Jepsen, Rowland separately seek SCOTUS review of labor case

Attorney General George Jepsen and former Gov. John G. Rowland separately petitioned the U.S. Supreme Court on Friday to overturn a lower court’s finding that layoffs ordered by Rowland a decade ago were intended to illegally punish union members.

The state argues that the decision in May by the U.S. Court of Appeals for the 2nd Circuit hobbles governments by wrongly subjecting public officials to a review of their motives in layoffs, the ultimate pressure point when state or local governments seek concessions.

“The Court of Appeals has effectively limited the use of layoffs of union-represented employees as a means of achieving legitimate government ends in managing their workforces,” Gregory T. D’Auria, the senior appellate lawyer in Jepsen’s office, wrote in the state’s petition.

The Connecticut Association of Boards of Education has voted to file an amicus brief urging the high court to review a decision that the association fears could constrain management rights.

“The 2nd Circuit decision could impact other employers in addition to the state government, such as boards of education and municipalities,” said Patrice McCarthy, general counsel to CABE. “Having a review of the motivation of officials who have to make layoff decisions in the face of budget constraints could inhibit their ability to make those decisions.”

But David S. Golub, the lawyer for the coalition of 13 state employee unions that successfully sued Rowland, said the case appropriately forces public officials to show they are laying off employees to achieve specific economic ends, not as a general bludgeon in negotiations.

Rowland, a Republican whose relationship with labor deteriorated over his 9½ years in office, used the order of nearly 3,000 layoffs as a way to pressure the unions to reopen their contracts. The unions say Rowland erred by laying off only union members and by failing to tie the cuts to a goal of specific savings.

“As long as you say it the right way, there is no constitutional liability,” Golub said. “As long as you say, ‘I need to save this much money.’ ”

Golub said Rowland laid off union members whose positions were funded by the federal government or regulated industries, meaning the elimination of their jobs saved no money. That made their layoffs punitive based on their union members, a violation of their free-association rights under the First Amendment, Golub said.

The unions conceded that the Rowland administration observed contractual obligations for layoffs and bumping rights. Daniel J. Klau, the attorney representing Rowland under contract with the state, said that means the pivotal issue is the former governor’s motives.

“If he simply does what the contracts say, can unions say he is violating the First Amendment if his subjective motives are mean-spirited?” Klau said. “The slightly broader question is whether subjective motives of a governor or mayor are ever relevant at all when you are judging the constitutionality of a legislative act by that official?”

Klau says the union layoffs were not punitive, because the administration achieved savings by unilaterally freezing management salaries, obviating the need for eliminating jobs in the management ranks.

Aside from whether the decision changes the balance of power between labor and management in the public sector, the litigation and appeal carries a political dimension for Jepsen, a former union lawyer and Democratic state chairman.

It also leaves him in the position of defending Rowland, a Republican whom he tried to unseat in 2002 as the running mate of the Democratic nominee, Bill Curry.

Jepsen previously announced in June he would seek the high court’s review, but the separate petitions mean that the attorney general’s office now will be representing the management interests of the state, not the personal liability of Rowland or the budget director who oversaw labor relations, Marc S. Ryan.

Klau will continue to defend Rowland and Ryan, but D’Auria, the senior appellate lawyer in the attorney general’s office, is representing the state.

“We don’t think there is a conflict,” said Perry Zinn Rowthorn, a longtime assistant attorney general who recently was named Jepsen’s top deputy. “We thought, given the importance of the issues to the state and the fiscal functioning of the government, it was appropriate for us to file a cert petition from the attorney general’s office and the state.”

The case arises from Rowland’s standoff with the State Employees Bargaining Agent Coalition in late 2002, soon after his re-election to an ill-fated third term, over his demand for concessions in the face of a budget shortfall.

“What ensued was a classic management-labor showdown, with each side employing the economic weapons and protections at their disposal,” D’Auria wrote in the state’s petition. “To reach his budget goals during this crisis and save the state and its taxpayers millions of dollars in labor costs, the Governor could not unilaterally alter the terms of the plaintiffs’ collective bargaining agreements. But he could invoke his prerogative to manage the size of the state’s workforce.”

A year later, the labor fight was the least of Rowland’s problems as the legislature launched an impeachment inquiry. Rowland resigned July 1, 2004, in the face of impeachment and a federal corruption investigation.

A U.S. District judge ruled in the state’s favor. But the Court of Appeals reversed the trial court’s dismissal, found for the unions as a matter of summary judgment and ordered the lower court to determine damages for thousands of current and former state employees.

The Rowland administration issued 2,800 layoff notices in the beginning of 2003, but only 2,500 jobs were lost. The administration backed off from 300 layoffs in higher education after those employees agreed to other concessions. By the end of 2003, more than 1,500 of the laid-off employees returned to state service, in part to fill a portion of the 4,650 vacancies created by an early-retirement program.

 

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