Mayoral, Alder Authority Debated In Police Chief Court Case Memos

When facing ​“silence” in the charter, should a state court err on the side of respecting the mayor’s authority to pick a police chief — or on the side of respecting the alders’ authority to turn one down?

That legal quandary is at the center of two briefs filed on Monday in the ongoing state court case of 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, and announced her plans to retire after the city finds a replacement.

Meanwhile, the city’s search for a new permanent chief plods forward. 

A job posting for the police chief position went live on the city’s website on Monday. And during a Wednesday afternoon press conference at City Hall, Mayor Justin Elicker and city Chief Administrative Officer Regina Rush-Kittle announced that residents can offer their input on the nationwide police chief search process by filling out this survey or by attending virtual town halls on April 12 and April 20. (Click on the Facebook Live video below to watch that presser in full.)

Monday’s two legal briefs, meanwhile, offer the most detailed legal debate yet as to whether or not the mayor is violating the charter by keeping Dominguez in charge of the police department during the ongoing search. 

In those briefs, which can be read in full here and here, both attorneys — city Assistant Corp Counsel Blake Sullivan representing Dominguez, and Jerald Barber representing First Calvary Baptist Church Rev. Boise Kimber and co-plaintiff Donarell Elder — argue that the stakes are high in this charter-parsing court battle.

One side makes the case that a favorable ruling for Kimber would result in the excessive impingement of the executive branch’s local constitutional authority.

The other side argues that a favorable ruling for Dominguez would result in an undue curtailing of the local legislature’s legal powers.

On behalf of Dominguez, Sullivan wrote: ​“The plaintiffs’ interpretation of the City Charter and ordinances, if credited, creates improper limitations on the Mayor’s appointment power. Moreover, these arguments violate the normal rules of statutory construction. Consistent with the Charter’s intent to provide only the Mayor with the authority to identify and nominate a police chief, as well as the numerous provisions giving the mayor discretion to keep department heads such as the Chief of Police as holdovers until a successor is chosen and qualified, both of the plaintiff’s arguments must fail.”

On behalf of Kimber and Elder, Barber wrote. ​“This court must construe the city charter so as to preserve all its provisions, and maintain the just authority both of the Mayor and the Board of Alders. An officer rejected by the Board of Alders cannot be re-appointed by the Mayor. It must be presumed the Aldermen acted in good faith, and believed the officer unfit for the office. If they have abused their power they are answerable to the people who elected them. The charter gave them authority to act on the nomination and to reject it. The charter required the mayor to consult them in the appointment, and they have given their advice. The assent of both is required to invest the appointee with the office, and the Alders have refused their assent and rejected the appointee. By the charter, although the Alders cannot say who shall fill the vacant office, they have a right to say who shall not fill it. The defendant must leave office.”

The state court case is next scheduled for a remote hearing on April 13.

"Attempting To Usurp The Authority Of The Mayor"

At the center of Kimber’s lawsuit against Dominguez is a contention that the mayor has violated Article IV. Section 1(A)(3) of the city charter.

That section 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.” 

Throughout his 25-page memo — dubbed ​“Defendant’s Points And Authorities In Support Of Judgment” — Sullivan picks up on the argument that the mayor has made in past interviews.

That is, that Dominguez can legally stay on in her acting role for an indefinite period of time because all that the charter requires on this point is that the mayor submit her name for a confirmation vote within six months of her taking over as acting chief, which occurred on July 1, 2021. The charter does not require that the acting chief be approved within six months of that nomination, Sullivan argued, or that she leave if her appointment is turned down.

“The plaintiffs, Bosie Kimber and Donarell Elder, seek to remove Acting Chief Dominguez by arguing that the Charter of the City of New Haven limits her right to hold a position in an interim capacity to six months, and, alternately, that an unrelated General Ordinance of the City of New Haven, § 2 – 304, similarly prevents her from serving in a temporary position for more than one hundred and eighty (180) days,” Sullivan writes in the memo’s introduction. ​“However, both of those arguments must fail because they impermissibly infringe the Mayor’s express powers of appointment and removal and rely on conflicting interpretations of the laws of New Haven.”

Sullivan writes that Kimber and his Elder seek to ​“override the Mayor’s Charter-granted authority to appoint and retain department heads” with this lawsuit. 

He dismisses their legal complaint as putting forward ​“a technical argument attempting to usurp the authority of the mayor, which, if credited, would seriously disrupt the administration of the Police Department.”

“Put simply,” he continues, ​“the six-month limit imposed by the Charter no longer applied once Acting Chief Dominguez was submitted for confirmation by the Board. Moreover, City Ordinance § 2 – 304 does not apply to public officials like Acting Chief Dominguez. The Mayor’s decision to retain Acting Chief Dominguez to run the police department is entirely consistent with the appointment powers under the City Charter and is designed to meet the needs of public safety in a manner reserved for extraordinary situations like the one presented by Acting Chief Dominguez’s retirement. Therefore, the plaintiff’s complaint should be dismissed.”

So. Why does Sullivan argue that the plaintiff’s reading of the charter is incorrect? 

First, Sullivan defends Elicker’s actions to date consistent with the mayor’s obligations as the city’s chief executive.

Those obligations, in this case, are twofold, Sullivan argues. ​“The first is to the City, namely, to provide for public safety by ensuring the steady and efficient operation of the police department. The second is to the Board of Alders, to nominate another individual who meets the requirements of the Charter as permanent Chief of Police for the Board’s approval. See Charter Art. XV, § 2.1 By directing Acting Chief Dominguez to maintain her interim position until a permanent chief is nominated and approved by the Board, the Mayor is working to meet both of those obligations.”

The charter clearly states that it is the mayor’s role to appoint a police chief, Sullivan writes. And, he says, it’s clear that the mayor has to submit an acting chief’s name for approval by the Board of Alders before the end of six months.

“By its terms however, the Charter recognizes that an Acting Chief may serve in that position for longer than six months: once an Acting Chief is submitted for nomination to the Board, the Board then has thirty days to act on that nomination by approving or rejecting the nominee. Id. The Board’s initial rejection of a nominee is not final. Assuming the Board rejects the nominee at that first vote, the individual may nevertheless continue to serve in an acting capacity as Police Chief pending resubmission of the nomination to the Board. Id.”

In comparison, he continues, the Board of Alders’ role in ​“the installation of a permanent Chief of Police is limited to granting or withholding its imprimatur for the Mayor’s nominee. The Board does not have the power to appoint or remove the Chief of Police. There is no Charter provision mandating action against an Acting Chief’s appointment after the Board’s first rejection of a nominee if, as was the case here, that nominee withdraws their name from further consideration. Nor is there any Charter provision mandating that an Acting Chief must immediately step down if the Board rejects their nomination a second time.”

Sullivan then recognizes that there is a ​“silence [in the charter] as to how the transition period should proceed while the Mayor identifies and nominates a different individual for the office”.

Kimber and Elder argue that the acting chief must be immediately removed from her role, he says. ​“In other words, without knowing when the current search for a permanent Chief of Police will be completed, the plaintiffs are advocating turnover for the sake of turnover, regardless of the circumstances. That argument and its inevitable result runs totally counter to the rules of statutory construction and must be rejected.”

This gets to the crux of Sullivan’s argument on behalf of Dominguez staying in her role: That interpreting the charter’s ​“silence” in favor of kicking the acting chief out of her position will unduly limit the mayor’s authority.

“Only the Mayor can appoint or remove a public official like the Chief of Police from office. Charter Art. II, § 15(B),” he writes. ​“Moreover, the Charter repeatedly provides that public officials, including the Chief of Police, must hold over until a qualified successor can take their place. See, e.g., Charter Art. II, § 8; § 13 . None of the circumstances preventing a Chief of Police from holding office — death, inability or suspension or removal — apply here. The plaintiffs cannot exploit the Charter to give the Board an implied removal power that it expressly and exclusively reserved for the Mayor.

“Furthermore, any dispute regarding the limits an Acting Chief’s term must be resolved in deference to the Mayor’s express powers under the Charter and in further recognition the Charter’s overarching objective of ensuring continuity in holders of public office, especially in periods of transition.”

Sullivan wraps up his charter-focused argument by repeating that the lawsuit, if successful, would give the Board of Alders ​“an implied removal power that could be exercised through the passive rejection of the Mayor’s nominees. ​“In light of the plain language of the Charter, as well as its overall purpose in endowing the Mayor with sole authority to appoint or remove the Chief of Police, the plaintiffs’ argument must be rejected.”

6-Month Limit = "Plain & Unambiguous"

In his seven-page legal memorandum in support of the plaintiff’s position, which was also filed on Monday, Barber drives home the argument that he, Kimber and Elder first made in the original Jan. 7 lawsuit.

That is, that the charter imposes a six-month cap on how long an acting police chief can serve in such a capacity, and that the court needs to respect the alders’ charter-granted authority to turn down mayoral police chief appointments.

“The Charter speaks for itself,” Barber writes. ​“The clear meaning of the New Haven Charter places a six month limitation on temporary or acting appointments. But if the defendant’s position holds, then the Board of Alders’ authority in approving or rejecting appointments is abrogated. The Mayor, by use of a temporary appointment of indefinite duration, effectively draws to himself the whole control over city officers in defiance of the Board of Alders rejection.”

This legal language is ​“plain and unambiguous,” Barber continues.

“The Charter’s requirement that ​‘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 (6) months’ can only be read to mean that such appointments are of limited duration. A reading of the Charter that would allow the Mayor to appoint individuals to indefinite terms would controvert the clear language of the Charter, nullify certain powers granted to the Board of Alders, negate other provisions of the Code of Ordinances, and frustrate the Charter’s entire recommendation/appointment scheme. The notion that temporary appointments can exist indefinitely would require an interpretation of the charter clearly inconsistent with the meaning of the word ​“temporary” and in violation of the maxim that legislative enactments should be construed in accord with the common and ordinary meanings of the words used. As such, the defendant’s temporary term as Acting Chief expired on January 1, 2022.”

Barber’s memo concludes by urging the court to respect the alders’ charter-granted authority — and order Dominguez to vacate her position as acting police chief.

“This action is compelled by statutory text and common sense. Its provisions are not susceptible to the defendant’s conclusion driven reasoning-that the defendant remain until such time as a replacement is found. The Defendant’s position creates an absurd and unworkable result.”