WHEATFIELD – Town Constable Craig M. Schultz, who hasn’t worked since a July 2012 incident led to disciplinary proceedings, has sued the Town of Wheatfield for $20 million in damages.
It’s the second lawsuit in as many years for Schultz against the town. Last year, before the disciplinary charges, he sued for $4 million, contending that he wasn’t receiving any work assignments for political reasons.
Schultz has been a supporter of former Supervisor Timothy E. Demler, who is probably the least popular political figure in Wheatfield as far as the current Town Board is concerned.
In May 2012, Town Attorney Robert J. O’Toole told The Buffalo News that the town’s Republican Committee would have preferred to delete Schultz from the list of part-time constables but was unable to do so legally because he had held that job for more than five years.
“There is a provision that if somebody is in a position, even a part-time position, for more than five years, you can’t remove them without an Article 75 hearing,” O’Toole said then.
He was referring to the section of state civil service law that governs how a public employee with civil service protection may be terminated.
And an Article 75 hearing is exactly what was on tap for Schultz before the lawsuit was filed in early October. Schultz’s attorney, David W. Polak, said the hearing was scheduled for Oct. 7 and 9, but the lawsuit produced a stay in that schedule.
The attorney said that besides what he considers actionable violations of Schultz’s rights by the town, the deck at the hearing might have been stacked against Schultz.
Polak said he talked to the hearing officer the town chose, North Tonawanda attorney R. Thomas Burgasser, who told Polak he was concerned about how long the case was taking.
“Mr. Burgasser had indicated there was some concern. He’s got to get these things done or he’s not going to get any more work from the town,” Polak said. “We were concerned about whether Mr. Schultz was going to get a fair hearing.”
“I did not say that,” responded Burgasser, a former part-time city judge and a current assistant county attorney. “I might have indicated the case was getting kind of old, and we should move it along.”
Burgasser also is the hearing officer in an Article 75 hearing for Edward M. Sturgeon, the town’s suspended recreation director, who was brought up on charges in June over alleged mismanagement of the receipts from the Fairmount Park concessions stand. That hearing is scheduled for Nov. 25 and 26, meaning that it reached the hearing stage in five months, while Schultz’s case has been pending for 16 months.
“His attorney’s been asking for his day in court, and the day before the hearing, his attorney gets an order to show cause to stop it,” O’Toole said.
Schultz, a constable since 1993, was a Demler supporter who ran for a GOP committee seat in 2010 and a Town Board seat in 2011, losing in the Republican primary both times.
Demler left office at the end of 2009. Schultz was paid more than $20,000 in the last two years of Demler’s time in office, meaning he was scheduled heavily for a job that pays $13.44 per hour.
“Under prior administrations, he got more hours than all the other constables combined,” O’Toole said last week.
Schultz was paid $400 for constable work in the first two years of the administration of Demler’s successor, Supervisor Robert B. Cliffe.
Polak said Schultz went to a mental health professional because he was stressed out from a hostile work environment at Town Hall. According to the lawsuit, O’Toole then tried to use the provisions of the state Secure Ammunition and Firearms Enforcement Act, or SAFE Act, barring gun possession by the mentally ill, against Schultz.
Schultz was asked to turn in his keys to Town Hall, where the handguns for the constables are kept in a safe.
In a May 17, 2012, email quoted in the lawsuit, O’Toole wrote, “If he feels that he should not be required to return his keys, in view of the fact that these keys afford him access to handguns, I would be pleased to request a determination from the Niagara County Pistol Permit Office as to whether it is appropriate for Mr. Schultz to have access to handguns in view of his treatment by a licensed psychologist for alleged mental health issues.”
Asked to comment, O’Toole said, “I’m not sure what I can or can’t say because of HIPPA issues,” referring to the Health Insurance and Personal Privacy Act. “He sent a letter from his doctor saying he can’t work anymore because he’s emotionally affected,” said Edward P. Perlman, the Niagara Falls attorney the town hired to investigate the case and handle the Article 75 hearing. “If you’re not working, we don’t want him with keys to a gun safe or Town Hall.”
In the lawsuit, Polak said the town was off-base because peace officers such as constables don’t need personal pistol permits to carry service weapons, and the gun safe has an electronic lock, not one with a key.
For the first time in months, Schultz was given a chance to work on July 13, 2012. It seems that both sides viewed this as a big event.
Town Hall surveillance video was used in the evidence that Schultz allegedly committed offenses that morning that merit his firing, while Schultz himself was wearing a recording device – at the suggestion of his psychologist, the lawsuit asserts.
Schultz was being observed at Town Hall that morning by Town Board members and O’Toole, the lawsuit says. First, O’Toole went to the office of Building Inspector Joseph L. Caturia and started a conversation about the suit Schultz had filed two months earlier. The new lawsuit says Caturia confirmed that Schultz was not being given work assignments because of his “political baggage.”
He made small talk in the office while waiting to see if there were any summonses that needed to be served from the Building Inspection Department.
Perlman, who served as county attorney in the 1990s, said a check of the video showed Schultz “loitering” in Town Hall from 8:16 to 9:18 a.m., and he spent 45 minutes allegedly waiting for Caturia before following the latter into his office. “I guess he wears a wire all the time and records everything anyone says to him,” Perlman said.
The formal charges, filed Aug. 30, 2012, accuse Schultz of “overstaying his lunch/rest period,” leaving work without notifying a superior, doing personal business on town time and “soliciting another town employee.”
Polak argued that none of this is banned in the town’s most recent policy manual issued in 2010. “It’s all about Demler,” Polak said. “What does that have to do with Craig, whether he did his work or didn’t do his work?”
The lawsuit names another town employee who allegedly committed worse violations than those ascribed to Schultz, asserting that the worker was never charged, but only transferred from one department to another.
Polak said he sought emails about that case from O’Toole, who denied that they existed. Then one recent day, Polak said, someone left a printout of an O’Toole email about that matter in Schultz’s vehicle.
O’Toole declined to comment on the other employee because it was a personnel matter. Polak said Schultz was “banned” from further constable work after the charges were filed. O’Toole said Schultz “was offered work but didn’t follow up on it.”