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Former Southold officers on disability challenge town’s decision

Two former Southold Town police officers on disability for on-the-job injuries who were fired from their positions last month are challenging the town’s decision to end their employment.

Officers David Hunstein and Joseph Wysocki were terminated Aug. 15 for inability to perform their full duties after the Town Board voted unanimously on resolutions. On Sept. 13, they each filed an Article 78 proceeding against the town, the police department and the police chief in Suffolk County Supreme Court.

Both Mr. Hunstein and Mr. Wysocki seek a court judgment that the termination of their employment was “in violation of lawful procedure, arbitrary and capricious, not based on substantial evidence, and abuse of discretion and/or affected by error of law,” according to the notices of claim.

They also seek reinstatement of “all applicable forfeited compensation and other benefits,” including health insurance and pension contributions, according to court documents.

The men argue they were removed from their positions under the “wrong mechanism” and that a disciplinary charge against both them was untimely, according to the court papers.

Supervisor Scott Russell and Police Chief Martin Flatley declined to comment on pending litigation.

According to court documents, Mr. Wysocki sustained injuries in motor vehicle accidents in 2007 and 2010 and did not return to work after the 2010 incident. Mr. Hunstein was injured in June 2012 and had not returned to work since, according to court documents. In June 2014, both were deemed unfit to perform their full duties as police officers, according to the notices of claim.

Both received disciplinary notices with the charge of “incompetence” to perform their duties due to “excessive absenteeism” between July 1, 2015, and December 30, 2016, an 18-month span, according to court documents. That charge was made under town law, section 155, and Civil Service Law Section 75.

Mr. Hunstein and Mr. Wysocki argue they can’t be fired for absences due to work-related disability under either of those sections and that Civil Service Law Section 71 ”provides certain reinstatement rights to employees so removed” that are not available under those provisions.

The former officers were the subjects of separate Section 75 hearings in February 2017 and were found “guilty” of being unable to perform their duties, according to the town resolutions.

Both claim that the hearing officer’s determination was “not supported by the substantial and competent evidence,” according to court papers. In addition, they assert the hearing officer “failed to demonstrate” if either was scheduled to work a single day during the 18-month period noted in the disciplinary charge and that “evidence of an even longer time period” was used against them, according to court papers.

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