Police Chief files suit against village

Gwen Chamberlain

Penn Yan Police Chief Gene Mitchell has filed a lawsuit against his employer, the village of Penn Yan, because he says the village board violated an oral agreement that was made when he was appointed to the position last summer. When the board appointed him to the position in July, it agreed to pay him a base salary of $59,134 plus a $9,000 stipend, paid in equal units of $349.14, for continuing to perform investigator duties.

Before that appointment, he was the department’s investigator. The village has not hired an investigator to replace him.

But in December, the board unanimously agreed to eliminate the investigative duties from Mitchell’s job responsibilities and discontinue those stipend payments.

Mitchell, who has been employed by the Penn Yan Village Police Department for more than 30 years, says the reduction in income could cost him $5,000 in annual retirement benefits.

In the legal documents he has filed in Yates County Court, Mitchell says since he’s a tier one employee, his retirement payments will be based on the income from his last year’s employment.

According to court documents on file in the Yates County Clerk’s office, Mitchell says the board’s December decision was “arbitrary and capricious and was an abuse of discretion.”

Mitchell is seeking reinstatement of the bi-weekly stipend, which had been paid until Dec. 28, 2007; payment of earnings lost as a result of the village board’s December decision; a court order prohibiting the village board from reducing the stipend until the end of the 2008 budget year and reimbursement of the legal fees he paid to file the article 78 lawsuit.

Mitchell was appointed to the police chief post on a provisional basis in October 2006. At that time, he was earning about $10,000 more annually in the investigator position because of overtime hours he worked then.

After passing the police chief’s exam in March 2007, Mitchell was interviewed by the personnel committee for the permanent position. In the court documents, he says he told the board members he would accept the position if they continued to pay the overtime. He was appointed to the permanent position by a vote of five to one. Those voting in favor of the appointment were Trustees Mike Christensen, Willie Allison, Robert Church, Mike D’Abbracci, and Mayor Douglas Marchionda Jr. Trustee Nancy Taylor cast the lone “no” vote and Trustee Robert Hoban was absent from the meeting.

The December resolution which removed the investigator duties from his job description and discontinued the stipend payment was unanimously approved by all trustees and Marchionda.

Mitchell says, in his petition to the court, that he is not a member of the Police Benevolent Association, and his requests to meet with the village board in executive session to discuss the issue at two meetings in January were denied.

The case will be heard by Judge Dennis Bender.