Wednesday, July 25, 2007


Today's Post-Journal (or in keeping with the title, P-J) has a follow up article on the ongoing dismissal proceedings being brought by the City/JPD against Sgt. Smeraldo. My uninformed opinion from reading the article is that I can see it going either way. Of course, the Jamestown Lawyer is not privy to all of what has been offered and is merely a spectator. The mixed message of the officer being highly rated in evaluations, yet criticized in the comments, seems like a legal morass that the finder of fact will need to sort out. For instance, are all officers given comments? Are all officers given the standard form? If Servis, Gadra and Rader, for example (and completely namedropping in hopes of avoiding that next ticket) have "above average" ratings but no comments, it could be seen as diluting the value of the comment section on Mr. Smeraldo as "optional" and not part of the official evaluation.

The article in the P-J reports the proceeding as an "Article 75" proceeding. Usually when "article" is used, my mind first goes to the CPLR, which is the Civil Practice Law and Rules. All that lawyerly stuff about timelines for serving papers and how they have to be delivered and proper notice format? Most of that is CPLR stuff. Article 75 of the CPLR concerns arbitration, which may be relevant in this case as Mr. Rinaldo, the hearing officer, is identified as a "Buffalo arbitrator." Arbitration, as frequently discussed in sports, is when a decision is rendered by a "hired judge." Instead of filing an action, getting on the calendar, etc., the parties will agree in advance to submit evidence and appear before a neutral party. This person has authority via the parties agreeing to appear. Some arbitration is binding, like an order of the court, where other non-binding arbitration can still be followed with a court case if a party is entirely unsatisfied by the decision.

However, Section 75 of the Civil Service Law is "Removal and other disciplinary action." This section identifies the various classes of public employees to which it applies and gives the procedure for notice and a deadline for starting the action. This section also seems relevant to the ongoing matter.

Whatever the nature of the case, I would expect an appeal to follow (if the rules of arbitration allow) based on the admissibility of evidence that was allowed/barred.


Post a Comment

<< Home