Attorney General George Jepsen, a former union lawyer and Democratic state chairman, said Thursday he will ask the U.S. Supreme Court to overturn a union victory that came at the expense of an old Republican nemesis, former Gov. John G. Rowland.
If politics makes for strange bedfellows, that’s doubly so when politics intersects with the law.
Jepsen is seeking a reversal of a federal appeals court decision two weeks ago to preserve management rights of state and local governments against what labor lawyers said was a far-reaching decision by the U.S. Court of Appeals for the Second Circuit.
“After careful consideration, I have decided to seek review of the Second Circuit’s decision by the U.S. Supreme Court in light of the potentially significant fiscal consequences for Connecticut taxpayers,” Jepsen said in a statement.
Those consequences include damages by 2,500 employees who were laid off, at least briefly.
Lawyers for the coalition of unions that sued Rowland criticized the decision to appeal, saying the state should be negotiating a settlement with the employees whose rights were violated, not extending litigation that is a decade old.
“Rowland’s illegal and vindictive behavior left all of us in a difficult position, but we’re disappointed the attorney general has chosen to appeal the decision,” said Daniel Livingston, the chief negotiator for the State Employees Bargaining Agent Coalition.
The court concluded that Rowland illegally discriminated against union employees and violated their First Amendment rights to free association when ordering 2,800 layoffs soon after his election to a third term in 2002, when the Democratic nominee was Bill Curry and his running mate was Jepsen. Only 2,500 lost their jobs after a union agreed to concessions.
The court faulted Rowland for exclusively eliminating union jobs when the Republican governor was confronting a budget deficit. The unions claimed that Rowland made cuts to coerce and punish, not balance the budget.
The unanimous decision by a three-judge panel in New York was hailed as a victory for public-employee unions at a time when union rights are under political attack, but labor lawyers warned that it had broad consequences for public-sector labor-management relations.
The appellate panel reversed a trial court’s dismissal of the case, found for the unions as a matter of summary judgment and ordered the lower court to determine damages.
The Rowland decision was an awkward one for Jepsen and Gov. Dannel P. Malloy, whose office was consulted in the decision to appeal. Both were supported by the unions who celebrated the court’s decision, and both are acquainted with the unions’ lawyer, David Golub.
“It’s ironic, and it’s a small world,” said John F. Droney Jr., a Hartford lawyer and former Democratic state chairman. But he added, “Jepsen has no choice. He has to do his duty, and he’s the kind of guy who will do his duty, period, his personal views aside.”
Golub is a well-known litigator from Stamford, the hometown of Malloy and the city where Jepsen launched his political career as a state representative and state senator. Golub represented Jepsen when a Republican opponent tried to disqualify him from the race for attorney general in 2010.
“I respect them both, but I disagree with their position,” Golub said. “They have a responsibility to the state, and I have a responsibility to 40,000 union members.”
Golub is also a longtime contributor to Democratic politics and the campaigns of Malloy and Jepsen, though thanks to public financing, his most recent checks to their campaigns were for just $100.
Two weeks ago, Rowland, now an afternoon drive-time talk show host on WTIC-AM, urged Malloy, whom he regularly skewers on the air, to appeal in the defense of management rights.
“This appeal would be on behalf of future governors, mayors, first selectmen and, most importantly, the taxpayers of this state,” Rowland said.
Rowland and Marc Ryan, who oversaw fiscal and labor issues as Rowland’s secretary of policy and management, were sued personally, as well as in their official capacities. They could have been held personally liable for damages, although the state generally indemnifies public officials in such cases.
Rowland and Ryan praised Jepsen.
“The attorney general is taking the right action to appeal this misguided decision. The lower court had it right, and the Supreme Court will get it right,” Rowland said.
Rowland said the three-judge panel overlooked that non-union state employees had agreed to wage freezes and other concessions.
“That is why they avoided layoffs. The union leadership refused wage freezes and concessions — therefore left no alternatives but to have layoffs. It is really that simple.The layoffs had absolutely nothing to do with union membership,” Rowland said.
Ryan expressed sympathy for Jepsen.
“I thought it was the right move for the state to appeal the decision. I know it was probably a difficult decision for the attorney general, but I think he’s doing the right thing,” Ryan said.
Statutorily, the final decision to appeal rested with the attorney general’s office, not the governor. Jepsen is expected to bear the brunt of labor backlash.
Malloy’s initial response to the decison and a statement Thursday were potentially unhelpful to the state’s appeal — and they give Jepsen scant political cover.
He essentially faulted Rowland for his handling of concession talks. “There is a roadmap within the decision for that which is permissible and that which is not permissible. And quite clearly the governor crossed a line,” Malloy said two weeks ago.
Andrew Doba, the governor’s communications director, offered a similar view Thursday, contrasting Malloy’s approach to concessions with the “shortsighted and damaging path chosen by former Gov. Rowland.”
The administration neither embraced, nor explicitly disagreed with Jepsen’s decision.
“The Second Circuit’s decision that the Rowland administration violated employees’ First Amendment rights means that Rowland’s actions have now exposed Connecticut’s taxpayers to potentially significant costs,” Doba said. “So while Gov. Malloy never supported the approach John Rowland took, he understands the attorney general’s decision.”
Golub seized on the statement.
“I don’t think you can have it two ways,” Golub said. “If the state agrees, as it appears that Gov. Malloy does, that Rowland violated union members’ constitutional rights, then the nearly 3,000 lives disrupted are entitled to be made whole.”
Jepsen declined to comment Thursday beyond his brief statement.
The union lawyers have said the decision is not as broadly threatening to management rights as others have argued. Golub noted that Lowell P. Weicker Jr., who preceded Rowland, and Malloy each have threatened layoffs to seek concessions.
The difference, he said, is that Weicker and Malloy did not make public statements about a desire to punish unions, and both administrations ensured that the burden of cutbacks was shared.
Jepsen faced a deadline of Friday if he wanted to seek a rehearing by the full Second Circuit, but he evidently concluded that that would not yield a different result.