Legal Document: Bryan Root v. Town Of Greece

On March 01, 2024 a MEMORANDUM OF LAW IN SUPPORT was filed involving a dispute between Bryan Root, and Town Of Greece, for Special Proceedings - CPLR Article 78 in the District Court of Monroe County.

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FILED: MONROE COUNTY CLERK 03/01/2024 11:47 PM INDEX NO. E2024003968
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/01/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt # 3766623

Book Page CIVIL

Return To: No. Pages: 20
MAUREEN T. BASS
2280 East Avenue Instrument: MISCELLANEOUS DOCUMENT
First Floor
Rochester, NY 14610 Control #: 202403040697
Index #: E2024003968

Date: 03/04/2024

Root, Bryan Time: 12:03:47 PM

Town of Greece

Total Fees Paid: $0.00

Employee:

State of New York

MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

JAMIE ROMEO

MONROE COUNTY CLERK

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE

BRYAN ROOT,

Petitioner,
MEMORANDUM OF LAW
v.
Index No. _________________
TOWN OF GREECE,

Respondent.

MEMORANDUM OF LAW IN SUPPORT OF VERIFIED PETITION

ABRAMS FENSTERMAN, LLP
Maureen T. Bass
Alexander J. Fantauzzo
2280 East Ave, First Floor
Rochester, New York 14610
Attorneys for Petitioner

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 1

ARGUMENT .................................................................................................................................. 4

POINT I: PETITIONER WAS NOT ACCUSED OF MISCONDUCT AS DEFINED IN 9
NYCRR 6056.2(h)(1) AT THE TIME HE RESIGNED ................................................................ 5

A. The GPD Did Not Allege that Petitioner had Committed “Misconduct” Before he Resigned.
.................................................................................................................................................... 5

B. The GPD’s After-the-Fact Summary is Irrelevant ................................................................ 8

POINT II: THE INVESTIGATION CONSTITUTED ILLEGAL RETALIATION FOR
WHISTLEBLOWING .................................................................................................................. 10

A. Petitioner Suffered Adverse Personnel Actions ................................................................ 10

1. Denial of Promotions .................................................................................................... 10

2. Suspension and Internal Investigation. ......................................................................... 11

3. Constructive Discharge ................................................................................................. 11

B. Petitioner Disclosed Information to a Governmental Body Regarding an Improper
Governmental Action ................................................................................................................ 12

C. The Adverse Actions Were Retaliatory ............................................................................ 13

POINT III: PETITIONER IS ENTITLED TO MONETARY RELIEF ...................................... 14

CONCLUSION ............................................................................................................................. 14

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TABLE OF AUTHORITIES

Cases

Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81 (2d Cir. 1996) ..................................... 10

Dobson v. Loos, 277 A.D.2d 1013 (4th Dep’t 2000) .................................................................... 10

Fitzgerald v. Henderson, 251 F.3d 345 (2d Cir. 2001)................................................................. 10

Halbrook v. Reichhold Chemicals, Inc., 735 F. Supp. 121 (S.D.N.Y. 1990) ............................... 10

Matter of Krug v. City of Buffalo, 34 N.Y.3d 1094 (2019)............................................................. 4

Matter of Lemma v. Nassau County Police Officer Indem. Bd., 31 N.Y.3d 523 (2018) ................ 4

Matter of Peckham v. Calogero, 12 N.Y.3d 424 (2009)................................................................. 4

Matter of Pell v. Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &
Mamaroneck, Westchester County, 34 N.Y.2d 222 (1974) ........................................................ 4

Morris v. Schroder Capital Mgt. Int’l., 7 N.Y.3d 616 (2006) ...................................................... 10

Stofsky v. Pawling Cent. Sch. Dist., 635 F. Supp. 2d 272 (S.D.N.Y. 2009) ................................. 10

Verdi v. City of New York, 306 F. Supp. 3d 532 (S.D.N.Y. 2018) ............................................... 10

Statutes

CPLR § 7806................................................................................................................................. 13

N.Y. Civil Service Law § 75-b(1)(c) ............................................................................................ 11

N.Y. Civil Service Law § 75-b(1)(d) .............................................................................................. 9

N.Y. Civil Service Law § 75-b(2)(a). ........................................................................................... 11

Regulations

9 NYCRR § 6056.2(h) .................................................................................................................... 5

9 NYCRR § 6056.2(h)(1)(a). .......................................................................................................... 5

9 NYCRR § 6056.2(h)(1)(b). .......................................................................................................... 5

9 NYCRR § 6056.2(h)(1)(f) ........................................................................................................... 6

9 NYCRR § 6056.2(h)(2)(a)(iii) ..................................................................................................... 4

9 NYCRR § 6056.4(d) .................................................................................................................... 8
ii

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9 NYCRR § 6056.2(h)(1) ........................................................................................................... 1, 4

iii

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PRELIMINARY STATEMENT

This is a hybrid Article 78 proceeding and lawsuit pursuant to New York Civil Service

Law § 75-b. Petitioner Bryan Root, a former Sergeant of the Town of Greece Police Department

(“GPD”), submits this memorandum of law in support of his petition pursuant to Article 78 of the

New York Civil Practice Laws and Rules, seeking declaratory, injunctive, and monetary relief

against the respondent Town of Greece (“Respondent” or “Greece”).

Petitioner is challenging Respondent’s determination to invalidate his police officer basic

training certification as arbitrary, capricious, and contrary to law because:

(1) Respondent’s decision to report Petitioner’s cessation of service from the police

department as a “Removal for cause” was arbitrary, capricious, and contrary to law in

that Petitioner was not accused of “misconduct” as defined by 9 NYCRR 6056.2(h)(1)

before he resigned; and

(2) Respondent’s decision to report Petitioner’s cessation of service from the police

department as a “Removal for cause” was arbitrary and capricious in that it was illegal

retaliation for whistleblowing pursuant to New York Civil Service Law § 75-b.

The Respondent’s malicious and petty decision to permanently decertify Petitioner has wreaked

havoc on Petitioner’s life and career.

STATEMENT OF FACTS

Petitioner refers to the accompanying Verified Petition for a complete recitation of the

facts.

Petitioner was born and raised in the Town of Greece. In 2005, Petitioner enlisted in the

United States Marine Corps and was deployed to Afghanistan and Iraq. He came back to his home

in Greece after receiving an honorable discharge and went to work for the GPD on August 30,

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2010. He served his community with honor and distinction, receiving a promotion to Sergeant in

2015 and numerous awards and commendations.

Petitioner’s career path at the GPD was thrown off course in 2021, when the GPD’s Chief

crashed his fleet vehicle days before the vote of the re-election of the Respondent’s Town

Supervisor. The Chief ultimately pleaded guilty to DWAI on December 16, 2021. In the aftermath

of the crash, Respondent lied about the details and Petitioner refused to ignore the cover-up.

Petitioner expressed his belief that government officials had attempted to cover up the details of

the accident to his supervisor and to an investigator appointed by Respondent. After Respondent

failed to properly act, Petitioner was punished for conducting his own “rogue” investigation of the

crash. Threatened by Respondent with a criminal prosecution for the first time in his life, Petitioner

took a 30-day suspension.

On March 17, 2022, Petitioner served a Notice of Claim on Respondent, among others,

pursuant to General Municipal Law § 50-e, alleging violations of New York State Civil Service

Law § 75-b and his constitutional rights, among other claims.

Even though Petitioner was considered an exceptional officer before he became a

whistleblower, immediately after he was passed over for at least a dozen promotions. Finally,

Petitioner’s supervisor Lieutenant Potter told him that the GPD would never promote him because

he was suing the town. In early August 2023, Petitioner met with the new Chief of the GPD,

Michael Wood, to do whatever it took to put the past behind him and be considered for a future

with the GPD where he could continue to contribute to its success. Chief Wood dismissed

Petitioner’s overture, noting that Petitioner was still “suing the” Respondent.

On August 28, 2023, Deputy Chief Aaron Springer sent Petitioner notice of an internal

affairs investigation involving an “anonymous citizen complaint from a person in your prior

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neighborhood about activities in the neighborhood.” The correspondence required Petitioner to

appear for an interview on Thursday, August 31, 2023.

Following the interview, Petitioner was sent a second correspondence from Deputy Chief

Springer, informing him that the GPD’s “primary concern relates to the allegation that you were

at home while you were supposed to be on duty as a Sergeant,” and directing him to answer several

questions in writing. At the same time, Petitioner received written “Suspension Orders” from

Chief Wood, suspending him with pay “pending the resolution of an internal investigation

surrounding allegations of serious misconduct.”

On September 2, 2023, the GPD provided the Petitioner with a proposed resignation and

settlement agreement which contained the following term: “[t]he Internal Affairs investigation

(Case No. 23-EXT-010) will be halted and closed as of the effective date of this Agreement without

any final determination of misconduct.” An additional term stated, “[a]t this stage of the Internal

Investigation, it has not been determined that (Petitioner) has engaged in misconduct as defined in

9 NYCRR 6056.2(h)(1).”

On September 14, 2023, Petitioner received another correspondence reiterating that the

GPD was “investigating an anonymous citizen complaint,” and directing Petitioner to appear for

another interview on September 18, 2023. Petitioner appeared for the interview.

Petitioner never received a notice of disciplinary charges, even though his union’s

collective bargaining agreement (“CBA”) required that “[a] permanent and competitive employee

charged with misconduct or incompetency shall be served with charges and specifications pursuant

to Section 75 of the Civil Service Law.” Petitioner was never Mirandized during his interviews

with internal affairs, even though the CBA specified that, “[i]n all criminal investigations, the

members must be given the Miranda warning prior to any investigation.”

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On October 19, 2023, Petitioner decided to go to work at another department and resigned

from the GPD, realizing that he had no future in the GPD and that the Respondent’s retaliation

would not stop. When he resigned, GPD did not immediately notify the Division of Criminal

Justice Services (“DCJS”) that he was decertified. After his resignation, one or more law

enforcement departments contacted Respondent for access to Petitioner’s personnel files in

connection with pre-employment background checks.

On November 1, 2023, GPD Chief Michael Wood directed his secretary reported to the

New York State Division of Criminal Justice Services that Petitioner had been “removed for

cause” due to “dishonesty, felony offense, and gross misconduct.” Based on this report, DCJS

permanently invalidated Petitioner’s basic training certification. Petitioner requested that DCJS

review the accuracy of the information reported by the GPD. After receiving additional

documentation from the GPD, including a report which had been drafted after Petitioner’s

resignation, DCJS determined that there was “no material inaccuracy” in the GPD’s report and

declined to hold a hearing.

ARGUMENT

An administrative action taken by an agency must not be arbitrary or capricious, or it will

be set aside. Matter of Pell v. Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale

& Mamaroneck, Westchester County, 34 N.Y.2d 222 (1974); Matter of Lemma v. Nassau County

Police Officer Indem. Bd., 31 N.Y.3d 523 (2018); Matter of Krug v. City of Buffalo, 34 N.Y.3d

1094 (2019). As the Court of Appeals stated in Pell, “The arbitrary and capricious test chiefly

‘relates to whether a particular action should have been taken or is justified … and whether the

administrative action is without foundation in fact.” Pell, 34 N.Y.2d at 231.

“An action is arbitrary and capricious when it is taken without sound basis in reason or

regard to the facts.” Matter of Peckham v. Calogero, 12 N.Y.3d 424 (2009).
4

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POINT I: PETITIONER WAS NOT ACCUSED OF MISCONDUCT AS DEFINED IN 9
NYCRR 6056.2(H)(1) AT THE TIME HE RESIGNED

Respondent submitted that Petitioner’s resignation was a “removal for cause” under DCJS

regulations 9 NYCRR § 6056.2(h)(2)(a)(iii), 1 citing the reasons as “Dishonesty,” “Felony

offense,” and “Gross Misconduct,” as defined in 9 NYCRR § 6056.2(h)(1). Because the actions

Petitioner was accused of at the time of his resignation do not fall under those definitions, the de-

certification should be reversed and the GPD should be required to classify Petitioner’s cessation

from service as a “resignation.”

A. The GPD Did Not Allege that Petitioner had Committed “Misconduct” Before he
Resigned.

A “Removal for cause” is defined as “an interruption in service … subsequent to and in

connection with allegations of misconduct as defined in paragraph (1) of this subdivision which

are known or should be known to the employer or any officer or employee of the employer agency

or is being investigated by another agency or entity.” 9 NYCRR § 6056.2(h) (emphasis added).

The regulations do not further define “allegations.” Black’s Law Dictionary defines an

“allegation” as “the assertion, declaration, or statement of a party to an action, made in a pleading,

setting out what he expects to prove.” More colloquially, Merriam-Webster defines “allegation”

as “a positive assertion especially of misconduct.” Accordingly, the plain language of the

regulation requires a positive statement or assertion of the purported “misconduct,” not just a mere

suspicion that is never expressed or revealed. Thus, in order for Petitioner’s resignation to be

considered a “removal for cause,” he must have resigned after the GPD positively stated or asserted

that he had committed “misconduct” as defined by the regulations. That did not occur.

1
DCJS later corrected the categorization of interruption from service to 9 NYCRR § 6056.2(h)(2)(b), separation “by
an employee’s resignation or retirement.”

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In its report to DCJS, the GPD cited three types of “misconduct” as defined by the

regulations: dishonesty, felony offense, and gross misconduct. The DCJS regulations define

“Dishonesty” as:

i. False statements or conduct that subverts or attempts to subvert the
i. Employment application process; or
ii. State certification process defined in General Municipal Law § 209-q.
ii. Conduct involving dishonesty, fraud, deceit, or misrepresentation.

9 NYCRR § 6056.2(h)(1)(b).

“Felony offense” is defined as “Criminal activity, whether or not criminally charged or

prosecuted, regardless of where the act took place if said conduct would constitute an offense in

New York, which is defined as: i. any felony offense.” 9 NYCRR § 6056.2(h)(1)(a).

“Gross misconduct” is defined as “an act which a department determines does not comply

with practices generally followed in the profession, current teaching at public safety training

facilities, and technical reports and literature relevant to the field of law enforcement.” 9 NYCRR

§ 6056.2(h)(1)(f).

At the time of his resignation, Petitioner had received only three intra-departmental

correspondences (“IDC”) from the GPD notifying him of the subject matter of the internal

investigation, dated August 28, 2023, August 31, 2023, and September 14, 2023, respectively. The

August 28 IDC informed the Petitioner that the GPD was “investigating an anonymous citizen

complaint from a person in your prior neighborhood about activities in the neighborhood.” It made

no mention of dishonesty, gross misconduct, or a felony offense. It made no mention of any laws,

policies, procedures, or regulations Petitioner was accused or suspected of violating. It did not

even state that the Petitioner was a potential target of the investigation, only that the anonymous

citizen lived in his old neighborhood.

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The August 31 IDC advised that GPD’s “primary concern relates to the allegation that you

were at your home while you were supposed to be on duty as a Sergeant.” It made no reference to

gross misconduct or a felony offense, and mentioned dishonesty only in relation to a warning to

answer questions truthfully. It made no mention of any laws, policies, procedures, or regulations

Petitioner was suspected of or accused of violating. The suspension orders Petitioner received on

August 31, 2023 made vague reference to “allegations of serious 2 misconduct” but did not go into

additional detail.

The September 14 IDC reiterated that the investigation was about “an anonymous citizen

complaint from a person in your prior neighborhood about activities in the neighborhood.” It

further stated that “the existence of and details pertaining to” the investigation had been disclosed

to a Greece citizen, but did not allege that Petitioner had done so. It made no reference to gross

misconduct, a felony offense, or dishonesty. It made no mention of any laws, policies, procedures,

or regulations Petitioner was suspected of or accused of violating.

Beyond these three IDCs and the suspension orders, the Petitioner did not receive

additional written communications from the GPD informing him what he was accused of or what

the subject matter of the investigation was.

On September 2, 2023, the GPD provided the Petitioner with a proposed resignation and

settlement agreement which contained the following term: “[t]he Internal Affairs investigation

(Case No. 23-EXT-010) will be halted and closed as of the effective date of this Agreement without

any final determination of misconduct.” An additional term stated, “[a]t this stage of the Internal

Investigation, it has not been determined that Employee has engaged in misconduct as defined in

9 NYCRR 6056.2(h)(1).”

2
Notably, the suspension orders did not use the term “gross” misconduct.

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The CBA which governed Petitioner’s employment with the Respondent required that “[a]

permanent and competitive employee charged with misconduct or incompetency shall be served

with charges and specifications pursuant to Section 75 of the Civil Service Law.” Petitioner was

not served with such charges. The CBA also required that, in the context of internal investigations,

“[i]n all criminal investigation, the members must be given the Miranda warning prior to any

investigation.” Petitioner was not given a Miranda warning during the investigation, reflecting the

arbitrary and capricious nature of GPD’s belated claim that Petitioner was facing “allegations” of

a felony offense prior to his resignation.

Based on the above communications from the GPD – and the lack of any subsequent

communications to the contrary – it cannot be argued that Petitioner was faced with “allegations

of misconduct” as defined by the regulations at the time he resigned on October 19, 2023.

B. The GPD’s After-the-Fact Summary is Irrelevant

The GPD was required to:

immediately notify [DCJS] the effective date [a police] officer ceases to serve and
the reason for such, which shall include one of the following:
1. leave of absence;
2. resignation;
3. removal;
4. removal for cause as defined in 6056.2(h) of this Part;
5. removal during a probationary period as defined in 6056.2(i) of this Part.

9 NYCRR § 6056.4(d). Petitioner resigned on October 19, 2023. Although the GPD was required

to “immediately” report this separation, it waited until November 1, 2023 to contact DCJS – only

after faced with the realization that other departments wanted to hire the Petitioner. Much like this

purported investigation started about lunch breaks at a residence sold months earlier, astonishingly,

GPD continued to devote extraordinary resources to continue to investigate its former employee,

drafting an exhaustive 20-page “summary” report dated October 30, 2023.

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While that post-resignation investigation and October 30, 2023 summary were later used

to support GPD’s categorization of Petitioner’s resignation as a “removal for cause,” the report,

and much of the alleged investigation contained therein, was never presented to Petitioner before

he resigned. It was not even drafted at the time he resigned. In addition to containing self-serving

conclusory allegations – many of which Petitioner was never asked about – the summary contained

additional allegations regarding email usage and outside employment which the GPD had not

previously stated or asserted. As far as Petitioner knew at the time he resigned, the “allegations”

were limited to those stated in the August and September IDCs and there had been no finding of

“misconduct.” Accordingly, this after-the-fact justification cannot be considered as the basis for

classifying Petitioner’s cessation from service as a “removal for cause.”

The GPD based its report to DCJS of a “removal for cause” on seemingly internal

“suspicions” and “thoughts” that it had never stated, alleged or disclosed to Petitioner before he

resigned. This is plainly contrary to the governing regulations, which define a removal for cause

as an interruption in service subsequent to allegations of misconduct. Accordingly, GPD’s report

to DCJS was arbitrary and capricious in that it lacked a sufficient factual basis and was made

without a sound basis in reason. Indeed, the GPD’s conduct and communications to Petitioner –

including a proffered agreement which stated that there had been no determination of

“misconduct” as defined in the regulation – arguably induced Petitioner to believe that he could

safely resign and pursue other opportunities without endangering his certification. The Court

should not permit this malicious “bait and switch,” but should hold that the GPD’s actions were

arbitrary and capricious and reverse the decertification.

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POINT II: THE INVESTIGATION CONSTITUTED ILLEGAL RETALIATION FOR
WHISTLEBLOWING

The GPD’s actions in (1) conducting the internal investigation and (2) reporting

Petitioner’s resignation as a “removal for cause” were taken in retaliation for Petitioner’s reporting

a suspected cover-up of a crime by high-ranking members of the Respondent’s administration.

This not only makes their actions arbitrary and capricious and subject to reversal on an Article 78,

but also violates Civil Service Law § 75-b.

To assert a claim under §75-b, a plaintiff must allege: (1) an adverse personnel
action; (2) disclosure of information to a governmental body (a) regarding a
violation of a law, rule, or regulation that endangers public health or safety, or (b)
which [ ]he reasonably believes constitutes an improper governmental action; and
(3) a causal connection between the disclosure and the adverse personnel action.

Maher v. Town of Stony Point, 16-CV-607 (KMK), 2018 WL 4759786, at *10 (S.D.N.Y. Sept. 29,

2018) (internal citation omitted) (alteration in original). All three elements are proved herein.

A. Petitioner Suffered Adverse Personnel Actions

A “personnel action” is defined as “an action affecting compensation, appointment,

promotion, transfer, assignment, reassignment, reinstatement or evaluation of performance.” N.Y.

Civil Service Law § 75-b(1)(d). Petitioner suffered several adverse employment actions, namely

(1) denial of promotions; (2) the suspension and internal investigation, and (3) his constructive

discharge.

1. Denial of Promotions

Petitioner was passed over for a promotion he was qualified for on March 30, 2023, April

20, 2023, and June 26, 2023. 3 Actions affecting promotions are explicitly included in the

definition of “personnel action” in the Civil Service Law.

3
Petitioner was also passed over for earlier promotions outside of the statute of limitations.

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2. Suspension and Internal Investigation.

The suspension and accompanying internal investigation affected Petitioner’s assignment,

in that he was prevented from working and fulfilling any of his regular duties and responsibilities.

The Fourth Department has held that a “retaliatory relegation of plaintiff to virtually nonexistent

duties” qualifies as an adverse personnel action under Civil Service Law § 75-b. Dobson v. Loos,

277 A.D.2d 1013 (4th Dep’t 2000); see also Verdi v. City of New York, 306 F. Supp. 3d 532, 551

(S.D.N.Y. 2018). As the Petitioner’s duties were taken away entirely, this clearly constitutes an

adverse personnel action.

3. Constructive Discharge

The GPD’s unrelenting retaliation against Petitioner, including repeatedly passing him

over for promotions, targeting him for investigations, and direct communications from supervisors

that he would never advance in the GPD because of his Notice of Claim, caused Petitioner to

believe that he had no future in the GPD and needed to resign. Petitioner was constructively

discharged, which plainly constitutes an adverse employment action. Stofsky v. Pawling Cent.

Sch. Dist., 635 F. Supp. 2d 272, 299 (S.D.N.Y. 2009) (citing Fitzgerald v. Henderson, 251 F.3d

345, 357 (2d Cir. 2001)).

“Constructive discharge occurs when the employer, rather than acting directly, deliberately

makes an employee's working conditions so intolerable that the employee is forced into an

involuntary resignation.” Morris v. Schroder Capital Mgt. Int’l., 7 N.Y.3d 616, 621 (2006);

Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996). “[d]ashing reasonable

expectations of career advancement may create intolerable working conditions that rise to the level

of constructive discharge.” Halbrook v. Reichhold Chemicals, Inc., 735 F. Supp. 121, 127

(S.D.N.Y. 1990).

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It was repeatedly made clear to Petitioner, both by deed and word, that he would never

advance in the GPD. The last straw for Petitioner was being faced with an internal investigation,

purportedly based on an anonymous letter, and a suspension. Any reasonable employee in that

scenario would recognize that not only was there no hope of advancement, but that the employer

would continue to retaliate. Accordingly, Petitioner was left with no choice but to resign.

B. Petitioner Disclosed Information to a Governmental Body Regarding an
Improper Governmental Action

Civil Service Law § 75-b defines “Governmental body” as

(i) an officer, employee, agency, department, division, bureau, board, commission,
council, authority or other body of a public employer, (ii) employee, committee,
member, or commission of the legislative branch of government, (iii) a
representative, member or employee of a legislative body of a county, town, village
or any other political subdivision or civil division of the state, (iv) a law
enforcement agency or any member or employee of a law enforcement agency, or
(v) the judiciary or any employee of the judiciary.

N.Y. Civil Service Law § 75-b(1)(c). “Improper governmental action” means:

any action by a public employer or employee, or an agent of such employer or
employee, which is undertaken in the performance of such agent’s official duties,
whether or not such action is within the scope of his employment, and which is in
violation of any federal, state or local law, rule or regulation.

N.Y. Civil Service Law § 75-b(2)(a).

On at least three separate occasions, Petitioner reported improper governmental action.

First, a few days after the GPD Chief’s car crash, the Petitioner requested a meeting with Acting

Deputy Chief Ryan Parina. During the meeting, the Petitioner told the Acting Deputy Chief that

he believed the Respondent was executing a cover-up.

Second, Petitioner was interviewed by an internal investigator appointed by the

Respondent, Joseph Morabito, who was tasked with investigating the GPD Chief’s car crash and

the GPD’s response to the same. During that interview, the Petitioner stated that he believed there

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had been an attempt by high-ranking members of Respondent to cover up the crash, and that it was

his duty as a police officer and as a citizen to prevent and expose that cover-up.

Finally, on or about March 17, 2022, the Petitioner filed a Notice of Claim, with the

Respondent alleging that he had been retaliated against for whistleblowing, as well as alleging that

the Town Attorney, Karlee Bolaños, threatened him with criminal charges to induce him to accept

a suspension.

C. The Adverse Actions Were Retaliatory

The GPD’s adverse personnel actions taken against Petitioner were in retaliation for his

reports to supervisors and investigators that he believed government officials had orchestrated an

attempted cover-up and for his Notice of Claim against the Respondent.

In the space of only five years, the Petitioner made the rank of Sergeant at the GPD.

Following his opposition to the cover-up in 2021, the Petitioner was repeatedly passed over for

promotions. After one such instance of being denied a promotion, in May 2023, the Petitioner was

told by his supervisor, Lieutenant Potter, that “they [the administration] said they won’t promote

you while you’re suing the town, but I’ll never repeat that.”

In early August 2023, Petitioner requested a meeting with Chief Wood to discuss how he

could improve his chances of being promoted to Lieutenant. Chief Wood expressed that it was

difficult to promote Petitioner while he was maintaining an action against the Town of Greece,

apparently referring to Mr. Root’s Notice of Claim. Only a few weeks later, the GPD hauled

Petitioner in for an internal investigation and suspended him.

Finally, after the Petitioner resigned, on October 31, 2023, Chief Wood sent an e-mail to

the entire GPD which contained the following warning: “Don’t conduct rogue investigations of

your colleagues.” This was a clear reference to Petitioner’s efforts to expose the attempted cover-

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up of the car crash in 2021, and an admission that the GPD’s grudge against Petitioner stemmed

directly from his whis

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March 01, 2024

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March 01, 2024

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