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A judge Friday refused to bar Erie County Sheriff Patrick M. Gallivan from hiring any more undercover narcotics investigators unless they are selected from an existing Civil Service list of eligible sheriff's deputies.

Saying civil service law on the issue is unclear and he doesn't want to interfere with the sheriff's job of protecting the public, State Supreme Court Justice Joseph R. Glownia turned down the pretrial request from the union representing the sheriff's 160 road deputies.

In the latest turn on a months-old battle between the sheriff and the Erie County Sheriff's Police Benevolent Association, Glownia rejected the union's bid for a preliminary injunction barring off-list appointments to the undercover jobs after Assistant State Attorney General Kimberly Murphy backed Gallivan.

Appearing on behalf of the State Civil Service Commission, Murphy told Glownia the sheriff is in compliance with civil service law requirements for such jobs, currently listed as non-competitive positions.

She said the county hasn't sought a revision of that job status and Assistant County Attorney Stephen F. Gawlik contended the union's lawsuit could cost two newly-hired undercover officers their jobs.

In dismissing the union's injunction bid, Glownia noted the union had failed to sue the two newly-hired investigators, even though they have a direct interest in the case.

That prompted union attorney Gregory A. Mattacola to complain about the county government putting the union in a legal Catch-22 situation in which he could be sued by the two investigators he represents in separate job actions should they be forced out of their new jobs.

Gawlik questioned how undercover narcotics investigators could be forced to take written tests to qualify for appointment to their jobs, but Mattacola insisted they could be selected from the department's existing list of deputies who passed Civil Service tests to get on the force.

Gawlik insisted the sheriff is morally and legally "responsible for these people" he is putting in dangerous undercover jobs.

After the court session Mattacola and PBA President Thomas Graziani, a 24-year veteran of the sheriff's department, said the union suit will proceed in a bid to force the sheriff to fill undercover jobs from lists of civil service-qualified employees.

Graziani said undercover investigators should be hired from the civil service lists of qualified candidates who have established their merit and fitness for the jobs and not just through political favoritism.

Graziani said two other undercover narcotics officers working in the sheriff's unit are union members and were grandfathered into their jobs after state civil service law was changed earlier in this decade to make most law enforcement jobs civil service competitive statewide.

Mattacola said that apparently after the union went to court in May to get a court ruling mandating appointments of such undercover jobs from the department's existing list of civil service-eligible deputies Gallivan decided to hire two undercover investigators on his own. They have been on the job since late August.

Mattacola and Graziani said Gallivan is on the verge of hiring two more undercover investigators, who the union feels should be selected from interested civil service-qualified deputies.

Michael A. Benson, chief of administrative services of the Sheriff's Department, said Gallivan has hired two "very qualified" undercover narcotics investigators and will select another two the same way. He refused to name the officers.

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