The removal of New Castle police Lt. Marc Simmons from his previous situation represented a loss of authority harms his career, his attorney claims.
It is a "stopping career in its tracks type of thing," said Craig Penn.
Simmons, a 23-year veteran of the police department, claims that he was stripped of two roles, head of internal affairs and as patrol commander, in retaliation for investigating the conduct of a sergeant, James Carroll, who is alleged to have been intoxicated while at work in early November 2010.
In June, Simmons filed suit against the town, Supervisor Barbara Gerrard and Police Chief Charles Ferry. He is seeking reinstatement to his prior posts and to have his internal investigation of Carroll turned over to either the Westchester County District Attorney or the New York State Attorney General. He is also seeking at least $100,000 to cover legal costs.
In his civil complaint, Simmons states that he was called into work by Sgt. Keith Dworkin because of the matter. According to the complaint, Dworkin allegedly told Simmons that Carroll showed up to his shift while intoxicated and went out on patrol. Simmons, according to his complaint, relayed through Dworkin on the phone that Carroll had to get off the road and return to headquarters. By the time Simmons came to the station, the complaint states, Carroll had switched shifts with Dworkin and was off duty.
In an early affidavit, Simmons states that weeks after the matter, Ferry removed him from his positions and took over the investigative work himself. The moves allegedly started in December, with Simmons first noticing a change when he returned from time off to discover that he lost access to investigative information on the police department's computer network.
"Chief Ferry's retaliatory removal of my positions has tacitly made it clear to me and to members of our department that conduct like Sergeant Carroll's will be overlooked, and that reporting illegal and dangerous conduct of another police officer who is friendly with Chief Ferry will be not," he stated in his first affidavit, made around the time of the complaint.
In a second affidavit that was signed in August, Simmons stated about the change, "I went from being a highly-decorated police veteran at the top of my game - a cop's cop - to having no direct involvement in actual police work."
But John Walsh, who is the town's legal counsel, says that Simmons' job change - his new role is special services division commander - disputes the notion that the post change was retaliatory. Walsh described the change as "a lateral move." He also stated that the new post is one that Ferry held before he became chief.
Walsh also stated that the personnel in question for the investigation was disciplined.
When asked about the change in Simmons' responsibility and the nature of the change, Penn's response was that "everyone rises to positions in different ways." He also said that Simmons was not transfered to the new role as a reward.
There is no change to Simmons' rank, as he is still a lieutenant, or his salary.
Penn praised Simmons for his work in his old positions, calling him "a cop's cop," and noted his work during his time, including his role in the Perez-Olivo case (click here for a 2009 Dateline story, which included an interview with Simmons about it).
Penn also described the possibility of retaliation as having "a chilling effect" on officers doing the job right.
Walsh, when asked to respond, said "it's so chilling that he brought this lawsuit?"
Talking about Simmons' change in duties, in a follow up interview, Walsh stated that as you get promoted, jobs take on more administrative work and less police work.
In Dismissal Motion, Town Gives Its Side of the Story, Which Simmons Responds To
In a motion to dismiss document filed by the town in July, counsel offers several points to the contrary of Simmons' account, arguing that Ferry's handling of the matter was fine and that there was no retaliation.
The town's counsel offers several statements, including that Simmons never officially held the investigative post, although the patrol post allowed him to perform investigative duties and the chief had the discretion to assign him internal investigative work.
It was also stated that Ferry allowed Simmons to do the investigation before taking it up himself and that Simmons determined the officer - Carroll is not named in the document - was not intoxicated and could go home. Only one colleague believed that intoxication was a factor.
From a legal standpoint, the town argues that Simmons' change in authority was not retaliatory, with his lateral change in position being a reason. The motion to dismiss also states that Simmons did not exhaust venues within the police department's collective bargaining agreement for personnel matters.
Simmons gave his own response in the August affidavit.
In defending his decision to go to court, Simmons stated that going through the process of the Police Benevolent Association would not have helped because, under the union contract, Ferry had discretion in making personnel changes. He also believes that Gerrard or the town board would not be impartial in the matter, in ruling out making a direct appeal. Finally, he argues that making an arbitration appeal would not have helped, stating that it would only be available after appeals to Ferry and the town board, and that the arbitrator would lack authority to refer Ferry's conduct to the district attorney's office.
"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," Simmons stated in his August affidavit.
Simmons, responding to the town's assertion that the lateral move was not retaliatory, described his new job as involving data entry, ordering police cars and getting software to work properly.
He also stated that Carroll's term of discipline, including a reprimand, was too lenient, a temporary term that would disappear after 12 months and no requirement for substance abuse treatment. In addition, Simmons claimed that several police officers had anecdotes in which they believed Carroll to be showing behavior consistent with being intoxicated.
While Simmons seeks to prevent dismissal of the case, his counsel, in a September request, is also requesting an evidentiary hearing, oral argument of the matter and a sur reply to allow for more rebuttal of the motion to dismiss.
Among the items that Simmons wants to present include rebuttals to the town's version of events last November concerning what happened with Simmons during the matter involving Carroll, what legal role the attorney general's office could take and that Simmons was head of internal affairs investigations.
Editor's Note: Copies of Simmons' original civil complaint, the town's motion to dismiss the case, and responses from Simmons and Penn, are attached as PDF files.