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Federal Appeals Court Upholds Dismissal of Former OBPD Officers’ Lawsuit

by Timothy Bolger

Fire Island News

Friday June 3, 2011

Ocean Beach has won the latest round in the epic lawsuit alleging widespread corruption in the police department, but the case is not over yet.
The 2nd U.S. Circuit Court of Appeals in March affirmed a U.S. District Court judge's dismissal of five seasonal officers' claims that the Ocean Beach Police Department violated their civil rights when it fired them five years ago. A separate lawsuit that accuses the OBPD of violating state laws in the same instance is still pending in State Supreme Court in Riverhead.

"Plaintiffs' allegations establish no more than that they reported what they believed to be misconduct by a supervisor," wrote the appeals court judges in their ruling. The panel affirmed the officers initially brought the grievance to the village "pursuant to their official duties" and "not... as citizens for First Amendment purposes."

Former seasonal police officers Edward Carter, Frank Fiorillo, Kevin Lamm, Joseph Nofi and Thomas Snyder filed the suit after the OBPD fired them in 2006. They allege the department terminated them after they made accusations that Sgt. George Hesse, who now leads the department, covered up crimes committed by fellow officers and friends, drank and had extramarital sex on the job-all while unfit for duty. They also alleged he defamed the men after they were fired.

The state lawsuit alleges that the village illegally promoted Hesse to acting chief despite his repeated failures on the sergeant's exam as an officer at the time, in violation of civil service law. Pending alleged violations of state law also include accusations that the five officers were fired without an administrative hearing.

Among the federal claims that were tossed out was an alleged violation of the Fourth Amendment, the right to due process, which the appeals court agreed did not apply because they were at-will seasonal employees with no expectation of being rehired. The appeals court also affirmed the dismissal of an alleged Fourteenth Amendment violation.

The plaintiffs had sought $325 million in the original federal lawsuit but did not specify a dollar amount in the appeal or state suit.

The initial civil suit was filed around the same time Suffolk County prosecutors charged Hesse and a fellow officer with covering up the beating of a drunken tourist. They were later acquitted at trial. The village settled for $600,000 in a civil suit the alleged victim in that case filed. Douglas Wigdor of Manhattan-based Thompson, Wigdor and Gilly LLP, who represents the plaintiffs, was not available for comment. Neither was an attorney for Hesse.

"At the end of the day my five clients are going to have their day in court," Wigdor told The News last year.

Ken Novikoff, an attorney with Uniondale-based Rivkin Radler LLP that represents the village, said the defendants are seeking court approval to be reimbursed by the plaintiffs for attorneys fees. He added: "We are pleased that the 2nd Circuit affirmed Judge [Sandra] Feuerstein's ruling."

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