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Virtual court on Wednesday.
A year-old legal battle between the executive and legislative branches of city government about former fire union president Frank Ricci’s retirement benefits returned to an argument, and an analogy, that first popped up last July: Is the “toothpaste out of the tube”? Or can it go back in?
That dental hygiene imagery came up Wednesday afternoon during the latest virtual court hearing in the case Board of Alders v. City of New Haven.
Alders sued Mayor Justin Elicker for allegedly overstepping his local authority when he struck an agreement with the former fire union president in May 2020 that required the city to pay for a $386,659.92 annuity on top of Ricci’s existing pension benefits.
Elicker has defended his actions as legally required per a memorandum of understanding (MOU) first signed in 2006 between the DeStefano Administration and the fire union, and then amended in 2019 by the Harp Administration to provide specifically for Ricci.
On Thursday, state Superior Court Judge James Abrams heard oral arguments on three separate motions to strike in the case.
One of those motions came from city-hired attorney Paula Anthony. Anthony argued for the court to throw out the two counts of the alders’ lawsuit that are directed against Mayor Elicker and the City of New Haven. Other counts of the lawsuit are directed against Metropolitan Life Insurance, the city fire union, and Ricci and his wife Christine.
Anthony urged the court to throw out the counts lodged against the city and the mayor because, she said, the alders have not adequately pled that they have suffered “irreparable harm” and that the “balance of equities” are in their favor. Both of those standards need to be met in order for a court to grant a plaintiff injunctive relief, she said.
“Not only are those phrases not found anywhere in those first two counts,” Anthony said on Wednesday, “the sufficiency of the allegations with respect to those essential elements cannot be gleaned from the allegations in those counts.”
Secondly, Anthony argued, the alders are calling on the mayor and the city to stop doing something … that they’ve already stopped doing.
That’s because the city already paid Metropolitan Life for the annuity last June.
“This ship has sailed,” she said.
Or, to use another analogy, “the toothpaste is out of the tube, so to speak. Injunctive relief, not only is it meaningless, but the facts alleged against the mayor and the city can’t prove irreparable harm if an injunction is not issued.”
That very same “toothpaste” imagery previously came up in this case last July, during the very first hybrid in-person/online court hearing in this matter. (“I think the main concerns, the main acts have already happened,” city-hired attorney Floyd Dugas said at that hearing. “It’s just a question, legally, of who was right and who was wrong, and if there’s anything to stop putting toothpaste back in the tube.”)
Thomas Breen file photo
Judge Abrams conducting a hybrid physical-virtual court hearing in July 2020.
On Wednesday, local attorney and former Alder Jonathan Einhorn, representing the Board of Alders, disagreed with Anthony’s take.
He said that the plaintiff will happily revise the complaint to include explicit references to “irreparable harm” and “balance of equities,” if that is what the court needs in order for this case to continue. “It’s clear that we’re looking for injunctive relief,” he said. “That’s clear from the complaint.”
As for the issue of whether or not a court-ordered injunction would accomplish anything in regards to Ricci’s annuity?
“I would say the ship is still at sea,” Einhorn said. “Mr. Ricci is still receiving payments. We want that to stop. The toothpaste is not out of the tube. It’s still in pieces.”
Anthony replied that, no, the toothpaste is already all the way out.
“They paid a lump sum” to Metropolitan Life already, she said about the city’s actions. “They paid a lump sum in June 2020. That’s it. There’s no further action by the city or the mayor. There’s nothing to enjoin here.”
Abrams promised to rule on the three motions to strike — one filed by the city and the mayor, one by Metropolitan Life, one by the local fire union — within the next two weeks.
This MOU which was hatched in secret by former Mayor Harp and endorsed by the Elicker administration is a disgrace. Ricci was not due that money and it was part of a cooked and crooked deal that ratified a union contract that in the end will cost city taxpayers more, not less. While Ricci publicly told everybody the city would save money - that of course, was and continues to be a big lie.
Citizens like Dennis Serfillipi have been seeking this MOU for all this time and was ringing the bells on its lack of justification the whole time. The city kept it secret. It was never vetted or approved. It's all wrong.