyer offered that interpretation of the city charter in court Wednesday when pressed by a skeptical judge in a case called Bosie Kimber v. Renee Dominguez.

That case involves Mayor Justin Elicker’s interpretation of the city charter in his choice to keep Acting Police Chief Renee 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.

Is the city’s contention really that Dominguez can stay on in her acting role indefinitely even though the Board of Alders turned down her nomination last year and even though she has subsequently withdrawn her name from renomination? Superior Court Judge Michael Kamp asked, posing a question he’d return to several times over the course of Wednesday’s hearing.

He posed the question to Asst. Corporation Counsel Blake Sullivan, who represented Dominguez.

Sullivan claimed that the mayor has no intention of keeping Dominguez in that acting role ​“forever,” and that the city is currently conducting a nationwide search for a new permanent chief.

Nevertheless, he said, Kamp’s formulation of the city’s position on this matter is accurate.

“Pending a political outcome that would compel a different result,” Sullivan said, ​“yes, your honor,” the Elicker Administration does think Dominguez can remain as acting chief indefinitely in this situation.

"Balance Of Power" At Stake

At the center of the court case is a debate over whether the mayor’s or the Board of Alders’ authority should prevail in the face of an unclear, ​“silent” section of the city charter. 

That section — Article IV, Section 1(A)(3) — reads:​“Other than to membership on a Board or Commission, the Mayor may designate an individual to hold a position in an acting capacity pending the selection of a nominee, but no person may hold such a position for more than six (6) months without being submitted for confirmation by the board.” That rule applies to a half-dozen top City Hall positions, including the police chief and fire chief.

Both the city and the court case’s plaintiffs, Newhallville Revs. Bosie Kimber and Donarell Elder, agree that Elicker satisfied the nomination-timeline requirement when he submitted Dominguez’s name for confirmation to the Board of Alders on Dec. 6, 2021. That was within six months of when Dominguez — a 20-year New Haven Police Department veteran who previously served as assistant police chief — officially stepped into the acting chief role on July 1, 2021.

What the charter is unclear on — and what both sides are fighting about in this ongoing court case — is what should happen now that the alders have rejected Dominguez’s nomination, the mayor has chosen not to resubmit Dominguez’s name for another chance at aldermanic confirmation, and Dominguez remains in the acting police chief role more than six months after she started in that position.

“Pursuant to the New Haven Charter, there is an orderly and deliberate process for recommendation and appointment, or advice and consent, that is the essence of the balance of power under the charter,” plaintiff attorney Jerald Barber argued during Wednesday’s video-livestreamed court hearing. 

He argued that keeping Dominguez in her acting role beyond the charter-allowed six months ​“abrogates the authority of the Board of Alders” to approve or disapprove the mayor’s nominee for permanent police chief.

“This argument that a temporary appointment can be converted to an indefinite appointment after the Board of Alders actually rejected this appointment defies logic and is beyond comprehension,” Barber continued. 

After Dominguez formally withdrew her name from reconsideration in December, ​“she was no longer before the Board of Alders,” he said. ​“By advancing the argument that a provision of the charter no longer applies to her, is the defendant suggesting that the mayor could allow her to remain in office until he no longer wants her to remain there? If that is so, when does a temporary appointment ever end?”

"The Only Restraint: Political Processes"

Judge Kamp picked up on that very line of questioning during Sullivan’s turn to make the city’s case for why Dominguez should be able to remain in her acting police chief role.

If the court accepts the city’s interpretation of the relevant section of the charter, Kamp asked, ​“what would prevent the mayor, or any other mayor, from designating a police chief in an acting capacity and, if it’s not ultimately approved by the Board of Alders, which happened in this case, that that person just remained in office indefinitely as long as the mayor holds office and wishes that person to remain in that capacity? What would prevent that person from remaining in that position forever?”

“There is no intent to leave her in office forever,” Sullivan replied. 

He said the mayor plans to keep Dominguez in charge only until he nominates and the Board of Alders signs off on her successor.

“I’m not arguing about ​‘intent,’ ” Kamp countered. ​“I’m arguing about, not this particular mayor, but any chief executive operating under this charter.” 

If a mayor designates somebody to serve as acting police chief, he repeated, and if that mayor submits that person’s name to the Board of Alders for confirmation within six months of their starting as acting police chief, and if the Board of Alders rejects that person’s nomination, and if the mayor then chooses not to resubmit that person’s name for reconsideration and another vote, can the mayor still keep that person as acting chief indefinitely?

“Isn’t that the effect of the city’s position in this case?” Kamp pressed. ​“That Ms. Dominguez could remain as acting police chief as long as the mayor wants her to?”

“Ultimately, the only restraint on that would be political processes,” Sullivan replied. The mayor, after all, is ​“accountable to voters.”

Kamp responded: ​“That doesn’t seem to be the intent of the charter,” that the mayor could keep someone in the role of acting police chief indefinitely ​“without the approval of the Board of Alders.”

Sullivan disagreed. ​“The charter is silent on that,” he said. ​“The charter doesn’t say one way or the other what to do in that situation.” 

Since the mayor satisfied the explicit charter requirement that he submit Dominguez’s name to the Board of Alders within six months of her starting as acting chief, and since the mayor has chosen not to resubmit her name for another confirmation vote after the alders’ initial rejection, the city now finds itself in ​“unchartered territories,” Sullivan said.

Nevertheless, the city attorney contended, the mayor has satisfied all explicit requirements of this section of the charter. 

He also said that the charter’s overarching purpose is to make sure that the city is ​“well-governed and governed efficiently and in service of the people of the City of New Haven.”

What provision in the charter gives Dominguez the authority to remain in her acting position for more than six months after she’s been appointed and now that she’s been rejected by the alders? Kamp asked.

Sullivan pointed to Article 2, Sec. 13 (B), which he described as the charter’s ​“holdover” provision, and which states: ​“All Public Officials, unless prevented by death, inability or suspension or removal, shall hold their respective offices until their successors shall be chosen and shall have duly qualified.”

So, Kamp asked again, does that mean the city thinks that Dominguez can remain in her ​“acting capacity indefinitely?” Even after the Board of Alders rejected her nomination and after Dominguez withdrew her name from consideration for a second confirmation vote?

“Pending a political outcome that would compel a different result, yes, your honor,” Sullivan said.

After roughly 40 minutes, the judge concluded the hearing by thanking both lawyers for making their respective arguments.

“I will take the papers and hopefully get you a decision very soon,” he said.