Court blocks firing of Albany cop
Judges say loss of driver’s license insufficient reason
ALBANY Losing the right to drive in New York wasn’t grounds for city police Chief Steve Krokoff to terminate one of his patrol officers, an appeals court ruled Wednesday.
Justices with the Appellate Division of state Supreme Court ruled the chief erred in firing Brian Lutz in 2011 after he had his driver’s license temporarily revoked for refusing a chemical test.
Menands police found the off-duty patrolman sleeping in his sport utility vehicle parked on Interstate 787 and subsequently arrested him on a misdemeanor charge of driving while intoxicated in December 2010.
Krokoff fired Lutz, 41, of Troy, on the grounds that he no longer met the basic requirements to serve on the force after his license was revoked for a year. But in a six-page ruling, the justices ruled that possessing a valid driver’s license was not “an express condition or requirement of his employment” and thus Krokoff could not deprive Lutz of his right to a civil service hearing before firing him in May 2011.
The court found that nearly a third of the city’s officers perform other functions than patrol. Even among the 200 officers assigned to patrol, 33 are assigned to details that do not require driving a motor vehicle.
“Further support for this contrary inference may be found in the [department’s] Standard Operating Procedures, which specifically states that a police officer shall ‘[p]ossess a valid New York State driver[’]s license, whenever required as a condition of employment,’ ” Presiding Justice Karen Peters stated in the decision. “This conditional language certainly suggests that there are police officers in the [Albany Police Department] who are not required to possess a driver’s license as a necessary condition of employment.”
The ruling means the city will now need to decide whether to challenge the decision before the state Court of Appeals or move forward with a hearing to terminate Lutz. Mary Roach, the attorney who represented the city in the appellate case, said she will confer with the city attorney and Krokoff before deciding how to proceed.
Roach said the absence of language specifying the need to have a valid driver’s license in the patrol officer’s job description was likely a result of it not being updated and that it’s listed as a prerequisite in vacancy announcements. She said the job description for firefighters does include the requirement — something that was mentioned in the appellate division’s ruling.
“Common sense did not prevail with the court’s decision,” Roach said Wednesday. “Obviously, the city is very disappointed with the ruling.”
Christine Caputo Granich, the attorney who argued the case for Lutz on behalf of his union, Council 82, was pleased with the decision.
“All Council 82 ever wanted was for the city to follow the law and follow the collective bargaining agreement,” she said. “We are extremely pleased with the decision because it not only supports our position, but also is a clear annunciation of the law in this area.”
Lutz refused to submit to a chemical test at the Menands Police Department and had his license immediately suspended following his arrest. The state then revoked his driver’s license for a year after a judge determined the proper steps had been taken in April 2011.
Lutz has since regained his driving privileges, said David Brickman, the defense attorney representing him in the still-pending DWI case. Brickman said his client was wrongly terminated by the department at a time when he was facing a number of health problems — some that may have contributed to his condition at the time of his arrest nearly two years ago.
Brickman said Lutz was on medical leave from the force for a job-related foot injury and was on medication that wasn’t being processed by his kidneys. Later, he said the patrolman’s physician determined his kidneys were failing.
“Brian had to have both of his kidneys removed and got a kidney transplant after 17 years on the job,” he said, “and the city knew that every step of the way.”