A State Supreme Court judge has ordered the Town of Tonawanda to reinstate, with back pay, a police officer who was suspended pending his termination over charges he falsely claimed he wasn't behind the wheel during a January car crash.
Justice Mark Grisanti found the town has improperly handled the case against Officer Howard M. Scholl III. But the town will seek to overturn Grisanti's decision, so Scholl will remain suspended without pay as Tonawanda officials continue their efforts to fire him.
"We will appeal," Tonawanda Supervisor Joseph Emminger said. "The town is comfortable with the way it was handled by our legal team."
Scholl was suspended without pay by Police Chief Jerome C. Uschold III shortly after the accident that took place Jan. 19.
Scholl was off duty and leaving a party for members of the town's SWAT team at Sinatra's Restaurant on Kenmore Avenue when his SUV rolled through a stop sign and struck a vehicle on Englewood Avenue that had the right of way.
Police noted icy conditions may have been a factor in the crash. Both occupants of the other vehicle were taken to a hospital for treatment for minor injuries.
The first accident report filed shortly after the crash stated Scholl's wife, Aimee, was driving. A corrected accident report states Howard Scholl was driving, and he was placed on unpaid leave after the second report was filed.
Uschold and the town in February moved to fire Scholl. The Town of Tonawanda police union is challenging his termination and Scholl is awaiting a hearing on the disciplinary charges.
The town Police Club in June filed a petition in State Supreme Court arguing the town improperly suspended Scholl without pay as it began the process to terminate him. The union argues the town didn't have the authority to pursue disciplinary charges under town law and, instead, should have done so through the collective bargaining agreement.
The court file was sealed by Grisanti, at the request of Scholl attorney Paul D. Weiss, but officials familiar with the judge's verbal decision said he ordered the town to reinstate Scholl, with back pay and benefits.
"The charges were thrown out because the town did not follow the correct procedures. It was acting outside its legal authority," Weiss said.
The town has not calculated the back pay Scholl would be owed. He earned $96,656 in 2018, according to payroll records collected by SeeThroughNY, so he could be in line to receive about $40,000 for his five months of unpaid leave so far.
The town will appeal the ruling as soon as Grisanti signs his order, meaning Scholl will remain on unpaid leave without benefits or back pay in the interim, Emminger and Weiss said.
Much of the court file will be made public once the order is filed, said Justice Paula L. Feroleto, administrative judge for the Eighth Judicial District in Buffalo.
Scholl also faces charges of falsifying business records and insurance fraud stemming from the crash, while his wife is charged with falsifying business records.
They pleaded not guilty at their arraignments and are set to return to Amherst Town Court in September. The case was moved to Amherst because both Tonawanda town justices recused themselves.
The charges are misdemeanors, and a conviction would not prevent Scholl from returning to the force, Uschold and Weiss said.
The disciplinary proceedings against Scholl could take months or years to reach a conclusion, Uschold said.
He said he couldn't discuss the personnel matter in detail, but said a key concern for him is Scholl's credibility in carrying out any future official duties.
Uschold pointed to Erie County District Attorney John J. Flynn's refusal to put Buffalo Police Officer Joseph Hassett on the stand because Flynn doesn't believe the officer can be trusted. Hassett was accused of assaulting a prisoner and then lying about the case afterward, though he was found not guilty at trial.
"It would be the same thing," Uschold said.
Weiss declined to respond to Uschold's stated concern, but Barry N. Covert, Scholl's criminal attorney, earlier cited his client's long service as an officer and as a Marine and said Scholl hopes to continue to serve his community honorably.