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Windsor’s police department allowed Officer Joe Gutierrez to remain employed for four months after he was recorded on video holding Army 2nd Lt. Caron Nazario at gunpoint during a traffic stop and pepper-spraying him.

He was only fired this Sunday, April 11, after the video — and the police brutality lawsuit Nazario filed in federal court April 2 — made national headlines.

Windsor Town Manager William Saunders confirmed the date of Gutierrez’s firing to The Smithfield Times the morning of April 13.

Saunders further confirmed Daniel Crocker, the other officer involved in the incident, is still employed by the Windsor Police Department.

Saunders emailed a press release Sunday evening to media outlets, including the Times, which stated Gutierrez’s use of pepper spray had prompted an internal investigation “immediately” following the incident. According to the press release, the investigation concluded that “Windsor Police Department policy was not followed,” and resulted in “disciplinary action, and department-wide requirements for additional training” implemented in January.

“Since that time, Officer Gutierrez was also terminated from his employment,” the press release added, but gave no date of termination.

Saunders didn’t say why the police department had allowed Gutierrez to remain on the force four months after its review of the body cam footage during its internal investigation — deferring his remarks until after Windsor’s Town Council meeting Tuesday evening.

The council has scheduled a closed session at the end of the meeting for a consultation with legal counsel. The meeting agenda cites an exemption from open meeting requirements under state code 2.2-3711.A.7, which states a closed session for this purpose is allowable when “actual or probable litigation” would “adversely affect the negotiating or litigating posture of the public body” were it to be discussed in view of the public.

Nazario’s lawsuit, however, doesn’t name the town or its police department as defendants. Instead, it names Crocker and Gutierrez in their personal capacities.

“There must be some adverse effect on the Town’s negotiating or litigating posture in order for the exemption to apply,” Alan Gernhardt, executive director of Virginia’s Freedom of Information Advisory Council, confirmed. “It follows that the Town could not use that exemption to discuss litigation in which the Town had no legal interest. However, without knowing what was actually discussed, I cannot offer a definite opinion on this issue, especially keeping in mind that the exemption includes probable litigation.”

Probable litigation, he said, is defined as litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party.

“A discussion of whether the Town could have legal liability if it was added as a defendant in the suit would qualify as probable litigation, even though [Nazario] did not actually file against the Town at this point,” Gernhardt said.

The open session component of the Town Council meeting will begin at 7 p.m. in the Windsor Town Center at 23661 Courthouse Highway.