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STATE OF NEW YORK

CITY OF KINGSTON



In The Matter of the Disciplinary Charges Against

CHRISTOPHER REA,


OPINION AND
RECOMMENDATION


Before: John T. Trela
Pursuant to the Provisions of Section 75 Hearing Officer
of the NYS Civil Service Law.





The undersigned was appointed Hearing Officer in the instant matter by the
City of Kingston (hereinafter Employer or City), by designation (HO-1),
regarding Charges preferred against Christopher Rea (hereinafter,
Respondent).
Subsequently, hearings were held before the undersigned on December 9,
2013, February 21, 2014, March 21, 2014, April 3, 2014 and April 11, 2014 at the
City Hall, in Kingston, New York. The parties were provided with the opportunity
to present their respective proofs, witnesses and arguments in this matter at each
of those hearings. The exhibits, transcript and all related documents accepted
into the record from each of the days of hearing are included as part and parcel
of this record and are being submitted to the appointing authority simultaneously
with this opinion.

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Closing Statements were submitted to the undersigned, and the record was
closed when received on or about June 9, 2014. A stenographic record was
compiled by a Court Reporter with transcripts provided to the parties after each
date of hearing.
Mary M. Roach, Esq., represented the City and, Ronald G. Dunn, Esq.,
represented the Respondent. Respondent was present at each day of hearing.
General Background Information
Respondent, in the instant matter has been a long-term employee for many
years of the Kingston Fire Department and at the time of these Charges was
holding the title of Assistant Fire Chief. This title is a Competitive Class Civil
Service position offering protections to an incumbent for purposes of removal for
misconduct or incompetence under Section 75 of the New York State Civil
Service Law. The record is void of any previous disciplinary Charges or
counseling matter being preferred against Respondent during his years of
employment with the City.
Prior to Charges being preferred against Respondent, a scandal ensued in
the Fire Department involving the former Chief of the Fire Department. That
scandal concerned the former Chief's leave accruals and payouts which
appeared to be questionable by the City Comptroller John Tuey.
The investigation of the former Chief led to his ultimate resignation and his
pleading guilty to the misdemeanor crime of offering a false instrument for filing
in violation of Penal Law, Section 155.30. With his pleading, the former Chief
admitted that he intentionally submitted leave records to the City, knowing that
they were false and knowing they would be relied upon, in order to receive a

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monetary benefit. Subsequent to the resignation of the previous Chief in January
2012 Respondent was named Fire Chief on January 23, 2012 for a brief period
of time.
The investigation by Comptroller Tuey raised suspicions regarding some of
the activities of Respondent, especially after he received an anonymous letter
(C-15) dated February 1, 2012 signed A concerned area resident and local
volunteer Firefighter. The letter in relevant part advised that Respondent was
employed by the State of New York as a Fire inspector at Montour Falls and was
not taking time off the books of the City. Doing so raised the suspicion of double
dipping to the author of the letter. The concerns from the Comptrollers
investigation were brought to the Mayor who in turn brought them to the
attention of the New York State Comptroller, asking that an investigation be
conducted. An investigation ensued by the State Comptroller for the period
January 1, 2011-January 31, 2012, which resulted in the submission of a report
(J-19) to the City. The Comptrollers office found that Respondent had been paid
for 100 hours of accrued time and had made no deductions to his leave accruals
to account for such payment. Respondents explanation to the Comptroller, was
that his employment contract:
inadvertently omitted a provision entitling him to supplemental leave."
(City Brief P-3).

On February 9, 2012 Respondent was served with the notice suspending
him without pay (J 8) from the Fire Chief position of the City of Kingston New
York. The notice of suspension did not address his permanent position of
Assistant Fire Chief to which Respondent maintains his retreat rights. Pursuant
to the notice of suspension Respondent was notified that he would be

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suspended without pay and the Corporation counsels office would be preparing
disciplinary and misconduct Charges against him (C 26).
When no Charges were preferred by the City, Respondent commenced a
proceeding on May 24, 2012, seeking to compel the City to either reinstate him
or serve Charges (C26). Subsequently the Ulster County Supreme Court
issued an order dated August 3, 2012, stating that the City shall within 30 days
from July 23, 2012, prefer the disciplinary Charges against him which were the
basis for suspension on February 9, 2012 (J 8).
On August 22, 2012 Respondent was served with a Notice of Discipline
(NOD) containing 20 separate counts of Misconduct and 7 counts of Dereliction
of Duty all of which involve conduct alleged to have occurred when Respondent
was Assistant Fire Chief (J-2.) On August 30, 2012 Respondent answered the
Charges denying any wrongdoing asserting the statute of limitations defense
and demanding a hearing (J3). The Charges of misconduct contain allegations
that respondent had irregularities in time records dating back to 2006 and stored
non-work related material on his work computer dating back to 2006 (J2).
Respondent alleges that 19 of the 20 Specifications of misconduct are based on
conduct, which is alleged to have occurred more than 18 months prior to the
date of the Charge. The Charges of Dereliction of Duty includes Specifications
that Respondent failed to properly train or document training of the Fire
Department. Respondent alleges that two (2) of the causes of Dereliction of
Duty are based on alleged conduct that occurred more than 18 months prior to
the service of the Charges, and none of the Charges allege any conduct for the
short period of time that Respondent was the Fire Chief.

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Respondent brought an Article 78 proceeding challenging the timeliness of
the Charges and the suspension, which resulted in the Appellate Division
issuing a decision (J-8) in September 2013 finding that Respondent was:
Presumptively entitled to receive his regular compensation as Assistant
Fire Chief until the termination of the disciplinary Charges.

That decision also dismissed 2 Specifications on timeliness grounds and
stated that the law that Charges more than 18 months old are improper unless
the alleged conduct constitutes a crime. The Appellate Division remanded the
matter back to the Supreme Court for further proceedings.
On remand, the Supreme Court issued a decision dated December 18,
2013, directing that the City conduct a hearing within thirty (30) days, reinstate
Respondent to his position as Assistant Fire Chief retroactive to March 10, 2012
and immediately pay Respondent his retroactive pay without offsets (J15). The
decision of that court, as of this writing is the subject of an appeal by the City. In
the interim, the City served supplemental Charges dated November 27, 2013
(J-4), which were answered by Respondent and served December 4, 2013 (J-5).
The amended Statement of Charges is identical to the first set of Charges
with the addition of Specifications 21 through 56 added to Charge 1. The new
Specifications allege that Respondent was absent from work as Assistant Fire
Chief without approval during the period of time between 2009 and 2011 at
various times. Respondent maintains that all of these occasions occurred more
than 18 months prior to the date of the Charges. All of these supplemental
events Respondent argues are based entirely on telephone records that purport
to show that Respondent was either sending or receiving phone calls outside the
City of Kingston between the hours of 8 AM to 4 PM Monday through Friday.

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They also presume that there is no business reason for Respondent to be
outside the City limits.
The Appellate Division Decision dismissed two (2) Specifications, namely
Specifications 4 and 5 in Charge 2. Subsequently the City formally withdrew
Charge 1, Specifications 36, 46, 47 and 48 as well as Charge 2 Specification 2,
4, and 5.

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Charges
Charge 1:
Specification 1: You received compensation from the City of Kingston for
February 22, 2006, a day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that date you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour Falls New
York. You submitted a voucher for that work to the Bureau of Fire Safety of the
New York State Department of State for that date.
Specification 2: You received compensation from the City of Kingston for
September 25, 2006, a day in which you did that perform services for the City of
Kingston nor use appropriate leave time. On that day you worked as a State of
New York Fire trainer at the New York State Fire Academy Montour Falls New
York, you submitted a voucher for that work to the Bureau of Fire Safety of the
New York State Department of State for that date.
Specification 3: You received compensation from the City of Kingston for
February 23, 2007, a day in which you do not perform services for the City of
Kingston nor use appropriate leave time. On that day you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour Falls,
New York. You submitted a voucher for that work to the Bureau of Fire Safety at
the New York State Department of State for that date.
Specification 4: You received compensation from the City of Kingston for
March 27, 2008, a day in which you do that perform services for the City of
Kingston nor use appropriate leave time. On that date you worked as a State of
New York Fire trainer at the New York State Fire Academy Montour Falls, New

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York. You submitted a voucher for that work to the Bureau of Fire Safety of the
New York State Department of State for that date.
Specification 5: You received compensation from the City of Kingston
August 18, 2009, a day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that date you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour Falls,
New York. You submitted a voucher for that work to the Bureau of Fire Safety of
the New York State Department of State for that date.
Specification 6: You received compensation from the City of Kingston for
August 19, 2009 a day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that day you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour Falls to
New York. You submitted a voucher for that work to the Bureau Fire safety of
the New York State Department of State for that date.
Specification 7: You received compensation from the City of Kingston four
August 20, 2009, a day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that day you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour Falls,
New York. You submitted a voucher for that work to the Bureau of Fire Safety of
the New York State Department of State for that date.
Specification 8: You received compensation from the City of Kingston for
August 25, 2009, a day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that day you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour Falls,

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New York. You submitted a voucher for that work to the Bureau Fire safety of
New York State Department of State for that date.
Specification 9: You received compensation from the City of Kingston for
August 26, 2009, a day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that date you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour falls, New
York. You submitted a voucher for that work to the Bureau Fire safety of New
York State Department of State for that date.
Specification 10: You receive compensation from the City of Kingston for
August 27, 2009 a day in which you did that perform services for the City of
Kingston nor use appropriate leave time. On that date you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour falls, New
York. You submitted a voucher for that work to the Bureau Fire safety of the
New York State Department of State for that date.
Specification 11: you receive compensation in the City of Kingston for
January 25, 2010 day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that date you worked as a State of
New York Fire trainer at the New York State Fire Academy Montour falls, New
York. You submitted a voucher for that work to the Bureau Fire safety of the
New York State Department of State for that date.
Specification 12: You received compensation from the City of Kingston for
January 26, 2010 a day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that date you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour falls, New

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York. You submitted a voucher for that work to the Bureau Fire safety of the
New York State Department of State for that date.
Specification 13: You received compensation from the City of Kingston for
January 27, 2010 a day in which you did not perform services for the City of
Kingston nor use appropriate leave time. On that date you worked as a State of
New York Fire trainer at the New York State Fire Academy at Montour falls, New
York. You submitted a voucher for that work to the Bureau Fire safety of the
New York State Department of State for that date. NEXT SPECS.
Specification 14: On or about December 29, 2011 annual timesheets,
maintained by you, falsely recording your vacation personal day usage in
accrual for the calendar year 2009 were submitted to the City of Kingston
Comptroller.
Specification 15: On or about January 18, 2012 the annual timesheets,
maintained by you, falsely recording your vacation and personal day usage
accruals for the calendar year 2011 was submitted to the City of Kingston
Comptroller.
Specification 16: On or about January 23, 2012 annual timesheets,
maintained by you, falsely recording your vacation personal day usage and
accruals for the calendar year 2006 2007 submitted to the City of Kingston
Comptroller.
Specification 17: On or about May 21, 2010, and August 23, 2010 you
requested and received compensation in the total sum of $5427.24 for 156
hours of supplemental time to which you were not legally entitled.

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Specification 18: On or about June 17, 2011 and August 26, 2011 you
requested and received compensation in the total sum of $5873.40 for 156
hours of supplemental time to which you were not legally entitled.
Specification 19: Since on or about 2006 and continuing until February 2,
2012, you used your City of Kingston issued computer to access, upload, store
and/or view various non-work related, offensive and/or sexually explicit material
from the Internet web or private sources in violation of the City of Kingston
regulations for Internet, email and network use.
Specification 20: Since on or about 2006 and continuing until February,
2012, you used your City of Kingston issued computer to access, upload, store
and/or view various non-work related, offensive and/or sexually explicit material
from the Internet web or private sources.
Specification 21: on Friday, January 9, 2009, from approximately 11:06 AM
through approximately 4 PM you are absent from work for the City of Kingston
Fire Department. You did not take time off from your employment as the
Assistant Chief of the City of Kingston Fire Department and received pay for that
day as if you were working.
Specification 22: On Tuesday, February 10, 2009 from approximately 7:23
AM through approximately 4 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
the day as if you are working.
Specification 23: On Tuesday, February 10, 2009, from approximate 7:23
AM through approximately 4 PM you are absent from work for the City of

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Kingston Fire Department. Notwithstanding that you did not work those hours
you claimed and received credit for 4.5 hours of compensation time.
Specification 24: On Wednesday, February 11, 2009, from approximately
11.12 A.M. through approximately 3:40 PM you are absent from work for the
City of Kingston Fire Department. You did not take time off from your
employment as the Assistant Chief of the City of Kingston Fire Department and
received pay for that day as if you are working.
Specification 25: On Friday, March 13, 2009 from approximately 1:15 PM
through approximately 1:55 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you are working.
Specification 26: On Friday, March 27, 2009 from approximately 1:17 PM
through approximately 4 PM you were absent from work for the City of Kingston
Fire Department. You did not take time off from your employment as the
Assistant Chief of the City of Kingston Fire Department and received pay for that
day as if you are working.
Specification 27: On Wednesday, April 1, 2009, from approximately 1:35 PM
through approximately 2:57 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you are working.
Specification 28: On Monday, April 13, 2009 from approximately 12:50 PM
through approximately 2:44 PM you are absent from work for the City of

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Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you are working.
Specification 29: On Tuesday, April 14, 2009, from approximately 8:47 AM
through approximately 4 PM you were absent from work for the City of Kingston
Fire Department. You did not take time off from your employment as the
Assistant Chief of the City of Kingston Fire Department and received pay for that
day as if youre working.
Specification 30: On Wednesday, April 15, 2009 from approximately 3:15
PM through approximately 3:20 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you are working.
Specification 31: On Wednesday, May 13, 2009, from approximately 11:25
PM through approximately 4 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department Assistant Chief and
received pay for that date as if you are working.
Specification 32: On Friday, July 31, 2009, from approximately 2:54 PM
through approximately 4 PM you are absent from work for the City of Kingston
Fire Department. You did not take time off from your employment as the
Assistant Chief of the City of Kingston Fire Department and received pay for that
day as if you are working.

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Specification 33: On Monday, August 3, 2009 from approximately 3:30 PM
through approximately 4 PM you are absent from work for the City of Kingston
Fire Department. You did not take time off from your employment as the
Assistant Chief of the City of Kingston Fire Department and received pay for that
day as if you were working.
Specification 34: On Tuesday, November 17, 2009 from approximate 9:56
AM through approximately 10:20 AM you are absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you were working.
Specification 35. On Monday, November 23, 2009, from approximately 9:23
AM through approximately 12:27 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you were working.
Specification 37: On Friday, January 22, 2010 from approximately 2:12 PM
through approximately 3:14 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you are working.
Specification 38: On Monday, February 22, 2010, from approximate 7:54
AM through approximately 4 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from employment as the

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Assistant Chief of the City of Kingston Fire Department and received pay for that
day as if you are working.
Specification 39: On Tuesday, March 16, 2010, from approximately 2:36 PM
through approximately 3:05 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you are working.
Specification 40: On Thursday, March 18, 2010 from approximately 8:57 AM
through approximately 4 PM you were absent from work for the City of Kingston
Fire Department. You did not take time off from your employment as the
Assistant Chief of the City of Kingston Fire Department and received pay for that
day as if you were working.
Specification 41: on Monday, March 29, 2010, from approximately 3:28 PM
through approximate 4 PM you are absent from work for the City of Kingston
Fire Department. You did not take time off from your employment as the
Assistant Chief of the City of Kingston Fire Department and received pay for that
day as if were working.
Specification 42: On Thursday, April 1, 2010, from approximately 8:56 AM
through approximately 11:38 AM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
he Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you were working.
Specification 43: On Thursday, May 13, 2010 from approximately 8:03 AM
through approximately 12:09 PM you were absent from work from the City of

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Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you were working.
Specification 44: On Thursday, May 20, 2010 from approximately 10:34 AM
through approximately 1:42 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you are working.
Specification 45: On Wednesday, August 4, 2010 from approximately 9:17
AM through approximately 12:46 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you are working.
Specification 49: On Thursday, December 23, 2010, from approximate
12:36 PM through approximate 2:39 PM you were absent from work for the City
of Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day is if you were working.
Specification 50: On Wednesday, December 29, 2010 from approximately
9:51 AM through approximately 1:36 PM you were absent from work for the City
of Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that date as if you were working.

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Specification 51: On Wednesday, February 9, 2011 from approximately 1:28
PM through approximately 2:49 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day is if you were working.
Specification 52: On Friday, April 15, 2011, from approximately 9:04 AM
through approximately 10:11 AM you were absent from work to the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you were working.
Specification 53: On Tuesday, May 3, 2011 from approximately 11:54 AM
through approximately 1:32 PM you are absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day is if you were working.
Specification 54: On Thursday, September 15, 2011, from approximately
3:29 PM through approximately 3:52 PM you were absent from work for the City
of Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day is if you were working.
Specification 55: On Wednesday, October 5, 2011, from approximately 8:30
AM through approximately 12:02 PM you are absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as

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the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you were working.
Specification 56: On Tuesday, November 15, 2011, from approximately 2:42
PM through approximately 3:30 PM you were absent from work for the City of
Kingston Fire Department. You did not take time off from your employment as
the Assistant Chief of the City of Kingston Fire Department and received pay for
that day as if you were working.
Charge 2: Incompetency/Dereliction of duty
Specification 1: As the Assistant Chief and Training Officer of the City of
Kingston you failed to arrange for the provision of safety equipment required by
Part 800.7 of Title 12 of the New York Code of Rules and Regulations, to wit:
emergency escape and self rescue ropes, thus endangering the members of the
City of Kingston Fire Department subject the City of Kingston to potential fines
for noncompliance with New York State Regulations.
Specification 3: As the Training Officer of the City of Kingston you failed to
train the Firefighters employed by the City of Kingston in the use of escape
ropes and system compounds as required by Part 800.7 (g) of Title 12 of the
New York Code of Rules and Regulations thus endangering the members of the
City of Kingston Fire Department and subjecting the City of Kingston to potential
fines for non-compliance with New York State Regulations.
Specification 6: As Assistant Chief of the Kingston Fire Department you
failed to insure the self-contained breathing apparatuses utilized by individual
members of the Department during fire-fighting activities were properly
calibrated as required by applicable federal, state and local laws, regulations

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and standards thereby endangering the members of the City of Kingston Fire
Department and subjecting the City of Kingston to potential fines for non-
compliance with New York Regulations.
Specification 7: As Assistant Chief of the Kingston Fire Department you
failed to ensure that turnout gear to be worn by the members, including hats,
coats, pants and boots were replaced in a timely fashion as required by
applicable Federal, State and local laws, regulations and standards thereby
endangering the members of the City of Kingston Fire Department and
subjecting the City of Kingston to potential fines for noncompliance with the New
York State regulations.

City Argument
Charge 1, Specifications 1-20
The City asserts that the Charges in this instant matter must be considered
in the context of the related scandal which involved former Fire Chief Salzman
and which Respondent is necessarily implicated. The custom at the Fire
Department was for the City Comptroller to receive sheets at the end of each
year setting forth a summary of each employees leave records (T 42). In
December 2011 the former Chief had asked to be paid out for some leave time,
which didnt seem quite right to the Comptroller. It seemed the former Chief was
seeking a payout for accrued time for which the former Chief should have made a
deduction to his leave accruals, but he had not. Accordingly the Comptroller
asked the former Chief for backup information supporting his request for the
payout.

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With his suspicions raised, Comptroller Tuey began to look at the former
Chiefs cell phone records which revealed that in many instances the former
Chief was out of New York State, presumably on vacation and had not made any
deductions to his leave accruals. A large number of discrepancies of 10 to 15
days per year surfaced where the former Chief was out of State and had not
made any deductions to his leave accruals. Mr. Tuey then expanded his inquiry
into Respondents leave accruals during which time he received an anonymous
letter (C-15). The letter advised in relevant part that Respondent is being
employed by the State of New York as a Fire instructor at Montour falls and was
not taking time off the books of the City while doing so, causing concern of
double dipping. Mr. Tueys investigation found evidence that Respondent had
been paid for various forms of leave and made no deductions to his leave
accruals.
Comptroller Tuey referred his findings to the Mayor who in turn brought this
information to the attention of the New York State Comptroller asking that the
matter be investigated. The New York State Comptroller after investigating the
matter submitted a report (J-19) to the City dated November 28, 2012. The City
argues that it is critically important to note that the Comptrollers office found
Respondent had engaged in the exact same type of conduct for which he now
faces disciplinary Charges. The Comptrollers office found that in May 2010
Respondent had been paid for 100 hours of accrued time and had made no
deductions to his leave accruals to account for such payment.
The Comptrollers report also found that responded had been paid $11,300
in 2010 and 2011 for supplemental time to which he was not entitled because his

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employment contract did not provide for such benefit. Respondents explanation
to the Comptroller was that his employment contract:
inadvertently omitted a provision entitling him to supplemental leave.
The City submits that there is no reason to doubt the credibility of the Citys
witnesses in the presentation of this case. The Comptroller testified as to how
this matter surfaced and what was discovered by his investigation. At hearing,
the testimony of Chief Brown and the testimony of Mr. McIntosh to some degree
was supportive of Respondents position. These witnesses were put on by the
City because the Citys goal is to get to the truth, not to get Respondent at all
costs. The hearing officer must examine the credibility of those called to testify in
Respondents defense in the context of the scandal set forth above. The first
witness Respondent called was James Sottile, the Mayor of Kingston from 2001
through 2011. The City strenuously asserts that the majority of the former
Mayors testimony is on its face patently incredible and it is not worthy of belief.
The former Mayor essentially testified that although he signed Respondents
employment agreement (J-6), that agreement clearly did not provide for union
benefits, and that the real intent was to provide for union benefits (City Brief,
P-5).
The City points to the existence of a fundamental evidentiary rule known as
the parole evidence rule. This rule provides that the clearly expressed terms of a
written contract cannot be varied by testimony to the effect that the contract
means something different from what it actually says. The purpose of the parole
evidence rule is to protect the importance and integrity of written instruments. If
the parole evidence rule does not exist, carefully planned and clearly written

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instruments would be of no value. Accordingly the parole evidence rule requires
in this proceeding that the hearing officer should disregard the former Mayors
testimony to the effect that: the real attempt was to confer all of the union
contract benefits on Mr. Rea is directly contrary to the terms of the written
agreement. Simply Stated, Respondents employment agreement means what it
says that Respondent was not entitled to the union benefits he availed himself of
(City Brief P-6).
The City also argues that the testimony of Respondent witness Ann White is
not worthy of belief. Miss White worked side-by-side with Respondent for
decades and admittedly was a big fan of his. She testified that after Respondent
was let go and Richard Reinhardt was appointed interim Chief, Chief Reinhardt
came out of his office with
a handful of time off and overtime slips and I said oh my, we should
bring them to the D. A. and he just kind of laughed at me and then he
shredded them (T 195-196).

Local media outlets were rampant with reports of the former Chiefs criminal
Charges and Respondents removal. Everyone involved knew that the scandal
related to double dipping on leave accruals. Certainly Chief Reinhardt knew what
was being alleged and it is unbelievable that he would bring up time off and
overtime slips to Miss White and then shred them in front of her. Miss White
clearly lied about this aspect of her testimony and in fact, Chief Reinhardt
emphatically and without hesitation testified that no such thing happened. He
went as far as stating that Miss Whites fabrication was both bull shit and a lie
(City Brief P-7).

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This blatant lie throws all of her testimony in the not worthy of belief
category. This also includes her testimony that when Respondent went to
Montour falls he would always flex his time by coming in early. She testified that
Respondent always came in before her however if this were true, how could she
have known that Respondent came in sufficiently early to compensate for the
early departure? She was in no position to know how early he came in. In
examining Miss Whites credibility, the hearing officer is asked to note that Miss
White was to some degree the beneficiary of the lax leave record keeping at the
Fire Department, which further undermines her credibility.
Respondent has thus been caught in the act of putting a fantastic lie before
the hearing officer and it must be recognized that if Respondent did so in one
instance, he would do so in other instances. A person is either truthful or is not.
The City submits that Respondents veracity or obvious lack thereof must be
scrutinized within the lens of Miss Whites clearly fabricated story.
On the issue of credibility, the hearing officer must examine Respondents
purported defenses and testimony in a generalized sense. He seemingly has an
answer for everything however when properly scrutinized, the lack of credibility
on his part because painfully apparent (City Brief P-8).
Regarding Charge 1, Specifications 1, 2 and 3 the amended Notice of
Discipline alleges that on three (3) occasions that Respondent was on the State
payroll teaching at the Montour Falls Fire Academy and failed to deduct from his
leave accruals to account for his time. In two of these instances Respondents
pay vouchers failed to show that he worked for two hours (C-1, and C-2) and in
one instance he worked for three hours (C- 3). Respondent testified that on these

24
occasions he used flex time and/or worked through his lunch break so that he
could leave his City job early drive to Montour falls and teach an evening class. It
is noted that the issues of flex time and working through his lunch break are not
documented in any way. However according to Respondent, it was approved by
the former Chief so that makes it okay. This argument however does not stand
when the overall lack of credibility is taken into consideration (City Brief P-12).
The City notes that Respondent has taken the contrary position in earlier
related proceedings. In one of his lawsuits against the City, Respondent offered
in a sworn Statement an explanation of these three dates by expressly asserting
after completing a full days work with the City of Kingston (C-27). According
to Respondents testimony in this proceeding he did not work a full day for the
City on the three occasions at issue. Instead he stated that he used flex time
and/or worked through his lunch break to abbreviate his day. Respondents
credibility is further injured by these two contrary Statements.
Regarding Charge 1 Specifications 413 there remain 10 days for which
Respondent was admittedly teaching at Montour falls for a full business day and
failed to Charge his leave accruals. Regarding Charge 1 Specification 4
Respondent pointed out in his testimony that he did deduct from his leave
accruals four days covering 3/3-6 which would seem to cover the four days he
spent at Montour falls although the City was understandably misled by the
erroneous entry on his timesheets. However there remain nine dates for which he
worked a full day at Montour falls being paid by the State and failing to Charge
his leave accruals. Those dates are August 18, 19 and 22, 2009, August 25, 26
and 27, 2009 and January 25, 26 and 27 2010. This totals almost two (2) full

25
work weeks, where Respondent was working for the State and failed to deduct
from his leave accruals. Respondent in prior sworn Statements said this was due
to administrative error and at hearing this he testified that he had no explanation
for how this happened.
The City submits that it has fully met its burden of proof relative to these
particular nine dates and that as a consequence of not the ducting from his leave
accruals to cover this time, Respondent intentionally bolstered the number of
these days available to him for use or to be paid for that was the natural and
direct consequence of his failure to deduct from his leave accruals. The law
presumes that one intends the natural and direct consequences of ones actions.
For example if a person throws a brick at a car window the law infers that
the person throwing the brick intends to break the car window. The law does not
require, in order to prove the elements of intent, that the person throwing the
brick announce: In throwing this brick, I intend to break the car window.
No such pronouncement is required to prove the throwers intent because it
is universally accepted that one intends a natural and direct consequences of
ones actions. The City submits that the hearing officer should not buy the
proverbial bridge that Respondent is trying to sell (City Brief, P. 17).
It cannot be overstated that when Respondent was doing this, his Chief with
whom he had work for years was using a common device and scheme to
similarly rip off the City. That is in context in which Respondents claim of
inadvertence must be considered. The hearing officers only rational conclusion is
that Respondent intentionally failed to deduct at least in these nine instances

26
from his leave accruals in order to bolster the accruals available to him for use or
payout, as there is no other logical conclusion.
In Charge 1, Specification 17 and 18, Respondent is guilty of taking money
for supplemental leave to which he was not entitled. Specification 17 alleges that
on or about May 21, 2010, and August 23, 2010 Respondent received payment
in the amount of $5427.24 for 156 hours of supplemental time to which he was
not legally entitled. Specification 18 alleges that on or about June 17, 2011 and
August 26, 2011 Respondent received compensation in the total sum of
$5873.40 for 156 hours of supplemental time to which he was not legally entitled.
The City has met his burden of proof relative to these two Charges. The evidence
at hearing clearly shows that these two payments were made and accepted by
Respondent. It is also beyond argument that Respondents current signed
employment agreement does not give him the benefits of the union contract and
therefore does not permit him to receive supplemental pay (J-6). Respondent is
essentially asking the hearing officer to insert a provision into the actual contract
and thus magically make the contract say something that it clearly does not say.
For the reasons stated previously Mayor Sottiles testimony should be
disregarded as the law does not permit testimony to vary the clearly stated terms
of a written contract. Respondents testimony that he did not read the contract
before he signed it is literally unbelievable, especially in light of the clear and
readily visual differences between the draft contract and the actual contract.
The City submits that the timing of events is extremely telling.
Respondents former contract expired May 31, 2009 (J-7-B). The former contract
conferred the all important union benefits to Respondent. By memorandum dated

27
February 4, 2009 Respondent was provided with the proposed contract for
review and comment (R-2). This memorandum also contained the all important
union benefits. On February 6, 2009 former Chief Salzman and the Mayor
executed Salzmans contract (R-1), which contained the all important union
benefits.
However Respondents renewal contract wasnt signed until September 11,
2009 and it did not contain the all important union benefits (J-6). There was a
nine-month delay between when the draft contract was presented to Respondent
and when the contract was actually signed. Obviously a lot can happen in a nine-
month period and Respondent testified he didnt know of any reason for this
prolonged delay. The City submits that something did happen to cause
Respondent to fall into disfavor and that is the explanation for why the all-
important union benefits clause was removed from his contract (City Brief, P.17).
In clear desperation Respondent seeks to contend that he signed the
agreement without reading it and looking at it. The City submits that assertion is
ridiculous on its face especially when you compare (J-7-B) Respondents former
contract with the renewal contract (J -6). The two agreements do not appear
anything alike. The former agreement is in bold type and the renewal agreement
is not. The former agreement clearly has five full paragraphs under the caption
compensation benefits; the renewal contract is only four paragraphs and the fall
differently on the page. The former agreement carries over to a second page; the
renewal contract does not. Despite these differences, Respondent expects the
hearing officer to believe that he didnt even read the contract before he signed it.
(City Brief, P-7)

28

Respondent Argument: Charge 1: Specifications 1 through 20
Respondent argues that in 2003, he entered into an employment agreement
for his Assistant Fire Chief position with then Mayor James Sottile, which
included a provision stating:
The Assistant Fire Chief will receive all the benefits that are provided to
members of the Kingston professional Firefighters Association under the
Citys contract with the KP FFA and any additional memorandum they may
form. (J-7-B)

There is no dispute that this clause gave Respondent the right to
supplemental pay (holiday pay); and flex time, both of which are provisions
covered by the KPFFA collective bargaining agreement (J-13). There is similarly
no dispute that the same clause was in Fire Chief Salzmans contract and a
similar clause was in the Police Chief contract as well as the in the Assistant
Police Chief contracts (R-1) (Respondent Brief, P-7).
In 2009, when it came time to negotiate a new agreement, then Mayor
Sottile, directed that the Assistant Corporation counsel prepare new agreements
for the Fire Chief Saltzman, Assistant Fire Chief Rea and Assistant police Chief
Keller and Deputy police Chief Wallace that mirrored one another (T169173).
Respondents draft agreement (R-2) was prepared, reviewed by Mayor Sottile
and provided to Respondent. Thereafter both Mayor Sottile and Respondent
discussed the agreement. Mayor Sottile testified that the only change from the
prior agreement was to standardize the agreements between Chief Salzman and
Respondent adding two more vacation days to Respondents agreement
(T. 164).

29
There is no dispute that the draft agreement agreed to by Mayor Sottile and
Respondent, included the provision and agreement stating:
The Assistant Chief will receive all benefits as are provided to City
employees under the Citys contract with the KPFFA and any other
additional memorandum of agreements they may form. (R-2).

There is also no dispute that the agreement negotiated for Chief Salzman
for the period 20082014 contains the same clause as in the terms of the KPFFA
agreements (R-1). That is the same agreement Mayor Sottile specifically
intended to be standardized with Respondents so that the two agreements
provided for the same level of benefits (T164).
Inexplicably, the final document eliminated that clause from Respondents
agreement only. Neither Mayor Sottile nor Respondent read the final document
before signing it, relying instead on their prior review and agreement to the draft
agreement. Both Respondent and Sottile first became aware of the omission
years later after Respondent was suspended. The City contends in this case that
one consequence of the omission of the KPFFA clause is that Respondent was
not entitled to supplemental pay in 2010 or 2011 even though he has always
received supplemental pay throughout his career. In essence the City contends
that Respondent knowingly agreed to a $5,000 pay cut because he agreed he
would no longer receive supplemental pay (Respondent Brief p-8).
There is no dispute that Respondent and Sottile never discussed or agreed
upon the $5,000 cut in pay and to the contrary, the discussions and agreements
included continuation of the same benefits and the addition of two more vacation
days to his contract. None of the testimony of both Mayor Sottile and Respondent
concerning their intention and agreement was refuted, disputed or contested at

30
the hearing. Neither did the City call any witnesses from the Corporation
counsels office to explain how the clause was eliminated from the final
agreement.
Whereas here, a party fails to call a witness it controls to contest material
evidence the hearing officer can draw an inference:
that the nonproduction of evidence would naturally have been produced
by an honest and therefore fearless claimant permits an inference that its
tenor is unfavorable to the parties cause. Pattern jury instructions 1:75, P.
112, citing People v. Valerius, 31 NY 2d51.2

A trier of fact may draw the strongest inference that opposing evidence
permits against the witness that fails to testify in a civil proceeding. There are
three preconditions to the application of the inference: 1. The witnesss
knowledge must be material to the issue in dispute; 2. The witness must be
expected to give non-cumulative testimony favorable to the party against whom
the Charge is sought; here the missing witness's presumably with testify in favor
of the City that Mayor Sottle and Respondent knowingly agreed to exclude the
relevant and unilateral clause; and 3. The witness must be available to that party.
There can be no dispute that the evidence of what happened to the clause
both parties intended to be included in the final agreement is a material issue to
this case. There is also no dispute that Mayor Gallo or other Corporation Counsel
employees are witnesses available to the City. Indeed, Mayor Gallo is the person
who signed the Charges in this case. Finally, if Mayor Gallo or some other
Corporation counsel employee had evidence to contradict Sottile or Respondent
surely he would have testified. Under the circumstances Respondent is entitled to
an inference that Gallo and other Corporation counsel employees would have
testified consistent with Sottile and Respondent that the parties, including the

31
City of Kingston intended that Respondents employment agreement include the
following clause:
The Assistant Fire Chief will receive all benefits as are provided to City
employees under the Citys contract with KP FFA and any other additional
memorandum of agreements they may form.

The Assistant Corporation counsel at the time responsible for preparing the
final documents was Shane Gallo. Shane Gallo is a current Mayor (T172 173).
There is no dispute that Mayor Sottile explicitly approved the draft agreement that
included the language incorporating the benefits from the KPFFA agreement and
directed Mr. Gallo prepare final agreements consistent with that draft (T167
168). There is no dispute that both Respondent and Mayor Sottile believed that
their agreement contained the missing term referencing the KPFFA agreement.
The City did not call Mayor Gallo or anyone else to explain how it came to
be that KPFFA clause was omitted from the final agreement (Respondent Brief
P-10).
The City put in no proof of any kind to dispute the facts surrounding
Respondents employment agreement and declined to call Shane Gallo as a
witness to explain while he did vis-a-vis the removal of the clause from the final
document even though it was intended by the parties that the clause be
continued. There is no dispute that Respondent and the City had a meeting of
the minds that the exact clause at issue was the central and material part of
Respondents employment agreement. However, unbeknownst to them, the
clause the City does not dispute, which was intended to be in the final written
agreement was not there. The City performed under the agreement by paying
Respondent supplemental benefits in 2010 and 2011 as though the clause was

32
continued in the agreement. There is no dispute as to the exact language of the
clause.
Applying basic contract law grounded in equitable principles, this is a classic
case of Mutual Mistake both allowing and requiring reformation of the agreement
to include the central clause to conform it to the intent of the parties (mutual
mistake may furnish the basis for reforming an agreement When the
parties. reach an oral agreement and unknown to either, the signed writing
does not express that agreement citing Harris v. Uhlendorf , 24 NY 2d 463, 467-
1969 When there is no mistake about the agreement and the only mistake
alleged is in the reduction of that agreement to writing such mistake of the
scrivener, or of either party, no matter how it occurred, may be corrected
(Respondent Brief P-11)
Reformation of the agreement to include the clause at issue is evidently
required because the parties have a real an existing agreement on particular
terms and subsequently find themselves signatories to a writing which does not
accurately reflect that agreement (Harris, 24 NY 2d at 467).
It has been shown by Respondent that in no uncertain terms not only that
mistake or fraud exists but exactly what was agreed to by the parties. This means
that the hearing officer must rule consistent with an employment agreement
reformed to contain the clause all parties intended to be a part of that agreement
(Respondent Brief P-12).
Respondent, as Assistant Fire Chief, had a normal workday of eight hours
approximately from 7:30 AM to 3:30 PM. Respondent, like all Fire Department
personnel, had the right to flex his schedule starting earlier than 7:30 if he

33
needed to leave earlier than 3:30 PM or starting later and ending later if he
needed a later start time. This is precisely what Respondent did on those
occasions when he needed to leave earlier than 3:30. For many years
Respondent has been a paid State Fire Inspector by New York State. In that
capacity Respondent taught other Firefighters in all manners of Firefighting
techniques. For the most part the training occurred in Montour Falls at the State
run Firefighting Academy. Respondent had explicit approval from the City to
serve in this role (T.175, 238).
It was a point of pride for the City that one of its employees was an
instructor for other Firefighters statewide (T.175-176). As the record shows,
Montour Falls is approximately a 3 hour drive from Kingston. Respondent
would typically travel to that location after a full workday at the Fire Department in
Kingston using his personal vehicle. Respondent would typically leave at 3 PM
after flexing his schedule starting earlier or working through lunch so he could
leave at 3 pm (T.198, 230, 274279). He would then teach a class at night in
Montour falls after he arrived of between two and four hours.
Respondent had a similar practice of flexing his schedule on those
occasions where he coached softball at Dutchess community college during the
softball season between March and May. Practice typically occurred at 5 or 6 PM
in the evening which time did not conflict with his Kingston Fire workday. When
weekday games did interfere, he would flex his schedule or put in for leave.
It is not Respondents burden to prove that on any given day he was
actually working for the City on City business outside the City. Rather, to meet its

34
burden the City has the obligation to prove that Respondent was paid by the City
and not working for the City (Respondent Brief P-13).
The vast majority of the Charges arise from conduct that occurred in the
notice of discipline prior to February 21, 2011. Pursuant to the 18
th
month statute
of limitations on CSL Section 75 any Charge based on conduct occurring more
than 18 months prior to August 21, 2012 (February 21, 2011) is untimely. CSL
Section 75 States:
Notwithstanding any other provision of law, no removal or disciplinary
proceeding shall be commenced more than 18 months after the occurrence
of the alleged incompetency or misconduct complained of and described in
the Charges Provided, however, that such limitations shall not apply
where the incompetency or misconduct complained of and describe the
Charges, if proved in the court of appropriate jurisdiction constitute a crime.

Where as here, disciplinary Charges rely on conduct alleged to have
occurred more than 18 months prior to the Charge, the notice of discipline is
procedurally defective and as such, evidence of those Charges cannot be used
and the Charges must be dismissed. The supplemental Charges add incidents all
of which predate February 21, 2011 however because the new supplemental
Charges were dated November 27, 2011 the alleged conduct would have to
occur on or after March 27, 2012 to fit within the 18 months. Not one of the
events added to the supplemental Charges occurred during that timeframe.
To analyze the timeliness of Charges we begin with the premise that the
City has the burden of proof at all Charges and Specifications. The burden of
proving incompetency or misconduct shall be upon the person alleging the same.
The only exception to the 18-month rule is found in CSL Section 75, which
provides that the Charge is untimely, unless the alleged conduct would if proved
in the court of appropriate jurisdiction constitute a crime. In order for the City to

35
avail itself of this exception to the 18
th
month rule the City has the burden to both
allege and prove conduct, which constitutes a crime. Importantly that includes
proof of intent. Simply put, proof of any crime requires proof of intent, i.e..,
knowing and intentional conduct aimed at a specific outcome. There is not one
piece of evidence that Respondent knew that whatever he was Charged with
doing was a crime, i.e., that he knowingly acted with criminal intent to obtain
some benefit or knowingly falsify records of some kind to benefit himself. Since
there is no evidence of criminal intent, proof of a required element is missing and
as such the City cannot be excused from the 18-month statute of limitations and
any of the Charges (Respondent Brief P-16).
The simple truth is that the Mayor Sottile and Respondent understood that
Respondents employment agreement permitted him to receive supplemental pay
just like Fire Chief Salzman and every other Firefighter in Kingston as explained
at pp 7 to 11. That mutual mistake action means that Respondents agreement is
deemed to include the right to receive supplemental pay. Hence it was not
improper for Respondent to receive supplemental pay. But even if it does not,
this undisputed truth also means that the City cannot prove that Respondent
intended to accept supplemental pay knowing it was wrong. That complete
absence of any proof of intent also means that the City cannot avail itself of the
sole exception to the 18-month rule of the statue limitations and accordingly this
Charge must be dismissed.
Finally in his defense of Charge 1 Specifications 1 through 20 Respondent
addresses each of the Charges in his testimony and fully explains his defense on
pages 20 through 31 of his closing Statement.

36

City Argument Specifications 21 Through 56:
The City alleges that Respondent is guilty of the Verizon Charges set forth
in Charge one Specifications 21 56 which alleged that on various occasions
between January 9, 2009 and November 15, 2011 Respondent was absent from
his work for the City and did not take time off to account for his time yet still
receiving pay as if he had worked. The City argues that Respondents many
absences from the City on days he should have been working were fully proven
by the Verizon records established in the City own cellular telephone that
Respondent used. Those absences range in duration from a few minutes to as
much as an entire day. The City submits that it is entitled to a presumption that
the Assistant Fire Chief for the City will be in the City during his work days and
hours, unless he can establish he was legitimately elsewhere on City business
this the City argues is just good old-fashioned common sense and logic.
Respondent testified in an effort to explain away these multitudes of
disappearing acts by suggesting he was sometimes outside the limits at hazmat
events and sometimes at mutual aid events. It is important to note that
Respondent was unable to state that he was at either of these events on any of
the specific days set forth in the relevant Specifications. It is also important to
note that Respondent in Section 75 proceedings has the power to subpoena
documents from the City. Accordingly the City argues it would make common
sense that if he could have proven he was out of City limits on the various days
set forth any Specifications attending to hazmat a mutual aid events, that he
wouldve subpoenaed Fire Department records to so proof. The failure to do so

37
raises the inference that Fire Department records would not have supported his
contentions. Respondent also attempted to explain away his seemingly
inexplicable absences from the City by suggesting that he frequently had to go to
various vendors located outside the City for City business. The hearing officer is
being asked to draw an adverse inference from the fact that Respondent did not
call any of these vendors to testify that he personally frequented their places of
business outside the City. If Respondent really made all of these trips as a
glorified errand boy, it would have been simple to have the vendors testify that he
was at their shops on these occasions.
The City also argues that an adverse inference should be drawn because
Respondent was unable to produce a single piece of paper in response to the
City subpoena that would have shown the practice and game schedules of the
two baseball teams he coached for his daughter. It is the Citys view that no such
papers were produced because they would show that on many of the dates
specified he was not on City business but rather pursuing his coaching duties
(City Brief P-20).
The Verizon Charges must be considered in their context as set forth in
Point 1 above, in that Respondents credibility is extremely questionable. He
always put in leave slips when he went to Montour Falls but inexplicably, the time
was not deducted from his leave accruals, for which he often received cash
payouts. On days when he had to leave early for Montour Falls, he would skip his
lunch and/or use unrecorded flex time all with the approval of the now disgraced
former Chief. In 2010 and 2011 he put in for over 10,000 hours of supplemental
pay, even though his employment agreement did not provide for supplemental

38
pay. Respondent didnt know that his contract no longer provided for
supplemental pay because he didnt read the language before he signed it. None
of his testimony is believable and thus the Verizon Charges need to be
considered in the context of the lack of Respondents credibility.

Respondent Argument Charge One Specifications 21 through 56:
The Specifications from the supplemental calls involved instances of
telephone calls that were alleged to have made or received outside of the City of
Kingston. The testimony at hearing reveals that cellular phone calls register on
the cell tower that processes the call and that the tower may be up to 5 miles
away. This is most relevant here because some phone cell calls made or
received in the City of Kingston are processed on the cellular tower outside of the
City of Kingston. Because the City of Kingston has the burden of proof on all
Charges, in order to sustain a Charge that Respondent receive pay for a day he
was not working for the City must prove that Respondent actually received pay
for a day and that he did not provide services for the City that day. The
undisputed record here reveals that Respondents duties as Assistant Fire Chief
routinely caused him to be working for the City outside the City limits. These
included hazardous material calls, mutual aid calls, attendance at local Fire Chief
meetings, deliveries or pickups at City vendors for Firefighting equipment,
deliveries or pickups of Firefighting apparatus at repair shops, attendance at
Dutchess Community College-based Fire science training Academy and visits to
other training sites inside and outside Ulster County and other Fire related
meetings.

39
In these proceedings the burden of proof is on the City to prove that
Respondent was paid by the City and was not working for the City during that
time. It is not upon Respondent to prove that on any given day he was actually
working for the City on business outside the City. Receiving or making a cellular
phone call outside the City limits is not enough to meet that burden. This is
particularly true where here, Respondent has testified without contradiction about
the likely reason he was performing City work on each date in question. His
testimony as set forth in the record and enunciated in closing brief for pages 32
through 48 establish that Charges 22 through 26 have not been proven and must
be dismissed.
Charge 2:
This Charge alleges Incompetency and Dereliction of duty in Respondents
duties as Assistant Chief and training officer by failing to arrange for the
provisions of safety equipment by part 800.7 of title 12 of the New York code of
rules and regulations, to wit: emergency escape and self rescue ropes, thus
endangering the members of the City of Kingston Fire Department and subjecting
the City of Kingston to potential fines for noncompliance with New York State
regulations.
At hearing there were no records submitted to support the specification by
the City. Respondent argues that this Charge should be dismissed as untimely
based on the 18 month rule for CSL Section 75. Respondent argues that the
record shows that Respondent had no authority to purchase any equipment
without explicit approval from the City (T.6970, 131132,175). That approval
was consistently denied for escape and self-rescue ropes (T.240248).

40
In fact the Citys own witness confirmed that the Assistant Chief had no
authority to purchase anything without prior approval (T.69,131132).
Respondent argues that the current Chief actually sought approval to purchase
this same equipment and was denied only being allowed to purchase equipment
after the City had applied for a grant (T.124, 132, 135). Respondent actually
purchased approximately 15 kits with webs prior to July 2012 for web-based bail
out equipment.
Regarding Specification 3, the City introduced no evidence placing whatever
did or did not occur within the 18 months of the Charge. Regarding the merits of
the Citys own witness it was established that the Department cannot train on
equipment it did not have and that the City refused to authorize the purchase of
the equipment and that is why the training did not occur (T.135).
Regarding Specification 6, the City introduced no evidence placing whatever
did or did not occur within the 18 months of the Charge. Regarding the merits of
this Specification, there is no dispute that the Fire Chief told Respondent that he
could not perform the calibration each year. Rather, the Department could only
do it every other year (T. 243 245) and that Respondent was without the
financial power to spend money on tests the City did not authorize. The record is
undisputed that Fire Chief Salzman specifically ordered Respondent not to
perform the tests.
Regarding Specification 7, the City introduced no evidence placing
whatever did or did not occur within the 18 months of the Charge. Respondent
argues that this Charge is meritless as State Law requires that turnout gear be
serviceable. The Citys own witness confirmed that all turnout gear was

41
serviceable and as such was in compliance with State law. NFPA cited to by the
City speaks to best practices, however it is not the law. Respondent had no
authority to buy turn out equipment without budget approval and further the City
refused to buy additional turnout gear to comply with NFPA standards where as
here the equipment met State standards.
Finally, Charge1 Specifcations 19 and 20 should be dismissed as there is
no record in the record to support either.

42

Discussion

The City has the burden to prove misconduct and/or incompetence by the
presentation of substantial evidence. See, Sticker v. Town of Hunter, 3 A.D.3d
727 (3d Dept 2004). Substantial evidence, has been defined as:
The concept of substantial evidence, a term of art related to administrative
decision-making. involves a meeting of the quality and quantity of proof;
it means such relevant proof as a reasonable person may accept as
adequate to support a conclusion or alternate fact. it is less than
preponderance of the evidence, overwhelming evidence or evidence
beyond a reasonable doubt.

The substantial evidence standard is met when proof within the whole
record is sufficient to convince and persuade the trier of fact that a conclusion or
alternate fact may reasonably be drawn to establish that the alleged conduct was
committed by the party Charged. Sicker, 3 A.D. 3d at 728.
The City, in the instant matter, has stressed that the case pursued against
Respondent, must be viewed in concert with the scandal of the previous Fire
Chief, who resigned in disgrace and retired after pleading guilty to a
misdemeanor crime of offering a false instrument for filing, in violation of Penal
Law, Section155. 30 (C-17) (City Brief, P-4).
By so pleading, the former Chief admitted that he intentionally submitted
leave records to the City, knowing that they were false and knowing they would
be relied upon, in order to receive a monetary benefit. The City argues that
Respondent did the exact same thing herein.

43
However, the record shows that extending the wrong doings of the
previous Chief of the Fire Department to the Respondent is not supported by the
facts and proofs in the record and are an unsupported over-reach of those facts.
The first major issue to be dealt with, is the Parole Evidence Rule
regarding the individual contract between the City and Respondent versus
Mutual Error as to the continuation of benefits under the KPFFA collective
bargaining agreement. In the opinion of the undersigned the Substantial and
Convincing evidence supports the Respondents argument that the contract in
effect for the Assistant Chief, is the classic definition of Mutual Mistake.
The City strenuously argues that Respondent was no longer entitled to the
benefits of the collective bargaining agreement because the provision that
provided those benefits to Respondent was not included in his individual contract
with the City. The record however shows that the "union benefit clause" was
omitted from Respondent's new contract without the knowledge of either the
former Mayor or Respondent contrary to their agreement and contrary to the
direction the Mayor gave to the assistant corporation counsel in 2009.
The City puts forth the argument that in New York a fundamental
evidentiary rule known as a parole evidence rule exists and that this rule provides
that the clear and expressed terms of a written contract cannot be varied by
testimony to the effect that the contract means something different from what it
actually says. As stated in New York Jurisprudence, 2d Edition:
The general principle known as the parole evidence rule provides that
where the parties to a contract have deliberately put their entire agreement
to writing in such terms as to import a legal obligation without any
uncertainty as to the object and extent of such engagement, extrinsic
evidence of prior or contemporaneous conversations, statements or
declarations tending to substitute a contract different from that evidenced

44
by the writing is inadmissible. (58 N.Y. Jur. 2d Edition, statement of parole
evidence rule, Section 556) In general, if a written agreement contains no
obvious or latent ambiguities, neither the parties nor their privies may
testify to what the parties meant but fails to state. Where language of the
agreement is clear, extrinsic evidence as to the parties intent is
inadmissibleIn other words, evidence of a secret and undisclosed intent
is inadmissible... (City Brief P-6)

Accordingly, the contract provision that stated:

The assistant Fire Chief will receive all the benefits that are provided to
members of the Kingston Professional Firefighters Association under the
Citys contract with the KPFFA and any additional memorandum they may
form.

was not included in the successor agreement. Therefore the City argues the
provisions providing for either flex time or reschedule time that existed within
the four corners of his previous agreement were no longer benefits that applied
to Respondent. The City also argues that Respondent was no longer eligible to
be paid for supplemental leave time that he was previously entitled to under the
provisions of the union contract.
The City states that Respondents former contract expired on May 31,
2009 (J-7-b) and that the former contract conferred the all important union
benefits to the Respondent. On February 6, 2009 former Chief Salzman and
the Mayor at that time executed Salzmans contract (R1) which contained the
union benefits. However Respondents renewal contract was not signed until
September 11, 2009 and it did not contain the all important union benefits
provision (J6). There was a nine-month delay between when the draft contract
was presented to Respondent and when the actually modified contract was
signed.
The City states that obviously a lot can happen in a nine-month period and
Respondent testified he didnt know of any reason for this prolonged delay. The

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City submitted that something did happen to cause Respondent to fall into
disfavor and that this is the explanation for why the all-important union benefits
clause was removed from his contract (City Brief P7).
However, the record does not include any City witness testimony to the
negotiations that led to Respondents successor agreement. The City provided
no explanation as to why the clause was removed from the approved contract
draft without any notice to Respondent in 2009 and contrary to the testimony of
either Sottile or Respondent.
There is no disagreement in the record that the firefighters contract clause
gave the Respondent the right to supplemental pay, holiday pay, and flex time in
all his previous contracts up to and including the contract dated through 2009.
Mayor Sottile testified that he directed the Assistant Corporation Counsel Shayne
Gallo in 2009 to prepare new agreements for the Fire Chief, the Assistant Fire
Chief the Assistant Police Chief and the Deputy Police Chief that mirrored one
another (T.169 173).
His testimonys is unrefuted. Respondents draft agreement (R2) was
prepared and reviewed by Mayor Sottile and provided to Respondent for review.
Subsequently they met to discuss the agreement and Mayor Sottile testified that
the only change from the prior agreement was to standardize the agreements
and add two (2) more vacation days to Respondents agreement that was in
effect (T-164). There is no dispute that the draft agreement agreed to by Mayor
Sottile and Respondent included the provision which would continue the benefits
from the KPFFA contract. There is also no dispute that the agreement for Chief
Salzman contained the same clause as of the KPFFA agreements.

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Neither Mayor Sottile nor Respondent read the final document before
signing it, relying instead on their prior review, agreement and mutual level of
trust to the draft agreement that included the union benefit provision. Both
Respondent and Sottile testified that they first became aware of the omission
years later after Respondent was suspended in this instant matter.
The City contends in this case, that one consequence of the omission of
the union clause is that Respondent was not entitled to supplemental pay in 2010
or 2011 even though he has always received supplemental pay throughout his
career.
Both Respondent and Sottile never discussed or agreed upon the $5,000
cut in pay or had any discussions or agreements other than including a
continuation of the same benefits and the addition of two more vacation days to
his contract.
It is critical to note that that the testimony of former Mayor Sottile and
Respondent concerning their intention was not refuted, disputed or contested at
the hearing. The record also shows that the City called no witnesses from the
Corporation Counsels office to explain how the clause was eliminated from the
final agreement (Respondent Brief P31).
Respondent correctly argues that where a party fails to call a witness it
controls to contest material evidence, the hearing officer can draw an inference:
that the nonproduction of evidence would naturally have been
produced by an honest and therefore fearless claimant permits an
inference that its tenor is unfavorable to the parties cause. Pattern jury
instructions 1:75, P. 112, citing People v. Valerius, 31 NY 2d 51.2

The undersigned has drawn this inference based upon the record which
clearly support it as well. There is no dispute that the evidence of what happened

47
to the clause the parties intended to be included in the final agreement is a
material issue to this case. Mayor Sottile testified that he explicitly approved the
draft agreement that he had reached with Respondent incorporating the benefits
from the KPFFA agreement and directed then Assistant Corporation Counsel
Gallo to prepare final agreements consistent with that draft (T.167168). This
testimony is not refuted.
The City put no proof of any kind to dispute this testimony and called no
witness's to explain how and why the clause was removed from the final
document even though it was intended by the parties to those negotiations that
the clause be continued. The record is clear that there is no dispute that
Respondent and the City had a meeting of the minds that the exact clause at
issue was the central and material part of Respondents employment agreement
that was to be continued.
Thus the undersigned has determined that the signing of Respondents
current agreement, was "Mutual Mistake." The omission of the "union benefits
clause" was not apparent to Respondent when it was removed in 2009 and
neither he or Mayor Sottile became aware of its omission until after these
Charges were preferred.
The record also shows that the omission of that clause was not completely
apparent to the City as well, as it operated under the terms of that agreement
and long-standing practice of paying Respondent supplemental benefits in 2010
and 2011 as though the clause was continued in the agreement.

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Applying basic contract law grounded in equitable principles, this is a
classic case of "Mutual Mistake" both allowing and requiring reformation of the
agreement to include the central clause to conform it to the intent of the parties:

(Mutual Mistake May furnish the basis for reforming in the agreement
When the parties... Citing Harris v. Uhlendorf, 24 NY 2d 463, 467- 1969
When there is no mistake about the agreement and the only mistake
alleged is in the reduction of that agreement to writing such mistake of the
scrivener, or of either party, no matter how it occurred may be corrected.
(Respondent Brief P11).

Accordingly, reformation of the agreement to include the clause at issue is
evidently required because:
the parties have a real an existing agreement on particular
terms and subsequently find themselves signatories to a writing
which does not accurately reflect that agreement (Harris 24 NY
2d at 467)

Accordingly, the record reflects that "Mutal Mistake" took place in the
instant case being the removal-omission of the "union benefit clause" resulting in
a change to Respondents successor employment contract from the original
agreement between Mayor Sottile, and Respondent to the successor agreement
which Respondent, in his mistake, unwittingly signed (without reading or
reviewing it) and unaware that the critical "union benefit clause" was omitted.
Therefore, the hearing officer has determined that the "union benefit
clause" should have been continued into the successor agreement. As the record
has shown by evidence submitted and testimony at hearing, there was no
discussion or mutual intent "to bargain the benefits out of the contract" by the
parties at that time. Rather, the omission of the "union benefit clause" amounted
to a breach of the original parties intended and agreed upon contract language.

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That being determined, the undersigned will recommend that all Charges
preferred against Respondent must be dismissed as unproven and/or untimely.
Accordingly, they cannot be proven to be illegal as the "union benefit provision"
was, in obvious error, omitted from the final contract.
The record does not support that any of the other charges, including the
Verizon Charges, the Computer Charges and the Charges regarding
Incompetency/ Dereliction of Duty have been proven and it is recommended that
they be dismissed/withdrawn in their entirety as well.


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Determination And Recommendation

The undersigned has determined that by Substantial and Convincing
evidence, that the City has not met the required burden of proof and
recommends that the Charges preferred against Respondent herein are to be
dismissed in their entirety.
It has been well established in this record that "Mutual Mistake" exists in
the contract between the City and Respondent. There was no intention by either
the former City Mayor Sottile who represented the City in negotiations for this
contract, and Respondent to exclude the provision that Mr. Rea is entitled to the
benefits of the KPFFA contract. The testimony of both former Mayor Sottile and
Respondent is unrefuted and has convinced the undersigned that the negotiated
agreement clearly intended to continue all terms of the previous agreement(s)
including 2009 with the only change being the addition of 2 vacation days.
Accordingly, the Charges and Specifications preferred by the City of
Kingston against Respondent Christopher Rea are untimely and/or without merit.
The undersigned recommends that the appointing authority dismiss/withdraw all
Charges and Specifications against Mr. Rea.
While the authority of the undersigned is to render a recommendation and
opinion, 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.



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______________________________________________________________
State of New York )
County of Albany ) ss.:
I, John T. Trela, do hereby affirm my oath as Hearing Officer, that I am the
Individual described herein and who executed this instrument, which is my
opinion and recommendation.

Dated: July 18, 2014



_____________________

John T Trela
Hearing Officer