Supreme Court Denies Fired Southold 'Top Cop's' Petition

SOUTHOLD, NY — The New York State Supreme Court has denied a petition by former Southold Police Officer Garrett Lake, who was fired last year; Lake alleged that his firing was politically motivated and sought reinstatement.

"The court confirmed what we have said all along," Southold Town Supervisor Scott Russell said. "Chief [Martin] Flatley asked the board to dismiss Mr. Lake from the department based solely over concerns about his job performance and his actions while serving as an officer."

Lake, a police officer who was named a Suffolk County "Top Cop" for his number of DWI arrests in May 2016 and was fired just over two weeks later sued Southold Town and stated he believed the firing was politically motivated.

Lake, who was fired on May 19, 2016, four days before the end of his probationary period, is represented by attorney Eric Bressler of Mattituck's Wickham, Bressler and Geasa, PC; he filed a notice of petition on June 15 of last year with the New York State Supreme Court.

He filed an Article 78 seeking a judicial determination to vacate the decision to terminate his probationary employment, with the goal of being reinstated to his position.

Supreme Court Justice William G. Ford said the town maintained Lake's dismissal was due to "poor or problematic performance."

Specifically, Southold Town Police Chief Martin Flatley, while "not finding Lake to be the worst performer in the department, had received certain civilian complaints painting petitioner to be overaggressive and overzealous in his use of police tactics in conducting vehicle traffics stops, searches and arrests," the court's decision reads. "Those complaints were investigated and prompted Chief Flatley to review Lake's department issued vehicle camera and body microphone audio and video recordings focusing on review of stops, searches, arrests by Lake. More specifically, Flatley reviewed arrests made by petitioner on July 14, 2015 where a woman complained about harassment.Respondent contends that complaint could neither be substantiated or unfounded. Flatley also reviewed footage of an arrest made by petitioner on August 28, 2015 for DWI."

Based upon review of this footage, the decision reads, "Flatley identified a concern regarding unjustified and questionable use of police action by Lake so far as the probable cause or justification for stops and searches which was not always objectively evident. Furthermore, Flatley testified that Lake did not always deploy his body microphone as required by departmental protocol, thus when civilian complaints were lodged against
him for unjustified or overly aggressive use of police action, respondent could not rely on footage to corroborate or refute the lodged complaints."

Lake, the court says, was counseled by Flatley on October 6, 2015 in in an effort to "redirect" him from overly aggressive police action.

"It is alleged that Lake learned at the time that he was the subject of at least one civilian complaint. Further, on November 13, 2015, Lake attended a training session offered by the Suffolk County District Attorney's Office, East End Bureau for additional instruction or retraining concerning proper vehicle traffic stops and searched. Respondent contends, disputed by petitioner, that the impetus for the training was to provide petitioner with retraining on proper justification for stops, searches and seizures," the court said.

Subsequently, the decision says, Flatley, after further arrest video review, "identified other problematic
or questionable arrests made by Lake for criminal possession or narcotics on Nov. 22 and 23, 2015."

Additional instances were outlined where Lake was counseled for problematic or unjustified exercise of law enforcement action on April 16 and May 16, 2016.

Southold Town, the Supreme Court decision says, maintains that "despite being counseled and offered additionaltraining," Lake "persisted with his overaggressive, and at times, questionable police tactics."

In early 2016, Flatley appeared before the Southold Town Board to discuss Lake's progress during probation, "including his concerns regarding Lake's police tactics and the resulting civilian complaints. Thereafter Flatley made a recommendation at executive session before the town board at the sown Supervisor's request given his concerns that petitioner not be offered a continued role as a permanent police officer," the decision states.

The town board accepted the recommendation and voted for Lake's dismissal.

"In response to petitioner's contentions of undue or improper political influence, motivation or retaliation underlying Lake' s dismissal," the town denied that Helf, Sawicki or the Jamesport Fire Department ever criticized petitioner or called for his dismissal, the decision says.

Further, Lake failed to produce any admissible proof, despite being given the opportunity "to show that the police department or the town board took into consideration any politician's critique in making their determination ending Lake's employment," the court's decision said. Instead, Lake, "at best, has offered
innuendo and unsupported speculation, viewed in its best light for petitioner, that stand: for the proposition that citizens who happened to be political or hold political offices/roles made complaints."

Lake failed to show any proof at all "demonstrating a causal connection between any complaint made by any public official or politically connected individual against him and his ultimate termination besides rumor, surmise or supposition," the Supreme Court decision said.

The Supreme Court said Lake failed to "sustain his burden of demonstrating, by capable and competent proof: a triable issue of fact that his dismissal from probationary employee status was motivated by illegal,
impermissible or unconstitutional political motivations or retaliation."

Lake, the court said, tried to litigate "two divergent theories." First, he argued that the town's "assertion of poor performance was pretext and unworthy of belief given that within 2 months of his dismissal, he received a favorable employment evaluation," the decision said.

Secondly, he argued that his dismissal "was the result of interference, undue influence and meddling by connected local politicians in retaliation for him properly performing his police duties," the decision says.

However, the Supreme Court said Lake would need to plead and prove "the existence of improper, impermissible, illegal, or unconstitutional motives" and his burden was to "provide evidence that respondents bowed to undue or improper political influence in deciding to terminate his
employment."

The town, the Supreme Court said, "capably rebutted the assertion" that his dismissal was due to such ulterior motive."

Lake, the court said, failed to carry his burden of presenting competent proof, but "record demonstrated that" Lake's "performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith," the Supreme Court said.

His petition to be reinstated to his probation as a Southold Town Police officer was denied, Justice Ford said.

Peter McGreevy, chair of the Southold GOP, said, "In my opinion, Judge Ford rendered a very well reasoned decision, clearly parsing out facts from fiction, and determining that the reasons for Lake's termination were performance related, and not political in nature."

Lake's claims

Lake's petition stated that the termination was "in bad faith" and unrelated to his work performance, and asks that Lake be reinstated with back pay.

According to the petition, the Town of Southold "bowed to political pressure" applied by the Jamesport Fire Department, "incensed by the proper arrest of Lake" of David J. McKillop, 55, of Aquebogue, a Jamesport Assistant Fire Chief who was arrested after he allegedly drove drunk and crashed his fire department vehicle into Southold street signs and then fled the scene before being arrested in Mattituck; McKillop pleaded not guilty at his arraignment.

Lake, who was working in the Mattituck sector, was contacted on Feb. 14 by Southold Town Police Officer Robert Bopp, who was working in the Southold sector, that he was searching for a fire department chief's vehicle that had allegedly left the scene of an accident in Southold, the petition said.

After locating the vehicle, the petition stated that the fire chief, his son, and a Jamesport Fire Department commissioner who were also in the car "demanded 'special treatment' and asserted 'connections' to other law enforcement agencies. Lake properly treated the arrest similarly to all other arrests and did not afford the fire chief 'special treatment,'" the petition said.

"Thereafter, the Commissioners of the Jamesport Fire Department and politicians complained to the town supervisor concerning the arrest. The Commissioners also complained to the Police Chief, who in an unusual practice, permitted a Jamesport Commissioner to view the police car video of the stop and subsequent arrests which justified the arrest. The Police Chief advised Lake that the Town Board in an executive session questioned the necessity of an arrest notwithstanding the clear evidence of the Fire Chief's intoxication and leaving the scene. The Police Chief supported the arrest...The Police Chief further advised Lake that Lake's termination of employment was brought up before the Town Board and that the Police Chief did not support the termination," the petition said.

The limo crash

The petition also stated that John Helf, Sr., the vice president of the Southold Town GOP, was at the scene of last July's fatal limo crash in Cutchogue that left four young women dead.

Lake arrested the driver of the pickup, Steve Romeo, and charged him with DWI.

"Apparently, Mr. Helf was well known to and friendly with Mr. Romeo and Mr. Helf attempted to become involved in Lake's investigation but Lake did not permit such involvement," the petition reads. "Mr. Helf can be seen in the video memorializing the events at the scene. As a result of the arrest of Mr. Romeo at the scene, Lake was informed by a former Town Board member that Mr. Helf stated at Republican events that Lake would lose his job."

Several days later, the petition says that Captain Frank Kruszeski had been contacted by "Joseph Sawicki, the former Republican Suffolk County Comptroller and current Suffolk County Assistant Deputy Police Commissioner for Finance, and Mr. Sawicki had made inquiry regarding the propriety of Mr. Romeo's arrest. Upon information and belief, Mr. Sawicki also contacted the town board."

The limo driver was later charged with criminally negligent homicide; Suffolk County District Attorney Thomas Spota said that there was no way Romeo could have avoided the crash. Justice Camacho dismissed the indictment; the DA's office is appealing that decision.

Romeo, Spota said, pleaded guilty to driving while impaired in April.

The petition also states that after applying to be rehired by the Southampton Town Police Department, Lake could not be offered a position because Southold Town did not "offer a reason for his termination of employment" and it would need to be investigated. "The town's actions have at this juncture rendered Lake functionally unemployable in his chosen field and effectively ended his career in law enforcement, the petition states.

Lake's performance reviews were all "excellent," the petition states.

Peter McGreevy, chairman of the Southold Town GOP, was not immediately able to comment.

Flatley did not immediately return a request for comment. Jamesport fire commissioners could not immediately be reached for comment.

Bressler did not immediately return a request for comment.