A judge holds the decision over whether a lawsuit leveled against the Town of Bethlehem and its police chief will be shown to a jury or thrown out.
The case has been making its way through a U.S. District Court since being filed in late 2010 by Christopher Hughes, a Bethlehem police officer who was recently fired from his job after being convicted of a felony. In mid July, after hundreds of pages of depositions, arguments, motions and counter-motions were collected, the town’s attorneys have filed a motion of summary judgment arguing Hughes’s claims are without merit. It is not known when Judge Gary Sharpe might hand down a decision but if he does not dismiss the case, the next step in the process would be a jury trial.
“All I can say is I think the case raises factual issues a jury should decide,” said Michael Sussman, Hughes’ attorney. “It comes down to whether what Mr. Hughes did was constitutionally protected and whether as a result of what Mr. Hughes did, was he punished?”
In the lawsuit, Hughes claims he faced a hostile work environment and retaliatory action for “expressing protected speech.” The ex-officer is best known for going public in 2009 with allegations Police Chief Louis Corsi uttered a racial slur. His claims touched off an internal town investigation that ended in the discovery of the taped conversation and a 10-day suspension for the police chief.
Testimony raises questions
This past February, nine people were deposed for the lawsuit, and in their testimonies departmental infighting and allegations of misconduct swept under the rug are discussed. In hundreds of pages of sworn testimony, Corsi, members of the police department, former supervisor Jack Cunningham and Hughes himself speak to the former officer’s troubled history with the department — and the office’s internal issues — at length.
Parts of testimonies of numerous witnesses pertain to the multi-month internal investigation into the existence of a tape containing Corsi’s racial slur. Sussman questioned several people about whether the chief had sought to have it erased.
When the tape was found in 2009, The Spotlight asked town officials if Corsi had attempted to erase the tape, an allegation Hughes had brought forward. Officials said the investigation found Corsi inquired into whether it was technically possible to have the tape erased, but since he did not seek to tamper with it, no crime or misconduct had been committed.
“I don’t believe he requested to have the tape erased. He may have inquired whether it was possible to have the tape erased,” Town Attorney James Potter told The Spotlight in September 2009.
This has become the official account, and a number of people deposed in February supported it, including Corsi himself.
Cunningham’s deposition tells a different story, however. Like many others, he was questioned about the interaction between Corsi and a department dispatcher immediately after the call.
“I believe, through Potter, I became aware that she was asked to erase the tape,” Cunningham said, according to a court reporter’s transcript. “The entire matter was difficult for the Town Board to deal with, because we had been advised by (Town Attorney) Mike Smith at the very onset of this that the statute of limitations for any disciplinary action against the chief had passed, and that if the board took any action against the chief, that we would likely be sued, and that we would likely lose our case, because the town had no standing to take any actions against the chief.”
Cunningham soon thereafter stated he did not recall whether there had been any discussion about sanctioning Corsi for trying to have the tape erased. The 2009 Town Board met in a specially convened executive session lasting three hours after the tape was discovered. It was in this meeting the suspension was handed down.
The former supervisor declined to comment for this article, saying the matter is still part of an ongoing lawsuit against the town. Corsi declined comment on the same grounds.
Potter, who is not directly involved in the lawsuit, said he’s not sure what to make of Cunningham’s comments.
“I conducted the investigation, along with (attorney) Mike Smith. … We had the firsthand knowledge, we interviewed the chief as soon as Officer Hughes had made the allegations,” Potter said. “The chief didn’t direct anybody to erase the tape.”
Distinction more than semantics
According to Donald Kelly, an attorney specializing in criminal law in the Law Offices of Donald E. Kelly in Syracuse, if Corsi did seek to erase the conversation, it could well be considered a criminal matter.
“At the time that he sought to have it erased … I think that there’s no doubt that could conceivably be (attempted) tampering with physical evidence,” he said.
That’s because the tape could potentially be used in an official proceeding like a disciplinary action, and it later was. For an attempted erasure, the crime would be downgraded to a misdemeanor with a two-year statute of limitations, but there is an extender on the statute of limitations for public servants that would allow the charge to be brought any time during the official’s time in office, or within two years after the person leaves office.
“If he’s still the chief, that statute has not begun to run,” Kelly said. “I don’t think it could be intelligently argued that the chief of police is not a public servant.”
Depositions taken in the lawsuit reveal differing accounts on several issues, including the handling of the tape. For example, in his deposition, police officer and Bethlehem Police Benevolence Association President Scott Anson said it was his understanding after speaking to an employee in the dispatch office several telecommunicators had been “approached on trying to make the tape disappear.” On the other hand, Deputy Chief Timothy Beebe, who conducted the search for the tape, said that same person had denied any knowledge of the tape when interviewed about it.
These are the types of incongruities in the testimonies that form a web of conflicting accounts, including over the chain of events leading up to disciplinary and criminal charges being leveled against Hughes, elements the lawsuit hinges on.
Hughes was convicted in May of possessing a fake police identification card in order to obtain a retired police officer badge. His sentencing has been pushed back several times and is now scheduled for late August, and he could face jail time. Though he has long been on a medical leave, his felony conviction in May led to the town firing him.
Sussman declined to talk about strategy for a possible trial, but did say he would expect to call the same witnesses deposed in February to the stand, in addition to several others.