chris rea decision

8/12/2019 Chris Rea Decision

1/51

1

STATE OF NEW YORKCITY OF KINGSTON

In The Matter of the Disciplinary Charges Against

CHRISTOPHER REA,

OPINION ANDRECOMMENDATION

Before: John T. Trela

Pursuant to the Provisions of Section 75 Hearing Officerof the NYS Civil Service Law .

The undersigned was appointed Hearing Officer in the instant matter by the

City of Kingston (hereinafter Employer or City), by designation (HO -1),

regarding Charges preferred against Christopher Rea (hereinafter,

Respondent).

Subsequently, hearings were held before the undersigned on December 9,

2013, February 21, 2014, March 21, 2014, April 3, 2014 and April 11, 2014 at the

City Hall, in Kingston, New York. The parties were provided with the opportunity

to present their respective proofs, witnesses and arguments in this matter at each

of those hearings. The exhibits, transcript and all related documents accepted

into the record from each of the days of hearing are included as part and parcel

of this record and are being submitted to the appointing authority simultaneously

with this opinion.


2/51

2

Closing Statements were submitted to the undersigned, and the record was

closed when received on or about June 9, 2014. A stenographic record was

compiled by a Court Reporter with transcripts provided to the parties after each

date of hearing.

Mary M. Roach, Esq., represented the City and, Ronald G. Dunn, Esq.,

represented the Respondent. Respondent was present at each day of hearing.

General Background Information

Respondent, in the instant matter has been a long-term employee for many

years of the Kingston Fire Department and at the time of these Charges washolding the title of Assistant Fire Chief. This title is a Competitive Class Civil

Service position offering protections to an incumbent for purposes of removal for

misconduct or incompetence under Section 75 of the New York State Civil

Service Law . The record is void of any previous disciplinary Charges or

counseling matter being preferred against Respondent during his years of

employment with the City.

Prior to Charges being preferred against Respondent, a scandal ensued in

the Fire Department involving the former Chief of the Fire Department. That

scandal concerned the former Chief's leave accruals and payouts which

appeared to be questionable by the City Comptroller John Tuey.

The investigation of the former Chief led to his ultimate resignation and his

pleading guilty to the misdemeanor crime of offering a false instrument for filing

in violation of Penal Law, Section 155.30 . With his pleading, the former Chief

admitted that he intentionally submitted leave records to the City, knowing that

they were false and knowing they would be relied upon, in order to receive a


3/51

3

monetary benefit. Subsequent to the resignation of the previous Chief in January

2012 Respondent was named Fire Chief on January 23, 2012 for a brief period

of time.

The investigation by Comptroller Tuey raised suspicions regarding some of

the activities of Respondent, especially after he received an anonymous letter

(C-15) dated February 1, 2012 signed A concerned area resident and local

volunteer Firefighter. The letter in relevant part advised that Respondent was

employed by the State of New York as a Fire inspector at Montour Falls and was

not taking time off the books of the City. Doing so raised the suspicion of doubledipping to the author of the letter. The concerns from the Comptrollers

investigation were brought to the Mayor who in turn brought them to the

attention of the New York State Comptroller, asking that an investigation be

conducted. An investigation ensued by the State Comptroller for the period

January 1, 2011-January 31, 2012, which resulted in the submission of a report

(J-19) to the City. The Comptrollers office found that Respondent had been paid

for 100 hours of accrued time and had made no deductions to his leave accruals

to account for such payment. Respondents explanation to the Comptroller, was

that his employment contract:

inadvertently omitted a provision entitling him to supplemental leave."(City Brief P-3).

On February 9, 2012 Respondent was served with the notice suspending

him without pay (J 8) from the Fire Chief position of the City of Kingston New

York. The notice of suspension did not address his permanent position of

Assistant Fire Chief to which Respondent maintains his retreat rights. Pursuant

to the notice of suspension Respondent was notified that he would be


4/51

4

suspended withou t pay and the Corporation counsels office would be preparing

disciplinary and misconduct Charges against him (C 26).

When no Charges were preferred by the City, Respondent commenced a

proceeding on May 24, 2012, seeking to compel the City to either reinstate him

or serve Charges (C 26). Subsequently the Ulster County Supreme Court

issued an order dated August 3, 2012, stating that the City shall within 30 days

from July 23, 2012, prefer the disciplinary Charges against him which were the

basis for suspension on February 9, 2012 (J 8).

On August 22, 2012 Respondent was served with a Notice of Discipline(NOD) containing 20 separate counts of Misconduct and 7 counts of Dereliction

of Duty all of which involve conduct alleged to have occurred when Respondent

was Assistant Fire Chief (J-2.) On August 30, 2012 Respondent answered the

Charges denying any wrongdoing asserting the statute of limitations defense

and demanding a hearing (J 3). The Charges of misconduct contain allegations

that respondent had irregularities in time records dating back to 2006 and stored

non-work related material on his work computer dating back to 2006 (J 2).

Respondent alleges that 19 of the 20 Specifications of misconduct are based on

conduct, which is alleged to have occurred more than 18 months prior to the

date of the Charge. The Charges of Dereliction of Duty includes Specifications

that Respondent failed to properly train or document training of the Fire

Department. Respondent alleges that two (2) of the causes of Dereliction of

Duty are based on alleged conduct that occurred more than 18 months prior to

the service of the Charges, and none of the Charges allege any conduct for the

short period of time that Respondent was the Fire Chief.


5/51

5

Respondent brought an Article 78 proceeding challenging the timeliness of

the Charges and the suspension, which resulted in the Appellate Division

issuing a decision (J-8) in September 2013 finding that Respondent was:

Presumptively entitled to receive his regular compensation as AssistantFir e Chief until the termination of the disciplinary Charges.

That decision also dismissed 2 Specifications on timeliness grounds and

stated that the law that Charges more than 18 months old are improper unless

the alleged conduct constitutes a crime. The Appellate Division remanded the

matter back to the Supreme Court for further proceedings.

On remand, the Supreme Court issued a decision dated December 18,

2013, directing that the City conduct a hearing within thirty (30) days, reinstate

Respondent to his position as Assistant Fire Chief retroactive to March 10, 2012

and immediately pay Respondent his retroactive pay without offsets (J 15). The

decision of that court, as of this writing is the subject of an appeal by the City. In

the interim, the City served supplemental Charges dated November 27, 2013

(J-4), which were answered by Respondent and served December 4, 2013 (J-5).

The amended Statement of Charges is identical to the first set of Charges

with the addition of Specifications 21 through 56 added to Charge 1. The new

Specifications allege that Respondent was absent from work as Assistant Fire

Chief without approval during the period of time between 2009 and 2011 at

various times. Respondent maintains that all of these occasions occurred more

than 18 months prior to the date of the Charges. All of these supplemental

events Respondent argues are based entirely on telephone records that purport

to show that Respondent was either sending or receiving phone calls outside the

City of Kingston between the hours of 8 AM to 4 PM Monday through Friday.


6/51

6

They also presume that there is no business reason for Respondent to be

outside the City limits.

The Appellate Division Decision dismissed two (2) Specifications, namely

Specifications 4 and 5 in Charge 2. Subsequently the City formally withdrew

Charge 1, Specifications 36, 46, 47 and 48 as well as Charge 2 Specification 2,

4, and 5.


7/51


8/51

8

York. You submitted a voucher for that work to the Bureau of Fire Safety of the

New York State Department of State for that date.

Specification 5: You received compensation from the City of Kingston

August 18, 2009, a day in which you did not perform services for the City of

Kingston nor use appropriate leave time. On that date you worked as a State of

New York Fire trainer at the New York State Fire Academy at Montour Falls,

New York. You submitted a voucher for that work to the Bureau of Fire Safety of

the New York State Department of State for that date.

Specification 6: You received compensation from the City of Kingston for August 19, 2009 a day in which you did not perform services for the City of

Kingston nor use appropriate leave time. On that day you worked as a State of

New York Fire trainer at the New York State Fire Academy at Montour Falls to

New York. You submitted a voucher for that work to the Bureau Fire safety of


Specification 7: You received compensation from the City of Kingston four




New York. You submitted a voucher for that work to the Bureau of Fire Safety of


Specification 8: You received compensation from the City of Kingston for





9/51

9

New York. You submitted a voucher for that work to the Bureau Fire safety of





New York Fire trainer at the New York State Fire Academy at Montour falls, New

York. You submitted a voucher for that work to the Bureau Fire safety of New

York State Department of State for that date.

Specification 10: You receive compensation from the City of Kingston for August 27, 2009 a day in which you did that perform services for the City of



York. You submitted a voucher for that work to the Bureau Fire safety of the


Specification 11: you receive compensation in the City of Kingston for

January 25, 2010 day in which you did not perform services for the City of


New York Fire trainer at the New York State Fire Academy Montour falls, New




January 26, 2010 a day in which you did not perform services for the City of




10/51

10




January 27, 2010 a day in which you did not perform services for the City of




New York State Department of State for that date. NEXT SPECS.

Specification 14: On or about December 29, 2011 annual timesheets,maintained by you, falsely recording your vacation personal day usage in

accrual for the calendar year 2009 were submitted to the City of Kingston

Comptroller.

Specification 15: On or about January 18, 2012 the annual timesheets,

maintained by you, falsely recording your vacation and personal day usage

accruals for the calendar year 2011 was submitted to the City of Kingston

Comptroller.

Specification 16: On or about January 23, 2012 annual timesheets,

maintained by you, falsely recording your vacation personal day usage and

accruals for the calendar year 2006 2007 submitted to the City of Kingston

Comptroller.

Specification 17: On or about May 21, 2010, and August 23, 2010 you

requested and received compensation in the total sum of $5427.24 for 156

hours of supplemental time to which you were not legally entitled.


11/51

11

Specification 18: On or about June 17, 2011 and August 26, 2011 you

requested and received compensation in the total sum of $5873.40 for 156

hours of supplemental time to which you were not legally entitled.

Specification 19: Since on or about 2006 and continuing until February 2,

2012, you used your City of Kingston issued computer to access, upload, store

and/or view various non-work related, offensive and/or sexually explicit material

from the Internet web or private sources in violation of the City of Kingston

regulations for Internet, email and network use.

Specification 20: Since on or about 2006 and continuing until February,2012, you used your City of Kingston issued computer to access, upload, store

and/or view various non-work related, offensive and/or sexually explicit material

from the Internet web or private sources.

Specification 21: on Friday, January 9, 2009, from approximately 11:06 AM

through approximately 4 PM you are absent from work for the City of Kingston

Fire Department. You did not take time off from your employment as the

Assistant Chief of the City of Kingston Fire Department and received pay for that

day as if you were working.

Specification 22: On Tuesday, February 10, 2009 from approximately 7:23

AM through approximately 4 PM you were absent from work for the City of

Kingston Fire Department. You did not take time off from your employment as

the Assistant Chief of the City of Kingston Fire Department and received pay for

the day as if you are working.

Specification 23: On Tuesday, February 10, 2009, from approximate 7:23

AM through approximately 4 PM you are absent from work for the City of


12/51

12

Kingston Fire Department. Notwithstanding that you did not work those hours

you claimed and received credit for 4.5 hours of compensation time.

Specification 24: On Wednesday, February 11, 2009, from approximately

11.12 A.M. through approximately 3:40 PM you are absent from work for the

City of Kingston Fire Department. You did not take time off from your

employment as the Assistant Chief of the City of Kingston Fire Department and

received pay for that day as if you are working.

Specification 25: On Friday, March 13, 2009 from approximately 1:15 PM

through approximately 1:55 PM you were absent from work for the City ofKingston Fire Department. You did not take time off from your employment as


that day as if you are working.

Specification 26: On Friday, March 27, 2009 from approximately 1:17 PM

through approximately 4 PM you were absent from work for the City of Kingston



day as if you are working.

Specification 27: On Wednesday, April 1, 2009, from approximately 1:35 PM

through approximately 2:57 PM you were absent from work for the City of




Specification 28: On Monday, April 13, 2009 from approximately 12:50 PM

through approximately 2:44 PM you are absent from work for the City of


13/51

13




Specification 29: On Tuesday, April 14, 2009, from approximately 8:47 AM

through approximately 4 PM you were absent from work for the City of Kingston



day as if youre workin g.

Specification 30: On Wednesday, April 15, 2009 from approximately 3:15PM through approximately 3:20 PM you were absent from work for the City of




Specification 31: On Wednesday, May 13, 2009, from approximately 11:25

PM through approximately 4 PM you were absent from work for the City of


the Assistant Chief of the City of Kingston Fire Department Assistant Chief and

received pay for that date as if you are working.

Specification 32: On Friday, July 31, 2009, from approximately 2:54 PM






14/51

14

Specification 33: On Monday, August 3, 2009 from approximately 3:30 PM





Specification 34: On Tuesday, November 17, 2009 from approximate 9:56

AM through approximately 10:20 AM you are absent from work for the City of


the Assistant Chief of the City of Kingston Fire Department and received pay forthat day as if you were working.

Specification 35. On Monday, November 23, 2009, from approximately 9:23

AM through approximately 12:27 PM you were absent from work for the City of



that day as if you were working.

Specification 37: On Friday, January 22, 2010 from approximately 2:12 PM





Specification 38: On Monday, February 22, 2010, from approximate 7:54

AM through approximately 4 PM you were absent from work for the City of

Kingston Fire Department. You did not take time off from employment as the


15/51

15



Specification 39: On Tuesday, March 16, 2010, from approximately 2:36 PM





Specification 40: On Thursday, March 18, 2010 from approximately 8:57 AM

through approximately 4 PM you were absent from work for the City of KingstonFire Department. You did not take time off from your employment as the



Specification 41: on Monday, March 29, 2010, from approximately 3:28 PM

through approximate 4 PM you are absent from work for the City of Kingston



day as if were working.

Specification 42: On Thursday, April 1, 2010, from approximately 8:56 AM

through approximately 11:38 AM you were absent from work for the City of


he Assistant Chief of the City of Kingston Fire Department and received pay for


Specification 43: On Thursday, May 13, 2010 from approximately 8:03 AM

through approximately 12:09 PM you were absent from work from the City of


16/51

16




Specification 44: On Thursday, May 20, 2010 from approximately 10:34 AM





Specification 45: On Wednesday, August 4, 2010 from approximately 9:17 AM through approximately 12:46 PM you were absent from work for the City of




Specification 49: On Thursday, December 23, 2010, from approximate

12:36 PM through approximate 2:39 PM you were absent from work for the City

of Kingston Fire Department. You did not take time off from your employment as


that day is if you were working.

Specification 50: On Wednesday, December 29, 2010 from approximately

9:51 AM through approximately 1:36 PM you were absent from work for the City



that date as if you were working.


17/51

17

Specification 51: On Wednesday, February 9, 2011 from approximately 1:28

PM through approximately 2:49 PM you were absent from work for the City of




Specification 52: On Friday, April 15, 2011, from approximately 9:04 AM

through approximately 10:11 AM you were absent from work to the City of


the Assistant Chief of the City of Kingston Fire Department and received pay forthat day as if you were working.

Specification 53: On Tuesday, May 3, 2011 from approximately 11:54 AM

through approximately 1:32 PM you are absent from work for the City of




Specification 54: On Thursday, September 15, 2011, from approximately

3:29 PM through approximately 3:52 PM you were absent from work for the City




Specification 55: On Wednesday, October 5, 2011, from approximately 8:30

AM through approximately 12:02 PM you are absent from work for the City of



18/51

18



Specification 56: On Tuesday, November 15, 2011, from approximately 2:42

PM through approximately 3:30 PM you were absent from work for the City of




Charge 2 : Inco mpetency/Dere l ic t ion of d uty

Specification 1: As the Assistant Chief and Training Officer of the City ofKingston you failed to arrange for the provision of safety equipment required by

Part 800.7 of Title 12 of the New York Code of Rules and Regulations, to wit:

emergency escape and self rescue ropes, thus endangering the members of the

City of Kingston Fire Department subject the City of Kingston to potential fines

for non compliance with New York State Regulations.

Specification 3: As the Training Officer of the City of Kingston you failed to

train the Firefighters employed by the City of Kingston in the use of escape

ropes and system compounds as required by Part 800.7 (g) of Title 12 of the

New York Code of Rules and Regulations thus endangering the members of the

City of Kingston Fire Department and subjecting the City of Kingston to potential

fines for non-compliance with New York State Regulations.

Specification 6: As Assistant Chief of the Kingston Fire Department you

failed to insure the self-contained breathing apparatuses utilized by individual

members of the Department during fire-fighting activities were properly

calibrated as required by applicable federal, state and local laws, regulations


19/51

19

and standards thereby endangering the members of the City of Kingston Fire

Department and subjecting the City of Kingston to potential fines for non-

compliance with New York Regulations.

Specification 7: As Assistant Chief of the Kingston Fire Department you

fail ed to ensure that turnout gear to be worn by the members, including hats,

coats, pants and boots were replaced in a timely fashion as required by

applicable Federal, State and local laws, regulations and standards thereby

endangering the members of the City of Kingston Fire Department and

subjecting the City of Kingston to potential fines for noncompliance with the NewYork State regulations.

City Argument

Charge 1, Specifications 1-20

The City asserts that the Charges in this instant matter must be considered

in the context of the related scandal which involved former Fire Chief Salzman

and which Respondent is necessarily implicated. The custom at the Fire

Department was for the City Comptroller to receive sheets at the end of each

year setting forth a summary of each employees leave records (T 42). In

December 2011 the former Chief had asked to be paid out for some leave time,

which didnt seem quite right to the Comptroller. It seemed the former Chief was

seeking a payout for accrued time for which the former Chief should have made a

deduction to his leave accruals, but he had not. Accordingly the Comptroller

asked the former Chief for backup information supporting his request for the

payout.


20/51

20

With his suspicions raised, Comptroller Tuey began to look at the former

Chiefs cell phone records which revealed that in many instances the former

Chief was out of New York State, presumably on vacation and had not made any

deductions to his leave accruals. A large number of discrepancies of 10 to 15

days per year surfaced where the former Chief was out of State and had not

made any deductions to his leave accruals. Mr. Tuey then expanded his inquiry

into Respondents leave accruals during which time he received an anonymous

letter (C-15). The letter advised in relevant part that Respondent is being

employed by the State of New York as a Fire instructor at Montour falls and wasnot taking time off the books of the City while doing so, causing concern of

dou ble dipping. Mr. Tueys investigation found evidence that Respondent had

been paid for various forms of leave and made no deductions to his leave

accruals.

Comptroller Tuey referred his findings to the Mayor who in turn brought this

information to the attention of the New York State Comptroller asking that the

matter be investigated. The New York State Comptroller after investigating the

matter submitted a report (J-19) to the City dated November 28, 2012. The City

argues that it is critically important to note that the Comptrollers office found

Respondent had engaged in the exact same type of conduct for which he now

faces disciplinary Charges. The Comptrollers office found that in May 2010

Respondent had been paid for 100 hours of accrued time and had made no

deductions to his leave accruals to account for such payment.

The Comptrollers report also found that responded had been paid $11,300

in 2010 and 2011 for supplemental time to which he was not entitled because his


21/51

21

employment contract did not provi de for such benefit. Respondents explanation

to the Comptroller was that his employment contract:

inadvertently omitted a provision entitling him to supplemental leave.

The City submits that there is no reason to doubt the credibility of the Citys

witnesses in the presentation of this case. The Comptroller testified as to how

this matter surfaced and what was discovered by his investigation. At hearing,

the testimony of Chief Brown and the testimony of Mr. McIntosh to some degree

was supportive of Re spondents position. These witnesses were put on by the

City because the Citys goal is to get to the truth, not to get Respondent at allcosts. The hearing officer must examine the credibility of those called to testify in

Respondents defense in the cont ext of the scandal set forth above. The first

witness Respondent called was James Sottile, the Mayor of Kingston from 2001

through 2011. The City strenuously asserts that the majority of the former

Mayors testimony is on its face patently incredible and i t is not worthy of belief.

The former Mayor essentially testified that although he signed Respondents

employment agreement (J-6), that agreement clearly did not provide for union

benefits, and that the real intent was to provide for union benefits (Cit y Brief,

P-5).

The City points to the existence of a fundamental evidentiary rule known as

the parole evidence rule. This rule provides that the clearly expressed terms of a

written contract cannot be varied by testimony to the effect that the contract

means something different from what it actually says. The purpose of the parole

evidence rule is to protect the importance and integrity of written instruments. If

the parole evidence rule does not exist, carefully planned and clearly written


22/51

22

instruments would be of no value. Accordingly the parole evidence rule requires

in this proceeding that the hearing officer should disregard the former Mayors

testimony to the effect that: the real attempt was to confer all of the union

contract benefits on Mr. Rea is directly contrary to the terms of the written

agreement. Simply Stated, Respondents employment agreement means what it

says that Respondent was not entitled to the union benefits he availed himself of

(City Brief P-6).

The City also argues that the testimony of Respondent witness Ann White is

not worthy of belief. Miss White worked side-by-side with Respondent fordecades and admittedly was a big fan of his. She testified that after Respondent

was let go and Richard Reinhardt was appointed interim Chief, Chief Reinhardt

came out of his office with

a handful of time off and overtime slips and I said oh my, we shouldbring them to the D. A. and he just kind of laughed at me and then heshredded them (T 195-196).

Local media outlets were rampant with reports of the former Chiefs criminal

Charges and Respondents removal. Everyone involved knew that the scandal

related to double dipping on leave accruals. Certainly Chief Reinhardt knew what

was being alleged and it is unbelievable that he would bring up time off and

overtime slips to Miss White and then shred them in front of her. Miss White

clearly lied about this aspect of her testimony and in fact, Chief Reinhardt

emphatically and without hesitation testified that no such thing happened. He

went as far as stating that Miss Whites fabrication was both bull shit and a lie

(City Brief P-7).


23/51

23

This blatant lie throws all of her testimony in the not worthy of belief

category . This also includes her testimony that when Respondent went to

Montour falls he would always flex his time by coming in early. She testified that

Respondent always came in before her however if this were true, how could she

have known that Respondent came in sufficiently early to compensate for the

early departure? She was in no position to know how early he came in. In

examining Miss Whites credibility, the hearing officer is asked to note that Miss

White was to some degree the beneficiary of the lax leave record keeping at the

Fire Department, which further undermines her credibility.Respondent has thus been caught in the act of putting a fantastic lie before

the hearing officer and it must be recognized that if Respondent did so in one

instance, he would do so in other instances. A person is either truthful or is not.

The City submits that Respondents veracity or obvious lack thereof must be

scrutinized within the lens of Miss Whites clearly fabricated story.

On the issue of credibility, the hearing officer must examine Respondents

purported defenses and testimony in a generalized sense. He seemingly has an

answer for everything however when properly scrutinized, the lack of credibility

on his part because painfully apparent (City Brief P-8).

Regarding Charge 1, Specifications 1, 2 and 3 the amended Notice of

Discipline alleges that on three (3) occasions that Respondent was on the State

payroll teaching at the Montour Falls Fire Academy and failed to deduct from his

leave accruals to account for his time. In two of these instances Respondents

pay vouchers failed to show that he worked for two hours (C-1, and C-2) and in

one instance he worked for three hours (C- 3). Respondent testified that on these


24/51

24

occasions he used flex time and/or worked through his lunch break so that he

could leave his City job early drive to Montour falls and teach an evening class. It

is noted that the issues of flex time and working through his lunch break are not

documented in any way. However according to Respondent, it was approved by

the former Chief so that makes it okay. This argument however does not stand

when the overall lack of credibility is taken into consideration (City Brief P-12).

The City notes that Respondent has taken the contrary position in earlier

related proceedings. In one of his lawsuits against the City, Respondent offered

in a sworn Statement an explanation of these three dates by expressly assertingafter completing a full days work with the City of Kingston (C-27). According

to Respondents testimony in this proceeding he did not work a full day for the

City on the three occasions at issue. Instead he stated that he used flex time

and/or worked through his lunch break to abbreviate his day. Respondents

credibility is further injured by these two contrary Statements.

Regarding Charge 1 Specifications 4 13 there remain 10 days for which

Respondent was admittedly teaching at Montour falls for a full business day and

failed to Charge his leave accruals. Regarding Charge 1 Specification 4

Respondent pointed out in his testimony that he did deduct from his leave

accruals four d ays covering 3/3 -6 which would seem to cover the four days he

spent at Montour falls although the City was understandably misled by the

erroneous entry on his timesheets. However there remain nine dates for which he

worked a full day at Montour falls being paid by the State and failing to Charge

his leave accruals. Those dates are August 18, 19 and 22, 2009, August 25, 26

and 27, 2009 and January 25, 26 and 27 2010. This totals almost two (2) full


25/51

25

work weeks, where Respondent was working for the State and failed to deduct

from his leave accruals. Respondent in prior sworn Statements said this was due

to administrative error and at hearing this he testified that he had no explanation

for how this happened.

The City submits that it has fully met its burden of proof relative to these

particular nine dates and that as a consequence of not the ducting from his leave

accruals to cover this time, Respondent intentionally bolstered the number of

these days available to him for use or to be paid for that was the natural and

direct consequence of his failure to deduct from his leave accruals. The lawpresumes that one intends the natural and direct consequences of ones actions.

For example if a person throws a brick at a car window the law infers that

the person throwing the brick intends to break the car window. The law does not

require, in order to prove the elements of intent, that the person throwing the

brick announce: In throwing this brick, I intend to break the car window.

No such pronouncement is requi red to prove the throwers intent because it

is universally accepted that one intends a natural and direct consequences of

ones actions. The City submits that the hearing officer should not buy the

proverbial bridge that Respondent is trying to sell (City Brief, P. 17).

It cannot be overstated that when Respondent was doing this, his Chief with

whom he had work for years was using a common device and scheme to

similarly rip off the City. That is in context in which Respondents claim of

inadvertence must b e considered. The hearing officers only rational conclusion is

that Respondent intentionally failed to deduct at least in these nine instances


26/51

26

from his leave accruals in order to bolster the accruals available to him for use or

payout, as there is no other logical conclusion.

In Charge 1, Specification 17 and 18, Respondent is guilty of taking money

for supplemental leave to which he was not entitled. Specification 17 alleges that

on or about May 21, 2010, and August 23, 2010 Respondent received payment

in the amount of $5427.24 for 156 hours of supplemental time to which he was

not legally entitled. Specification 18 alleges that on or about June 17, 2011 and

August 26, 2011 Respondent received compensation in the total sum of

$5873.40 for 156 hours of supplemental time to which he was not legally entitled.The City has met his burden of proof relative to these two Charges. The evidence

at hearing clearly shows that these two payments were made and accepted by

Respondent. It is also beyond argument that Resp ondents current signed

employment agreement does not give him the benefits of the union contract and

therefore does not permit him to receive supplemental pay (J-6). Respondent is

essentially asking the hearing officer to insert a provision into the actual contract

and thus magically make the contract say something that it clearly does not say.

For the reasons stated previously Mayor Sottiles testimony should be

disregarded as the law does not permit testimony to vary the clearly stated terms

of a writte n contract. Respondents testimony that he did not read the contract

before he signed it is literally unbelievable, especially in light of the clear and

readily visual differences between the draft contract and the actual contract.

The City submits that the timing of events is extremely telling.

Respondents former contract expired May 31, 2009 (J -7-B). The former contract

conferred the all important union benefits to Respondent. By memorandum dated


27/51

27

February 4, 2009 Respondent was provided with the proposed contract for

review and comment (R-2). This memorandum also contained the all important

union benefits. On February 6, 2009 former Chief Salzman and the Mayor

executed Salzmans contract (R -1), which contained the all important union

benefits.

However R espondents renewal contract wasnt signed until September 11,

2009 and it did not contain the all important union benefits (J-6). There was a

nine-month delay between when the draft contract was presented to Respondent

and when the contract was actually signed. Obviously a lot can happen in a nine-month period and Respondent testified he didnt know of any reason for this

prolonged delay. The City submits that something did happen to cause

Respondent to fall into disfavor and that is the explanation for why the all-

important union benefits clause was removed from his contract (City Brief, P.17).

In clear desperation Respondent seeks to contend that he signed the

agreement without reading it and looking at it. The City submits that assertion is

ridiculous on its face especially when you compare (J-7- B) Respondents former

contract with the renewal contract (J -6). The two agreements do not appear

anything alike. The former agreement is in bold type and the renewal agreement

is not. The former agreement clearly has five full paragraphs under the caption

compensation benefits; the renewal contract is only four paragraphs and the fall

differently on the page. The former agreement carries over to a second page; the

renewal contract does not. Despite these differences, Respondent expects the

hearing officer to believe that he didnt even read the contract before he signed it.

(City Brief, P-7)


28/51

28

Respondent Argument: Charge 1: Specifications 1 through 20

Respondent argues that in 2003, he entered into an employment agreement

for his Assistant Fire Chief position with then Mayor James Sottile, which

included a provision stating:

The Assistant Fire Chief will receive all the benefits that are provided tomembers of the Kingston professional Firefighters Association under theCitys contract with the KP FFA and any additional memorandum they mayform. (J-7-B)

There is no dispute that this clause gave Respondent the right to

supplemental pay (holiday pay); and flex time, both of which are provisions

covered by the KPFFA collective bargaining agreement (J-13). There is similarly

no dispute that the same clause was in Fire Chief Salzmans contract and a

similar clause was in the Police Chief contract as well as the in the Assistant

Police Chief contracts (R-1) (Respondent Brief, P-7).

In 2009, when it came time to negotiate a new agreement, then Mayor

Sottile, directed that the Assistant Corporation counsel prepare new agreements

for the Fire Chief Saltzman, Assistant Fire Chief Rea and Assistant police Chief

Keller and Deputy police Chief Wallace that mirrored one another (T169 173).

Respondents draft agreement (R -2) was prepared, reviewed by Mayor Sottile

and provided to Respondent. Thereafter both Mayor Sottile and Respondent

discussed the agreement. Mayor Sottile testified that the only change from the

prior agreement was to standardize the agreements between Chief Salzman and

Respondent adding two more vacation days to Respondents agreement

(T. 164).


29/51

29

There is no dispute that the draft agreement agreed to by Mayor Sottile and

Respondent, included the provision and agreement stating:

The Assistant Chief will receive all benefits as are provided to City

employees under the Citys contract with the KPFFA and any otheradditional memorandum of agreements they m ay form. (R -2).

There is also no dispute that the agreement negotiated for Chief Salzman

for the period 2008 2014 contains the same clause as in the terms of the KPFFA

agreements (R-1). That is the same agreement Mayor Sottile specifically

intended to be standardized with Respondents so that the two agreements

provided for the same level of benefits (T 164).Inexplicably, the final document eliminated that clause from Respondents

agreement only. Neither Mayor Sottile nor Respondent read the final document

before signing it, relying instead on their prior review and agreement to the draft

agreement. Both Respondent and Sottile first became aware of the omission

years later after Respondent was suspended. The City contends in this case that

one consequence of the omission of the KPFFA clause is that Respondent was

not entitled to supplemental pay in 2010 or 2011 even though he has always

received supplemental pay throughout his career. In essence the City contends

that Respondent knowingly agreed to a $5,000 pay cut because he agreed he

would no longer receive supplemental pay (Respondent Brief p-8).

There is no dispute that Respondent and Sottile never discussed or agreed

upon the $5,000 cut in pay and to the contrary, the discussions and agreements

included continuation of the same benefits and the addition of two more vacation

days to his contract. None of the testimony of both Mayor Sottile and Respondent

concerning their intention and agreement was refuted, disputed or contested at


30/51

30

the hearing. Neither did the City call any witnesses from the Corporation

counsels office to explain how the clause was eliminated from the final

agreement.

Whereas here, a party fails to call a witness it controls to contest material

evidence the hearing officer can draw an inference:

that the nonproduction of evidence would naturally have been producedby an honest and therefore fearless claimant permits an inference that itstenor is unfavorable to the parties cause. Pattern jury instructions 1:75, P.112, citing People v. Valerius, 31 NY 2d51.2

A trier of fact may draw the strongest inference that opposing evidence

permits against the witness that fails to testify in a civil proceeding. There are

three preconditions to the application of the inference: 1. The witnesss

knowledge must be material to the issue in dispute; 2. The witness must be

expected to give non-cumulative testimony favorable to the party against whom

the Charge is sought; here the missing witness's presumably with testify in favor

of the City that Mayor Sottle and Respondent knowingly agreed to exclude the

relevant and unilateral clause; and 3. The witness must be available to that party.

There can be no dispute that the evidence of what happened to the clause

both parties intended to be included in the final agreement is a material issue to

this case. There is also no dispute that Mayor Gallo or other Corporation Counsel

employees are witnesses available to the City. Indeed, Mayor Gallo is the person

who signed the Charges in this case. Finally, if Mayor Gallo or some other

Corporation counsel employee had evidence to contradict Sottile or Respondent

surely he would have testified. Under the circumstances Respondent is entitled to

an inference that Gallo and other Corporation counsel employees would have

testified consistent with Sottile and Respondent that the parties, including the


31/51

31

City of Kingston intended that Respondents employment agreement include the

following clause:

The Assistant Fire Chief will receive all benefits as are provided to City

em ployees under the Citys contract with KP FFA and any other additionalmemorandum of agreements they may form.

The Assistant Corporation counsel at the time responsible for preparing the

final documents was Shane Gallo. Shane Gallo is a current Mayor (T172 173).

There is no dispute that Mayor Sottile explicitly approved the draft agreement that

included the language incorporating the benefits from the KPFFA agreement and

directed Mr. Gallo prepare final agreements consistent with that draft (T167 168). There is no dispute that both Respondent and Mayor Sottile believed that

their agreement contained the missing term referencing the KPFFA agreement.

The City did not call Mayor Gallo or anyone else to explain how it came to

be that KPFFA clause was omitted from the final agreement (Respondent Brief

P-10).

The City put in no proof of any kind to dispute the facts surrounding

Respondents employment agreement and declined to call Shane Gallo as a

witness to explain while he did vis-a-vis the removal of the clause from the final

document even though it was intended by the parties that the clause be

continued. There is no dispute that Respondent and the City had a meeting of

the minds that the exact clause at issue was the central and material part of

Responde nts employment agreement. However, unbeknownst to them, the

clause the City does not dispute, which was intended to be in the final written

agreement was not there. The City performed under the agreement by paying

Respondent supplemental benefits in 2010 and 2011 as though the clause was


32/51

32

continued in the agreement. There is no dispute as to the exact language of the

clause.

Applying basic contract law grounded in equitable principles, this is a classic

case of Mutual Mistake both allowing and requiring reformation of the agreement

to include the central clause to conform it to the intent of the parties (mutual

mistake may furnish the basis for reforming an agreement When the

parties. reach an oral agreement and unknown to either, the signed writing

does not express that agreement citing Harris v. Uhlendorf , 24 NY 2d 463, 467-

1969 When there is no mistake about the agreement and the only mistakealleged is in the reduction of that agreement to writing such mistake of the

scrivener, or of either party, no matter how it occurred, may be corrected

(Respondent Brief P-11)

Reformation of the agreement to include the clause at issue is evidently

required because the parties have a real an existing agreement on particular

terms and subsequently find themselves signatories to a writing which does not

accurately reflect that agreement (Harris, 24 NY 2d at 467).

It has been shown by Respondent that in no uncertain terms not only that

mistake or fraud exists but exactly what was agreed to by the parties. This means

that the hearing officer must rule consistent with an employment agreement

reformed to contain the clause all parties intended to be a part of that agreement

(Respondent Brief P-12).

Respondent, as Assistant Fire Chief, had a normal workday of eight hours

approximately from 7:30 AM to 3:30 PM. Respondent, like all Fire Department

personnel, had the right to flex his schedule starting earlier than 7:30 if he


33/51

33

needed to leave earlier than 3:30 PM or starting later and ending later if he

needed a later start time. This is precisely what Respondent did on those

occasions when he needed to leave earlier than 3:30. For many years

Respondent has been a paid State Fire Inspector by New York State. In that

capacity Respondent taught other Firefighters in all manners of Firefighting

techniques. For the most part the training occurred in Montour Falls at the State

run Firefighting Academy. Respondent had explicit approval from the City to

serve in this role (T.175, 238).

It was a point of pride for the City that one of its employees was aninstructor for other Firefighters statewide (T.175-176). As the record shows,

Montour Falls is approximately a 3 hour drive from Kingston. Respondent

would typically travel to that location after a full workday at the Fire Department in

Kingston using his personal vehicle. Respondent would typically leave at 3 PM

after flexing his schedule starting earlier or working through lunch so he could

leave at 3 pm (T.198, 230, 274 279). He would then teach a class at night in

Montour falls after he arrived of between two and four hours.

Respondent had a similar practice of flexing his schedule on those

occasions where he coached softball at Dutchess community college during the

softball season between March and May. Practice typically occurred at 5 or 6 PM

in the evening which time did not conflict with his Kingston Fire workday. When

weekday games did interfere, he would flex his schedule or put in for leave.

It is not Respondents burden to pro ve that on any given day he was

actually working for the City on City business outside the City. Rather, to meet its


34/51

34

burden the City has the obligation to prove that Respondent was paid by the City

and not working for the City (Respondent Brief P-13).

The vast majority of the Charges arise from conduct that occurred in the

notice of discipline prior to February 21, 2011. Pursuant to the 18 th month statute

of limitations on CSL Section 75 any Charge based on conduct occurring more

than 18 months prior to August 21, 2012 (February 21, 2011) is untimely. CSL

Section 75 States:

Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than 18 months after the occurrence

of the alleged incompetency or misconduct complained of and described inthe Charges Provided, however, that such limitations shall not applywhere the incompetency or misconduct complained of and describe theCharges, if proved in the court of appropriate jurisdiction constitute a crime.

Where as here, disciplinary Charges rely on conduct alleged to have

occurred more than 18 months prior to the Charge, the notice of discipline is

procedurally defective and as such, evidence of those Charges cannot be used

and the Charges must be dismissed. The supplemental Charges add incidents all

of which predate February 21, 2011 however because the new supplemental

Charges were dated November 27, 2011 the alleged conduct would have to

occur on or after March 27, 2012 to fit within the 18 months. Not one of the

events added to the supplemental Charges occurred during that timeframe.

To analyze the timeliness of Charges we begin with the premise that the

City has the burden of proof at all Charges and Specifications. The burden of

proving incompetency or misconduct shall be upon the person alleging the same.

The only exception to the 18-month rule is found in CSL Section 75, which

provides that the Charge is untimely, unless the alleged conduct would if proved

in the court of appropriate jurisdiction constitu te a crime. In order for the City to


35/51

35

avail itself of this exception to the 18 th month rule the City has the burden to both

allege and prove conduct, which constitutes a crime. Importantly that includes

proof of intent. Simply put, proof of any crime requires proof of intent, i.e..,

knowing and intentional conduct aimed at a specific outcome. There is not one

piece of evidence that Respondent knew that whatever he was Charged with

doing was a crime, i.e., that he knowingly acted with criminal intent to obtain

some benefit or knowingly falsify records of some kind to benefit himself. Since

there is no evidence of criminal intent, proof of a required element is missing and

as such the City cannot be excused from the 18-month statute of limitations andany of the Charges (Respondent Brief P-16).

The simple truth is that the Mayor Sottile and Respondent understood that

Respondents employment agreement permitted him to receive supplemental pay

just like Fire Chief Salzman and every other Firefighter in Kingston as explained

at pp 7 to 11. That mutual mistake action means that Respondents agreement is

deemed to include the right to receive supplemental pay. Hence it was not

improper for Respondent to receive supplemental pay. But even if it does not,

this undisputed truth also means that the City cannot prove that Respondent

intended to accept supplemental pay knowing it was wrong. That complete

absence of any proof of intent also means that the City cannot avail itself of the

sole exception to the 18-month rule of the statue limitations and accordingly this

Charge must be dismissed.

Finally in his defense of Charge 1 Specifications 1 through 20 Respondent

addresses each of the Charges in his testimony and fully explains his defense on

pages 20 through 31 of his closing Statement.


36/51

36

City Argument Specifications 21 Through 56 :

The City alleges that Respondent is guilty of the Verizon Charges set forth

in Charge one Specifications 21 56 which alleged that on various occasions

between January 9, 2009 and November 15, 2011 Respondent was absent from

his work for the City and did not take time off to account for his time yet still

receiving pay as if he had worked. The City argues that Respondents many

absences from the City on days he should have been working were fully proven

by the Verizon records established in the City own cellular telephone thatRespondent used. Those absences range in duration from a few minutes to as

much as an entire day. The City submits that it is entitled to a presumption that

the Assistant Fire Chief for the City will be in the City during his work days and

hours, unless he can establish he was legitimately elsewhere on City business

this the City argues is just good old-fashioned common sense and logic.

Respondent testified in an effort to explain away these multitudes of

disappearing acts by suggesting he was sometimes outside the limits at hazmat

events and sometimes at mutual aid events. It is important to note that

Respondent was unable to state that he was at either of these events on any of

the specific days set forth in the relevant Specifications. It is also important to

note that Respondent in Section 75 proceedings has the power to subpoena

documents from the City. Accordingly the City argues it would make common

sense that if he could have proven he was out of City limits on the various days

set forth any Specifications attending to hazmat a mutual aid events, that he

wouldve subpoenaed Fire Department records to so proof. The failure to do so


37/51

37

raises the inference that Fire Department records would not have supported his

contentions. Respondent also attempted to explain away his seemingly

inexplicable absences from the City by suggesting that he frequently had to go to

various vendors located outside the City for City business. The hearing officer is

being asked to draw an adverse inference from the fact that Respondent did not

call any of these vendors to testify that he personally frequented their places of

business outside the City. If Respondent really made all of these trips as a

glorified errand boy, it would have been simple to have the vendors testify that he

was at their shops on these occasions.The City also argues that an adverse inference should be drawn because

Respondent was unable to produce a single piece of paper in response to the

City subpoena that would have shown the practice and game schedules of the

two baseball teams he coached for his daughter. It is the Citys view that no such

papers were produced because they would show that on many of the dates

specified he was not on City business but rather pursuing his coaching duties

(City Brief P-20).

The Verizon Charges must be considered in their context as set forth in

Point 1 above, in that Respondents credibility is extremely questionable. He

always put in leave slips when he went to Montour Falls but inexplicably, the time

was not deducted from his leave accruals, for which he often received cash

payouts. On days when he had to leave early for Montour Falls, he would skip his

lunch and/or use unrecorded flex time all with the approval of the now disgraced

former Chief. In 2010 and 2011 he put in for over 10,000 hours of supplemental

pay, even though his employment agreement did not provide for supplemental


38/51

38

pay. Respondent didnt know that his contract no longer provided for

supplemental pay because he didnt read the language before he signed it. None

of his testimony is believable and thus the Verizon Charges need to be

considered in the context of the lack of Respondents credibility.

Respondent Argument Charge One Specifications 21 through 56:

The Specifications from the supplemental calls involved instances of

telephone calls that were alleged to have made or received outside of the City of

Kingston. The testimony at hearing reveals that cellular phone calls register onthe cell tower that processes the call and that the tower may be up to 5 miles

away. This is most relevant here because some phone cell calls made or

received in the City of Kingston are processed on the cellular tower outside of the

City of Kingston. Because the City of Kingston has the burden of proof on all

Charges, in order to sustain a Charge that Respondent receive pay for a day he

was not working for the City must prove that Respondent actually received pay

for a day and that he did not provide services for the City that day. The

undisputed record here reveals that Respondents duties as Assistant Fire Chief

routinely caused him to be working for the City outside the City limits. These

included hazardous material calls, mutual aid calls, attendance at local Fire Chief

meetings, deliveries or pickups at City vendors for Firefighting equipment,

deliveries or pickups of Firefighting apparatus at repair shops, attendance at

Dutchess Community College-based Fire science training Academy and visits to

other training sites inside and outside Ulster County and other Fire related

meetings.


39/51

39

In these proceedings the burden of proof is on the City to prove that

Respondent was paid by the City and was not working for the City during that

time. It is not upon Respondent to prove that on any given day he was actually

working for the City on business outside the City. Receiving or making a cellular

phone call outside the City limits is not enough to meet that burden. This is

particularly true where here, Respondent has testified without contradiction about

the likely reason he was performing City work on each date in question. His

testimony as set forth in the record and enunciated in closing brief for pages 32

through 48 establish that Charges 22 through 26 have not been proven and mustbe dismissed.

Charge 2:

This Charge alleges Incompetency and Dereliction of duty in Respondents

duties as Assistant Chief and training officer by failing to arrange for the

provisions of safety equipment by part 800.7 of title 12 of the New York code of

rules and regulations, to wit: emergency escape and self rescue ropes, thus

endangering the members of the City of Kingston Fire Department and subjecting

the City of Kingston to potential fines for noncompliance with New York State

regulations.

At hearing there were no records submitted to support the specification by

the City. Respondent argues that this Charge should be dismissed as untimely

based on the 18 month rule for CSL Section 75. Respondent argues that the

record shows that Respondent had no authority to purchase any equipment

without explicit approval from the City (T.69 70, 131 132,175). That approval

was consistently denied for escape and self-rescue ropes (T.240 248).


40/51

40

In fact the Citys own witness confirmed t hat the Assistant Chief had no

authority to purchase anything without prior approval (T.69,131 132).

Respondent argues that the current Chief actually sought approval to purchase

this same equipment and was denied only being allowed to purchase equipment

after the City had applied for a grant (T.124, 132, 135). Respondent actually

purchased approximately 15 kits with webs prior to July 2012 for web-based bail

out equipment.

Regarding Specification 3, the City introduced no evidence placing whatever

did or did not occur within the 18 months of the Charge. Regarding the merits ofthe Citys own witness it was established that the Department cannot train on

equipment it did not have and that the City refused to authorize the purchase of

the equipment and that is why the training did not occur (T.135).

Regarding Specification 6, the City introduced no evidence placing whatever

did or did not occur within the 18 months of the Charge. Regarding the merits of

this Specification, there is no dispute that the Fire Chief told Respondent that he

could not perform the calibration each year. Rather, the Department could only

do it every other year (T. 243 245) and that Respondent was without the

financial power to spend money on tests the City did not authorize. The record is

undisputed that Fire Chief Salzman specifically ordered Respondent not to

perform the tests.

Regarding Specification 7, the City introduced no evidence placing

whatever did or did not occur within the 18 months of the Charge. Respondent

argues that this Charge is meritless as State Law requires that turnout gear be

serviceable. The Citys own witness confirmed that all turnout gear was


41/51


42/51

42

Discussion

The City has the burden to prove misconduct and/or incompetence by thepresentation of substantial evidence. See, Sticker v. Town of Hunter , 3 A.D.3d

727 (3d Dept 2004). Substantial evidence, has been defined as:

The concept of substantial evidence, a term of art related to administrativedecision- making. involves a meeting of the quality and quantity of proof;it means such relevant proof as a reasonable person may accept asadequate to support a conclusion or alternate fact. it is less than

preponderance of the evidence, overwhelming evidence or evidence

beyond a reasonable doubt.The substantial evidence standard is met when proof within the whole

record is sufficient to convince and persuade the trier of fact that a conclusion or

alternate fact may reasonably be drawn to establish that the alleged conduct was

committed by the party Charged. Sicker, 3 A.D. 3d at 728.

The City, in the instant matter, has stressed that the case pursued against

Respondent, must be viewed in concert with the scandal of the previous Fire

Chief, who resigned in disgrace and retired after pleading guilty to a

misdemeanor crime of offering a false instrument for filing, in violation of Penal

Law, Section155. 30 (C-17) (City Brief, P-4).

By so pleading, the former Chief admitted that he intentionally submitted

leave records to the City, knowing that they were false and knowing they would

be relied upon, in order to receive a monetary benefit. The City argues that

Respondent did the exact same thing herein.


43/51

43

However, the record shows that extending the wrong doings of the

previous Chief of the Fire Department to the Respondent is not supported by the

facts and proofs in the record and are an unsupported over-reach of those facts.

The first major issue to be dealt with, is the Parole Evidence Rule

regarding the individual contract between the City and Respondent versus

Mutual Error as to the continuation of benefits under the KPFFA collective

bargaining agreement. In the opinion of the undersigned the Substantial and

Convincing evidence supports the Respondents argument that the contract in

effect for the Assistant Chief, is the classic definition of Mutual Mistake.The City strenuously argues that Respondent was no longer entitled to the

benefits of the collective bargaining agreement because the provision that

provided those benefits to Respondent was not included in his individual contract

with the City. The record however shows that the "union benefit clause" was

omitted from Respondent's new contract without the knowledge of either the

former Mayor or Respondent contrary to their agreement and contrary to the

direction the Mayor gave to the assistant corporation counsel in 2009.

The City puts forth the argument that in New York a fundamental

evidentiary rule known as a parole evidence rule exists and that this rule provides

that the clear and expressed terms of a written contract cannot be varied by

testimony to the effect that the contract means something different from what it

actually says. As stated in New York Jurisprudence, 2d Edition:

The general principle known as the parole evidence rule provides thatwhere the parties to a contract have deliberately put their entire agreementto writing in such terms as to import a legal obligation without anyuncertainty as to the object and extent of such engagement, extrinsicevidence of prior or contemporaneous conversations, statements ordeclarations tending to substitute a contract different from that evidenced


44/51

44

by the writing is inadmissible. (58 N.Y. Jur. 2d Edition, statement of paroleevidence rule, Section 556) In general, if a written agreement contains noobvious or latent ambiguities, neither the parties nor their privies maytestify to what the parties meant but fails to state. Where language of theagreement is clear, extrinsic evidence as to the parties intent is

inadmissibleIn other words, evidence of a secret and undisclosed intentis in admissible... (City Brief P-6)

Accordingly, the contract provision that stated:

The assistant Fire Chief will receive all the benefits that are provided tomembers of the Kingston Professional Firefighters Association under theCitys contract with the KPFFA and any additional memorandum they mayform.

was not included in the successor agreement. Therefore the City argues the

provisions providing for either flex time or reschedule time that existed within

the four corners of his previous agreement were no longer benefits that applied

to Respondent. The City also argues that Respondent was no longer eligible to

be paid for supplemental leave time that he was previously entitled to under the

provisions of the union contract.

The City states that Resp ondents former contract expired on May 31,2009 (J-7-b) and that the former contract conferred the all important union

benefits to the Respondent. On February 6, 2009 former Chief Salzman and

the Mayor at that time executed Salzmans contract (R 1) which contained the

union benefits. However Respondents renewal contract was not signed until

September 11, 2009 and it did not contain the all important union benefits

provision (J 6). There was a nine-month delay between when the draft contract

was presented to Respondent and when the actually modified contract was

signed.

The City states that obviously a lot can happen in a nine-month period and

Respondent testified he didnt know of any reason for this prolonged delay. The


45/51

45

City submitted that something did happen to cause Respondent to fall into

disfavor and that this is the explanation for why the all-important union benefits

clause was removed from his contract (City Brief P 7).

However, the record does not include any City witness testimony to the

nego tiations that led to Respondents successor agreement. The City provided

no explanation as to why the clause was removed from the approved contract

draft without any notice to Respondent in 2009 and contrary to the testimony of

either Sottile or Respondent.

There is no disagreement in the record that the firefighters contract clausegave the Respondent the right to supplemental pay, holiday pay, and flex time in

all his previous contracts up to and including the contract dated through 2009.

Mayor Sottile testified that he directed the Assistant Corporation Counsel Shayne

Gallo in 2009 to prepare new agreements for the Fire Chief, the Assistant Fire

Chief the Assistant Police Chief and the Deputy Police Chief that mirrored one

another (T.169 173).

His testimonys is unrefuted. Respondents draft agreement (R 2) was

prepared and reviewed by Mayor Sottile and provided to Respondent for review.

Subsequently they met to discuss the agreement and Mayor Sottile testified that

the only change from the prior agreement was to standardize the agreements

and add two (2) more vacation days to Respondents agreement that was in

effect (T-164). There is no dispute that the draft agreement agreed to by Mayor

Sottile and Respondent included the provision which would continue the benefits

from the KPFFA contract. There is also no dispute that the agreement for Chief

Salzman contained the same clause as of the KPFFA agreements.


46/51

46

Neither Mayor Sottile nor Respondent read the final document before

signing it, relying instead on their prior review, agreement and mutual level of

trust to the draft agreement that included the union benefit provision. Both

Respondent and Sottile testified that they first became aware of the omission

years later after Respondent was suspended in this instant matter.

The City contends in this case, that one consequence of the omission of

the union clause is that Respondent was not entitled to supplemental pay in 2010

or 2011 even though he has always received supplemental pay throughout his

career.Both Respondent and Sottile never discussed or agreed upon the $5,000

cut in pay or had any discussions or agreements other than including a

continuation of the same benefits and the addition of two more vacation days to

his contract.

It is critical to note that that the testimony of former Mayor Sottile and

Respondent concerning their intention was not refuted, disputed or contested at

the hearing. The record also shows that the City called no witnesses from the

Corporation Counsels office to explain how the clause was eliminated from the

final agreement (Respondent Brief P 31).

Respondent correctly argues that where a party fails to call a witness it

controls to contest material evidence, the hearing officer can draw an inference:

that the nonprod uction of evidence would naturally have been produced by an honest and therefore fearless claimant permits aninference that its tenor is unfavorable to the parties cause . Pattern juryinstructions 1:75, P. 112, citing People v. Valerius, 31 NY 2d 51.2

The undersigned has drawn this inference based upon the record which

clearly support it as well. There is no dispute that the evidence of what happened


47/51

47

to the clause the parties intended to be included in the final agreement is a

material issue to this case. Mayor Sottile testified that he explicitly approved the

draft agreement that he had reached with Respondent incorporating the benefits

from the KPFFA agreement and directed then Assistant Corporation Counsel

Gallo to prepare final agreements consistent with that draft (T.167 168). This

testimony is not refuted.

The City put no proof of any kind to dispute this testimony and called no

witness's to explain how and why the clause was removed from the final

document even though it was intended by the parties to those negotiations thatthe clause be continued. The record is clear that there is no dispute that

Respondent and the City had a meeting of the minds that the exact clause at

issue was the central and material part of Respondents employment agreemen t

that was to be continued.

Thus the undersigned has determined that the signing of Respondents

current agreement, was "Mutual Mistake." The omission of the "union benefits

clause" was not apparent to Respondent when it was removed in 2009 and

neither he or Mayor Sottile became aware of its omission until after these

Charges were preferred.

The record also shows that the omission of that clause was not completely

apparent to the City as well, as it operated under the terms of that agreement

and long-standing practice of paying Respondent supplemental benefits in 2010

and 2011 as though the clause was continued in the agreement.


48/51

48

Applying basic contract law grounded in equitable principles, this is a

classic case of "Mutual Mistake" both allowing and requiring reformation of the

agreement to include the central clause to conform it to the intent of the parties:

(Mutual Mistake May furnish the basis for reforming in the agreementWhen the parties... Citing Harris v. Uhlendorf, 24 NY 2d 463, 467- 1969W hen there is no mistake about the agreement and the only mistakealleged is in the reduction of that agreement to writing such mistake of thescrivener, or of either party, no matter how it occurred may be corrected. (Respondent Brief P 11).

Accordingly, reformation of the agreement to include the clause at issue is

evidently required because:

the parties have a real an existing agreement on particularterms and subsequently find themselves signatories to a writingwhich does not accurately reflect tha t agreement (Harris 24 NY2d at 467)

Accordingly, the record reflects that "Mutal Mistake" took place in the

instant case being the removal-omission of the "union benefit clause" resulting in

a change to Respondents successor employment contract from the original

agreement between Mayor Sottile, and Respondent to the successor agreement

which Respondent, in his mistake, unwittingly signed (without reading or

reviewing it) and unaware that the critical "union benefit clause" was omitted.

Therefore, the hearing officer has determined that the "union benefit

clause" should have been continued into the successor agreement. As the record

has shown by evidence submitted and testimony at hearing, there was no

discussion or mutual intent "to bargain the benefits out of the contract" by the

parties at that time. Rather, the omission of the "union benefit clause" amounted

to a breach of the original parties intended and agreed upon contract language.


49/51

49

That being determined, the undersigned will recommend that all Charges

preferred against Respondent must be dismissed as unproven and/or untimely.

Accordingly, they cannot be proven to be illegal as the "union benefit provision"

was, in obvious error, omitted from the final contract.

The record does not support that any of the other charges, including the

Verizon Charges, the Computer Charges and the Charges regarding

Incompetency/ Dereliction of Duty have been proven and it is recommended that

they be dismissed/withdrawn in their entirety as well.


50/51

50

Determination And Recommendation

The undersigned has determined that by Substantial and Convincing

evidence, that the City has not met the required burden of proof and

recommends that the Charges preferred against Respondent herein are to be

dismissed in their entirety.

It has been well established in this record that "Mutual Mistake" exists in

the contract between the City and Respondent. There was no intention by either

the former City Mayor Sottile who represented the City in negotiations for thiscontract, and Respondent to exclude the provision that Mr. Rea is entitled to the

benefits of the KPFFA contract. The testimony of both former Mayor Sottile and

Respondent is unrefuted and has convinced the undersigned that the negotiated

agreement clearly intended to continue all terms of the previous agreement(s)

including 2009 with the only change being the addition of 2 vacation days.

Accordingly, the Charges and Specifications preferred by the City of

Kingston against Respondent Christopher Rea are untimely and/or without merit.

The undersigned recommends that the appointing authority dismiss/withdraw all

Charges and Specifications against Mr. Rea.

While the authority of the undersigned is to render a recommendation and

opinion, it is strongly recommended that Mr. Rea be made whole in all respects

for all losses incurred as a result of these Charges and Specifications and that

his good name should be cleared of any wrongdoing.


51/51

______________________________________________________________

State of New York ) County o f Albany ) ss.:

I, John T. Trela, do hereby affirm my oath as Hearing Officer, that I am the

Individual described herein and who executed this instrument, which is myopinion and recommendation.

Dated: July 18, 2014

_____________________

John T TrelaHearing Officer

chris rea decision

Documents