City of New Haven v. Afscme

• Decision Date: 04 March 2021
• Docket Number: SC 20362
• Citation: 257 A.3d 947,338 Conn. 154
• Parties: CITY OF NEW HAVEN v. AFSCME, COUNCIL 4, LOCAL 3144
• Court: Connecticut Supreme Court

338 Conn. 154

257 A.3d 947

CITY OF NEW HAVEN

v.AFSCME, COUNCIL 4, LOCAL 3144

SC 20362

Supreme Court of Connecticut.

Argued October 13, 2020

officially released March 4, 2021^*

Proloy K. Das, Hartford, with whom, on the brief, was Chelsea K. Choi, for the appellant (plaintiff).

Kimberly A. Cuneo, with whom was J. William Gagne, Jr., West Hartford, for the appellee (defendant).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Keller, Js.

KELLER, J.

The plaintiff, the city of New Haven (city), appeals¹ from the judgment of the trial court granting the application of the defendant, AFSCME, Council 4, Local 3144 (union), to confirm an arbitration award reinstating the grievant, Nichole Jefferson, a member of the union, to her employment as executive director of the city's Commission on Equal Opportunities (commission) and denying the city's corresponding application to vacate the award on public policy grounds. On appeal, the city claims that the trial court incorrectly determined that the award did not violate public policy. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. At all times relevant to this appeal, the city and the union were parties to a collective bargaining agreement that provided for final and binding arbitration of disputes arising under the agreement. Jefferson was employed by the city from March 6, 1996, until her termination on August 5, 2015. During that time, she enjoyed an excellent employment record, won various awards and was promoted five times, the last time, in 2001, to the position of executive director of the commission. The commission is comprised of a nine member board of commissioners (board), eight of whom are appointed by the mayor, with the remaining member chosen by the Board of Aldermen from its number.² As executive director of the commission, Jefferson oversaw construction contract compliance³ and enforcement of chapter 12 1/2 of the New Haven Code of Ordinances, which requires building trade contractors doing business with the city to hire certain percentages of women, minorities and New Haven residents. In addition to its enforcement powers, the commission is responsible for sponsoring educational programs, providing resources and expanding outreach efforts in all segments of society to eliminate discrimination within the city. Although commission staff can recommend fines for violations of chapter 12 1/2, the board has the final say as to whether any such fines will be imposed.⁴ As executive director of the commission, Jefferson reported to the board as well as to the city's economic development administrator.

In 2013, the city elected a new mayor, who was sworn in in January, 2014. At the request of the outgoing administration, Jefferson prepared transition documents for the new mayor to familiarize her with the commission, its organizational structure and responsibilities. The documents contained numerous references to the "Construction Workforce Initiative 2" (CWI2), a program created by the city in the early 2000s to provide training and employment opportunities in the construction industry for disadvantaged low to moderate income city residents. CWI2 was funded by the city and operated under the auspices of the commission until 2011, at which time it was spun off, at the direction of the city, into a legally separate, nonprofit entity.⁵ According to the arbitration award, after being "spun off, CWI2 was always intended to be the recipient of city assistance and resources, includ[ing] services provided by ... city paid employees whose salaries were funded in part from fines and donations received by [the commission] and funds received by CWI2 but turned over to the city ...." (Citation omitted.) It was also intended that commission staff would continue to "perform duties for [the commission] and CWI2 simultaneously." (Internal quotation marks omitted.)

Upon review of the transition documents submitted by Jefferson, the new mayor ordered an investigation into the relationship between the commission and CWI2. According to the arbitration award, the city's then corporation counsel, Victor Bolden, retained outside counsel to conduct the investigation. "Over the next few months, the office of corporation counsel reviewed the documents received by [outside counsel], including grant applications [that Jefferson had prepared] on behalf of CWI2, documents produced by the mayoral transition, and the documents provided by ... Jefferson." (Internal quotation marks omitted.) On March 18, 2015, Matthew Nemerson, the then newly appointed economic development administrator, placed Jefferson on administrative leave. On August 6, 2015, following a Loudermill hearing,⁶ the city sent Jefferson a letter terminating her employment. The letter stated in relevant part:

"You have violated the [c]ity's [c]ode of [e]thics and abused your power as the [e]xecutive [d]irector of the [commission]. You have engaged in intimidation, attempted bribery and corruption with contractors doing business with the [c]ity of New Haven, namely, Lab Restoration and Construction, [LLC], John Moriarty and Associates, Inc., and Tri-Con Construction Managers, LLC.

"You used [c]ity time and resources to create and operate a separate entity, [Career Compliance Placement, LLC (CCP)]. At no time did you disclose that you created such an entity.

"You operated a private entity, [CWI2], and through misrepresentations used the [c]ity to further benefit your private entity.⁷ You even sought donations for your private entity from the contractors whose employment practices you were entrusted to enforce [while] affiliating yourself with the [c]ity despite being warned not to do so. You also misrepresented to the [s]tate when applying for grant funds [for] your private entity.

"You failed to cooperate with this investigation while on paid leave. You failed to comply with ... Nemerson's May 13, 2015 requests for information highly pertinent to this investigation. You failed to attend investigatory meetings in connection with this report. You failed to cooperate in the June 9, 2015 investigatory interview as clearly set forth in the audio of that interview." (Footnote added.)

On August 6, 2015, the union filed a timely grievance, claiming that the city did not have just cause to terminate Jefferson. After exhausting internal grievance procedures, the union invoked its contractual right to submit the matter to the state Board of Mediation and Arbitration for arbitration before a panel of three arbitrators (panel). In its brief to the panel, the union argued, inter alia, that the city had "justified its investigation of ... Jefferson upon an obvious fallacy and pretext," namely, "the [need for] an investigation into the relationship between ... Jefferson, the [commission] and CWI2" and that "[n]o such investigation was ever justified because the [c]ity had ... [itself] created, fostered and maintained the relationship between CWI2 and the [c]ity." The union further argued that the city's claims that Jefferson engaged in acts of intimidation, attempted bribery and corruption toward various contractors were wholly unfounded. Finally, the union asserted that Jefferson had formed CCP "with the expressed permission of the [c]ity's [d]eputy [c]orporation [c]ounsel, John Ward, in 2008" and annually disclosed her consulting work to the city's labor relations and human resources offices.

Following eighteen days of hearings, the parties submitted the following unrestricted submission to the panel: "Did the [city] have just cause to terminate ... Jefferson's employment on August 6, 2015? If not, what shall the remedy be?" On March 27, 2018, the panel issued a thirty-seven page decision in which a majority of the panel found that the city had proven only three of the eleven factual claims⁸ that it had argued justified Jefferson's termination. Specifically, the panel found that the city had proven that, although Jefferson had "received city authorization to provide consulting services" in New York, she "did not receive authorization, nor did she disclose that she [had] formed [CCP], a Connecticut LLC that advertise[s] contract [compliance] services, which could ... lead to the appearance of impropriety and a conflict of interest as defined and argued by the city ...."⁹ (Internal quotation marks omitted.) The panel found that "the [city's] ethics ordinance establishes standards of conduct that require city employees to ‘be impartial and responsive to the public interest’ without regard ‘to personal gain or advantage.’ And, as argued by the city, the advertising of contract compliance service in ... Connecticut represents a conflict of interest as defined by the city's ethics ordinance." The panel further found, however, that "there [was] no evidence" that Jefferson ever provided any such services in Connecticut or ever intended to deceive the city about CCP's existence, which, the panel added, "was a matter of public record." According to the arbitration award, "Jefferson testified that she formed CCP ... as a limited liability company [in Connecticut] because she had to form [the company] in ... the state where [she] live[d] and that she could not perform consulting ... in New York as Nichole Jefferson because ‘you [have] to be a company.’ " She further testified that, in January, 2008, she e-mailed Ward requesting permission to perform "consultation work for [national builder and developer] Gilbane [Inc.] ... in ... New York" and was told by him "that her consultancy with Gilbane [Inc.] was acceptable provided it ... was not in ... Connecticut." (Internal quotation marks omitted.)

The panel also found that the city had proven that, while on administrative leave, Jefferson had "fail[ed] to comply with ... Nemerson's May 13, 2015 request for information," and, therefore, she "did not cooperate with the investigation," as required...