The new Nassau police commissioner Thomas Dale at the Nassau...

The new Nassau police commissioner Thomas Dale at the Nassau County executive office in Mineola. (Dec. 2, 2011) Credit: J. Conrad Williams Jr.

Acting Police Commissioner Thomas Dale wants to change how Nassau handles disciplinary cases for police in the wake of the Jo'Anna Bird torture and murder case.

And he cites county code as an example of the problem.

Back in 2007, Nassau agreed to change its administrative code to allow police to opt for binding arbitration in serious discipline cases.

"That's unusual," said Dennis Jay Kenney, a professor at the John Jay College of Criminal Justice in Manhattan. "It was a pretty dumb move on the part of the county to agree to that." That's why County Executive Edward Mangano wants to repeal the language.

Dale believes the code is responsible for allowing the Nassau Police Benevolent Association to have a direct hand in deciding punishments. He said he was surprised to find out, in reading an internal report on the department's handling of domestic abuse in the Bird case, that officers got what he considered light punishments.

"Everything was negotiated," Dale said. "I was surprised that the union was involved in the process very early on."

The code language followed complaints by the patrol officers union that disciplinary actions by then-police Commissioner James Lawrence were too harsh. "We felt like we wanted to level the playing field," union president James Carver said.

The union took its concerns to the county, which agreed to allow officers facing more than 10 days' discipline the option of going to binding arbitration, in which a third party would determine the punishment. Nassau also agreed to amend its code, which singles out the PBA by name.

Other municipal unions have contracts allowing arbitration. But before cases get that far, there are usually interim steps, such as using a mediator.

Nassau is different because the arbitration right is cemented in code. County officials say that puts pressure on police brass to negotiate every grievance with the union. For the county, it's a no-win situation: any discipline effort is the opening offer in a negotiation, or it goes out of the county's hands and into binding arbitration.

Bird was tortured and killed in 2009 by an abusive boyfriend. The police internal affairs report, which Nassau got a court to seal, said officers ignored orders of protection and did not make mandatory arrests in the case.

Because the investigatory report has not been made public, no one knows why the department wanted the officers punished or what their penalties were. But Carver said he believed their disciplines were too tough. "Nothing they did, with all sensitivity to the victim and her family, caused her death," he said.

Carver acknowledged that his union plays a key role in negotiating discipline. He said a union vice president sits down with a commissioner's representative and they work together. There's no guarantee the union will get what it wants either in negotiation or before an arbitrator either, he said.

Even before the code was adopted, the union did "it that way forever," Carver said. "We'll go in with a folder of say, five or six [cases], and we negotiate with them." The talks save the union and the county the cost of hiring mediators or other neutral parties, Carver said.

But Nassau County Attorney John Ciampoli said the code ties the county's hands and gives the PBA too much sway. "We can understand why the commissioner would not be happy about that," he said. Carver said the union would fight any attempt to repeal the code language.

And so the fallout from the Bird case -- and the secret police report -- continues.