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Guilderland Archives — The Altamont Enterprise, August 20, 2009

Who controls the town police?

By Anne Hayden

GUILDERLAND — A Guilderland police officer has alleged mismanagement in the department, asking why a suspect in an assault and robbery case hasn’t been pursued.

“He committed a serious violent crime against a resident of this town,” wrote officer David Romano on July 10, asking a senior investigator what had happened to funds set aside for fake police drug buys. “To my knowledge, he is still capable of committing another one…”

Tuesday night, at the Guilderland Town Board meeting, Romano’s request caused a deeper rift in a board already divided along party lines.

The supervisor, Kenneth Runion, part of the board’s Democratic majority, walked out of the meeting after a heated argument with Republican Councilman Warren Redlich.

At issue was the role of the town board in governing the police department. Runion asserted that the town board did not have the authority to rule the department, and did not have the right to get involved in personnel investigations unless the department head was implicated. When Redlich started questioning him, Runion walked out.

Earlier in the meeting, both Redlich and Republican Councilman Mark Grimm expressed dismay that an attorney from Girvin and Ferlazzo — paid for by the town — had been investigating Romano’s allegations, yet board members had not been told about it.

Although he said he does not know the details of the investigation, Redlich said yesterday he feels it is an investigation meant to punish and intimidate beat cops.

Runion told The Enterprise he felt that, if the town board tried to micromanage, it would be irresponsible and lead to chaos.

“Redlich and Grimm want to come into Town Hall and control every aspect; they proceed like bulls in a china shop,” Runion said. “It is not responsible when you consider the liability of the town.”

“Runion is micromanaging every department and doesn’t want us to oversee what he does,” countered Redlich.

Runion said neither he, nor the town board, had rights to the information, and that the records were protected under section 50-a of the Civil Rights Law.

Romano’s letter stated that the drug investigation began at the end of April, and involved a cooperating individual, or a confidential informant, who was slated to attempt to buy drugs from a suspect in an open assault and robbery case that took place in Guilderland Center earlier this year. The informant would bring the police department one step closer to apprehending the suspect in the assault case, Romano said.

Romano wrote that he had heard that there was no funding available for drug buys, which, he said, would be “an act of utter mismanagement of the case on behalf of our administrative staff.”

Captain Curtis Cox of the Guilderland Police Department explained to The Enterprise that the department often uses confidential informants, in any manner of cases. An informant, in most cases, is someone who might otherwise have to go through the court system, but negotiates to supply the police with information that would be helpful to cases they are handling.

There is a procedure to follow when “adopting” an informant, said Cox.

“You don’t know up front how much possible information they can offer you, until you interview them. You look at their past to see how involved the person is in activities the police are interested in,” Cox said.

According to Cox, there was no basis for the allegations Romano made in his letter; it was one officer’s opinion, he said.

“It was extremely appropriate for the chief to act on the complaint,” he said of Carol Lawlor, “and it is appropriate that an investigation is being conducted, but I can assure you that there was no mismanagement in the department.”

Redlich and Grimm were distressed that they had not been made aware of the investigation, especially because outside legal counsel was retained, a decision they felt the town board should have made. Runion countered that the town board and supervisor only become involved in an investigation when it deals with a department head. Otherwise, said Runion, the department head, in this case the chief of police, makes the decisions.

Civil Rights Law

Section 50-a of the Civil Rights Law, which Runion cited as one of the reasons the information about the current investigation was not made public, pertains to personnel records of police officers, firefighters, and corrections officers.

The law states, “All personnel records, used to evaluate performance toward continued employment or promotion…shall be considered confidential and not subject to inspection or review without the express written consent of such police officer…except as may be mandated by lawful court order.”

According to Runion, the letter written by Romano, although it does not contain the names of, or implicate by name, any police officer, contains information that may someday end up in a personnel file.

The information is only supposed to be confidential from the public, not confidential from the town board, said Redlich.

The law firm representing the Guilderland Police Benevolent Association, Gleason, Dunn, Walsh, and O’Shea, agreed with Runion’s position. Yesterday, it sent a letter to Girvin and Ferlazzo, indicating that town representatives had not complied with the law.

“The term personnel records has been broadly construed and is not limited to the ‘personnel folder’ of the subject officer,” said the PBA’s letter. “As such, disclosure of documents which refer to information protected by section 50-a and public comments of the same nature are inappropriate and prohibited.”

“We don’t know the circumstances of the disclosure. We don’t know if any civil rights were violated,” Redlich said.

The state’s Director of the Committee on Open Government, Robert Freeman, said the PBA’s statement is so broad that it goes beyond the scope of the law, and noted that section 50-a does not apply to speech. Freeman said that, especially since the letter from Romano did not name or implicate specific individuals, disclosure of the document did not violate Civil Rights Law.

According to Freeman, “A governing body, like the town board, has responsibility for management of all entities under its umbrella — including the police department.” The town board should not have a problem obtaining any records from the police department, Freeman said.

Guilderland falls under Suburban Town Law, which is different than Town Law, Runion said, as a way of explaining why the town board does not actively participate in personnel investigations. Suburban Town Law dictates that department heads be appointed by the town board.

“Such department heads shall be principal executive officers of their respective departments,” says Suburban Town Law, section 53.

Runion, a lawyer, said the town board probably could obtain records from a department head, but also said a section of the contract between the town and the PBA, the collective bargaining agreement, modifies and limits the town’s jurisdiction over the police department.

Free to talk?

Redlich, also a lawyer, made a motion at the board meeting to create a rule that “Guilderland police officers should be free to talk to town board members.” He said that there is nothing in Suburban Town Law that says the town board can’t make rules for the police department.

Section 154 of the Town Law says the town board has the power to make such rules, Redlich said.

“The town board may make, adopt and enforce rules, orders and regulations for the government, discipline, administration, and disposition of the police department and of the members thereof,” the law reads. According to Redlich, no part of the Suburban Town Law takes away that right.

Redlich wanted to make sure that a gag order, similar to the one that was established in 1992 — where police were forbidden to discuss department policies with the town board — could never be put in place going forward.

The gag order resurfaced in 2008, but was no longer in effect, when the town was looking to replace former chief James Murley, who resigned in 2007.

Murley himself had written the gag order, which stated, “Whenever any personnel of this department come in contact with a member of the Guilderland Town Board, they are not to question or discuss any department policies or any department business. If a member of this department has a question or concern about anything going on within the department, they are to bring it to the attention of their immediate supervisor.”

Lawlor, the current chief, has since said that she rescinded the order, but Redlich said he believes similar rules have been put in place. Rules 150 and 153 restrict the ability of officers to communicate with people outside the department, he said.

“Laws are not designed to encourage secrecy,” Redlich said, and added that he only wants to protect the beat cops. Such rules contributed to the secrecy surrounding Murley’s gambling on town time, he said. Murley ultimately pleaded guilty to official misconduct, a misdemeanor, and was advised by the judge to get counseling for a gambling addiction. (For the full story, go online to see www.altamontenterprise.com,  and look under the archives for Guilderland, on Jan. 15, 2009)

In 2008, Redlich stated that he was concerned about restrictions on officers who might see a problem with their supervisor but have no recourse to action since they are barred from bringing their concerns to the board. He made the motion on Tuesday night in an attempt to prevent that situation, and said he was disappointed when it was deadlocked. Democratic Councilman Paul Pastore and Runion were opposed, and Councilwoman Slavick, also a Democrat, abstained. She said, since the motion wasn’t on the agenda, more time was needed to gather information.

 Despite the conflict over how the current police investigation is being handled, Cox said, and Runion confirmed, that the town comptroller’s office conducted an audit of the fund for drug buys, and all the money is there and accounted for.

“If there is anything else that I am not aware of that is holding this investigation up, I apologize for not having that information,” Romano wrote in his letter, speaking about the assault and robbery.

Cox said the police department is waiting to hear Girvin and Ferlazzo’s findings; the company has been tied up with a case out of the area, but its attorneys hope to have the results soon, he said.

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