Waterbury cannot be sued for Mayor's illegal sex acts

The Mayor of the City of Waterbury, Connecticut, forced minors to have sex in his office after he threatened to send their mother to jail. After Mayor Giordano was convicted in Federal court for these crimes, his victims sued the City for civil rights violations under 42 USC 1983. To the uninitiated, this case would be a slam dunk. But nothing is that simple.

The case is Doe v. Giordano, decided on September 11. You cannot simply sue the City when one of its employees violates your civil rights. We call this Monell liability. The employee has to be a policymaker, a legal term of art. Even a single act by a policymaker is binding on the municipality. Generally speaking, the Mayor is a policymaker. In fact, he is the chief operating officer of the municipality. Plaintiffs win, right? Wrong.

"Policymaker" carries a complicated definition. While Giordano was responsible for law enforcement and other matters relevant to the City, the plaintiffs have to show that he is an official policymaker with respect to the area of policy that encompassed his illegal acts. So, when government employees sue the City after the Mayor fires them for whistleblowing, the City is liable because the Mayor is usually the policymaker when it comes to personnel and he makes those decisions in his official capacity. That scenario happens all the time, but this case is quite different. The Mayor was acting in his personal capacity when he had unlawful sex in his office. Rather than furthering the City's business, the Mayor was advancing a purely personal agenda. There is no Monell liability here, and the plaintiffs cannot recover damages from the City.