Mutiny? Connecticut militia members sue state

    Photo courtesy of 1st Company Governor’s Foot Guard.

    Members of one of Connecticut’s ceremonial militia units are suing the state for allegedly seizing $10,000 worth of private ammunition, terminating a lease and failing to pay members for training.

    State officials claim the unit has not kept its weapons and ammunition secure, and that it was within the state’s right to terminate the lease and not pay the members for training.

    “Our suit comes from a position of defense, not offense,” said Lt. Col. John O’Connell, president of the militia unit’s board of trustees and a retired member of the 1st Company Governor’s Foot Guard.

    The trustees do not control the 1st Company; under a unique statutory arrangement dating back to 1885, the state created a special corporate entity so the trustees could own and maintain the unit’s armory.

    Although the unit is ceremonial in function today, it still falls under the command of Brig. Gen. Thaddeus Martin, adjutant general of the Connecticut Military Department.

    “The trustees dispute with the Military Department is consuming resources better spent on the department’s mission and has adversely affected the good order and discipline of the 1st Company Governor’s Foot Guard,” said Col. John Whitford, spokesman for the Connecticut National Guard. “The adjutant general’s position underscores his commitment to protecting the public safety from weak accountability practices for weapons and ammunition.”

    In response to the lawsuit, Susan Kinsman, spokeswoman for Attorney General George Jepsen, said the claims are “without merit.”

    “The adjutant general discovered that members of the foot guard were involved in unsafe weapons and ammunition practices and took affirmative action to stop it,” Kinsman said. “As a result, they ultimately lost the state’s lease of their armory and filed these claims.”

    Back when the state had two capitals – Hartford and New Haven – the 1st Company Governor’s Foot Guard accompanied the governor on journeys between the two cities. Today the militia unit serves a more ceremonial role, marching in parades, hosting the governor-elect’s inaugural ball and organizing a dog show. The foot guard also has a band and a competitive rifle team.

    Lt. Col. O’Connell, a retired state employee who lives in West Simbsury, said he has been involved with the foot guard for more than 35 years. His rank is derived from his participation in the ceremonial foot guard, not active or reserve service in the U.S. military.

    O’Connell said the 1st Company Governor’s Foot Guard is the oldest militia unit with continuous service in the United States.

    Connecticut has three other militia units, all ceremonial – the 2nd Company Governor’s Foot Guard and two horse guard units.

    “We’re a group of people – dues-paying people – that takes pride in the military history,” O’Connell said.

    He said members of the 1st Company know about the legal disputes with the state and are “supportive.”

    “Actually, I think we’d all like to find out what it’s all about and resolve it,” O’Connell said. “It seems to me like it’s almost personalities.”

    The attorney representing the foot guard’s trustees and individual members is Michael Conroy, who is with the firm Hassett & George. His father and grandfather were members of the unit and his second cousin, Dennis Conroy, is a former commandant.

    “The regime at the military department became displeased with some of the actions of the command and more specifically the board of trustees,” Conroy said. “There was an increasing effort on the part of the military department to control these guys.”

    He said the dispute, from his perspective as an outsider, is “jaw-droppingly silly.” Conroy said the foot guard is a “military-themed fraternal organization.”

    “These guys pay to belong,” he said. “It’s basically an Elks club.”

    Seized ammunition

    The trustees – current and retired members of the foot guard – filed suit in 2009 against the state of Connecticut, the Military Department and related state officials over the seizure of 18,014 rounds of ammunition in 2008.

    The Military Department claims the state owns the ammunition and that it moved the ammunition to another location because the foot guard unit has a history of failing to safely store its weapons.

    In 2004, Barry Collord, an armorer for the militia unit who was responsible for securing and tracking its guns and ammunition, resigned from the position because of concerns with the unit’s practices.

    According to court documents, Collord told Military Department officials he was concerned with weapon security, perhaps in part because his personal Bushmaster AR-15 rifle was stolen from his car when it was parked on Foot Guard Place, near the armory, in Hartford.

    He also told Military Department investigators that unit members would report state-owned ammunition as spent when some remained so they could add the leftovers to their own supply.

    Collord made suggestions to increase weapon security, such as not storing cleaning supplies in the arms vault so the janitor wouldn’t need access.

    When Military Department officials inspected the foot guard’s arms room in 2004, they found 35,783 rounds of ammunition set aside from the rest of the unit’s supply. The ammunition fit a variety of weapons: .30 caliber, 5.56 mm, .45 caliber ACP, .22 long rifle and .38 caliber.

    Some of the ammunition was “still packed in unopened cardboard shipping boxes addressed to the State of Connecticut Military Department,” according to the sworn testimony of Military Department employee Joseph Balesano.

    Foot guard officials told Balesano that unit members used their own ammunition and replaced it with state ammunition.

    According to a report by a Military Department investigator, “the unit stores weapons in such a manner and in an arms vault with physical deficiencies that threaten the security of the weapons.” The report also faulted the unit for issuing guns without screening for felony convictions and for shutting off the alarm system protecting the weapons.

    “It was common practice in the 1st Company to falsely inform and document to the State Military Department that all state issued ammunition was expended, when in fact quantities of it were retained on hand in the 1st Company arms vault,” the investigator concluded.

    Also, at the time the unit stored privately owned guns at the facility, “including eight AR-15 rifles and a fully automatic and apparently operable light machine gun.”

    The investigator questioned whether the trustees or the state owned some of the weapons.

    A Military Department investigation turned up an illegal Japanese light machine gun owned by the unit. Photo courtesy of Wikipedia.

    The investigator found a 6.5 mm Nambu light machine gun and confirmed with an agent of the Bureau of Alcohol, Tobacco, Firearms & Explosives that private ownership of the machine gun was illegal because it did not have the appropriate “tax stamp.”

    “A former unit member had mailed it in pieces back from his World War II combat posting in the Southwest Pacific,” the investigator said in his report.

    The investigation also turned up M-1903 Springfield rifles that matched guns owned by the federal government that were issued to the foot guard in 1958.

    “Many weapons are stored with bolts inserted (including AR-15s and the Nambu light machine gun), and most pistols were stored with firing pins inserted,” the investigator said in his report.

    Balesano told the investigator that foot guard records showing the unit used all of its state-provided ammunition are “not only inaccurate, but could be considered falsified.”

    When the state did not supply the foot guard with ammunition, unit members bought bullets and then “reimbursed themselves” with state-owned ammunition, according to the investigator’s report.

    After a department investigation, Adjutant General Thaddeus Martin ordered all state-owned weapons removed from the foot guard’s armory on High Street. Martin also ordered all privately-owned weapons and ammunition removed from the armory.

    In 2008, Martin ordered a follow-up inspection to see if ammunition and weapons were being stored at High Street. Balesano and other department officials found 18,014 rounds of ammunition and transferred it to a Military Department location in Windsor Locks.

    Department officials found the ammunition in “a closet walled off from the rest of the room” in a “secured locker behind a book case and several wooden crates,” according to legal documents.

    The stockpile included .45-caliber, .30-caliber, .38-caliber and .22-caliber bullets.

    “Mr. Balesano said he got the distinct impression that the unit members present did not want him to see what was in the locker,” the investigator said in his report.

    Dennis Conroy, commandant at the time, told the Military Department officials they “had no right” to enter the storage area, claiming the room was private property of the trustees, according to the report.

    Although the trustees own their armory, it was at that time leased from them by the state to meet the statutory requirement that the state provide the foot guard with an armory. State officials contend the state leased the entire building, meaning it could no longer be used by the trustees for their private purposes. This disagreement led to the second legal dispute.

    Balesano and the department maintain in their legal filings that the recovered ammunition belongs to the state because of the foot guard’s past practice of siphoning off state ammunition.

    The trustees, through their president, Lt. Col. O’Connell, and attorney Michael Conroy, contend the unit received the bullets from the estate of a deceased member.

    The department has asked for documentation of the gift, but O’Connell said the only remaining evidence is the testimony of the foot guard members who picked up the ammunition when it was donated.

    Conroy said the ammunition is worth about $10,000.

    “The value of it is secondary, at best,” he said, explaining that the trustees were concerned Balesano “would start helping himself” to their property.

    Suing for back pay

    In another legal battle, about 30 members of the foot guard are suing the state as individuals for pay owed to them for annual training.

    For many militia activities, foot guard members receive voluntary orders from the adjutant general. This allows them to take on their official roles as members of the state militia without any financial implications to the state. Under mandatory orders, militia members are paid.

    In the early 2000s, the foot guard received voluntary orders for annual training, which is required by state statute. Because attendance was optional, the state did not pay the militia members.

    The Military Department claims it made a similar voluntary arrangement with the foot guard in 2009, but some of the members are suing to get paid for that year’s training.

    The state’s lawyers point to an email from Maj. William Oefinger, then commandant of the foot guard, as evidence that the orders were voluntary.

    “I advised my people this past Monday night, at the monthly meeting that per Perm Order 50-1 this years AT would be held at our home station and that pay and allowances were not authorized,” Oefinger wrote in a June 2009 email to Martin. “Approximately half to 2/3 of the members stated they would be able to attend some of the AT but, the economy being what it is, could not afford to take the full time period off of work as their employers would not pay them for the week. I will do the best that I can with what I have.”

    “In the military world, that may make a ton of sense,” Conroy said. “What the military department fails to comprehend is that these guys are not military.”

    “Some of them have military experience in the past. Some of them don’t,” he said. “This is just a straight up labor issue.”

    Conroy said this complaint should be compared to a boss ordering a team leader to have his team members work over the weekend without pay.

    “The individual’s right to be paid cannot be waived by a third party,” he said. “Not even the individual can waive that right.”

    Breach of contract

    The state terminated its lease of the High Street Armory in Hartford in 2009. The state was paying the militia about $100,000 a year to lease the building. This lease agreement fulfilled a statutory requirement that the state provide the foot guard with an armory.

    To meet the law’s requirements, the Military Department has assigned the foot guard to the state armory on Broad Street in Hartford.

    The trustees are suing for breach of contract, among other claims.

    In a letter to Conroy, a lawyer for the Military Department said the trustees violated the lease by “subletting state-leased space, storing corporation property in state-leased space, using the state-leased space as a corporation address, operating a bar room in state-leased space and interfering with the administration of the military unit housed in the state-leased facility.”

    Conroy said the state was demanding things not in the lease.

    “Unfortunately for us, a lot of that negotiation wasn’t written into the lease,” O’Connell said.

    Conroy said by terminating the lease the state lost “the only control they have over these guys.”

    ‘Kangaroo court’

    In 2010, the Military Department brought Maj. William Oefinger, commandant of the 1st Company, before an efficiency board.

    Conroy said he had to get an injunction to force the state to pay Oefinger to attend the hearing.

    “I was astonished at the hubris,” he said. “They gallantly paid him to sit through his own court martial.”

    “It was a joke. It was an absolute kangaroo court,” Conroy said.

    Col. Whitford, the military department spokesman, said there is a distinction between a court martial – “a judicial process” – and an efficiency board, which “is similar to an administrative agency determination of a person’s qualifications.”

    “A court martial is equivalent to a criminal court prosecution,” Whitford said. “An efficiency board is a military administrative process specifically charged to determine the general fitness of an officer for continued service.”

    Conroy said a number of military officers attended. “This ridiculous kangaroo court hearing had to cost them $20,000” in pay, he said, “to court martial the commandant of what is essentially a military-themed Elks club.”

    Whitford said the efficiency board is separate from, but related to, the claims against the state.

    “The commander of the unit confused his duties/obligations to the state with his association to the corporation,” he said, referring to the trustees. “As a result of his conflict of interest, good order and discipline of the unit declined.”

    “The officer eventually submitted a request to retire, which was accepted,” Whitford said.

    What’s next?

    All of the complaints are pending with the Office of the Claims Commissioner. Under state law, the claims commissioner decides whether a potential plaintiff can sue the state.

    The claims commissioner needs to rule on a procedural motion to dismiss before any of the complaints can proceed.

    The General Assembly, if so inclined, could also intervene by amending the special act that created the corporation run by the trustees.

    “It’s unbelievable how much time and effort they put into this,” Conroy said, “wasting all their time and energy on a ceremonial civilian club.”

    “They’re used to people following their orders,” Conroy said of the Military Department. “’I say it. You do it.’”

    “When they’re not on active duty orders, they’re nothing but dentists, insurance agents, whatever they are in their private lives,” he said.

    While it is theoretically possible members of the 1st Company could be called to actual active duty, Conroy said the chances were “infinitesimal.”

    Correction: This article previously used a photo of the 2nd Company Governor’s Foot Guard and incorrectly identified it as the 1st Company.