Judge Throws Out New Castle Police Lt. Suit vs. Town, Chief & Gerrard

A state supreme court judge has dismissed a case against the town, Police Chief Charles Ferry and former Supervisor Barbara Gerrard.

Simmons filed the suit last summer, claiming that Ferry stripped him of roles as head of internal affairs and patrol commander in retaliation for investigating an alleged intoxication of Sgt. James Carroll in November 2010. Carroll was accused of showing up to work drunk and then going on patrol.

In the suit, Simmons was seeking restoration to his prior work status, referral of the Carroll investigation to the Westchester County District Attorney's office or the state attorney general, and reimbursement from his legal expenses.

In a 13-page finding, issued Thursday, Judge Barbara Zambelli wrote that Simmons does not have legal standing to advance the disciplinary matter involving the sergeant. She also argues that any sort of "injury" he is claiming in the suit involving the disciplinary finding is different from how the general public would be impacted, and that Simmons did not exercise the proper remediates for disputing his job tasks change.

"In any event, even if the disciplinary matter were properly before this court, it cannot be said that Ferry's actions lacked a rational basis given the substance of petitioner's own report regarding the incident and the findings and recommendations he himself made therein," Zambelli wrote.

Zambelli does not mention Carroll by name but his identity was revealed in documents submitted as part of the case's legal proceedings. Those documents, including an affidavit by Simmons that was and other local media, were ordered by Zambelli to be sealed because of the nature of the discipinary proceeding and investigation.

Zambelli also argued that Simmons had not exhausted all of his administrative remedies, with regards to his dispute that his post changes were retaliatory. In this town's motion to dismiss, its arguement was that Simmons, coveraged under the police union contract, had not used administrative options given, such as using a grievance hearing or going to arbitration.

Simmons' side claimed that bringing a grievance would not have been viable because, claiming that a police benevolent association attorney informed him that Ferry, also a defendent, had discretion under the union contract in making personnel changes. In essence, he argued that Ferry, as well as Gerrard and the town board were he to go to them with a dispute, had conflicts of interest; Ferry because his alleged involvement and the board members because they appointed Ferry. Town officials would handle a grievance, which could be appealed to arbitration.

Zambelli takes issue with Simmons' claim.

"Petitioner has failed to demonstrate that exhausting his administrative remedies under the CBA [police department's collective bargaining agreement] would be futile, or that he would be irreparably harmed," she wrote. Zambelli went on to write that Simmons' assumption that Gerrard and her fellow board members would have sided with Ferry in such a scenario is "conclusory and speculative."

The judge also disagrees with Simmons' assertion that an arbitration would not have been effective.

The town filed a motion to dismiss the case, arguing that the personnel involved was disciplined and that Simmons doesn't have a role, technically, in making such as determination. In an interview last fall, John Walsh, who is an attorney for the town, contended that Simmons' new role, as special services division commander, is a "lateral" move, and was the same post that Ferry held before becoming chief. In its response, the town also noted that Simmons did not lose salary or benefits with the change.

Simmons' side responded to the town's assertions, arguing that Carroll was given a lenient disciplinary outcome - the claim was that he got a reprimand letter - and that his new post resulted in a diminished role in police work.

In an August affidavit, Simmon wrote, "At great personal expense, and at great risk to my twenty three (23) years career with the NCPD, I commenced suit against the Respondents to enlist this Court's help in correcting institutionalized corruption in my own police department, a department that I love."

John Walsh, the town's attorney handling the case, said the following about the town's reaction: "They're pleased. They have faith in Chief Ferry and his actions were deemed appropriate by the court."

Simmons could not be reached for comment, nor could his attorney, Craig Penn. Legally, they have the right to appeal the dismissal.

A copy of Zambelli's decision is attached as a PDF file.