Justices: City Must Pay Ex-Assessor $90K

The Connecticut Supreme Court has decided unanimously that New Haven owes its former tax assessor at least $92,000 in attorney fees after refusing to defend him against a meritless lawsuit.

Bill O’Brien, New Haven’s former tax assessor who resigned in 2011 (amid controversies about inflating property assessments on artist studios, botching tax bills for seniors, overestimating values on used cars and belittling the office’s customers), was sued just before he left the job for allegedly smearing a city contractor in work emails and office convos.

The city didn’t defend O’Brien in court. It didn’t cover the cost of his hired lawyer even after he won.

After O’Brien demanded reimbursements, the city appealed the case all the way up the Connecticut Supreme Court. Their arguments turned on a technicality over deadlines.

Last week, the justices all agreed to dismiss the city’s final appeal and said they shouldn’t have even taken the case.

The six state Supreme Court justices sided with one trial court judge and three appellate court judges who’d already told New Haven that it was using the wrong timeline. The state’s countdown for recovering attorney fees in a case like this begins six months after a municipal employee beats a lawsuit in court, not six months after the litigation is initially filed, all four judges had told the city previously.

In a brief opinion barely one page long issued last week, the state Supreme Court justices stood by the lower courts. They said they’d examined the entire case file and didn’t want to review the earlier decisions any further.

The justices wrote that they wished they hadn’t taken the case. They dismissed the city’s appeal as ​“improvidently granted,” which is legalese for saying any more consideration of the case would be a waste of time.

With the appeals dismissed, O’Brien can collect $92,000 in attorney fees that he incurred while defending himself against the contractor’s allegations. But he can’t get back anything from his recent legal bills for trying to recover those initial attorney fees.

Vincent Sabatini, the employment lawyer who represented O’Brien, is now asking the trial judge to consider awarding an extra $28,400 for accrued interest.

Sabatini did not respond to an email and a phone call to his workplace, and Laurence Grotheer, the city spokesperson, did not respond to an email either. Proloy Das, the city’s hired appellate lawyer, declined to comment.

Court Cases Stack Up

O’Brien’s near-decade of litigation in this case began in 2010, when the Bridgeport-based Tax Data Solutions sued him, claiming he’d smeared the company’s reputation with ​“defamatory and false” statements.

The company maintained that, throughout 2009, O’Brien griped to his coworkers, accusing Tax Data Solutions of ​“incompetence, ignorance and improper grammar and composition,” as a trial judge summarized it. At one point, O’Brien allegedly threatened to cut the company’s contract short because its work was so riddled with typos.

The company maintained that, after a few months, O’Brien escalated his criticisms, telling his coworkers that Tax Data Solutions was attempting to rob the city by billing for work that municipal employees had already done.

Right after he was served, O’Brien went to the city for help with the case, contacting the mayor and top lawyer. O’Brien asked Victor Bolden, then New Haven’s corporation counsel, to defend him in court, because, O’Brien argued, the allegations related directly to his work as a city employee.

Bolden refused. After that rebuff, O’Brien hired Sabatini to again ask the city to act as his counsel. When that didn’t work, O’Brien brought on Sabatini as his private lawyer.

“It seems bizarre that a city could wriggle out of its statutorily imposed duty to reimburse a municipal employee for legal expenses by refusing to do anything for six months and then claim a lack of notice,” Sabatini wrote in his Supreme Court brief. ​“To say that Mr. O’Brien did not do everything within his power to make sure that the city was aware of his situation is to misconstrue the underlying facts.

“Plaintiff is not suggesting that a legal defense must be provided to a municipal employee in every circumstance,” Sabatini went on. ​“Instead Plaintiff is asking this Court for a reasonable rule which is that a municipality must reimburse a municipal employee for legal fees and costs if that employee is found to be not liable in an underlying intentional tort suit. This is not a radical request.”

In 2014, Sabatini filed a case against the city for refusing to defend O’Brien, accusing it of breaking a contract, breaching good faith and fair dealing and negligently misrepresenting him.

Eventually, in 2015, before the underlying lawsuit went to trial, Tax Data Solutions decided to stipulate in O’Brien’s favor. About three months later, O’Brien sent the city $115,000 in legal bills for all his cases.

What’s The Deadline?

O’Brien argued that an indemnification clause in state law — that even Bolden had noted back in a 2010 letter — should have protected him from personal liability if he could win the case outright. Again, the city balked.

Its attorneys later argued that O’Brien had missed his deadline to collect, saying years had passed since the case was initially filed without giving them an official heads-up about how much he wanted in attorney fees.

“A municipal employee sued for negligence would have no obligation to inform the municipality about the lawsuit prior to the entry of judgment. The first time that a municipality would learn about the lawsuit, under the Appellate Court’s interpretation, could be after judgment had been rendered against the municipal employee,” Das, the city’s hired lawyer, wrote in his Supreme Court brief. ​“In that case, even though the municipality would be deprived of the opportunity to investigate, defend against, or settle the claims, it would still be strictly liable for the entire damages award rendered against the municipal employee, plus the legal fees and costs. The legislature could not have intended such a bizarre result.”

But all the judges who’ve considered the case since said that’s because the indemnification clause only kicks in once an employee actually wins the case, though the appellate court noted that there appears to be confusion on when the clock starts ticking as judges have put the trigger at different points in similar indemnification cases.

In 2016, Superior Court Judge Matthew Frechette said O’Brien could pick up $92,000 in attorney fees, and in 2017, Appellate Court Judges Nina Elgo Michael Sheldon and Eliot Prescott unanimously agreed. The Supreme Court’s dismissal last week lets that decision stand.