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McMahon v. City of Middletown

Court of Appeals of Connecticut

April 17, 2018

PATRICK T. MCMAHON
v.
CITY OF MIDDLETOWN ET AL.

          Argued November 27, 2017

         Procedural History

         Action to recover damages for, inter alia, breach of an employment contract, and for other relief, brought to the Superior Court in the judicial district of New London at Norwich and transferred to the Superior Court in the judicial district of New London, where the action was withdrawn as against the defendant Eric P. Daigle; thereafter, the matter was tried to the court, Hon. Joseph Q. Koletsky, judge trial referee; judgment for the defendant city of Middletown, from which the plaintiff appealed to this court. Affirmed.

          Richard Padykula, with whom, on the brief, was Leon M. Rosenblatt, for the appellant (plaintiff).

          Michael J. Rose, with whom was Cindy M. Cieslak, for the appellee (named defendant).

          DiPentima, C. J., and Elgo and Bear, Js.

          OPINION

          DiPENTIMA, C. J.

         The plaintiff, Patrick T. McMahon, appeals from the judgment of the trial court rendered in favor of the defendant city of Middletown (city).[1] On appeal, the plaintiff claims that the court contravened General Statutes § 52-178[2] by denying his counsel's[3]requests to ask leading questions during the direct examination of the city's mayor, former mayor, and former acting deputy police chief. We decline to review this unpreserved claim and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant. In October, 2007, the plaintiff was hired by the city to be its deputy chief of police. That position was classified in the personnel rules as a ‘‘Defined, Non-Bargaining Position, '' meaning that the city must have ‘‘just cause'' to terminate employment.

         In July, 2009, the city's chief of police retired, and then mayor, Sebastian Giuliano, appointed the plaintiff to the position of acting chief. In October, 2010, Giuliano nominated the plaintiff for permanent appointment as chief of police but the city's common council voted against the nomination. Giuliano nevertheless continued to support the plaintiff's nomination, which the council again rejected in January, 2011. Thereafter, a group of citizens successfully petitioned to put the plaintiff's nomination on the November, 2011 ballot. Giuliano maintained his support for the plaintiff, who remained acting chief.

         In early October, 2011, an anonymous comment on the website of a local newspaper, the Middletown Press, stated that on Thursday, September 29, 2011, the plaintiff was seen consuming alcoholic beverages in public while armed and in uniform. Shortly after this comment appeared, a reporter from the Middletown Press called the police department concerning the comment. After the ensuing holiday weekend, on Tuesday, October 11, 2011, the acting deputy chief, William McKenna, told the plaintiff of both the comment and the reporter's most recent phone call. The plaintiff was ‘‘aggravated'' to learn of ‘‘these rumors, '' and immediately called the Middletown Press from McKenna's office while McKenna was present and listening. The plaintiff spoke first to the reporter who had called the police station, and then to the editor, Viktoria Sundqvist. The plaintiff told Sundqvist that the allegation was not true; he was not in uniform at the time and he had consumed ‘‘a club soda and lime, but [he's] sure [he] wasn't drinking [alcohol].''

         After speaking with Sundqvist, the plaintiff, while still in McKenna's office, called Giuliano. Giuliano's administrative assistant, William Pillarella, listened to the call on speakerphone. At trial, the plaintiff testified that the conversation proceeded as follows: ‘‘Just directly, I said, Mayor I'm giving you a call because I just spoke to the editor of the Middletown Press. There were some blogs about me drinking [alcohol] on duty in uniform . . . at a party at Mezzo Grille. I said I spoke to her and I wanted to give you the heads up in case you hadn't heard anything about that. He said no, I hadn't heard anything. . . . Mayor, it wasn't a party I was at Mezzo [Grille]. I was off duty, I was in civilian clothes, I had a badge and gun on, it was a gathering of sorts for firefighters because-he knew that a firefighter had lost his girlfriend. I said I bought a round of drinks, and I probably had a club soda and lime. I remember saying that I probably had a club soda and lime because his aide, whose voice I recognized on his phone, said wine? I said no; la-la-la-lime, accentuating the word lime because he thought I said wine.'' Giuliano testified that he believed the plaintiff was telling the truth during their phone call.

         McKenna, however, was concerned that the plaintiff's statements to Sundqvist and Giuliano were not true. After listening to the call to Giuliano, McKenna stated to the plaintiff that he had seen him drinking at the Mezzo Grille and that while McKenna could not be certain whether the plaintiff had been ‘‘in uniform, '' the plaintiff nevertheless may have violated a police department rule.[4] On October 14, 2011, McKenna contacted Giuliano and Pillarella to inform them of his concerns about the veracity of the plaintiff's statements. Later that same day, two representatives from the police union met with Giuliano and the city's personnel director, Debra Milardo, to express their own concerns about statements the plaintiff had made to union members at a recent meeting to which he had been invited. Eventually, Giuliano came to believe that the plaintiff had demonstrated a serious lapse in judgment by failing to provide Giuliano with all of the relevant information. After consulting further with Milardo and others, Giuliano informed the plaintiff that he would be withdrawing his support for his nomination, returning him to the position of deputy chief, placing him on administrative leave, and opening an investigation into his conduct.

         At McKenna's suggestion, the city ultimately hired Attorney Eric P. Daigle to conduct the investigation. While the investigation was ongoing, in November, 2011, Daniel Drew defeated Giuliano in the city's mayoral election. During his campaign, Drew had made a political issue of the plaintiff's appointment.

         On February 17, 2012, Daigle submitted his report. He had interviewed thirty witnesses, half of whom reported seeing the plaintiff drinking alcohol in public while wearing his badge and sidearm on various occasions, including at the Mezzo Grille on September 29, 2011. Daigle concluded that the plaintiff had indeed consumed alcohol at the Mezzo Grille while wearing a badge and a sidearm. While it was unclear whether this in and of itself violated any of the relevant police department rules, Daigle concluded that the plaintiff nevertheless had given false and misleading statements and had committed conduct unbecoming a police officer.

         On the same day that the report was released, Drew sent the plaintiff a letter notifying him that the city would hold a hearing pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (Loudermill), to determine whether just cause existed to terminate the plaintiff's employment. In addition to the violations Daigle had reported, Drew charged the plaintiff with threatening city employees during a press conference, misleading the press by claiming not to have been drinking alcohol and being insubordinate because he attended a training session while on administrative leave.

         At the Loudermill hearing, when given the opportunity to present mitigating evidence, the plaintiff read a lengthy statement in his defense, after which Drew immediately terminated the plaintiff's employment. The plaintiff's attorney objected to the alacrity with which Drew acted, claiming that it was evidence of a predetermined outcome. Drew did not reconsider, and the plaintiff's employment was terminated.

         On December 6, 2012, the plaintiff brought an action against the city for (1) breach of contract on the ground that he had been terminated without just cause and (2) breach of the covenant of good faith and fair dealing. The bench trial commenced on November 12, 2015, and after the plaintiff testified, he called Milardo, Giuliano, Drew and McKenna as witnesses. During the direct examination of each of those witnesses, counsel for the plaintiff requested the court's permission to ask leading questions as if on cross-examination. The court granted this request with respect to Milardo[5] but denied subsequent requests as to Giuliano, Drew and McKenna.[6] The court ultimately rendered judgment for the city, finding that the plaintiff had consumed alcohol at the Mezzo Grille while wearing a badge and ...


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