Under the threat of litigation, city lawmakers moved Wednesday to form a committee to consider modifications to a budget provision that has come under attack by New Haven’s fire union.
The provision, effective since July, eliminated vacant captain positions and increased the number of lieutenant positions. The shift requires additional exams to fill lieutenant positions before captains are selected from that full pool. Fire union Local 825 President Jimmy Kottage appeared before the Board of Aldermen’s finance committee on Wednesday evening to argue that the provision is unlawful and unfair to veteran lieutenants, who he said should be able to immediately take the test for promotion to captain. To avoid costly and time-consuming lawsuits — brought by his union and its members — the city should form a special committee to consider amending the budget provision, Kottage said.
Multiple individual firefighters are already seeking counsel to bring suits against the city concerning their right to be promoted from lieutenant to captain, Kottage said, adding that the union as a whole will seek counsel if the Board does not act to reconsider the provision.
“I will bring litigation” lieutenant Gary Cole told the committee, saying he has already sought counsel and will take legal action unless the city alters its policy and administers tests for captaincy promotions. “It’s about doing your time, earning your spot.”
A 14-year veteran should not be passed over for captain by a rookie who has just been made a lieutenant, Kottage said, a prospect he insisted would undermine morale in the force.
A handful of aldermen chafed at the tactics of the union, saying they felt bullied into moving on a proposed item that could have been presented without the threat of a lawsuit.
“You’re threatening us,” Ward 22 Alderwoman Jeanette Morrison protested. “If you don’t do what we say, we’re going to sue you — that’s not playing nice, that’s bad.”
But Frank Ricci, the union’s vice president and a department lieutenant, said they were just trying to help the city avoid a costly legal battle and to give them advanced warning of the union’s intentions. Ricci was the plaintiff in the 2009 Ricci v. DeStefano Supreme Court case that found the city in violation of Title VII of the Civil Rights Act for throwing out promotion test results without clear evidence of disparate impact.
Precedent is on the union’s side, Ricci added, saying every prior case involving the city’s stance on promotion exams has been decided against the city, including the 2005 state case Kelly v. New Haven.
“We’re trying to avoid a lawsuit,” Ricci said. “No one’s making threats.”
Still, if the city does not change course and continues to fill lieutenant positions before administering captaincy tests, the union will pursue a lawsuit, Kottage said. He said an aldermanic committee should be formed to examine the provision governing the promotions.
New Haven Chief Administrative Officer Rob Smuts ’01 testified in opposition to the formation of a special committee to consider the budget provision, asking the committee to wait to act until the city and union formalize a verbal contract agreement. Smuts said the contract should be finalized within a week or two and will resolve the dispute over promotions. He said legislative action would harm the city’s negotiating position.
Over Smuts’s objection, Board President and Ward 5 Alderman Jorge Perez moved to form the special committee, saying it will ensure the city is prepared to handle the matter should the contract fall through.
The special committee will be comprised of two members of the current city administration, one rank-and-file firefighter appointed by the chief, one representative of the fire union, two members of the finance committee and two members of the transition team working with Mayor-elect Toni Harp ARC ’78.
“[Harp] is the one who’s going to have to live with this,” Perez said.
The formation of the committee won unanimous recommendation and will now be considered by the full Board.