The final say on the discipline of Nassau police officers rests with the department’s top cop, rather than an independent mediator, a state appeals court has ruled.
The Jan. 27 order affirms a lower court’s finding that the police commissioner has the ultimate authority to discipline police officers accused of misconduct — a power granted in 2012 by the Nassau County Legislature amid a slew of scandals that rocked the department.
James Carver, president of the Nassau Police Benevolent Association, said the union’s lawyers — who allege the policy violates the union contract — are “reviewing the decision and examining our options at this time,” including an appeal to the state’s highest court.
“I still believe an outside arbitrator to decide cases where there is a dispute of the severity of the discipline, I think that’s still an option to have,” Carver said. “It’s tough when one person’s the prosecution, the jury and the judge.”
Before the legislature acted, with the approval of then-Police Commissioner Thomas Dale, patrol officers had the option of using binding arbitration when faced with disciplinary measures that could result in 10 or more days of lost wages.
Acting Police Commissioner Thomas Krumpter declined to comment on the ongoing litigation, but called his ability to have the final authority to discipline officers “an important piece of the ability to run this police department.” Krumpter is expected to appear as soon as next month before the legislature for a confirmation hearing on his impending appointment as permanent commissioner.
Krumpter was appointed acting commissioner after Dale resigned amid his own misconduct scandal. Krumpter, tasked with making strong discipline a department priority, said he “fully expect[s]” the union to appeal the latest ruling to the state Court of Appeals.
Nassau County Attorney Carnell Foskey said in a statement: “We are pleased that the court recognized how important it is for the commissioner to take disciplinary actions against police officers if necessary to ensure discipline within the force and to ensure public safety.”
The legislature’s move to expand the police commissioner’s power came after the county paid $7.7 million to the family of Jo’Anna Bird, who was killed in 2009 by an abusive boyfriend because the department failed to adequately investigate earlier domestic violence calls. Ten officers were ultimately disciplined in the case.
Two months after the Bird settlement was approved, the Nassau district attorney’s office charged three police commanders with conspiring to derail a police investigation into a high school burglary committed by a teenager whose father was a financial benefactor of police.
Police unions have been fighting the issue of discipline for at least a decade after the state’s top court, the Court of Appeals, unanimously affirmed a police commissioner’s power over disciplinary matters in 2006.
The court said in that ruling that as far back as 1888 it determined that police discipline must “rest wholly in the discretion of the commissioners” and, although collective bargaining issues have since developed, “the public interest in preserving official authority over the police remains powerful.”
In 2007, the Nassau Legislature amended the county code, which had stipulated that the police commissioner had final say on discipline, to allow officers to opt for binding arbitration when faced with disciplinary measures that could result in 10 or more days of lost wages. The Nassau PBA then negotiated the same provision into its 2008 contract.
But when the legislature reversed course in 2012, the PBA sued.
Last year, Gov. Andrew M. Cuomo vetoed a bill passed by the State Legislature that would have turned over discipline from the police commissioner to an independent arbitrator in the Nassau, Suffolk and New York City police departments.
In Nassau, four police officers have been terminated since 2014, according to department spokesman Det. Lt. Richard LeBrun.
Krumpter declined to name the fired officers or the exact nature of the misconduct resulting in their terminations, citing the state’s 50-a law, which restricts the public disclosure of police discipline records.
But Krumpter said of the four: one was fired through a departmental trial; another through a Civil Service hearing at the department’s request and the other was a recruit who was on probation. And last year, another probationary officer — with less than 18 months on the job — was terminated.
Newsday has reported that in 2014 Krumpter fired officer Anthony DiLeonardo, who was off-duty when he shot an unarmed cabdriver during a drunken night in Huntington Station. That same year, the department fired police recruit Martha Amato, 41, of West Babylon, who was hired despite having a criminal conviction on her record, for “conduct and performance” issues at the academy, Newsday also reported.
Krumpter said he could not immediately provide an accounting of how many other officers had been disciplined since 2014 — and what sanctions they faced.
“We don’t keep stats on how many people we punish,” said Krumpter. But he said two departmental hearings, which “usually attach a significant penalty,” are underway.
Carver said giving officers the option of binding arbitration “takes the politics out of discipline.”
“We have seen in the past there has been a disparity” on the disciplinary action taken depending on the officer involved, Carver said.
Krumpter disputed that.
“Every case is different and we judge each and every case individually,” Krumpter said. “We exercise due care in the review of each and every case and we come up with what we believe to be an appropriate penalty. The vast majority of the penalties are negotiated with the unions. So the vast majority of the discipline never goes to departmental hearings, the vast majority are negotiated settlements.”