A US court has backed a multi-million dollar settlement to two police officers who claimed they were sidelined in an act of retaliation when Kathleen O'Toole was their boss, RTÉ's This Week has learned.
Ms O'Toole - who is currently the chairperson of the Commission into the Future of Policing - was the Chief of Police in Seattle at the time.
The unpublished opinion of the Washington State Court of Appeal was circulated in recent days, in which it affirmed an earlier decision to deny both a retrial and downward revision of a $3m settlement against the Seattle Police Department.
Despite the decision of the appeals court last week, Ms O'Toole has said she still supports the defence adopted by the City of Seattle that her decision to transfer the officers, a sergeant and a captain, to what they claimed were less favourable roles was done in an act of retaliation, as the officers claimed in their lawsuit.
Lawyers for Sergeant Ella Elias claimed she was moved from her post after notifying the police department she was considering a legal action against the force, while the Captain, David Proudfoot, claimed he was moved to a less favourable role after taking the sergeant's side, by writing to Ms O'Toole and warning her that any attempt to transfer the sergeant, who was under his command, would be seen as retaliatory.
Ms O'Toole says she moved the officers to defuse a dangerous and volatile situation in the city's south precinct, which was riddled with racial tensions. She did so to protect the safety and welfare of police officers on patrol, among other reasons, she said.
The case had a complex background, relating to long-running disputes which preceded Ms O'Toole's arrival in Seattle as chief of police in 2014.
Ms Elias had been the subject of several complaints, relating to claims she created a difficult working environment for non-white officers.
In return she claimed several African American officers benefited from favourable overtime and that they had victimised her after she flagged this issue.
However, Ms Elias dropped her allegations relating to a hostile workplace and focused her legal case on the clam that she had been retaliated against after she notified the Seattle Police Department that she was considering a legal action.
Likewise, Mr Proudfoot said he was transferred to a job with less responsibility after backing Elias in discussions with Ms O'Toole.
In 2016 a jury answered 'Yes' to the question of whether they were subject to retaliation under Washington State law. The jury rejected the claim of a third officer who sued.
Court documents submitted by the city itself describe Ms O'Toole as the decision-maker in the transfers.
The city had spent the past two years saying it would appeal an original jury decision made in 2016, in the officers' favour.
However, Court of Appeal documents submitted by the city of Seattle, and seen by RTÉ, show that the city only appealed the amount of money paid out; it has not contested liability in the case, nor has it tested the jury finding that the officers had been victims of unfair retaliation.
Before arriving in Seattle, Ms O'Toole had a string of high-profile appointments to senior leadership policing roles; among others with the Boston Police Department; and also having previously served as the first head of the Garda Inspectorate here.
In September of that year, 2014, court documents show that Ms O'Toole, her boss, issued an investigative transfer order reassigning Ms Elias outside the precinct, pending an investigation into a complaint against Ms Elias and also of her claims against the city.
Ms O'Toole's order was transmitted to Ms Elias's commander, Mr Proudfoot. Court documents show he voiced his opposition to the transfer and he emailed Ms O'Toole and other senior commanders saying the transfer of Ms Elias could be seen as retaliation against her for filing her complaint.
The following April - 2015, Ms O'Toole also transferred this police captain who objected to the sergeant's transfer and moved him to a position which he said was less favourable.
And in 2016 he joined Ms Elias in a lawsuit against the Seattle Police Department - claiming that they were both retaliated against for the actions that they took.
On the first day of the trial Ms Elias dropped any reference in her lawsuit to the hostile work environment and her case against the Police Department was based solely on the claim that she had been retaliated against after indicating her intention to sue.
The police officers did not sue Ms O'Toole personally and she was not accused of having any personal liability in relation to their claims.
On Tuesday just gone, the Washington State Court of Appeals issued what is called an unpublished opinion - this and various other relevant submissions in the case have been seen by RTÉ's This Week.
The Court of Appeal had considered the city of Seattle's appeal and the Court of Appeal said that it affirmed the original decision of the jury to award all of the money that was given to the two officers - Mr Proudfoot and Ms Elias. It found no reason to either lessen the amount paid out to the two officers, and it also found no grounds on which to order a retrial, something which the city had said was warranted.
The appeal court judges commented negatively on the manner in which the city of Seattle handled its own legal defence of the case.
It refers to a comment of the original trial judge who said the city's defence was, to quote, "marred by misdirection and missed opportunities".
The appeals court made this remark specifically because the city attempted to try use the appeals procedure to object to some testimony which they hadn't objected to during the actual trial. The Appeals Court said if they didn't raise the issue initially then they couldn't raise it later on appeal.
The Appeals Court itself referred to missed opportunities, plural, on the defence side.
Responding to the decision of the Court of Appeal, Ms O'Toole issued a statement to RTÉ's This Week programme.
"The case in question arose out of a recommended transfer that I officially authorised, shortly after arriving in Seattle, of a sergeant whose racially charged comments had led to an EEO (bias) complaint against her by a group of African American officers," she said.
Ms O'Toole went on to say she transferred Sgt Elias because of the divisive atmosphere in the precinct and vocal concerns expressed by community members. She said she did so on advice of counsel, only after thorough investigation and lengthy, substantive consult with contracted mediators and HR professionals.
Her statement continued: "At all times, I acted in the best interest of the department, its officers, and most importantly, the community she was sworn to serve but whose confidence she had lost.
"The appellate decision speaks for itself in terms of the errors of the City's counsel in this case. It is a case that could and should have been easily defended. I stood by the Police Department's decision then and I stand by it today.
"I remain confident in the decision to remove the source of racial tension in Seattle's most diverse police precinct. In fact, it was not a difficult decision at all. It was the right thing to do," added Ms O'Toole.
