LEGAL UPDATE

BY: LOUIS D. STOBER, JR.
Regional Attorney for CSEA

CSEA CHALLENGES COUNTY DECISION TO LET POLICE OFFICER RUN PROBATION DEPARTMENT

When the County of Nassau was first created back at the turn of the last century, various Departments within the County were created. Ultimately, the current Departments came into existence. One of the Departments is the Police Department and one is the Probation Department. By law, each of these departments has a very different function in the criminal justice system. Under the provisions of the law it is the function of the Police Department to investigate and prevent crimes, and it is the function of the Probation Department under NYS Executive Law §257(4) and 9 NYCRR §§350.2 & 350.4 to act with complete impartiality when dealing with individuals on probation and when undertaking investigations used to provide sentencing recommendations to the Court.

The New York State Attorney General's Office has also ruled in Official Opinion I 91-61, that "[t]he positions of probation officer and police officer are incompatible." The opinion clearly states "a probation officer should not also serve as a police officer."

In July of 2004, the County designated Deputy Chief Kevin Lowry ("Lowry") as Criminal Justice Coordinator. Lowry is a sworn member of the Nassau County Police Department. In CSEA's lawsuit, we allege that since his tenure began, Lowry has effectively become the head of the Nassau County Probation Department ("Department"), taking over the day-to-day operations of the Department.

The suit alleges that Lowry has, in his capacity as de-facto head of the Probation Department, unilaterally instituted a dress code for all probation department employees, and has also sent out correspondence using Nassau County Probation Department letterhead to Department employees admonishing them on their use of Sick Leave even though John Carway holds the position of Director of Probation. CSEA is alleging in the suit that Carway holds little authority; as an example, administrators report directly to Lowry and he runs the weekly administrative staff meetings as well as other daily meetings of a less formal nature.

The suit also asserts that the Probation Unit members are concerned about the direction in which Lowry is taking the Department and that Lowry is not knowledgeable of the culture and practice of Probation Department investigations and supervision.

In January of 2006, CSEA Unit President Marla Rowe sent a letter to Robert Maccarone, Acting State Director of the NYS Division of Probation and Correctional Alternatives, voicing Probation Unit members' concerns that Lowry is the de-facto Director of Probation. Ms. Rowe also pointed out in the letter that Deputy Chief Lowry may have violated the CBA by unilaterally implementing a department dress code.

When the County refused to remove Lowry from running the Probation Department, CSEA commenced suit. The County moved to dismiss the suit claiming that CSEA did not have standing to sue, that the suit was time barred and that Lowry could perform the duties he was assigned even though he was a member of the Police Department.

In a decision dated October 16, 2006, Supreme Court Justice John M. Galasso, held in favor of CSEA and denied the motion to dismiss, finding the suit timely and that a legal basis for relief was alleged. To quote Justice Galasso: "[CSEA] alleges Deputy Chief Lowry has taken over the day-to-day operations of the Department by requiring administrators to report directly to him and by running the weekly staff meetings and by otherwise making policy decisions… [CSEA] maintains the County has arbitrarily and capriciously hired a sworn member of the Police Department in violation of New York State Executive Law… Petitioner CSEA seeks to compel the County to prohibit Deputy Chief Lowry from taking control of the Probation Department, allying it with the Police Department and otherwise assuming the duties and requirements of the Department that are not administrative in nature. In support of its position, petitioner cites an opinion of the Attorney General issued upon the request of the Washington County Attorney's Office which concludes that the positions of Probation Officer and Police are incompatible because of an inherent inconsistency between the two offices and a potential for conflict of interest… While the opinion was an informal one because the Attorney General only renders formal opinions on State government issues, it is, nevertheless, a persuasive analysis of the intent behind the statutes and regulations cited. Therefore, the Court finds that [CSEA] has a legally cognizable cause of action."

With that decision, the Court has made it clear to the County that it is going to be accountable for its actions. Discovery is now commencing and a trial will be held thereafter.

This case demonstrates CSEA Local 830's commitment to its members and that it will leave no stone unturned in protecting its members and the public from improper actions by management.

If you find your department is engaging in improper or illegal activity, you can contact the Local and to take legal action to protect your rights.

There is a limited statute of limitations for taking action so do not delay.