Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

As I've mentioned before, sometimes cases hit the headlines for a day only to disappear into oblivion. But thanks to some followup reporting, there's one story that we can give an update on.

Readers may recall a post from May of this year about a state attorney, Maureen Duggan, who wrote an anonymous letter about the state's Ethics Chief, allegedly purporting to be a parking lot attendant.  Above the Law also ran a post about it as well. 

So what's happened to that attorney since then? Over the last week or so, two events related to the attorney have hit the headlines.

First, state officials indicated that they planned no disciplinary action against the employee.  According to the Hartford Courant:

An investigator concluded in an Aug. 7 report, released Wednesday, that use of the phony identity by Duggan — who was a State Ethics Commission staff lawyer in 2004, and is now an attorney at the state's child-protection agency — was not reason to discipline her under state personnel rules.

Her conduct "may be construed to be wrong, improper or even deceitful," but doesn't add up to "sufficient evidence" to discipline her, wrote personnel administrator Stephen Caliendo of the Department of Administrative Services.

But that doesn't mean that the lawyer has escaped without punishment. In fact, her current job is dependent on her law license; that license is now in jeopardy after it was also announced that a state grievance panel filed a complaint against her that could lead to discipline or disbarment.  A hearing will likely be scheduled in November or December 2008, according to the Hartford Courant and the employee has retained Hope Seeley to represent her. 

And what's happened to the underlying employment claim by former state ethics chief? Well, the state filed its reply brief in support of its summary judgment motion in June (download here).   Notably, when the state filed its reply brief, it attached some additional exhibits as well including the full deposition of Maureen Duggan (available here).  Thus, readers can get a full picture of her deposition and not just the portions excerpted before.   

A decision on the motion for summary judgment is expected later this year.

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Just time enough for some short updates on various posts from the last few weeks.

• You may recall a few weeks ago that the Governor vetoed a bill which would have increased the minimum wage in Connecticut to $8/hour in January 2009.  While there has been talk of a possible override session, it's difficult to get the numbers to believe that the legislature has the votes to override the veto. Nevertheless, it appears that June 23, 2008 is a possible date for a veto override vote.    As I've mentioned before, this is most decidedly not a political blog, so if you've like to see what some of them have to say, check out the My Left Nutmeg blog post here.
  
• You may recall a few weeks ago the post about the attorney who allegedly submitted an anonymous letter purporting to be a janitor.  The Courant reported over the weekend that the attorney is now the subject of an investigation by the Statewide Grievance Committee.  No public comment has been given on the subject to it is unknown the extent of the Committee's investigation. 
  
• Last week, I reported on a $225M employment lawsuit filed against NASCAR.  Since my last update, two supervisors who were mentioned in the complaint were suspended and NASCAR defended itself from the allegations, in a report here. Unless particularly noteworthy, I'm not going to post any further updates on this case since it's outside Connecticut, but suffice to say that the employment law world and sports world create interesting enough cases that I wouldn't be surprised to see this one make a few more headlines before it's done.
  
• Lastly, following up on my post about the OWBPA and separation agreements, the Ohio Employer's Law Blog has done a good followup article on deciding the proper "decisional unit" for reductions in force.  As I've said before, with "disparate impact" claims and class action possibilities inherent in a reduction in force, getting solid legal advice on how to handle this subject matter is crucial to reducing exposure to lawsuits later on. 

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In the corporate world as well as government, anonymous complaints about personnel -- whether to a hotline, or via the mail -- are seen as the price of doing business.  These anonymous whistleblowers sometimes can't speak out because of their circumstances and some have legitimate points to make.  And some companies readily encourage such complaints as a means to improve their business. 

But, with anonymous complaints come the nagging questions: Who wrote it? And why?

Sometimes the writers have less-than-kosher motives.  Instead of whisteblowers, they may just be a disgruntled employee looking to get their boss, or someone they dislike, in trouble.

A case out of Connecticut illustrates the risk arising from receiving and considering anonymous complaints.  The case arises out of the ouster of the State Ethics Chief Alan Plofsky in 2004.  He has now sued claiming, among other things, that his First Amendment and due process rights were violated when he was fired. For additional background, the Hartford Courant filed this report.  The Board Commissioners have now moved for summary judgment on his claims (essentially asking the court to throw out the claims) and Mr. Plofsky filed his brief in opposition to the motion on Friday. 

In August 2004, after a very public tussle between the Ethics Chief and the Ethics Board, various Board commissioners received copies of an anonymous complaint, purportedly written by a parking lot attendant.  The letter, at least according to Plofsky's papers, sparked another round of investigation -- though it apparant that the Board and the Ethics Chief had had their disagreements prior to this. (I should note that there is LOTS more to this case than meets the eye so I would encourage readers to review the summary judgment papers filed by the Board Commissioners for a more complete picture.)

Here's the issue with the letter: It wasn't written by a parking lot attendant; it was apparently written by one of the ethics staff  lawyers, who, later made a separate complaint of her own about Plofsky.  In the course of discovery, sure enough, she claimed that she was the author.  According to Plofsky's attorney, the staff lawyer intentionally made errors — such as the misspelling "anonimus" — so the made-up attendant would appear "under-educated." The Governor's office on Monday indicated that they would investigate that attorney further for her behavior. 

While it may have no real impact on the legal claims, those who were investigating the claims raised in the letter surely would have liked to known that fact.  Would it have changed the results? That's for others to determine, and certainly the Board Commissioners will argue that there was ample evidence (outside this Complaint) that supported their actions.

So, what sorts of things can employers take away after learning about the issue of anonymous complaints?  In general, employers may consider the following:

• Treat anonymous complaints with a dose of healthy skepticism.  Questioning the writer's motives is not the same as trying to determine the author's identity, so see if you can figure out those motives from the letter and surrounding context. 
• Nevertheless, if the situation warrants, conduct a full investigation to determine the veracity of the claims raised in the complaint; don't assume any facts to be true, just because the complaint says so.
• Give the target of the investigation an opportunity to rebut the complaint.
• Document the investigation in the form of a memo with supporting documents with the reasons why certain steps are being taken (or not being taken) as a result of the investigation.
• Be prompt with the investigation; letting such a complaint fester may only excaserbate a problem.

While internal investigations are becoming more common and routine within some companies, seeking sound legal advice on how best to proceed is certainly worthwhile too (and this blog should not be a substitute for such advice).  There may be instances where an outside attorney is called upon to conduct the investigation.  Or there may be instances that warrant conducting an investigation in a different fashion. 

Update 5/22/08 - Abovethelaw, the legal tabloid blog, (and wise?) enough to pick up this story this morning and has filed it under the category of "Isn't it Ironic". 

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Over the last decade, we've seen the demonization of attorneys on both sides of employment litigation. "Trial lawyers" or "Plaintiffs' lawyers" and attorneys for "big corporations" are seen not merely as advocates for their clients, but something far more sinister. 

Indeed, some have come to the point where some have stopped viewing their opponents in litigation as human but as the incarnation of evil. And as a result, they engage in "Rambo lawyering" -- a practice that views litigation as war where nearly anything goes.

For employees and unions, the tendency to view corporations as machines, not a collection of individuals, creates a paranoia where conspiracies are sought to be proved through endless discovery.  For employers, the tendency to view each plaintiffs' attorney or former employee as seeking nothing more than a quick dime creates an atmosphere where the intent is to simply make life so difficult for the opponent, that they will settle or drop the case.

The truth, however, in employment litigation is that nearly all of the attorneys involved in such cases simply want to help people that may have been wronged -- or may be wrongly accused.  And these attorneys often have families just like the rest of us. And most importantly, these attorneys are highly ethical and civil towards others -- at least in Connecticut.

I bring this up in the labor and employment context because of the recent passing of Connecticut labor lawyer Bill Zeman at the age of 93, and the feedback from his death.  I did not know Bill Zeman personally (a little before my generation) but read his obituary here.   (As "small world" coincidences go, however, I went to high school with his grandson, Jeffrey, who is a a fine attorney as well.)  As you can see, for over 50 years, Bill was a tireless advocate for labor unions in the state (and more importantly, in my view, a devoted husband for over 70 years). 

I found a "Declaratory Ruling" from State of Connecticut Labor Department that  honors Bill in 1996 that does a far greater job of detailing his life's accomplishments and "rules" that "The labor relations community in the State of Connecticut is indebted to William S. Zeman for his many contributions to the field of labor relations through fifty-five years of the exemplary practice of labor law and hereby expresses its respect and offers its heartfelt thanks."

What has struck me after his passing was the outpouring of good will about Bill that has passed around the Connecticut Bar Association's list servs.  Indeed, from these messages and conversations that I've had with people who knew him, Bill was universally respected by people who represented not only unions and employees, but employers as well. He was perceived as being principled, professional, honest and bright.  He may have been a stickler for procedures but he was able to work with his opponents to reach a fair resolution of issues.   I would not hesitate to say that what is being said about Bill is among the highest praise that an attorney can receive.

For employers, the approach of an attorney like Bill Zeman is a decent model for anyone to follow in employment litigation; treat the opponent fairly and with respect, work hard, and resolve issues in a civil and appropriate manner.  "Rambo litigation" may have a short-term impact, but it's the attorney who zealously represents his or her clients with civility that gets long-term results. 

Using procedural rules and proper motion practice is one thing (and certainly one aspect of litigation that should be followed) but making life miserable for your opponent as your end goal is something else. By all accounts, Bill Zeman understood the difference and it's a difference worth remembering in his passing.

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