2 Terminated Southold Police Officers Challenge Determination In Court

SOUTHOLD, NY — Two Southold Town police officers, terminated after having been on disability for years, are challenging the town and police department's determination in court.

Both Joseph Wysocki and David Hunstein filed Article 78 proceedings in Suffolk County Supreme Court on Sept. 11, challenging the determination of Southold Town, Southold Town Police, and Southold Town Police Chief Martin Flatley, stating that the firings were "in violation of lawful procedure, arbitrary and capricious, and abuse of discretion, affected by error of law, and not supported by substantial evidence," the court documents said.

The Article 78s ask that the officers be reinstated "with all applicable forfeited compensation and other benefits since the termination, including, but not limited to, health insurance and pension contributions," according to court documents.

Both petitions state that Wysocki and Hunstein are seeking relief, including the "costs and disbursements of this action" and "such other and further relief" that the court may deem "just and proper," according to the court documents.

Hunstein's petition says he slipped at an accident scene in 2012, injuring his shoulder, and has not returned to work in that time. "Respondents sent petitioner to see their selected doctor during the time petitioner was out and their doctor determined that petitioners 'incompetency' of disability -based unfitness to perform the full duties of a police officer was deemed permanent on June 16, 2014," the court documents said.

Wysocki's petition says he sustained injuries to his neck and back from motor vehicle accidents on Dec. 5, 2017 and Nov. 3, 2010; he has never returned to work after the 2010 accident, court papers said.

"Respondents conceded that petitioner's 'incompetency' or disability based unfitness to perform the full duties of a police officer was permanent on June 11, 2014, asserting such in filing an application for disability retirement on petitioner's behalf," the court documents said.

During the time the officers were out on approved general municipal law leave, approved by the respondents, due to on-the-job injury, respondents were never ordered back to work "full duty, light duty, or any other capacity", the court documents said.

Both officers are represented by the Islandia-based Christopher S. Rothemich of Davis & Ferber LLC.

The petitions state that the officers cannot "be terminated through the current proceeding" and says "the town is attempting to undermine a long-standing statute . . . by disciplining an officer simply for using it, even though the town approved it themselves," according to court docs.

The town's decision is a "clear attempt to work around well-established law and simply find a way to terminate" the officers "even though it is not legal way to do so," the court documents said.

In August, the Southold town board voted to terminate the two police officers who had been on disability for years.

According to two resolutions passed, disciplinary charges were filed, a hearing officer conducted a review, and on June 26, rendered a decision that both town employees should be terminated from employment.

Wysocki was on the force 23 years and Hunstein, a 14-year town employee.

Southold Town labor counsel Richard Zuckerman told Patch, "To be clear, everyone wishes that these two police officers had not gotten hurt. Everybody wishes they could have come back to work full-time. Unfortunately, the doctors say they cannot come back to work full time and when you cannot come back to work full-time, you are not able to do your job. And that is why they were let go."

Both men hired their own attorney, Rothemich of Islandia, rather than use union counsel.

Rothemich did not immediately return a request for comment.

At his state of the town address in 2016, Southold Town Supervisor Scott Russell said the town had been slammed with $1.5 million in disability costs for the two police officers, who had been out after injuries on the job. That amount jumped to more than $2 million by the supervisor's 2017 state of the town address.

At that address, Russell said one of his top priorities for 2016 was disability reform.

Due to New York General Municipal Law, Section 207, police and firefighters who are out on disability are entitled to full salary, he said.

Wysocki, Russell said, had been out on disability leave since 2010 and, by that address, had received a total of $641,570, plus benefits, for a total of $950,000.

Meanwhile, Hunstein, Russell said, had been out on disability leave since 2012, had received $393,017 in salary, plus benefits, for a total of $600,000 by that time.

Under the current system, employees including police and firefighters out on disability receive full salary and benefits, and even raises, tax free, Russell said.

To that end, Russell would like to establish a time limit on disability leave. “Currently, the leave is open-ended, which can sometimes go on for years,” Russell said. “Establishing a limit of 24 months is more than enough time to determine if an officer is able to go back to active duty or not. If he or she can’t, disability retirement approval should be declared and the disability retirement application should be approved expeditiously.”

As it stands, the supervisor said, the applications had been pending for “months, with no answer” a situation that’s “not fair” to the officers, the current force, or to taxpayers.

Russell would also like to see an independent facilitator assigned to each case to ensure that the municipality and the insurer are providing all the medical resources necessary to help an officer get back to active service —and also, to “ascertain that the officer is taking all of the necessary steps to utilize those resources to rehabilitate and get back to active service. Penalties should be imposed should either party not meet its obligations,” Russell said.

Russell would also like to see New York State abolish the “tax free” status of the injured officer’s wage earnings, he said. “This serves absolutely no purpose. First, the officer is already assured of income and financial security during his leave under separate provisions of New York General Municipal Law Section 207. This appears to be nothing more than a contrivance established years ago to foster political goodwill with the police unions.”

Finally, the supervisor proposed the elimination of the state’s policy that says “once an employee has worked restricted/light duty for approximately two years, that assignment becomes the employee’s ‘job’ and so should be retired. The net result of that policy,” the supervisor said, “is that an employer that provides restricted/light duty to an employee for ‘too long’ will ‘own’ that employee until the employee’s retirement or death — unless a medical miracle occurs and the employee can return to full duty.”

While police and firefighters who are out on disability are entitled to full salary, "it's also tax-free. There is absolutely no reason why, and it is an outrage," Russell said, in an email after state of the town meeting.
"It insults all the people who work hard and pair their fair share of income taxes. This seems to be nothing more than a give-away by state legislators who want to buy the support of police unions with taxpayer money," the supervisor said in that past interview.

The costs to the town due to the officers' being out on disability increased to more than $2 million, Russell said at his state of the town address in 2017.

"Last year, I stood up here and said New York State needs revise its retirement and employment" system, he said, adding that the two police officers had been out on disability from 2010 and 2012, respectively, in Southold.

"When you calculate the costs", the total was $1.5 million last year, and more than $2 million this year, Russell said at his 2017 address, an increase of $600,000.

"If you cull the numbers out, that represents 1.79 percent of the tax increase," Russell said at the time.

Terminating the two officers — who will still be paid under law until they either get well or retire — means the town will now be able to hire two officers to fill their spots and save on overtime costs.

Russell and Flatley were unable to comment on an ongoing legal matter.