Elizabeth police lieutenant to continue lawsuit against city, superiors despite his promotion

ELIZABETH, NJ — A member of the Elizabeth Police Department who was promoted to lieutenant will continue with his lawsuit against the city and his superiors that claims he was passed up for the position last year.
Lt. Todd Kelly was promoted from sergeant on Thursday, Oct. 26. He filed his lawsuit last year, suing Mayor J. Christian Bollwage, police Director James Cosgrove, the city, the EPD and the former chief and deputy chief, saying he was previously not promoted because he had accused officials of not following promotion procedure.

“The retaliation had been over four years long and we’re 100 percent going forward” with the lawsuit, Joshua McMahon, Kelly’s lawyer, said in a phone interview Nov. 2. “If he would’ve been promoted when he should’ve been years ago, he would’ve been able to move up the ranks.”
McMahon also represents three other Elizabeth police sergeants — Robert Brennan, James Kearns and Gerard McDonald — who claim they were never promoted to lieutenant out of retaliation. They originally filed a lawsuit together, separately from Kelly, but the suits have since been combined, McMahon said.

Kelly’s original lawsuit claims Cosgrove passed him over for a promotion in 2014, while three other sergeants — Jose A. Rodriguez, Michael B. Niewinski and Lawrence Gioconda — were promoted despite there being only one vacancy for the position. The Civil Service Commission later granted an appeal from Kelly, rescinding the appointment of Gioconda to lieutenant, the suit says.

The suit also claims that Rodriguez, Niewinski and Gioconda were taken from an expired list of candidates rather than an active list that included Kelly and the three other plaintiffs.

Cosgrove promoted the three despite being informed of the regulatory discrepancies from the then-Superior Officers’ Association president, the suit says.
The retaliation began, the plaintiffs say, when they appealed to the Civil Service Commission and filed complaints against Cosgrove and others. They also allege they were moved to less desirable assignments as a result.

“It’s certainly not unusual when a police officer is not promoted for him to ascribe some nefarious intent resulting from it, which generally does not exist,” said Edward Kologi, of the law firm Kologi Simitz, which represents Cosgrove.

Kelly’s original suit claimed that former Deputy Chief Tyrone Torner told him he should forget about ever making lieutenant as long as he worked for the department, due to his lawsuit.

Additionally, the lawsuit of Kelly and his co-plaintiffs claims that the mayor threatened to “freeze” the active lieutenant list for three years so they’d be forced to retake the civil service exam in 2016 in order to be promoted. The lawsuit also claims that Bollwage threatened to demote police captains to fill any vacant lieutenant positions.

Kelly’s lawyer said he did retake the exam in order to be promoted last month. But the three other sergeants still have not been promoted, insisting it is out of “retaliation” for the pending litigation, which is still in discovery.

“Because they’re retaliating against Toddy Kelly, these men are collateral damage,” McMahon, the lawyer for all plaintiffs said in a phone interview.
Kearns, Brennan and McDonald scored second third and fourth, respectively, when they first took the civil service exam. There are currently about six or seven vacant lieutenant positions in the department, their lawyer said. Some of those vacancies are from retirements, according to the lawsuit.

“They’re a mess,” McMahon said, referring to the EPD. “Public safety is suffering because people don’t want to fill the ranks. You can’t have the fourth-largest city in the state have its ranks decimated and not have the city suffer.”

Calls to the law firm representing Bollwage and the city spokesperson were not returned by press time this week. Cosgrove’s lawyer dismissed McMahon’s comments about the police department being in disarray.

“I would view a lot of that as hyperbole and exaggeration designed to make their case seem more meritorious than it is,” Kolgi said. “At the end of the day, when all of the proofs are exchanged, the city of Elizabeth and its officials are confident they will be vindicated of any allegations from the plaintiffs.”
The two lawsuits came weeks after the New Jersey’s Policemen’s Benevolent Association Local 4 and the New Jersey Superior Officers’ Association both issued votes of no confidence in Cosgrove, who was appointed by Bollwage in 1998.

Six members of the police department were promoted late last month. It was not clear if the promotions came in the wake of retirements. According to city spokeswoman Ruby Contreras, “the promotions were necessary to more efficiently run the department.“