RELEVANT PROCEDURAL HISTORY
On September 1, 2004 Officer Longton was suspended and On September 23, 2004, Officer Longton was
suspended without pay by the Village of Corinth (R26, 45-47). At the same time, he was served a
Notice and Statement of Charges with five counts of misconduct and incompetence citing the
Corinth Police Department Policy and Procedure Manual (R26, 45-47). A post-suspension hearing
was held on October 12, 2004, before Hearing Officer Stephen Conners (“Conners”) (R26, 48). On
October 15, 2004, Conners issued a Report and Recommendation that Officer Longton’s
employment be terminated (R48-53). No reviewable record was created at that hearing in an
attempt to cover up Trevor Downie’s criminal acts (R27, 56). On October 20, 2004, the Village
Board adopted Conners’ Report and Recommendation and terminated Officer Longton (R55).
With a Decision dated June 21, 2006, the State Supreme Court (the Honorable Thomas D. Nolan, Jr.)
held that the failure to prepare a transcript of a disciplinary hearing violated the law that
requires a reviewable record (R56-59). Judge Nolan annulled the Resolution and ordered the
Village to hold a de novo hearing (R56-59).
On August 16, 2006, the Village Board reappointed Conners to conduct a new hearing on the
charges against Officer Longton (R851). On May 7, 2007, Conners again recommended that Officer
Longton’s employment be terminated (see Exhibit F and R69-81). The decision sustained all five of the
charges except for Charge 3, Specification 1, which was dismissed, and specifically held that no
discipline was warranted for the conduct alleged in Charges 1, 2, 3 and 4. The recommended
decision sustained charge 5 and denied Officer Longton’s affirmative defense pursuant to Civil
Service Law §75-b (R81).
On May 21, 2007, the Village Board adopted the Recommended Decision in its entirety and
terminated Officer Longton’s employment (R82).
Pursuant to Article 78, Officer Longton challenged his termination in the Supreme Court,
Saratoga County, seeking to vacate and annul the decision terminating his employment with the
Village of Corinth, to reinstate him to the position of Police Officer for the Village of Corinth
and immediately reinstate him to the payroll with full back pay and benefits, including the right
to laterally transfer to the Saratoga County Sheriff’s Department (R22-23). In the alternative,
Officer Longton requested the Supreme Court issue an Order transferring the Article 78
proceeding to the Appellate Division, Third Judicial Department, pursuant to CPLR §7804(g) (R119-121).
With a Decision and Order dated January 29, 2008, the Supreme Court, Saratoga County (Nolan, J.)
granted the petition, in part, dismissing the Village respondents’ affirmative defenses and
transferring the Article 78 proceeding to the Appellate Division, Third Judicial Department (see
Exhibit D and R3-8).
On March 5, 2008, the Village respondents filed a Notice of Appeal from the January 29, 2008 Decision
and Order (R10).
On May 13, 2008, Officer Longton filed a motion to dismiss the Village’s appeal for failure to
prosecute (R2514-15). With a Decision and Order dated June 19, 2008, the Appellate Division, Third
Judicial Department dismissed the appeal and ordered Officer Longton to perfect the
transferred proceeding (R19).
On December 24, 2008, the Appellate Division, Third Department issued a decision to not disturb the
Village’s decision sustaining the disciplinary charges, rejecting Officer Longton’s whistleblower
defense and finding that Trevor Downie’s molesting of children, which contributed to his
suicide, was acceptable and that therefore a penalty of termination does not shock the
conscience. (See Exhibit A)
On January 6, 2009 counsel for Defendants served Officer Longton with notice of entry of the
December 24, 2008 decision, which was received by Plaintiff’s counsel on January 7, 2009. (See Exhibit
B)
On February 9, 2009 Officer Longton filed A Motion for Leave to Appeal to the Court of Appeals to
the Appellate Division, Third Department.
On April 10, 2009 the Appellate Division, Third Department issued a decision denying Officer Longton’
s Motion for Leave to Appeal to the Court of Appeals. (See Exhibit A) Officer Longton has not yet
been served with notice of entry.
We seek leave to appeal from the December 24, 2008 Decision of the Appellate Division, Third
Department. (See Exhibit A)
APPELLATE JURISDICTION AND
APPLICABLE LEGAL STANDARD
This Court has jurisdiction to grant permission to appeal pursuant to CPLR §5602(a)(1)(i).
Here, permission to appeal, or in the alternative, reargue, is appropriate because the Court
ignored overwhelming record facts and in the process allowed government officials to
harbor, protect criminals, and commit criminal acts. Such a ruling will have a chilling effect
and possible deadly consequences on all police officers who are compelled by constitutional
oath to act to uphold the law and protect the public; in lieu of that, the Decision will have a
chilling effect on other police officers. This case has importance beyond the parties and
warrants review by the Court of Appeals.
While it is true that a “substantial evidence” review does allow for deference to be given to a
hearing officer’s determination, it does not require it, particularly where, as here, there are
overwhelming record facts. Here, the overwhelming facts reveal that Officer Longton did not
disobey a lawful direct order, but rather upheld his constitutional oath by making a rational
decision to preserve evidence that corroborated said evidence where local business owner,
Trevor Downie was molesting minor female employees.
The act of preserving evidence was a lawful and appropriate exercise of Officer Longton’s duty
to protect the public consistent with his constitutional oath.
The decision here ignores that even the Chief of Police knew full well that Officer Longton’s
motivation was solely to protect the public and that Officer Longton’s conduct was not
contumacious. Under the facts of this case, it was and is corrupt and unconstitutional to
impose a penalty of termination.
QUESTIONS PRESENTED
1. Did the Appellate Division err as a matter of law in not disturbing the decision finding
Officer Longton guilty of the stated charges where the record facts do not support such a
finding?
2. Did the Appellate Division abuse its discretion as a matter of law in failing to modify the
punishment of termination as shocking to the conscience?
SUMMARY OF THE FACTS
This case involves a dedicated Police Officer who correctly assessed that there was probable
cause to believe Trevor Downie, the owner of a local diner was sexually assaulting women, many
of whom were minors. When Officer Longton made the Chief of Police aware of this, an
unprecedented meeting was called where the Mayor, a Village Trustee and the Chief instructed
Officer Longton that he could not arrest Trevor Downie and told Longton to “steer clear” of
Trevor Downie. At the time, the Mayor was also a real estate agent who recently profited in the
amount of $19,250.00, from his representation of local business owner Trevor Downie. In addition,
it should be noted that the hearing officer, Stephen Conners, had profitable business
transactions with Mayor Winslow. “I'm aware that Mr. Winslow is the mayor of the village. I have
dealt with him on occasion on real estate matters”, (Transcripts Day 1, Page 6, Line 15-17).
After the meeting, Officer Longton was told that Trevor Downie would not be investigated
because of his relationship with Mayor Winslow. The chief stated “we cannot take these people
on.” History has proven that Officer Longton was correct.
Officer Longton knew the Mayor, Village Trustee and Chief were taking extraordinary steps to
protect the local business owner Trevor Downie and to illegally halt any investigation.
Within hours after the meeting where Officer Longton was told to “steer clear of Downie”, a
new witness Melinda Marcotte, who was also victim and employee of Trevor Downie’s,
voluntarily came forward corroborating that the business owner Trevor Downie was
verbally and sexually abusing multiple minor female employees, including herself at his
restaurant. Officer Longton was terminated because he took a three page statement from
Melinda Marcotte of detailed abuse of herself and minor victims.
Meanwhile, Trevor Downie went on to molest three other minor female employees and possible
numerous others per witness testimoney, which were never investigated over a one-year period
from August 2004 to September 1, 2005, when Downie committed suicide. The Police Department
suspended and fired Officer Longton, then did nothing to investigate the business owner Trevor
Downie.
Q Okay. And did Police Officer Somma ever come and talk to you
about this?
A No.
(Transcript Day 3, Page 436 Line 23-24, Page 427 Line 1)
In Conners report dated October 15, 2004 the he stated “Stacey Crandall testified with regard to
her complaint involving inappropriate actions by Trevor Downie toward her daughter who is a
minor. She stated her concerns about having Officer Longton removed from the file and spoke
of her difficulties in having her complaint acted upon by the police department.” and also found
that “Upon hearing all the evidence presented, significant consideration must be given to the
concerns expressed by Officer Longton with regard to the failure to investigate a complaint of
possible criminal action against a minor. Furthermore, it is a source of concern that no
investigation appears to have been made with regard to the merits of the complaint made by the
Mayor on behalf of Mr. Downie. I have no basis to doubt the sincerity of Officer Longton’s
concerns regarding the failure to investigate”(Report of Hearing Officer, page 4, paragraph 3 &
page 5, paragraph 3). Remarkably, in the 2007 hearing, the Hearing Officer, Stephen Conners’, found
that other officers took over the investigation of business owner Trevor Downie when, in fact,
he knew they did not. This Court affirmed that finding despite the overwhelming evidence to the
contrary, essentially holding that the Hearing Officer made credibility determinations that the
Court would not review.
The Hearing Officer ignored these facts when he found Officer Longton guilty of
insubordination and recommended termination as the appropriate punishment. He also accepted
the Village’s fabricated concern that Officer Longton’s investigation of Trevor Downie would
subject the Village to a harassment suit. Yet, that concern was based solely on undocumented
and unconfirmed allegations from Mayor Winslow. There is no evidence in the record that the
Village made any attempt to confirm the truth of Mayor Winslow’s allegations. Even the Hearing
Officer acknowledged this. This Court gave deference to the Hearing Officer’s conclusions
despite the overwhelming evidence to the contrary.
When Officer Longton was suspended, the Village, out of revenge, “piled on” several other
technical non-intentional charges to bolster its case. While these other charges did not
warrant discipline, and are not at issue here, they do reveal the motive of the Village’s selective
and illegal treatment of Officer Longton by making an attempt to arbitrarily discipline him for
engaging in protected activity. In upholding the decision below this Court, Judge Anthony V.
Cardona, Judge Anthony J.Carpinello, Judge John A. Lahtinen, Judge Anthony T. Kane, and Judge
Bernard J. Malone Jr. ignored these telling facts and found that Officer Longton should have
followed an illegal and unlawful order which endangered the lives of the public, discarding
all evidence and allowing Trevor Downie to continue to sexually and verbally abuse minor
females. These judges found that it was not shocking to the conscience that Officer Longton
was the only officer trying to protect the public nor did they find it shocking to the
conscience that Trevor Downie committed suicide.
ARGUMENT
POINT I
OFFICER LONGTON KNEW THAT
CHIEF KANE’S ORDER WAS UNLAWFUL AND IN VIOLATION OF THE CONSTITUTIONAL OATH
AND DEPARTMENT’S CODE OF ETHICS
The crux of the case is a finding that Officer Longton was insubordinate when he went to
Melinda Marcotte’s house at her request to take her voluntary statement that a local business
man, “Downie”, molested her and several minors. The Appellate Division accepted a finding that
Officer Longton took the statement after he was given a direct order to cease all efforts to
investigate Downie and turn over the investigation to a different officer. In actuality, the
record shows that what the Chief actually said was that Officer Longton “steer clear of
Downie” and take no steps to arrest him.
The Corinth Police Manual defines insubordination as “failing or deliberately refusing to obey an
order given by a supervisory officer” (918). Here, there is no showing evidence of insubordination.
It is undisputed that Officer Longton complied with the Chief’s order to not arrest Downie and
to “steer clear” of him (R46, 711, 713, 761). However, the Hearing Officer recast Chief Kane’s order as
directing Officer Longton to cease his investigation of Downie altogether, relying on the
testimony of two politicians, Mayor Winslow and Trustee Lescault, who engaged in the criminal
acts of obstruction and endangering the welfare of a child and never before participated in an
internal police investigation (R73) . The Court’s decision here essentially adopts the Hearing
Officer’s decision recasting the actual order. That is both crucial wrong and illegal. It is
crucial because absent that characterization, Officer Longton’s conduct cannot be viewed as
insubordinate but rather a reasonable mandatory response to an unsolicited offer from the
public to give a written statement documenting criminal conduct against minors. It is wrong
because as Chief Kane testified his actual order to Officer Longton was “steer clear” of him the
perpetrator, Trevor Downie. This crucial fact was proven with overwhelming evidence, yet the
Hearing Officer avoided the evidence by illegally recasting the Chief’s actual words into
something else. This Court then refused to review that error and instead gave deference to the
decision despite the overwhelming evidence to the contrary. In summation, the hearing officer
Stephen Connors’ decision constitutes an illegal, criminal act.
The Decision here also fails to account for the extraordinary and unprecedented event of the
Chief, Mayor and Trustee’s meeting with Officer Longton. Such a meeting had never before taken
place in the Department and was preceded by a separate meeting involving Downie that was also
unprecedented (R180-82, 185-86, 268, 274, 279-80, 530-31). Yet, the Village Mayor, Trustee and Chief could
not explain why, when it came to Downie, normal everyday police procedure was ignored. The
only reasonable conclusion is that Downie had a strong influential relationship with the Mayor
and Trustee, and financial influence over Mayor Winslow. Even the Chief acknowledged that
when he made the remarkable statement that “We can’t take these people on”, referring to Mayor
Winslow, Trustee Lescault and Downie, giving Officer Longton direct knowledge that Downie’s
conduct would go unabated (R693-94). The Chief also acknowledged that it was reasonable for
Officer Longton to believe that Downie was receiving special treatment from the Mayor (R531).
Still, the Hearing Officer, Stephen Connors, credited Chief Kane’s testimony that Trevor Downie’s
position in the community had nothing to do with the order he gave to Officer Longton in the
presence of the Mayor and Village Trustee. The Hearing Officer based that finding on two facts:
(1) other “high profile” individuals, such as a bartender (Transcript Day 3, Page 615, Line 16) had been
arrested in the Village, and (2) the Chief had earlier encouraged Officer Longton to investigate
Downie (R80). The Court here gave deference to the Hearing Officer’s conclusions even though
they are inconsistent with the record.
The fact that the Department arrested others is irrelevant. In those cases, there is no evidence of
improper involvement of Village officials nor any real estate dealing with the mayor. In fact, we
know nothing about the events leading to those arrests (R739-41). In this case, however, there is
substantial evidence that the relationship between Downie, Mayor Winslow and the Village
Trustee led to Officer Longton’s suspension and Downie’s continued molestation of female
minors.
While Chief Kane admittedly encouraged Officer Longton to obtain a written statement from
Melinda Marcotte confirming that Downie was inappropriately touching minors, the Hearing
Officer Stephen Connors omitted the fact that Chief Kane wanted to use that statement to
destroy Downie’s credibility with Mayor Winslow (R688-89), and the Court here apparently
accepted that omission. This fact further demonstrates that Downie had a strong influential
and financial relationship with Mayor Winslow. Further, Chief Kane’s characterization of
Officer Longton as a rogue cop with a personal vendetta against Downie is supported merely by
speculation and belied by Officer Longton’s actual conduct on August 26, 2004 (R. R232, 707-11, 1848-
1850, 1883-84). Despite the Hearing Officer’s conclusion, the record shows Officer Longton had no
intention of arresting Downie without probable cause (R721). Indeed, the Chief admitted that
Officer Longton’s motives to “protect children” were genuine (R530).
Ronald Dunn –
Q - Were you able to make a judgment based on Jason Longton's tone of voice, the inflection of his
voice, his body language, as to whether or not he
sincerely believed that what he was doing was trying to protect the children -
Chief Kane-
A - I don't doubt his sincerity.
Q -- that he was trying to protect children and his acts were to protect the children?
(Transcript Day 2, Page 404 Line 21-24, page 405 line 1-4)
Yet in the face of this, the Court still deferred to the Hearing Officer’s conclusion that Officer
Longton disobeyed a clear and direct order to close all activity related to an investigation.
This Court also accepted the Hearing Officer’s finding that the Village intended to re-assign the
investigation of Downie to another officer. That is exactly what the Hearing Officer found
(R79). Yet, that finding is inconsistent with the record evidence:
• At a minimum, the Corinth Police Manual required the officer continuing the
investigation to confer with Officer Longton to report the status of his investigation
(R1204). That never happened. Instead, Officer Longton was immediately obstructed, was
told that he was reassigned to a different shift so they could keep an eye on him and then
suspended (R485-87, 584,731). Why?
• Pursuant to the Corinth Police Manual, in a sexual assault and child abuse case
potential witnesses can be contacted and interviewed (R.1232, 1236). However, no witnesses
were interviewed and the suspect was never questioned (R243-45, 247-48, 486-88, 493, 597-602, 615-
16, 1853, 2453). Why?
• Pursuant to the Corinth Police Manual, the assigned Officer must prepare a
Supplemental Report at the conclusion of his/her investigation or within 10 days of being
assigned the investigation (R1205). That Supplemental Report was never created. Why?
• Pursuant to the Corinth Police Manual, the assigned Officer must periodically prepare
and submit reports concerning the status of an ongoing investigation including its
final disposition (R1205-06). No such reports were created. Why?
• Pursuant to the Corinth Police Manual, allegations of sexual assault of a minor must be
reported to the Child Abuse Hotline and the New York State Child Abuse Registery (R474,
475, 1233, 1236). That never happened (R488, 493). Why?
• Chief Kane admitted that he had direct knowledge that Downie was allegedly molesting
female employees, including minors. With that knowledge, Chief Kane never questioned
Downie or any witness, and returned the only piece of sworn evidence corroborating
Downie’s sexual contact of minors to a victim who later destroyed her statement, which
was both unauthorized and illegal (R243-45, 247-48, 254, 486-87, 493, 1848-50, 1853).
• According to the Chief, the extent of the Department’s investigation included dining at
Jack’s Place each morning for breakfast waiting for an employee to voluntarily disclose
that Downie was molesting minors (R486-87). While the chief was eating breakfast with the
perpetrator, the minor victims were at school.
Q In 2004, how old were you?
A Fourteen or 15.
Q Okay. What grade was that?
A Tenth. No. Ninth.
Q Ninth grade. And so you were 14 or 15?
A Uh-huh.
(Transcript Day 3, Page 444 Line 24, Page 445 Line 1-5)
Officer Longton’s investigation uncovered several criminal offenses all of which Chief Kane
ignored. Those offenses included the following:
• Penal Law §260.10(1) Endangering the Welfare of a Child ;
• Penal Law §130.52 Forcible Touching ; and
• Penal Law §130.55 Sexual Abuse in the Third Degree .
We know Chief Kane ignored these criminal offenses because he wrongly told Ms. Crandall, the
mother of a 15 year old victim, to contact the New York State Department of Labor, an agency
which has jurisdiction over child labor hours of work violations (see, e.g., NYS Labor L. §21 and
§§130 et seq.), but has no jurisdiction over sexual touching cases involving adults or minors.
What is worse than giving Ms. Crandall the wrong information is that as the Chief of Police, Kane
surely knew that unlike an adult, a minor cannot consent to sexual touching. See, Marmelstein
v. Kehillat New Hempstead, 2008 WL 2510623, n.4 (2008). Thus, there is a crime, not a civil offense, which
must be investigated by law.
As of August 26, 2004, Chief Kane knew that Downie allegedly repeatedly groped an adult
female’s breasts without her consent, molested several minors, and made lewd comments to
those minors (R294-95, 298, 470-71, 687-89, 696-697, 711, 712, 1610, 1885).
Q Now, did Mr. Downie ever do anything to you at the restaurant that was inappropriate,
touch you inappropriately or say anything to you inappropriately?
A He had touched my shoulder and touched the base of my back, but he just basically touched
my shoulder up here, and then the base of my back. It made me feel uncomfortable.
Q And it made you feel uncomfortable because you didn't feel it was appropriate for him to
touch you that way?
A Yes.
(Transcript Day 3, Page 423 Line 11-22)
Q What did Mr. Downie do?
A Well, he always, like rubbed my back and touched my butt, like when he was walking by.
Q I'm sorry?
A Touched my behind.
Q When he would walk by you?
A Yes. And sometimes he would like tell me that we are going to run away to like some island
and I didn't need to pack any bags. All I needed was a bikini. Stuff like that.
Q Did that make you feel uncomfortable?
A Yes.
Q Did you tell anyone this?
A Just like -- I had a couple of friends that worked there with me and I asked them if he did the
same kind of thing, and they said he touched them kind of like that, too.
Q And who were your couple of friends that worked there?
A Waitress C.
MR. DUNN: Can we refer in the transcript to Waitress C. Is that appropriate?
HEARING OFFICER: Certainly.
MS. HAYNES: Yes.
A Waitress BV.
(Transcript Day 3, Page 446 Line 11- Page 448 Line 11)
These facts alone demonstrate criminal activity that warranted further discovery of the facts.
See, People v. Fuller, 845 NYS2d 594 (3rd Dep’t 2008) (subjecting an individual to nonconsensual
sexual contact sufficiently demonstrates Sexual Abuse in the Third Degree); People v. Sumpter, 190
Misc.2d 115 (Sup. Ct. App. Term 2001) (“the intentional and sexually motivated touching of a person's
covered buttocks constitutes Sexual Abuse in the Third Degree); People v. Morbelli, 144 Misc.2d 482
(NYC Criminal Court 1989); People v. Hitchcock, 98 NY2d 586 (2002) (proof that the defendant was
aware that his conduct would endanger a child is sufficient evidence of endangerment).
The Decision here accepts as true the Village’s alleged concern that the Village was motivated by
Downie’s alleged threatened harassment suit. That is simply inconsistent with the record. The
facts reveal, Mayor Winslow fabricated all the allegations of the harassment suit. There is no
documented complaint from Trevor Downie other then the Mayor’s hearsay. The Village took
no step to investigate Mayor Winslow’s complaints on behalf Trevor Downie. The Hearing Officer
acknowledged this in the first disciplinary hearing (R52).
The Department’s Police Manual is quite clear on the procedures that must be followed
whenever a civilian registers a complaint (R396, 928-34). None of these steps were taken (R323, 386,
396-98, 494-500, 512-13). There is no documentation that Trevor Downie ever made a complaint.
Indeed, as Chief Kane admitted, it is quite common for a suspect to seek to deflect attention from
his own misdeeds by claiming police misconduct (R.517). That is why following the civilian
complaint procedure is so important. If the procedure is followed baseless claims are revealed
and honest police officers are vindicated (R516-18).
Under these circumstances it is apparent that the original direction to Officer Longton to back
off was to protect Trevor Downie while he was committing criminal acts against female minors.
This order is unlawful and one cannot be insubordinate absent a lawful order.
In addition, the other four charges, which did not warrant discipline, demonstrate that the
asserted reason for Officer Longton’s discharge is pretextual. First, it is undisputed that the
Village introduced altered documents, a criminal act, to support its third charge (R438, 443-47,
1575-79, 1891). At Officer Longton’s hearing, the Village introduced a police blotter entry for
August 26, 2004 recording odometer readings for that day to show that Officer Longton did
not properly record his starting mileage (R1575-79). Chief Kane’s father, Sergeant Kane, also did
not record his starting mileage on that day (R1891). That proof was introduced in the first
hearing. However, the Village apparently made up a starting mileage for Sergeant Kane and
added it to the blotter sometime after the first proceeding but in time to introduce this altered
document in the second proceeding (R1575-79). Chief Kane admitted that this would constitute a
serious violation of Department rules to alter a blotter entry later without some reference to
when it was added (R447). Illegally altering a document that has already been submitted as
evidence in a court of law and that will be reintroduced in its altered state is a serious
criminal offence. Yet, there was no explanation why the Village felt justified in using an altered
document to support the charges. What the Village does admit is that no investigation has been
conducted to ferret out who committed this serious criminal offence against Officer Longton
and altered an official police record knowing that the record would be relied on in a pending
disciplinary proceeding (R447).
The Chief also admitted that charges 1, 2 and 3 amounted to no more than technical non-
intentional errors that had no consequence whatsoever (R435, 457-63). Further, the Chief could
not explain why the Village waited several months to seek discipline for these technical, non-
intentional inconsequential omissions. He could also not explain why other officers were not
disciplined for exactly the same conduct (R457-63). The Chief even acknowledged that Officer
Longton had already been disciplined for one of the charges (R338-41, 461).
Together, these facts demonstrate that the Village knew the Chief’s order to Officer Longton
was unlawful and simply “piled on” every technical infraction it could find to bolster its case.
Thus, Officer Longton has satisfied his burden of proving that his discharge was malicious and in
retaliation for refusing to obey an unlawful order that constituted criminal activity for
which Officer Longton would have been subjected to criminal and civil penalties himself, being as
the female minors were mentally and physically injured. All of this was ignored by the Court.
These facts also demonstrate that Officer Longton’s conduct is protected by Civil Service Law
§75-b.
Here, Officer Longton had disciplinary acts taken against him because he was disclosing to the
Chief, Mayor and Village Trustee that he had knowledge Downie was violating the law, i.e.,
sexually molesting female employees, including minors.
Civil Service Law §75-b provides:
A public employer shall not dismiss or take other disciplinary or other adverse personnel
action against a public employee regarding the employee's employment because the employee
discloses to a governmental body information: (i) regarding a violation of a law, rule or
regulation which violation creates and presents a substantial and specific danger to the public
health or safety….
Officer Longton has shown each element of this defense. Officer Longton correctly assessed
that Trevor Downie was molesting several female employees, including minors, in violation of
New York State Penal Law. Officer Longton’s protected activity, as defined by §75-b, included
advising the Chief, Mayor and Village Trustee of this criminal conduct. There is no dispute
Officer Longton suffered an adverse personnel action as he was immediately removed from the
investigation and then suspended.
The Decision of the Court incorrectly failed to address these undisputed facts and instead
affirmed the Hearing Officer’s dismissal of the §75-b defense as based on a credibility
determination. A decision dismissing a 75-b defense on this record will certainly have a chilling
effect on other police officers seeking to protect the public as well as possible deadly
consequences.
POINT II
OFFICER LONGTON’S PENALTY
OF TERMINATION IS EXCESSIVE
Termination under these facts is a vindictive, corrupt penalty. That penalty is excessive and
shocking to the conscience for the following reasons:
Officer Longton complied with Chief Kane’s order to not arrest, and to stay away from,
Trevor Downie (R46, 711, 713, 761).
Officer Longton did not approach Marcotte for a statement. Rather, she contacted
Officer Longton to inform him that she was now ready to give him a voluntary statement
(R631, 632, 1883).
Marcotte’s statement was provided to Officer Longton with the understanding that he
would keep it confidential, out of her fear of retaliation by Trevor Downie. Officer
Longton complied with that request (R708).
Officer Longton immediately turned over the Marcotte statement when the Chief ordered
him to do so (R711-12).
Officer Longton correctly assessed that Trevor Downie was a threat to the health and
safety of Village residents while the Village enabled criminal behavior (R75, 549, 569-580, 690-91,
1848-1850).
Officer Longton has an otherwise distinguished career in law enforcement that began in
1997 (R713, 2433-2436)
This is not the type of contumacious conduct that warrants a penalty of discipline.
Based on the foregoing, Officer Longton’s penalty of termination is vengeful and should be
voided. It was error for the Court to hold otherwise.
On September 1, 2004 Officer Longton was suspended and On September 23, 2004, Officer Longton was
suspended without pay by the Village of Corinth (R26, 45-47). At the same time, he was served a
Notice and Statement of Charges with five counts of misconduct and incompetence citing the
Corinth Police Department Policy and Procedure Manual (R26, 45-47). A post-suspension hearing
was held on October 12, 2004, before Hearing Officer Stephen Conners (“Conners”) (R26, 48). On
October 15, 2004, Conners issued a Report and Recommendation that Officer Longton’s
employment be terminated (R48-53). No reviewable record was created at that hearing in an
attempt to cover up Trevor Downie’s criminal acts (R27, 56). On October 20, 2004, the Village
Board adopted Conners’ Report and Recommendation and terminated Officer Longton (R55).
With a Decision dated June 21, 2006, the State Supreme Court (the Honorable Thomas D. Nolan, Jr.)
held that the failure to prepare a transcript of a disciplinary hearing violated the law that
requires a reviewable record (R56-59). Judge Nolan annulled the Resolution and ordered the
Village to hold a de novo hearing (R56-59).
On August 16, 2006, the Village Board reappointed Conners to conduct a new hearing on the
charges against Officer Longton (R851). On May 7, 2007, Conners again recommended that Officer
Longton’s employment be terminated (see Exhibit F and R69-81). The decision sustained all five of the
charges except for Charge 3, Specification 1, which was dismissed, and specifically held that no
discipline was warranted for the conduct alleged in Charges 1, 2, 3 and 4. The recommended
decision sustained charge 5 and denied Officer Longton’s affirmative defense pursuant to Civil
Service Law §75-b (R81).
On May 21, 2007, the Village Board adopted the Recommended Decision in its entirety and
terminated Officer Longton’s employment (R82).
Pursuant to Article 78, Officer Longton challenged his termination in the Supreme Court,
Saratoga County, seeking to vacate and annul the decision terminating his employment with the
Village of Corinth, to reinstate him to the position of Police Officer for the Village of Corinth
and immediately reinstate him to the payroll with full back pay and benefits, including the right
to laterally transfer to the Saratoga County Sheriff’s Department (R22-23). In the alternative,
Officer Longton requested the Supreme Court issue an Order transferring the Article 78
proceeding to the Appellate Division, Third Judicial Department, pursuant to CPLR §7804(g) (R119-121).
With a Decision and Order dated January 29, 2008, the Supreme Court, Saratoga County (Nolan, J.)
granted the petition, in part, dismissing the Village respondents’ affirmative defenses and
transferring the Article 78 proceeding to the Appellate Division, Third Judicial Department (see
Exhibit D and R3-8).
On March 5, 2008, the Village respondents filed a Notice of Appeal from the January 29, 2008 Decision
and Order (R10).
On May 13, 2008, Officer Longton filed a motion to dismiss the Village’s appeal for failure to
prosecute (R2514-15). With a Decision and Order dated June 19, 2008, the Appellate Division, Third
Judicial Department dismissed the appeal and ordered Officer Longton to perfect the
transferred proceeding (R19).
On December 24, 2008, the Appellate Division, Third Department issued a decision to not disturb the
Village’s decision sustaining the disciplinary charges, rejecting Officer Longton’s whistleblower
defense and finding that Trevor Downie’s molesting of children, which contributed to his
suicide, was acceptable and that therefore a penalty of termination does not shock the
conscience. (See Exhibit A)
On January 6, 2009 counsel for Defendants served Officer Longton with notice of entry of the
December 24, 2008 decision, which was received by Plaintiff’s counsel on January 7, 2009. (See Exhibit
B)
On February 9, 2009 Officer Longton filed A Motion for Leave to Appeal to the Court of Appeals to
the Appellate Division, Third Department.
On April 10, 2009 the Appellate Division, Third Department issued a decision denying Officer Longton’
s Motion for Leave to Appeal to the Court of Appeals. (See Exhibit A) Officer Longton has not yet
been served with notice of entry.
We seek leave to appeal from the December 24, 2008 Decision of the Appellate Division, Third
Department. (See Exhibit A)
APPELLATE JURISDICTION AND
APPLICABLE LEGAL STANDARD
This Court has jurisdiction to grant permission to appeal pursuant to CPLR §5602(a)(1)(i).
Here, permission to appeal, or in the alternative, reargue, is appropriate because the Court
ignored overwhelming record facts and in the process allowed government officials to
harbor, protect criminals, and commit criminal acts. Such a ruling will have a chilling effect
and possible deadly consequences on all police officers who are compelled by constitutional
oath to act to uphold the law and protect the public; in lieu of that, the Decision will have a
chilling effect on other police officers. This case has importance beyond the parties and
warrants review by the Court of Appeals.
While it is true that a “substantial evidence” review does allow for deference to be given to a
hearing officer’s determination, it does not require it, particularly where, as here, there are
overwhelming record facts. Here, the overwhelming facts reveal that Officer Longton did not
disobey a lawful direct order, but rather upheld his constitutional oath by making a rational
decision to preserve evidence that corroborated said evidence where local business owner,
Trevor Downie was molesting minor female employees.
The act of preserving evidence was a lawful and appropriate exercise of Officer Longton’s duty
to protect the public consistent with his constitutional oath.
The decision here ignores that even the Chief of Police knew full well that Officer Longton’s
motivation was solely to protect the public and that Officer Longton’s conduct was not
contumacious. Under the facts of this case, it was and is corrupt and unconstitutional to
impose a penalty of termination.
QUESTIONS PRESENTED
1. Did the Appellate Division err as a matter of law in not disturbing the decision finding
Officer Longton guilty of the stated charges where the record facts do not support such a
finding?
2. Did the Appellate Division abuse its discretion as a matter of law in failing to modify the
punishment of termination as shocking to the conscience?
SUMMARY OF THE FACTS
This case involves a dedicated Police Officer who correctly assessed that there was probable
cause to believe Trevor Downie, the owner of a local diner was sexually assaulting women, many
of whom were minors. When Officer Longton made the Chief of Police aware of this, an
unprecedented meeting was called where the Mayor, a Village Trustee and the Chief instructed
Officer Longton that he could not arrest Trevor Downie and told Longton to “steer clear” of
Trevor Downie. At the time, the Mayor was also a real estate agent who recently profited in the
amount of $19,250.00, from his representation of local business owner Trevor Downie. In addition,
it should be noted that the hearing officer, Stephen Conners, had profitable business
transactions with Mayor Winslow. “I'm aware that Mr. Winslow is the mayor of the village. I have
dealt with him on occasion on real estate matters”, (Transcripts Day 1, Page 6, Line 15-17).
After the meeting, Officer Longton was told that Trevor Downie would not be investigated
because of his relationship with Mayor Winslow. The chief stated “we cannot take these people
on.” History has proven that Officer Longton was correct.
Officer Longton knew the Mayor, Village Trustee and Chief were taking extraordinary steps to
protect the local business owner Trevor Downie and to illegally halt any investigation.
Within hours after the meeting where Officer Longton was told to “steer clear of Downie”, a
new witness Melinda Marcotte, who was also victim and employee of Trevor Downie’s,
voluntarily came forward corroborating that the business owner Trevor Downie was
verbally and sexually abusing multiple minor female employees, including herself at his
restaurant. Officer Longton was terminated because he took a three page statement from
Melinda Marcotte of detailed abuse of herself and minor victims.
Meanwhile, Trevor Downie went on to molest three other minor female employees and possible
numerous others per witness testimoney, which were never investigated over a one-year period
from August 2004 to September 1, 2005, when Downie committed suicide. The Police Department
suspended and fired Officer Longton, then did nothing to investigate the business owner Trevor
Downie.
Q Okay. And did Police Officer Somma ever come and talk to you
about this?
A No.
(Transcript Day 3, Page 436 Line 23-24, Page 427 Line 1)
In Conners report dated October 15, 2004 the he stated “Stacey Crandall testified with regard to
her complaint involving inappropriate actions by Trevor Downie toward her daughter who is a
minor. She stated her concerns about having Officer Longton removed from the file and spoke
of her difficulties in having her complaint acted upon by the police department.” and also found
that “Upon hearing all the evidence presented, significant consideration must be given to the
concerns expressed by Officer Longton with regard to the failure to investigate a complaint of
possible criminal action against a minor. Furthermore, it is a source of concern that no
investigation appears to have been made with regard to the merits of the complaint made by the
Mayor on behalf of Mr. Downie. I have no basis to doubt the sincerity of Officer Longton’s
concerns regarding the failure to investigate”(Report of Hearing Officer, page 4, paragraph 3 &
page 5, paragraph 3). Remarkably, in the 2007 hearing, the Hearing Officer, Stephen Conners’, found
that other officers took over the investigation of business owner Trevor Downie when, in fact,
he knew they did not. This Court affirmed that finding despite the overwhelming evidence to the
contrary, essentially holding that the Hearing Officer made credibility determinations that the
Court would not review.
The Hearing Officer ignored these facts when he found Officer Longton guilty of
insubordination and recommended termination as the appropriate punishment. He also accepted
the Village’s fabricated concern that Officer Longton’s investigation of Trevor Downie would
subject the Village to a harassment suit. Yet, that concern was based solely on undocumented
and unconfirmed allegations from Mayor Winslow. There is no evidence in the record that the
Village made any attempt to confirm the truth of Mayor Winslow’s allegations. Even the Hearing
Officer acknowledged this. This Court gave deference to the Hearing Officer’s conclusions
despite the overwhelming evidence to the contrary.
When Officer Longton was suspended, the Village, out of revenge, “piled on” several other
technical non-intentional charges to bolster its case. While these other charges did not
warrant discipline, and are not at issue here, they do reveal the motive of the Village’s selective
and illegal treatment of Officer Longton by making an attempt to arbitrarily discipline him for
engaging in protected activity. In upholding the decision below this Court, Judge Anthony V.
Cardona, Judge Anthony J.Carpinello, Judge John A. Lahtinen, Judge Anthony T. Kane, and Judge
Bernard J. Malone Jr. ignored these telling facts and found that Officer Longton should have
followed an illegal and unlawful order which endangered the lives of the public, discarding
all evidence and allowing Trevor Downie to continue to sexually and verbally abuse minor
females. These judges found that it was not shocking to the conscience that Officer Longton
was the only officer trying to protect the public nor did they find it shocking to the
conscience that Trevor Downie committed suicide.
ARGUMENT
POINT I
OFFICER LONGTON KNEW THAT
CHIEF KANE’S ORDER WAS UNLAWFUL AND IN VIOLATION OF THE CONSTITUTIONAL OATH
AND DEPARTMENT’S CODE OF ETHICS
The crux of the case is a finding that Officer Longton was insubordinate when he went to
Melinda Marcotte’s house at her request to take her voluntary statement that a local business
man, “Downie”, molested her and several minors. The Appellate Division accepted a finding that
Officer Longton took the statement after he was given a direct order to cease all efforts to
investigate Downie and turn over the investigation to a different officer. In actuality, the
record shows that what the Chief actually said was that Officer Longton “steer clear of
Downie” and take no steps to arrest him.
The Corinth Police Manual defines insubordination as “failing or deliberately refusing to obey an
order given by a supervisory officer” (918). Here, there is no showing evidence of insubordination.
It is undisputed that Officer Longton complied with the Chief’s order to not arrest Downie and
to “steer clear” of him (R46, 711, 713, 761). However, the Hearing Officer recast Chief Kane’s order as
directing Officer Longton to cease his investigation of Downie altogether, relying on the
testimony of two politicians, Mayor Winslow and Trustee Lescault, who engaged in the criminal
acts of obstruction and endangering the welfare of a child and never before participated in an
internal police investigation (R73) . The Court’s decision here essentially adopts the Hearing
Officer’s decision recasting the actual order. That is both crucial wrong and illegal. It is
crucial because absent that characterization, Officer Longton’s conduct cannot be viewed as
insubordinate but rather a reasonable mandatory response to an unsolicited offer from the
public to give a written statement documenting criminal conduct against minors. It is wrong
because as Chief Kane testified his actual order to Officer Longton was “steer clear” of him the
perpetrator, Trevor Downie. This crucial fact was proven with overwhelming evidence, yet the
Hearing Officer avoided the evidence by illegally recasting the Chief’s actual words into
something else. This Court then refused to review that error and instead gave deference to the
decision despite the overwhelming evidence to the contrary. In summation, the hearing officer
Stephen Connors’ decision constitutes an illegal, criminal act.
The Decision here also fails to account for the extraordinary and unprecedented event of the
Chief, Mayor and Trustee’s meeting with Officer Longton. Such a meeting had never before taken
place in the Department and was preceded by a separate meeting involving Downie that was also
unprecedented (R180-82, 185-86, 268, 274, 279-80, 530-31). Yet, the Village Mayor, Trustee and Chief could
not explain why, when it came to Downie, normal everyday police procedure was ignored. The
only reasonable conclusion is that Downie had a strong influential relationship with the Mayor
and Trustee, and financial influence over Mayor Winslow. Even the Chief acknowledged that
when he made the remarkable statement that “We can’t take these people on”, referring to Mayor
Winslow, Trustee Lescault and Downie, giving Officer Longton direct knowledge that Downie’s
conduct would go unabated (R693-94). The Chief also acknowledged that it was reasonable for
Officer Longton to believe that Downie was receiving special treatment from the Mayor (R531).
Still, the Hearing Officer, Stephen Connors, credited Chief Kane’s testimony that Trevor Downie’s
position in the community had nothing to do with the order he gave to Officer Longton in the
presence of the Mayor and Village Trustee. The Hearing Officer based that finding on two facts:
(1) other “high profile” individuals, such as a bartender (Transcript Day 3, Page 615, Line 16) had been
arrested in the Village, and (2) the Chief had earlier encouraged Officer Longton to investigate
Downie (R80). The Court here gave deference to the Hearing Officer’s conclusions even though
they are inconsistent with the record.
The fact that the Department arrested others is irrelevant. In those cases, there is no evidence of
improper involvement of Village officials nor any real estate dealing with the mayor. In fact, we
know nothing about the events leading to those arrests (R739-41). In this case, however, there is
substantial evidence that the relationship between Downie, Mayor Winslow and the Village
Trustee led to Officer Longton’s suspension and Downie’s continued molestation of female
minors.
While Chief Kane admittedly encouraged Officer Longton to obtain a written statement from
Melinda Marcotte confirming that Downie was inappropriately touching minors, the Hearing
Officer Stephen Connors omitted the fact that Chief Kane wanted to use that statement to
destroy Downie’s credibility with Mayor Winslow (R688-89), and the Court here apparently
accepted that omission. This fact further demonstrates that Downie had a strong influential
and financial relationship with Mayor Winslow. Further, Chief Kane’s characterization of
Officer Longton as a rogue cop with a personal vendetta against Downie is supported merely by
speculation and belied by Officer Longton’s actual conduct on August 26, 2004 (R. R232, 707-11, 1848-
1850, 1883-84). Despite the Hearing Officer’s conclusion, the record shows Officer Longton had no
intention of arresting Downie without probable cause (R721). Indeed, the Chief admitted that
Officer Longton’s motives to “protect children” were genuine (R530).
Ronald Dunn –
Q - Were you able to make a judgment based on Jason Longton's tone of voice, the inflection of his
voice, his body language, as to whether or not he
sincerely believed that what he was doing was trying to protect the children -
Chief Kane-
A - I don't doubt his sincerity.
Q -- that he was trying to protect children and his acts were to protect the children?
(Transcript Day 2, Page 404 Line 21-24, page 405 line 1-4)
Yet in the face of this, the Court still deferred to the Hearing Officer’s conclusion that Officer
Longton disobeyed a clear and direct order to close all activity related to an investigation.
This Court also accepted the Hearing Officer’s finding that the Village intended to re-assign the
investigation of Downie to another officer. That is exactly what the Hearing Officer found
(R79). Yet, that finding is inconsistent with the record evidence:
• At a minimum, the Corinth Police Manual required the officer continuing the
investigation to confer with Officer Longton to report the status of his investigation
(R1204). That never happened. Instead, Officer Longton was immediately obstructed, was
told that he was reassigned to a different shift so they could keep an eye on him and then
suspended (R485-87, 584,731). Why?
• Pursuant to the Corinth Police Manual, in a sexual assault and child abuse case
potential witnesses can be contacted and interviewed (R.1232, 1236). However, no witnesses
were interviewed and the suspect was never questioned (R243-45, 247-48, 486-88, 493, 597-602, 615-
16, 1853, 2453). Why?
• Pursuant to the Corinth Police Manual, the assigned Officer must prepare a
Supplemental Report at the conclusion of his/her investigation or within 10 days of being
assigned the investigation (R1205). That Supplemental Report was never created. Why?
• Pursuant to the Corinth Police Manual, the assigned Officer must periodically prepare
and submit reports concerning the status of an ongoing investigation including its
final disposition (R1205-06). No such reports were created. Why?
• Pursuant to the Corinth Police Manual, allegations of sexual assault of a minor must be
reported to the Child Abuse Hotline and the New York State Child Abuse Registery (R474,
475, 1233, 1236). That never happened (R488, 493). Why?
• Chief Kane admitted that he had direct knowledge that Downie was allegedly molesting
female employees, including minors. With that knowledge, Chief Kane never questioned
Downie or any witness, and returned the only piece of sworn evidence corroborating
Downie’s sexual contact of minors to a victim who later destroyed her statement, which
was both unauthorized and illegal (R243-45, 247-48, 254, 486-87, 493, 1848-50, 1853).
• According to the Chief, the extent of the Department’s investigation included dining at
Jack’s Place each morning for breakfast waiting for an employee to voluntarily disclose
that Downie was molesting minors (R486-87). While the chief was eating breakfast with the
perpetrator, the minor victims were at school.
Q In 2004, how old were you?
A Fourteen or 15.
Q Okay. What grade was that?
A Tenth. No. Ninth.
Q Ninth grade. And so you were 14 or 15?
A Uh-huh.
(Transcript Day 3, Page 444 Line 24, Page 445 Line 1-5)
Officer Longton’s investigation uncovered several criminal offenses all of which Chief Kane
ignored. Those offenses included the following:
• Penal Law §260.10(1) Endangering the Welfare of a Child ;
• Penal Law §130.52 Forcible Touching ; and
• Penal Law §130.55 Sexual Abuse in the Third Degree .
We know Chief Kane ignored these criminal offenses because he wrongly told Ms. Crandall, the
mother of a 15 year old victim, to contact the New York State Department of Labor, an agency
which has jurisdiction over child labor hours of work violations (see, e.g., NYS Labor L. §21 and
§§130 et seq.), but has no jurisdiction over sexual touching cases involving adults or minors.
What is worse than giving Ms. Crandall the wrong information is that as the Chief of Police, Kane
surely knew that unlike an adult, a minor cannot consent to sexual touching. See, Marmelstein
v. Kehillat New Hempstead, 2008 WL 2510623, n.4 (2008). Thus, there is a crime, not a civil offense, which
must be investigated by law.
As of August 26, 2004, Chief Kane knew that Downie allegedly repeatedly groped an adult
female’s breasts without her consent, molested several minors, and made lewd comments to
those minors (R294-95, 298, 470-71, 687-89, 696-697, 711, 712, 1610, 1885).
Q Now, did Mr. Downie ever do anything to you at the restaurant that was inappropriate,
touch you inappropriately or say anything to you inappropriately?
A He had touched my shoulder and touched the base of my back, but he just basically touched
my shoulder up here, and then the base of my back. It made me feel uncomfortable.
Q And it made you feel uncomfortable because you didn't feel it was appropriate for him to
touch you that way?
A Yes.
(Transcript Day 3, Page 423 Line 11-22)
Q What did Mr. Downie do?
A Well, he always, like rubbed my back and touched my butt, like when he was walking by.
Q I'm sorry?
A Touched my behind.
Q When he would walk by you?
A Yes. And sometimes he would like tell me that we are going to run away to like some island
and I didn't need to pack any bags. All I needed was a bikini. Stuff like that.
Q Did that make you feel uncomfortable?
A Yes.
Q Did you tell anyone this?
A Just like -- I had a couple of friends that worked there with me and I asked them if he did the
same kind of thing, and they said he touched them kind of like that, too.
Q And who were your couple of friends that worked there?
A Waitress C.
MR. DUNN: Can we refer in the transcript to Waitress C. Is that appropriate?
HEARING OFFICER: Certainly.
MS. HAYNES: Yes.
A Waitress BV.
(Transcript Day 3, Page 446 Line 11- Page 448 Line 11)
These facts alone demonstrate criminal activity that warranted further discovery of the facts.
See, People v. Fuller, 845 NYS2d 594 (3rd Dep’t 2008) (subjecting an individual to nonconsensual
sexual contact sufficiently demonstrates Sexual Abuse in the Third Degree); People v. Sumpter, 190
Misc.2d 115 (Sup. Ct. App. Term 2001) (“the intentional and sexually motivated touching of a person's
covered buttocks constitutes Sexual Abuse in the Third Degree); People v. Morbelli, 144 Misc.2d 482
(NYC Criminal Court 1989); People v. Hitchcock, 98 NY2d 586 (2002) (proof that the defendant was
aware that his conduct would endanger a child is sufficient evidence of endangerment).
The Decision here accepts as true the Village’s alleged concern that the Village was motivated by
Downie’s alleged threatened harassment suit. That is simply inconsistent with the record. The
facts reveal, Mayor Winslow fabricated all the allegations of the harassment suit. There is no
documented complaint from Trevor Downie other then the Mayor’s hearsay. The Village took
no step to investigate Mayor Winslow’s complaints on behalf Trevor Downie. The Hearing Officer
acknowledged this in the first disciplinary hearing (R52).
The Department’s Police Manual is quite clear on the procedures that must be followed
whenever a civilian registers a complaint (R396, 928-34). None of these steps were taken (R323, 386,
396-98, 494-500, 512-13). There is no documentation that Trevor Downie ever made a complaint.
Indeed, as Chief Kane admitted, it is quite common for a suspect to seek to deflect attention from
his own misdeeds by claiming police misconduct (R.517). That is why following the civilian
complaint procedure is so important. If the procedure is followed baseless claims are revealed
and honest police officers are vindicated (R516-18).
Under these circumstances it is apparent that the original direction to Officer Longton to back
off was to protect Trevor Downie while he was committing criminal acts against female minors.
This order is unlawful and one cannot be insubordinate absent a lawful order.
In addition, the other four charges, which did not warrant discipline, demonstrate that the
asserted reason for Officer Longton’s discharge is pretextual. First, it is undisputed that the
Village introduced altered documents, a criminal act, to support its third charge (R438, 443-47,
1575-79, 1891). At Officer Longton’s hearing, the Village introduced a police blotter entry for
August 26, 2004 recording odometer readings for that day to show that Officer Longton did
not properly record his starting mileage (R1575-79). Chief Kane’s father, Sergeant Kane, also did
not record his starting mileage on that day (R1891). That proof was introduced in the first
hearing. However, the Village apparently made up a starting mileage for Sergeant Kane and
added it to the blotter sometime after the first proceeding but in time to introduce this altered
document in the second proceeding (R1575-79). Chief Kane admitted that this would constitute a
serious violation of Department rules to alter a blotter entry later without some reference to
when it was added (R447). Illegally altering a document that has already been submitted as
evidence in a court of law and that will be reintroduced in its altered state is a serious
criminal offence. Yet, there was no explanation why the Village felt justified in using an altered
document to support the charges. What the Village does admit is that no investigation has been
conducted to ferret out who committed this serious criminal offence against Officer Longton
and altered an official police record knowing that the record would be relied on in a pending
disciplinary proceeding (R447).
The Chief also admitted that charges 1, 2 and 3 amounted to no more than technical non-
intentional errors that had no consequence whatsoever (R435, 457-63). Further, the Chief could
not explain why the Village waited several months to seek discipline for these technical, non-
intentional inconsequential omissions. He could also not explain why other officers were not
disciplined for exactly the same conduct (R457-63). The Chief even acknowledged that Officer
Longton had already been disciplined for one of the charges (R338-41, 461).
Together, these facts demonstrate that the Village knew the Chief’s order to Officer Longton
was unlawful and simply “piled on” every technical infraction it could find to bolster its case.
Thus, Officer Longton has satisfied his burden of proving that his discharge was malicious and in
retaliation for refusing to obey an unlawful order that constituted criminal activity for
which Officer Longton would have been subjected to criminal and civil penalties himself, being as
the female minors were mentally and physically injured. All of this was ignored by the Court.
These facts also demonstrate that Officer Longton’s conduct is protected by Civil Service Law
§75-b.
Here, Officer Longton had disciplinary acts taken against him because he was disclosing to the
Chief, Mayor and Village Trustee that he had knowledge Downie was violating the law, i.e.,
sexually molesting female employees, including minors.
Civil Service Law §75-b provides:
A public employer shall not dismiss or take other disciplinary or other adverse personnel
action against a public employee regarding the employee's employment because the employee
discloses to a governmental body information: (i) regarding a violation of a law, rule or
regulation which violation creates and presents a substantial and specific danger to the public
health or safety….
Officer Longton has shown each element of this defense. Officer Longton correctly assessed
that Trevor Downie was molesting several female employees, including minors, in violation of
New York State Penal Law. Officer Longton’s protected activity, as defined by §75-b, included
advising the Chief, Mayor and Village Trustee of this criminal conduct. There is no dispute
Officer Longton suffered an adverse personnel action as he was immediately removed from the
investigation and then suspended.
The Decision of the Court incorrectly failed to address these undisputed facts and instead
affirmed the Hearing Officer’s dismissal of the §75-b defense as based on a credibility
determination. A decision dismissing a 75-b defense on this record will certainly have a chilling
effect on other police officers seeking to protect the public as well as possible deadly
consequences.
POINT II
OFFICER LONGTON’S PENALTY
OF TERMINATION IS EXCESSIVE
Termination under these facts is a vindictive, corrupt penalty. That penalty is excessive and
shocking to the conscience for the following reasons:
Officer Longton complied with Chief Kane’s order to not arrest, and to stay away from,
Trevor Downie (R46, 711, 713, 761).
Officer Longton did not approach Marcotte for a statement. Rather, she contacted
Officer Longton to inform him that she was now ready to give him a voluntary statement
(R631, 632, 1883).
Marcotte’s statement was provided to Officer Longton with the understanding that he
would keep it confidential, out of her fear of retaliation by Trevor Downie. Officer
Longton complied with that request (R708).
Officer Longton immediately turned over the Marcotte statement when the Chief ordered
him to do so (R711-12).
Officer Longton correctly assessed that Trevor Downie was a threat to the health and
safety of Village residents while the Village enabled criminal behavior (R75, 549, 569-580, 690-91,
1848-1850).
Officer Longton has an otherwise distinguished career in law enforcement that began in
1997 (R713, 2433-2436)
This is not the type of contumacious conduct that warrants a penalty of discipline.
Based on the foregoing, Officer Longton’s penalty of termination is vengeful and should be
voided. It was error for the Court to hold otherwise.
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| J. W. Longton Jr. Stop Corruption |