(Editor’s note: Updates with input from the mayor.)
It’s been two and a half years since former Kingston fire chief Chris Rea was suspended without pay. In that time, Mayor Shayne Gallo has repeatedly accused him of misdeeds ranging from keeping pornography on a work computer to charging the city for days he did not work to failing to adequately safeguard the lives of his subordinates.
But last week an independent hearing officer appointed to weigh the allegations against Rea cleared him of all charges. In the decision, dated July 18, hearing officer John T. Trela wrote, “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.”
The decision brings Rea’s case one step closer to a conclusion that could leave the city liable for hundreds of thousands of dollars in back pay and legal fees. Trela’s decision is simply a recommendation — Gallo could ignore it and fire Rea anyway. But Rea’s attorney, Ronald Dunn, and former mayor James Sottile said a firing would be difficult to justify, legally and morally, given the facts and the record and questions about Gallo’s credibility that were raised during the hearing.
“He needs to follow the decision of the hearing officer,” said Sottile. “If he ignores a process, a process where witnesses testified and documents were presented, it would be a mockery of justice.”
The mayor, however, sees it differently. On Tuesday evening, Gallo broke his six months of refusing to respond to this newspaper’s requests for comment to vigorously criticize Trela’s decision.
“It’s misplaced, the reasoning is without merit, it doesn’t support the facts, there’s no nexus between [Trela’s] finding and the actual charges … it’s really perplexing that he could come to this result … without any reasoning as to why he dismissed the charges that clearly the public is concerned about — the allegations of double-dipping, the allegations of taking time without a record or accrual slips submitted, all supported by state comptroller’s findings which were all [placed] into evidence.”
Rea was suspended without pay in February 2012, one month after Gallo took office and two weeks after he was appointed chief. Rea’s promotion followed the resignation of Fire Chief Rick Salzmann over allegations that he forged payroll records to obtain vacation reimbursement that he was not entitled to. Salzmann would later plead guilty to misdemeanor charges related to the forgery. According to Trela, City Comptroller John Tuey was alerted to possible misconduct by Rea via an anonymous letter signed by “A concerned area resident and local volunteer firefighter.” Tuey passed the allegations, which involved Rea billing the city for time when he was supposedly hours away teaching at the New York State Fire Academy in Montour Falls, on to Gallo who in turn alerted the state Comptrollers Office. A comptroller’s audit of the fire department later found that Rea had been paid for 100 hours of accrued time when he was not in fact working.
Rea’s suspension touched off a legal battle that remains before the state Supreme Court. Initially, Rea brought a legal action pressing for a formal presentation of the charges against him and a civil service hearing. Gallo and the city’s top lawyer, Corporation Counsel Andrew Zweben, argued that Rea was not entitled to the hearing because he had waited too long to bring the action. Courts ultimately ruled for Rea. Further legal action regarding the propriety of the charges and the circumstances of Rea’s suspension dragged on for nearly two years after the charges were first laid. Finally, between December 2013 and April 2014, Trela heard testimony and examined documents related to 56 specifications of payroll fraud and four specifications of dereliction of duty.
An altered draft contract, by a future mayor
Among the most serious allegations against Rea was that he allegedly requested and received more than $11,000 in “supplemental pay” in 2010 and 2011 to which he was not entitled. Deliberations on the issue focused on a key difference between a draft contract drawn up agreed on by Rea and Sottile back in February 2009 and a final version of the agreement signed by both men in September of the same year. The contract remained in effect in 2012 when Rea was suspended.
In the draft version of the contract, Rea is entitled to the supplemental pay based on a clause that he receive all rights and benefits granted to rank-and-file firefighters. That clause is absent from a final version of the contract signed in September 2009. Gallo, who at the time was working as an attorney in the city’s corporation counsel’s office, drafted the final version.
Sottile and Rea both testified that they had discussed the provision and agreed it would be included in the new contract, as it was in Rea’s previous contract and was customarily included in all contracts for Kingston fire chiefs and assistant chiefs. The only changes requested between the draft version and final version, the men testified, was the addition of two more vacation days to bring the agreement in line with similar contracts. Rea and Sottile both testified that they did not read the final version of the agreement because they had no reason to believe it had been changed substantially. Rea testified that he was unaware of the omission until more than two years later when he was suspended. Speaking to the Kingston Times following the decision, Sottile said that responsibility for drafting the final version of the contract was squarely with Gallo.
“There are only two possible explanations,” said Sottile. “It was either a clerical error or it was fraudulently changed.”
Gallo on Tuesday said Sottile was wrong. “Unequivocally, I did not prepare or negotiate any renewal of Mr. Rea’s terms and conditions as assistant fire chief,” the mayor said. “I only had one involvement which was to prepare a memo to the then-mayor putting him on notice that Mr. Salzmann’s and Mr. Rea’s contract had expired,” and it was Sottile’s responsibility to renegotiate or renew the pacts, Gallo said. “I guess [the ruling] means rank-and-file members have the right to double-dip and basically be upstate, being paid by the state, and down here, without any regard or record of the time they accrued or any time slip submitted to the employer for reconciliation. I can tell you this — the state comptroller said that’s not acceptable.”
Also, the mayor noted, “that contract that contains the paragraph at issue was typed in a different font” than the original contract.
Attorney Mary M. Roach, contracted to handle the hearing on behalf of the city, argued that Rea and Sottile should not be believed and that the words contained in an official document take precedence over witnesses’ own interpretation of the intent of the document. The city’s case instead speculated that Rea “fell out of favor” in the months between the drafting of the contract and its signing. But Trela questioned why, if the deletion was intentional, Gallo never took the stand at the hearing to refute Rea and Sottile’s claim that it was a mistake.
“The city put on no proof of any kind to dispute this testimony and called no witnesses to explain how and why the clause was removed from the final document,” Trela wrote.
Gallo said if he had taken the stand, he would have compromised his own role as the final decider of Rea’s fate.
“The reason we didn’t testify was simple — and anyone who practices civil service law would know this … had I testified, I would have been delegated the role the mayor plays as appointing authority as final adjudicator with respect to what will happen with Mr. Rea’s appointment. Why would I do that?”
Trela: Unfounded allegations
Trela also found charges alleging that Rea had obtained pay for hours he did not work to be unfounded based on the evidence presented. In some cases, the alleged infractions were based on cell phone records which showed that Rea was not in Kingston during working hours. Ronald Dunn, Rea’s attorney, argued Rea’s duties frequently took him outside of the city for training, conferences, supply runs and other matters. The city, Dunn argued, provided no evidence that Rea was not engaged in official business outside of city limits when the calls were made.
Gallo on Tuesday disputed this. “Suffice to say, to say that [Rea] has contractual rights to literally be given a gift of public funds and to engage in this kind of conduct without any record of accruing the time and without any record of submitting for the time off, to be paid so he can work his other job — by the way, he was also a coach in Dutchess County; we had evidence in the record of several cell-phone calls between Dutchess County and here, clearly putting him in a different area,” the mayor said. “Then the question becomes — what were you doing over there on the phone and how could you be paid here when you were over there, probably doing work as a softball coach at Dutchess Community College?”
At the hearing, Rea also received support from KFD Administrative Assistant Mary Ann White who testified that on days when Rea left early he would come in early — a permissible use of “flex time” under the terms of his contract.
Regarding dereliction of duty, Dunn argued, and Trela apparently agreed, that the alleged misdeeds, which included failing to provide legally mandated escape ropes, replacing turnout gear and calibrating oxygen tanks, were beyond Rea’s power to remedy. Dunn noted that Rea had no authorization to spend city money without prior approval. In some cases, Dunn argued, Rea requested money to carry out the work but was turned down. Trela found that the record also failed to support allegations that Rea stored offensive or pornographic content on a work computer.
‘Unbelievably treacherous waters’
Ronald Dunn said that he had participated in hundreds of disciplinary hearings over the years and that it was very rare for a hearing officer to recommend that all charges be dismissed. Dunn added that if Gallo chose to ignore the recommendation and dismiss Rea, he would have to provide some factual basis for it. That, Dunn said, would be difficult given the record, Gallo’s own role in drafting a contract that Trela found to be in error and his failure to take the stand to explain the discrepancy.
“He’s in unbelievably treacherous waters since some of the allegations are literally about [Gallo] and his conduct,” said Dunn. “That’s a difficult spot for him to present some rationale for ignoring [Trela’s] recommendation.”
The recommendation could clear the way for Rea to return to his post as assistant chief. Meanwhile, a separate State Supreme Court decision currently on appeal found that that Rea was entitled to reinstatement with back pay to March 2012. Rea was paid $90,000 per year, meaning that he could be entitled to more than $200,000 in back pay. The final settlement of the Supreme Court case may also require the city to pay his legal fees. Common Council Majority Leader Matt Dunn (no relation to Rea’s attorney) said that the payout would likely have to come from the city’s reserve fund. Dunn, an attorney himself, said the outcome of the civil service hearing illustrated that the effort to fire Rea had been misguided from the start and called for his reinstatement.
“It’s time to put this matter to rest,” said Dunn. “Clearly the mayor acted improperly and his mismanagement is going to cost the city hundreds of thousands of dollars.”
The mayor on Tuesday gave no timetable for his final decision, saying there was a lot to review and he may widen his probe.
“Emphatically, no — I’m not going to reinstate Rea at this point,” Gallo said. “We have to review a 1,000-plus pages of the record and we have to reconcile it with the findings and then I’ll be informed enough to render a decision which is fair to the parties and in the best interests of the public.”
Gallo also said he was not happy that the decision leaked out before he had a chance to read it and review it with counsel. “I’d like to know why a member of the city council received a copy the decision before my office did and is disseminating it everywhere and talking about it before I had the opportunity to review it or had the opportunity to talk to counsel and before I had the opportunity to review the record,” the mayor said.
I mean, this is ridiculous … it’s pretty simple. It’s called ‘politricks.’”
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