Ex-police commissioner's defamation suit against former Mount Vernon mayor Thomas settled

A settlement has been reached in a defamation lawsuit brought against former Mount Vernon Mayor Richard Thomas, a case in which city officials agreed to cover his legal costs even though his comments were made more than two years after he left office.

Thomas settled former police Commissioner Robert Kelly’s lawsuit last week with a one-sentence letter acknowledging that, “I am not aware of any instance in which former Police Commissioner Robert Kelly framed people for a crime.”

The lawsuit was filed in state Supreme Court in December 2021, just days after Thomas gave an interview to Yonkers Voice about a federal investigation of the Mount Vernon Police Department. During the interview, he repeated his criticism of Kelly’s brief tenure as his police commissioner in 2016. Most objectionable to Kelly was Thomas' suggesting in the interview that Kelly had been “framing people."

Thomas fired Kelly in April 2016 just three months after hiring him to oversee the police and fire departments at the start of his only term as mayor. The primary reason he gave was Kelly had altered a police report related to the after-hours entry to City Hall by two city councilmen, both critics of the mayor’s. The report listed them as suspects, which Kelly acknowledged changing.

Kelly continues to maintain that the real reason he was fired was because he refused to reinstate Thomas’ half-brother as a firefighter after he had pleaded guilty to weapon charges.

The settlement came a month after state Supreme Court Judge Nancy Quinn Koba denied Kelly’s bid for summary judgement and would not dismiss Thomas' counterclaim seeking protection from what he deemed a Strategic Lawsuit Against Public Participation, or SLAPP. That claim required Kelly to prove actual malice which the judge suggested he had not done. She also found that Thomas' comments appeared to represent "non-actionable opinion" and that there was truth in his references to the altered report.

Thomas expressed satisfaction with the resolution of the case.

"John Peter Zenger would be proud that the tradition of free speech, speaking truth to power continues in Mt. Vernon," he said in an email, referencing the 18th century New York journalist whose aquittal in a libel case heralded freedom of the press.

Kelly said he took Thomas' letter last week as an acknowledgment that he had been untruthful. The lawsuit was never about money, he added, but holding people accountable for their words. Kelly said the amount he sought in his lawsuit, $832,000, was based on a New Testament passage, John 8:32, in which Jesus said, “Ye shall know the truth and the truth shall set you free.”

In legal papers and in an interview on Tuesday, Thomas insisted that he was not being untruthful in 2021 but was simply repeating details from a memo that the city's lawyer, Corporation Counsel Lawrence Porcari, had prepared in 2016 about Kelly's actions with the altered report.

In that memo, though, there is no reference to "framing people." Porcari suggested Kelly may have been guilty of a crime for the alteration, and that what he was doing was trying to portray the councilmen in a more favorable light.

Kelly’s lawsuit did not name Mount Vernon. Corporation Counsel Brian Johnson in December 2021 rejected Thomas’ request to have his legal costs paid by the city, saying in a letter that his comments had been outside the scope of his employment with the city.

But this year, Johnson reconsidered, in large part because of a state judge’s ruling in an unrelated case. The judge found that state Attorney General Letitia James had erred in denying former Gov. Andrew Cuomo’s bid to have the state cover his legal fees in a lawsuit by a state trooper alleging that he had sexually harassed her while in office.

One difference between the cases is that Cuomo was in office when the alleged behavior took place, while Thomas' interview happened long after he had left office.

Johnson felt that because Thomas’ comments were in the context of his and Kelly’s time in city employment, Thomas might have succeeded if he sued to recoup legal fees and maybe any monetary judgement if there was one. He recommended that the city’s Board of Estimate & Contract authorize payment of the legal fees and on May 2 the board approved the retainer of Littler Mendelson to represent Thomas, at $450 or $350 an hour, depending on the experience of the lawyer.

Littler Mendelson lawyers filed a motion in May opposing Kelly's bid for summary judgement and continued representing Thomas through the settlement. Johnson said the total cost of the representation is expected to be $60,000.

Thomas ran a write-in campaign in this year's Democratic primary for mayor but finished a distant third. His bid to get an independent line on the November ballot failed.

This article originally appeared on Rockland/Westchester Journal News: Mount Vernon ex-police commissioner, ex-mayor reach settlement