Kordick Attorney Statement on Settlement with Town of Greenwich: “The outcome was never in doubt”

Statement from Mark Kordick’s attorney Lewis Chimes, Law Offices of Lewis Chimes, Stamford, Friday, Sept 15, 2023

The Town of Greenwich’s eleventh hour $650,000 settlement of Mark Kordick’s free speech lawsuit after jury selection and one week prior to the commencement of trial is an unequivocal and resounding victory for Captain Kordick. Between this settlement, the earlier settlements reached with Fred Camillo and Jack Kriskey, and Kordick’s retirement pension, Kordick has been fully compensated for his economic losses from his wrongful discharge, and the settlement rendered it unnecessary for him to go to trial to obtain further compensation for his discharge.

Nevertheless, Kordick was fully prepared to go to trial, and the outcome was never in doubt.

The red and white lawn signs were first spotted during morning rush hour on Oct 25, 2019.

Kordick’s posting of the sign during the Camillo campaign was squarely within the protection of the First Amendment. Numerous Supreme Court cases state that political speech made during the course of an election lies at the core of First Amendment protection, even when the communication is coarse and unpopular. Nevertheless, the Town ignored these precedents and spent years and thousands of dollars making specious arguments that Kordick’s signs were not protected speech.

When a government employee speaks out on matters of public interest, both Connecticut’s free speech statute and the First Amendment recognize the government’s need to conduct its affairs efficiently and tolerate some limits on employee speech. Both the First Amendment and Connecticut’s free speech statute require balancing of the employee’s interest as a private citizen of speaking out against the government interest in preventing disruption in the workplace. In Kordick’s case, he clearly posted the signs while off-duty and anonymously to ensure that nobody believed that he posted signs as a Captain in the Greenwich Police Department.

When a government employee engages in off-duty speech, the balance swings heavily in favor of the employee’s right to speak out, since he is clearly acting as a private citizen. Those few cases that have held in favor of the government’s punishing off-duty speech involved hate speech, advocacy of pedophilia by a public school teacher, pornography depicting an officer in a police uniform, and affiliation with a violent gang by a corrections officer.

In contrast, Mark Kordick posted a sign poking fun of Fred Camillo’s refusal to disavow Donald Trump during an election campaign. His speech was the core speech given the fullest protection by the Constitution, and there was no doubt that the signs were constitutionally protected, and that the necessary balance favored Mark Kordick. It was not even remotely comparable to any of those cases.

Under Connecticut free speech statute, Kordick had to prove that his termination was motivated by political hostility or bias due to the speech. Often in these cases, there is no “smoking gun”, and the plaintiffs have to prove their case by circumstantial evidence. In Kordick’s case, we had a “smoking gun.” Through discovery, we obtained Fred Camillo’s texts which he unambiguously stated on the day after he learned Kordick’s identity: “He better pray that I do not win because I would be the police commissioner and he will be gone.” Actually, this case had several smoking guns, because we had a text where Camillo repeated this intention to “nail” Kordick even after he was elected First Selectman. Nevertheless, the Town chose to ignore this damning evidence, and chose to spend money and waste judicial resources defending the indefensible until after the trial commenced.

Under the Connecticut free speech statute, a public employer may legitimately terminate an employee notwithstanding their constitutionally protected speech if the speech materially and substantially interferes with job performance and bona fide job responsibilities. And herein lies the biggest falsehood perpetuated by the Town and cowardice by its Chief of Police: their failure to stand up for an outstanding employee and submission to political pressure by the First Selectman and his supporters and put forward a contrived and politically motivated justification.

If this case went to trial, we would have put into evidence incontrovertible evidence that Mark Kordick was an outstanding police officer. There were ten years of performance reviews (Nine written and signed by Chief Heavey, two by former Chief Ridberg) that fully document his exemplary performance and numerous contributions to the Greenwich Police Department.

Mark Kordick was valued because of his intelligence and strategic vision. He did more than any other police officer to modernize the Greenwich police department. When the Town invested $36 million dollars to build a new police headquarters, Kordick was entrusted to oversee the project and make sure that it fully met the needs and future needs of the Greenwich Police Department. When the First Selectman wanted to create a Parking Department, Mark Kordick was assigned to run the department and oversee the integration of the predecessor entities into a single unit. Mark Kordick oversaw the modernization of the police department’s IT systems, making them more efficient while also insuring the necessary confidentiality. Until his termination, Kordick maintained responsibility to make sure that the police department’s systems were up to date, and state of the art. Kordick also oversaw the integration and modernization of the police department’s communications systems with the Fire Department and EMS. During hurricane Sandy, Kordick worked for eleven days continuously to make sure that the Town was responsive to the needs of his citizens. He restored morale in a troubled detective division, and he commanded that unit. Ironically, he also oversaw the revision and modernization of the Uniform Policy Manual that provided the provisions used to justify his discharge.

The Town of Greenwich’s scorched earth defense of this lawsuit may have been a waste of hundreds of thousands of dollars, but the Town’s biggest loss, by far, is the loss of this innovative, intelligent, and dedicated police captain.

Mark Kordick had been outspoken and an independent thinker for over thirty years on the job. It had never interfered in any way with his performance of his duties. Nevertheless, the Town of Greenwich spent thousands of dollars hiring an outside consultant to write a 380 page justification for Kordick’s discharge. At trial the evidence would have shown that this “brief” was a biased one-sided sham and a post-hoc justification for a predetermined decision to fire Kordick for his political speech.

No reasonable jury would have ever believed Chief Heavey’s justifications after reviewing his glowing performance evaluations of Kordick.

The Town of Greenwich, had it engaged in a thoughtful analysis of the merits of its case and the risks, could have settled this case several years ago for the same settlement reached today, and saved itself hundreds of thousands of dollars. In January 2023, the Town of Greenwich requested and attended private mediation of this matter. It appeared at this matter without any authority to settle the case or to offer any settlement. Such behavior is unconscionable and a tremendous waste of time and money for all parties and an insult to the judicial process. The Town then sought several postponements of the trial until May 2, 2023 for Jury Selection. On the eve of trial, at the strong recommendation of the presiding judge, the Town was asked to consider settling the case for $650,000. The Town ultimately refused. The parties engaged injury selection for seven days, before it was discovered that there had been a miscommunication in scheduling and jury was dismissed and the trial was rescheduled. Between May 2 and August 23, 2023, no defendants made no further communications about settling the case. On that date, at the recommendation of a second pre-trial judge, the defendant agreed to reconsider the $650,000 offer. Another five days of jury selection occurred to select a second jury for trial.

This refusal to engage in any substantive discussions until trial imposed a significant cost on the judicial system and use of judicial resources. There were twelve days of jury selection before this case was settled. In order to obtain a pool of jurors to select, between thirty – fifty citizens of Fairfield County were summoned for the process each day, including many Greenwich residents. This means that between 450 – 750 Connecticut citizens were inconvenienced due to the Town’s decision to defend until the last minute through two jury selections. What an incredible and thoughtless waste of resources for a Town that purportedly prides itself on avoidance of excess government expenditures.

To add insult to injury BET member Fassuliotis made a statement that a “settlement” had been reached before Mark Kordick and counsel were notified. (Fassuliotis Statement on BET Vote on Kordick Lawsuit “End of a Chapter that was Not Easy for Town” Sept 13, 2023) Ms. Fassuliotis, speaking for the “BET Republican caucus” says that the insurance company “hijacked what would have been a fair hearing in front of a jury,” and forced them to settle the case.

What a load of nonsense.

The Town of Greenwich is extraordinarily wealthy and could have gone to trial and paid any verdict. They certainly could have rejected their insurance company’s advice and gone forward without coverage if Ms. Fassuliotis and the Republican caucus truly believed that they would win.

She states that to “reject their demand would be irresponsible . . . and potentially cost the Town millions if the town would lose.” In other words, she knew that the Town was going to lose. The Republican caucus were happy to spend up to $1.5 million of Greenwich Taxpayer money to fight the case and protect their own political hides using the Kordick lawsuit as their whipping boy, knowing that the insurance company would pick-up any costs above that. It’s very easy to take a self-righteous “principled” position, however futile, when one is insulated from the consequences of that protection. Once they lost that protection, they made the same rational decision that should have been made years ago and the insurance carrier made it immediately and settled. They knew that there was never any doubt in our minds that we were fully prepared to try the case, and if we tried the case we were going to win. Their false bravado, for political benefit, cost the Town money and wasted judicial resources.

In civil litigation, defendants never apologize or admit wrongdoing. The apology or admission comes in the magnitude of the settlement. The amount of this settlement, and the amount of money the Town of Greenwich wasted before making this settlement, is an admission that they were wrong.

Mark Kordick won this litigation. The freedom to speak out during elections was vindicated in this litigation.

The Town of Greenwich lost this litigation in many ways.