Home Attorney Roberts Areas of Practice Articles & Publications Contact Us Reviews



News & Noteworthy

Meriden police on police overtime uncommon in state

MERIDEN — The city’s policy of granting overtime pay to police officers on administrative duty or leave appears to be uncommon among local communities and similarly sized cities around the state.

Language in the Meriden police contract guarantees that officers taken off their regular duties for “line of duty circumstances” will receive overtime payments equal to the average they had received over the previous six months, in addition to their base salary, except in cases where a clear and serious policy violation or violent arrest has occurred.

Under a three-year contract that began in 2008, those overtime payments would have been capped at 60 days. On April 26 of last year, however, city officials and the police union negotiated a change in language that removed the cap and allowed officers on desk duty or administrative leave to collect the overtime payments indefinitely.

The change came just one week after Officer Evan Cossette, the son of Chief Jeffry Cossette, was placed on administrative duty amid FBI and state police investigations into allegations that he was not disciplined properly for alleged brutality.

City officials point out that the change was part of an agreement with the union to settle a grievance involving Officer Donald Huston, and an attempt to clarify contractual language. The 60-day cap also likely would not have applied to Cossette, according to the personnel director, because internal affairs had already reprimanded him in one case of alleged brutality and had cleared him in two other complaints. At the time, City Manager Lawrence J. Kendzior explained the decision to place Cossette on desk duty by saying: “We felt that with the pending allegations, he should not be doing police work. It would impact how he does police work and how people interact with him.”

Since that reassignment more than a year ago, Evan Cossette has collected more than $50,000 in overtime pay, despite working just 40 hours a week.

“... Base wage, that’s it.”

Out of 10 Connecticut municipalities with populations of at least 40,000 surveyed by the Record-Journal, none had policies that would allow officers on administrative leave or duty to collect overtime for hours they had not worked, regardless of the circumstances that led to their change in work status.

“Here, if you’re on leave, you’re not working,” said Wallingford Personnel Director Terrence Sullivan. “It’d be your base wage, that’s it.”

A majority of police contracts that were reviewed did not touch on overtime compensation for police officers taken off regular patrol, which officials said ruled out the possibility that they were entitled to it.

“Since it’s silent on the subject, it’s not allowed,” said Karen R. Levine, personnel director for New Britain.

Some cities have more lenient policies, such as Bristol, where officers placed on desk duty are allowed to work a small amount of overtime (a maximum of eight hours over any three-week period), but must exceed 40 hours of work in a given week to receive it.

In Manchester, officers involved in a deadly shooting are allowed to receive their average pay, including overtime, based on the last three months, until state police clear them to return to regular duty (a pair of Meriden officers involved in a fatal shooting last month are now on desk duty and receiving overtime pay; two other officers were put on desk duty following a death during a Taser incident).

According to Manchester Police Chief Marc Montminy, officers who are the focus of a criminal investigation are usually placed on leave, during which time they are entitled to their base salary only, even if the officer is ultimately cleared.

“In a situation where there’s clearly been either a criminal or moral complaint against the officer, they’d be taken off the street and that’s what they’d get. If the investigation shows that it’s obvious he was involved in wrongdoing, then at some point leave with pay is going to become leave without pay,” he said.

The Gertz case

But officers can be cleared even after lengthy investigations, said Meriden Lt. Pat Gaynor, former police union president, defending the policy of compensating employees for lost overtime. He cited a 1996 investigation involving Officer Kenneth Gertz.

Gertz was placed on administrative leave in April 1996 after being subpoenaed by a federal grand jury as part of an ongoing probe into the Diablos motorcycle gang.

Gertz and another officer, Steven Scatena, were suspected of having tipped off members of the gang about criminal investigations and destroying drugs to protect the gang. The probe ended with the arrests of 15 members of the gang on charges including drug trafficking and illegally selling firearms and stolen vehicles.

Both officers were ultimately cleared of any wrongdoing, although it took a full nine months for Gertz to be reinstated — over which time he earned $38,542, including $6,782 in overtime, according to Record-Journal archives. Scatena also earned overtime payments during his three months on leave, although exact figures were not available. Both also received holiday pay, longevity payments and other special compensation.

The policy was criticized at the time, but then-City Manager Roger Kemp said that past practice prevented him from revoking the extra pay.

“I was the first one to question it. But everyone has gotten it forever, so I couldn’t change it,” he told the Record-Journal in September 1996.

Gertz returned to work and remained a member of the police department until he died after a motorcycle accident in 2000.

Kendzior, the current city manager, confirmed that the overtime policy is longstanding in Meriden, despite the recent change in its application. He also said the change made to settle Huston’s grievance was beneficial to the city, since it added a clause that allows it to withhold overtime payments to officers in cases of clear policy violations or arrests for a violent crime.

“The change gave the city more discretion, not less,” he said.

It’s unclear how the 60-day limit on overtime pay for officers taken off duty because of line-of-duty circumstances found its way into the city’s police contract in 2008. Chief Cossette could not be reached for comment.

The Huston case

Gaynor, who was president of the police union at the time, said he could not remember the negotiations that led to its inclusion. However, he specifically recalled the circumstances that led to the removal of the limit last April.

In December 2010, the union filed a grievance on behalf of Huston objecting to the lack of overtime pay while he was on a 45-day leave due to an excessive-force complaint filed by Chief Cossette. The union argued that other officers who had been placed on leave for similar circumstances had earned overtime pay in the past.

The change in language that removed the limit came as part of the same action that settled Huston’s grievance. He was paid for all overtime he would have earned during the leave, aside from a five-day suspension that was later reduced to two days. Despite Huston’s complaint having nothing to do with the cap, Gaynor said it drew his and other union leaders’ attention to the policy.

Gaynor said the union’s concern was for officers who might be involved in an on-duty shooting. State law requires state police to investigate all such incidents, and the probes routinely take four to six months (Gaynor himself was placed on desk duty for four months after he was involved in a fatal shooting on Lewis Avenue in 1999).

Most police involved in shootings are ultimately cleared, and with the 60-day limit in place, could have been deprived of overtime they would have otherwise worked if the state investigation stretched beyond 60 days. Gaynor said that realization led the union to pursue the change and, in return, the union granted a request from the city to allow it to withhold overtime if an officer had committed a clear policy violation or had been arrested for a violent crime.

“That’s why we wouldn’t want that 60-day (limit). The city, on the flipside, didn’t have the ability to withhold that. It was a give and take,” he said.

An officer’s rights

Gaynor said he understands that some have questioned the timing of the change, but that the union had little sense that the FBI, state police and an independent attorney hired by the city would need more than a year to investigate incidents involving Evan Cossette.

Further, he said the policy that would have capped overtime at 60 days wouldn’t have applied to Evan Cossette, because the catalyst for his change in work status was the launching of outside investigations into his conduct, not “line of duty circumstances,” as the contract stipulated.

“I realize that, on the face, it seems wrong to pay someone for overtime they didn’t work,” Gaynor said. “But it is also wrong to keep someone from working ... when they would otherwise have worked because of unproven and maybe even false allegations.”

Evan Cossette’s attorney, James Tallberg, did not address the overtime issue, but said “Evan Cossette is a dedicated public servant who looks forward to his day in court where he will be fully vindicated, just as he was recently cleared of false charges by the state’s attorney. Because of the pending litigation there will be no further comment.”

The state’s attorney last week rejected lawyer Sally Roberts’ claim that Cossette’s sworn statements in a police report amounted to perjury in light of a recently released surveillance video. Roberts’ information did not even come close to satisfying the burden for perjury, State’s Attorney Michael Dearington said. She represents one of the men suing Evan Cossette over alleged brutality.

Charles Stohler, a labor attorney with the Waterbury-based law firm Carmody & Torrance, said that legal precedent created by the U.S. Supreme Court ruling in Cleveland Board of Education v. Loudermill means that for public employees such as police officers, compensation guaranteed by a collective bargaining agreement could be considered a “property right.” So, if compensation for lost overtime is included in the contract, as it is in Meriden, it can’t be withheld without cause and due process.

“If this officer is on desk duty and is entitled to pay of some sort, whether that’s overtime or something else, if that is taken away, the right to that compensation could be considered a property right,” he said.

The decision requires that employees be given a hearing detailing any charges against them and the evidence to support the charges before any discipline can be imposed or property rights removed.





Legal Disclaimer
Copyright© 2011-2017 Sally A. Roberts, LLC All rights reserved