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PREMO LAW FIRM PLLC

20 CORPORATE WOODS BOULEVARD


ALBANY, NEW YORK 12211
Telephone: (518) 436-8000
Facsimile: (518) 436-0659

December 12, 2013


Mayor Louis Rosamilia
Office of the Mayor, City of Troy, NY
433 River Street
Troy, NY 12180

Via Facsimile (270-4609)

Anthony Magnetto, Police Commissioner (Ultra Vires)


Troy Police Department
Via Facsimile (270-4452)
55 State Street
Troy, NY 12180
Ian Silverman, Esq.
Via Facsimile (270-4609)
Office of the Corporation Counsel, City of Troy, NY
433 River Street
Troy, NY 12180
Troy City Council:
C/O City Clerk
433 River Street
Troy, NY 12180

Via Facsimile (270-4639)


Lynn Kopka, Pres.
Mark McGrath
Nina Nichols, Pres. Pro Temp
Kevin McGrath
Dean Bodnar
Rodney Wiltshire
Robert Dougherty
Kenneth Zalewski
Gary Galuski

This Letter Concerns Impending Litigation & It is Provided Solely for


Negotiation Purposes without Prejudice
Re:

John F. Tedesco v. City of Troy, Louis Rosamilia, Anthony Magnetto, et al. /


False ISB Complaint against Chief Tedesco

Dear Gentlemen and Ladies;


It is no surprise that the ISB questioning of Chief Tedesco ordered by Mr. Magnetto based on
the patently false complaint of Officer JD was handled by Capt. Buchanan rather than an
impartial body as requested (see, November 22 letter). It will be no surprise if it is discovered
that Capt. Buchanan conducted no investigation before Chief Tedesco was ordered to present
himself before two subordinate police officers with more than 60 years combined experience for
questioning in relation to that officers generalized and baseless opinion complaint that appears
to have been made to support the effort to discharge Chief Tedesco and quash the related
disciplinary action against him. It will be no surprise if Officer JD asserts that he did not even

know that the complaint was made in his name (as rumored) or admits that he made it at the
behest of PBA President Fitzgerald and/or others for the reasons stated (as otherwise apparent).
In any case, as previously warned, the truth cannot long remain hidden.
Chief Tedesco Will Order Investigations of Police Officer Conduct
Now, in effort to re-establish proper operations of the Police Bureau, especially in the vital areas
of command, conduct, and discipline, Chief Tedesco will order investigations into various
matters disruptive to it and, more importantly, the public safety, including the false complaint of
Officer JD, secondary employment of police officers, and other matters, as previously discussed.
It is hoped that the Council will inspect records and hold hearings on the false complaint against
Chief Tedesco and mismanagement of the Police Bureau as Councilman Wiltshire recently
announced. It is also hoped that no attempt is made to turn any hearing into a kangaroo court
to further the agenda of certain Council members who should recuse themselves from any
consideration of the matters because of their ministerial act of appointing Mr. Magnetto in effort
to discharge Chief Tedesco for political purposes and their own financial benefit. See, City Code
of Ethics. Regardless, any perversion of that process will do not more than invite further
scrutiny and ridicule because Chief Tedesco will never bend to any nefarious conduct in the
effort to unlawfully discharge him. Parenthetically, the attempt of Mayor Rosamilia, Lynn
Kopka and others to discount their debacle and label the mismanagement and politicization of
the Police Bureau, the violation of Chief Tedescos rights, and the other serious matters of public
concern as personnel issues or department management struggle is both silly and futile.
It is also obvious that certain City Council members who voted for the unlawful appointment of
Mr. Magnetto to support the (Democratic) Party line and effort to unlawfully discharge Chief
Tedesco steadfastly refuse to admit the truth or accept their own responsibility. In any event, at
this point one can only hope that no action will be taken by any policymaker to prevent or
obstruct any investigation ordered by Chief Tedesco in discharging his duties to head, command
and manage the Police Bureau and its force (see, City Charter and prior letters). There is little
doubt that the party politic will aggressively pursue an agenda to quash any meaningful action by
the Council related to the matters.
President-Elect Wiltshire Announces Intent to Obtain Records, Issue Subpoena, and Hold
Hearings Regarding Police Bureau as Result of Unlawful Action against Chief Tedesco
The Times Union reported on December 5, 2013, that [t]he Council will investigate the
turmoil in the police departments [ISB] , [Rodney Wiltshire] said , to determine whats
going on with the police chief. The newspaper also reported that Mr. Wiltshire said he is
gathering information on the City Councils subpoena power; determining what action the
Citys Police Objective Review Committee is taking; and what the council can do with the FBI
investigation taking place.
When asked about that announcement, Mayor Rosamilia reportedly initially said hes prepared
for the City Council to convene a public meeting. Whoever [Mr. Wiltshire] appoints to be
Public Safety Committee chairman, they can call a meeting.

The following day, the Troy Record reported that Mr. Wiltshire said he would like to see what
subpoena or investigative powers the citys charter grants the council so that its members can
look into the internal affairs investigations which have stemmed from an excessive force case
which has put police Chief John Tedesco before the Inspectional Services Bureau to see the
internal affairs in real time so [he] can have [his] own conviction this is occurring correctly
there are two sides to every story and [he wants] to make sure we have transparency. The
newspaper reported that Mr. Wiltshire also said that he wanted to see what role the citizen-led
Police Objective Review Committee plays in this matter and whether its members are performing
as Mayor Lou Rosamilia intended. They need to the do the job hes requested them to do .
Therefore, it appears that the Council may hold a hearing on the false ISB complaint against
Chief Tedesco and that Mayor Rosamilia is prepared for the [it] to convene a public meeting.
However, as discussed below, other comments made by Mayor Rosamilia and Mr. Magnetto
show that they actually do not want the Council to obtain records or hold any such hearing.
Also, Chief Tedesco was told by a Council member that Corp. Counsel Silverman, who acts as
an extension of Mayor Rosamilia (and, apparently, the Democratic Party), refused to provide
copies of ISB files to Mr. Wiltshire as requested by the Council majoritys legislative counsel.
Thus, the Administration clearly does not want the Council looking into these matters.
Regardless, the Council, its Public Safety Committee, and all of its members have the unfettered
legal right to obtain any record possessed by any City employee/department - without exception
or need for a FOIL request. It is common sense that any City policymaker has the right and/or
duty to obtain any record the City possesses in conducting its municipal business. (See, General
City Law, Article 2-A 19, 20; General Municipal Law, and Troy Charter)
Illegal Appointment of Police Commissioner to Unlawfully Discharge Chief Tedesco Prevents
Conciliation with Mr. Magnetto Unless a Public Safety Commissioner is Legally Appointed
Furthermore, although the Troy Record reported that Council members Doherty and Zalewski
said they support the initiative and would like to see the conflict within the police department
resolved, Mr. Zalewski also reportedly stated that he wants the situation resolved to a point
where Mr. Magnetto and [Chief] Tedesco can work together and suggested that Mayor
Rosamilia sit with Chief Tedesco and Mr. Magnetto because the courts should not mediate
disagreements in the police department. Unfortunately, those comments reflect a fundamental
misunderstanding of the simple but serious nature of the matters discussed.
Again, certain Council members, PBA President Fitzgerald, Mayor Rosamilia, Corp. Council
Silverman, Mr. Magnetto and others took action to unlawfully discharge Chief Tedesco for
political and arbitrary reasons although he had performed the duties of his civil service protected
office in an extraordinarily effective, efficient, competent, and professional manner, as evidenced
by the hundreds of thousands in budgetary savings he was responsible for recovering after his
appointment, but before the illegal appointment of Mr. Magnetto. They thereby violated his
state and federal rights and caused him significant damages, including attorney fees.
Furthermore, those Council members do not have legislative immunity because they acted in
concert and conspiracy and their primary action was ministerial, i.e. they were required to
approve the appointment of a Commissioner of Public Safety, which they did not do, but had no

legal right to appoint a Police Commissioner in the absence of a Commissioner of Public Safety,
but they did. (See, Owen v. The City of Independence, Missouri, et al., 445 US 622 (1980).
Consequently, he is now compelled to commence action for recovery of all damages as well as
declaratory and injunctive relief. He certainly would never ask a federal court to mediate any
disagreement and to suggest otherwise is beyond insulting.
Furthermore, even if the City takes corrective action (e.g. rescinds Mr. Magnettos appointment
and agrees to take no adverse employment against him in the future upon loss of accelerated
damages) a civil action cannot be avoided without payment of all damages. More importantly,
there is no reason for Chief Tedesco to talk with Mr. Magnetto about anything because his
appointment is unlawful, all of his acts are ultra vires, and he will be a named defendant in the
impending action. Still, in genuine effort to have the City at least mitigate his damages, Chief
Tedesco has implored its policymakers to take the corrective action required by law; i.e. rescind
the illegal appointment of Mr. Magnetto; appoint a Commissioner of Public Safety (also needed
because of the Administrative teams apparent mismanagement of other Bureaus in the
Department); reinvest him of all the authorities and duties of his office as prescribed by the
Charter, Departmental Rules, and law; and, enter an agreement that there will be no similar
deprivation of his rights in the future as insured by accelerated damages. If the City does so, and
agrees to pay for his attorney fees and other damages, no suit will be filed.
Chief Tedesco remains willing to resolve his claims prior to costly litigation but he cannot reach
any settlement that does not remedy the illegalities discussed. Of course, if an unpaid Public
Safety Commissioner and paid Police Commissioner are appointed and act properly in the
discharge of their limited duties, without depriving him of his authority or preventing him from
performing his duties, there will be no further violation of Chief Tedesco rights and he will do
his duties in the same skilled and professional manner as he has for over 35 years. Even then,
however, he will not tolerate any attempt to usurp his lawful authority and duties in heading,
managing and controlling the Police Bureau and its force. Parenthetically, it is unlikely that even
this Administration would attempt to continue the charade in that manner, especially given its
budgetary crisis. It is expected that the appointment of a Public Safety Commissioner will give
Mayor Rosamilia more than enough problems to occupy his time, one way or the other.
Mayor Rosamilia and Mr. Magnetto Question Councils Authority to Obtain ISB Records,
Issue Subpoena for Testimony and Records, or Hold Public Hearings
In any event, as stated, it is obvious from the comments of Mayor Rosamilia and Mr. Magnetto
that the Administration does not want the Council to take action on the matter(s). Specifically,
on December 6, 2013, the Troy Record reported that Mayor Rosamilia said he doesnt believe
the [City Council] has the authority to be involved in the internal investigations its a matter
of the police policing themselves at this point its better served to stay out because of pending
litigation. It is even more shocking that Mr. Magnetto stated he doesnt believe the council
has such powers, [but] there is a possibility of giving more authority to the Police Objective
Review Committee. So, it is clear that Mayor Rosamilia and Mr. Magnetto would rather that
the matters continue to be mishandled in an arena controlled by the Party politic.

It is no surprise that Mayor Rosamilia and the unlawfully appointed and acting Mr. Magnetto do
not want any daylight shined on the false complaint made against Chief Tedesco for properly
performing his mandated duty in accordance with department rules and practice in relation to a
case of undisciplined police brutality. Nonetheless, the light and truth will come sooner or later.
It is obvious that Mayor Rosamilia and Mr. Magnetto do not want the Council to obtain records
or hold hearings about: (i) the mismanagement and politicization of the Police Bureau and its
ISB by Mayor Rosamilia, Mr. Magnetto, PBA President Fitzgerald, and others; (ii) the need for
drastic changes in ISB training, autonomy and operations; and/or, (iii) any other matter of public
interest, especially the illegal appointment of a Police Commissioner in the absence of a
Commissioner of Public Safety. It is therefore obvious that a political battle will ensue over the
issue. It is also clear that public ridicule brought upon the Administration will continue until a
court rules upon the matters or the City takes corrective action.
The facts make it clear that Mayor Rosamilia, Council members Kevin McGrath, Nina Nichols,
Lynn Kopka, and Robert Doherty, as well as Corp. Counsel Silverman, knew then as they know
today that Mr. Magnettos appointment was illegal and done to cause Chief Tedescos political
discharge. They all knew then as they know now that the City cannot afford to gift tax dollars
to fund the illegal and superfluous appointment of a Police Commissioner. They all knew then
as they know now that the Police Bureau does not need and cannot justify a top heavy command
that consists of a Police Chief and a Police Commissioner once the much needed Commissioner
of Public Safety is appointed as required by Charter. They all knew then as they know now that
no qualified person would accept the unpaid position of Public Safety Commissioner so that
another person could be appointed to the salaried position of Police Commissioner to act only as
his/her Deputy or in his/her absence or unavailability. They all knew then as they know now that
Mr. Magnetto was illegally appointed solely to benefit the interests of the Democratic Party,
Party officials, certain police officers, and themselves, in violation of the Charter, Chief
Tedescos rights, the law and the Code of Ethics (to include, salary, overtime, future direct and
indirect political contributions). Still, they did not then and do not now have the fortitude to
admit or accept responsibility for their unlawful acts, or welcome an expose of truth.
On the other hand, Chief Tedesco requested and welcomes the Council to obtain records and
holding hearing(s) because he embraces the virtues of public servitude, duty, ethics, truth, and
personal responsibility. However, he must request that Council members Kevin McGrath, Nina
Nichols, Lynn Kopka, and Robert Doherty follow the dictates of the Code of Ethics and recuse
themselves from consideration of any related matter because they admitted to him that they
changed their position and voted for Mr. Magnettos illegal appointment in support the
(Democratic) Party line and/or took other adverse employment action in effort to unlawfully
discharge him for political/arbitrary reasons, which they knew would result in financial benefit to
Mr. Magnetto, the police officers whose overtime was increased by the policies he instituted at
the behest of PBA President Fitzgerald, and themselves through anticipated campaign support
from the PBA. Thus, their policymaking decisions violated Chief Tedescos rights as well as the
Code of Ethics (because they knowingly acted in concert and conspiracy for their own financial
benefit through salary, overtime, and political contributions). Furthermore, any similar action
taken in the future will be in breach of the same stern ethical and legal prohibitions. It is also
expected that if they do not recuse themselves from consideration of these matters, those same

officials will again take the Party line and resolve all issues adversely to Chief Tedesco in
further violation of his rights and the Code of Ethics.
Charter and General City Law Expressly Authorize City Council to Obtain Any Records, Issue
Subpoena for Production of Witnesses & Documents, and Conduct Hearings
In any case, the Charter expressly gives the Council and each of its members the unfettered
authority to obtain directly or indirectly through counsel or their assistant any record in the
possession of any one of its departments or employees, without exception or need for a FOIL
request. It also empowers the City Counsel or its standing Public Safety Committee to conduct a
hearing, issue subpoena and take testimony concerning any matter related to the business of the
city, including public safety and the Police Bureau.
The City Charter mirrors the General City Law with respect to the general and specific powers of
the City to conduct its business. It provides in part that [t]he City in accordance with 19 of
Article 2-A of the General City Law, shall have power to regulate, manage, and control its
affairs and shall have all the rights, privileges and jurisdiction necessary and proper for
carrying such powers into execution. ... (See, Art. II, C-4.)1 It also states that [t]he City shall
have all the powers granted to cities of this state by 20 of Article 2-A of the General City Law.
(See, Art. II, C-5)2 To enable the City to exercise its powers in conducting its municipal
business the Charter also provides that the Councils legislative assistant shall have access to
all offices of the City, courts, boards and commissions in order to aid the City Council in
legislating City affairs. (See, Charter, Art. III, C-11)
In addition, the Charter provides that the legislative counsel [for the majority and minority of
the Council who] shall act as legal advisor to their respective appointing authorities
shall be entitled to the full cooperation of all City officers in the discharge of their
duties and any officer of the City shall be and is required to furnish all information,
reports, records and documents of any kind or nature as may be authorized by law to a
legislative counsel upon request, and the same shall be furnished without the necessity
of filing a written request therefor pursuant to the New York State Freedom of
Information Law. 3 The Charter provides that [t]here shall be standing
1

Gen. City Law Art 2-A 19 provides that every city is granted power to regulate, manage and control its local affairs
and is granted all the rights, privileges and jurisdiction necessary and proper for carrying such power into execution.
2

Gen. City Law Art 2-A 20 provides that Cities have the following among many specifically enumerated powers: to
maintain order, enforce the laws, protect property and preserve and care for the safety, health, comfort and general welfare ;
(subd. 13); to determine and regulate the mode of selection, terms of employment, qualifications, powers and duties of all
employees of the city and the relations of all officers and employees of the city to each other, to the city and to the inhabitants
(subd. 17); to create a municipal civil service (subd. 18); to regulate the manner of transacting the city's business and affairs
(subd. 19); to investigate and inquire into all matters of concern to the city or its inhabitants, and to require and enforce by
subpoena the attendance of witnesses at such investigations (subd. 21); and, to exercise all powers necessary and proper for
carrying into execution the powers granted to the city (subd. 23).
3

NY Civil Rights Law 50-A (Personnel records of police officers, firefighters and correction officers) states that its provision
pursuant to which personnel records of police officers are considered to be confidential and exempt from inspection without the
authorization of such police officer, except as mandated by court order, shall not apply to any agency of government which
requires the records in furtherance of their official functions. Obviously, given a common sense interpretation and
application in the context of other provisions of the law, the Council and any of its members, its majority or minority or standing
committees may therefore inspect and obtain such records when exercising any of the general or specific powers of the City.

committees of the City Council on public safety . All committee reports shall be
made public. (See, Charter, Art. V, C-15) The standing Committee on Public
Safety shall periodically review and report on the Bureaus of Police and Fire.
Membership on this Committee shall include the Commissioner of Public Safety, Police
Chief, Fire Chief, and at least three City Council members.4 (See, Charter, Art. V, C16)
The Charter further provides that the Council has the power to determine all matters of City
policy (See, Charter, Art. VI, C-21) and that [a]ny officer of the City is required to furnish
reports, information or estimates to any Councilor of the City. (See, Charter, Art. VI, C-22)
Furthermore, it expressly provides that the Council may make investigations into the affairs of
the City and the conduct of any City department, office, or agency and for this purpose may
subpoena witnesses, administer oaths, take testimony and require the production of evidence.
Any person who fails or refuses to obey a lawful order issued in the exercise of these powers by
the Council shall be guilty of a misdemeanor and punishable by a fine of not more than $1,000
or by imprisonment for not more than one year, or both. (See, Charter, Art. VI, C-23)
Also, any Council member may direct that the Corporation Counsel obtain legal opinions from
the office of the Attorney General to clarify legal questions posed by said Council member.
(See, Charter, Art. VI, C-25) Thus, a single conscientious Council member may bring legal
issues such as those presented to the Council for consideration, and should do so.
Impending Complaint for Alleged Violation of the Code of Ethics
Lastly, Chief Tedesco intends to file a sworn complaint with the Council and Ethics Commission
against Mayor Rosamilia, Mr. Magnetto, Kevin McGrath, Nina Nichols, Mr. Doherty, Lynn
Kopka, and PBA President Fitzgerald for violating the Code of Ethics by making the patently
illegal appointment of Mr. Magnetto and taking other adverse employment actions against him
for their own financial benefit (conspiratorially) as discussed. He will pursue all claims and
remedies provided by the Code of Ethics against anyone who subjects him to any adverse action
in retaliation for making that complaint. (See, Code of Ethics, 43-3.1)5 He will also request
that the Ethics Commission conduct an inquiry and hearing on the complaint and impose
disciplinary action or refer its findings to any appropriate authority, body or prosecutor for any
proper action. (See, Code of Ethics, 43-10, 43-22, and 43-23).6

It should be noted that the Charter expressly provides that the Commissioner of Public Safety and Chief of Police are part of the
standing Committee on Public Safety, not the Police Commissioner, if any.
5

No elected City official, public officer, employee shall retaliate against any other elected City official, public officer,
employee who, while acting as a complainant, or on behalf of a complainant, does any of the following: (1) Submits a
complaint to the City Ethics Commission and the Troy City Council; (See, 43-3.1)
6

Any officer or employee of the City of Troy who engages in any action that violates any provision of this chapter may be
warned, reprimanded, suspended or removed from office or employment, or be subject to any other sanction authorized by law
or collective bargaining agreement in addition to any other penalty contained in this chapter or in any other provision of
law, including a fine up to $1,000 for each violation. (See, 43-10)

Pertinent to its mission and Chief Tedescos request for certain Council members and others to
recuse themselves from considering any matter related to the complaints made against or by him,
the Code of Ethics prohibits any officer or employee of the City from using his or her official
position or office, or take or fail to take any action in a manner in which he or she knows will
result in a financial benefit of any kind for any of the following: (1) The officer or employee; or
(See, 43-3.1 (A) It also further provides that [a]n officer or employee of the City shall
promptly recuse himself or herself from acting on a matter before the City when acting on the
matter, or failing to act on the matter, may financially benefit any of the persons listed in
Subsection A of this section. (See, 43-3.1 (B)
Call for Ethics Commission to Conduct Investigation of Police Bureau and Perform its Duties
In view of the concerted effort to unlawfully discharge him, the unlawful appointment of a Police
Commissioner, the failure to appoint a Commissioner of Public Safety, the filing and pursuit of a
patently false complaint against him, and other publicly reported instances of mismanagement in
the Police Bureau and City Administration, Chief Tedesco will call upon the Ethics Commission
to fulfill its significant and important functions. Specifically, he will ask the Ethics Commission
to conduct a proper investigation into the related mismanagement and politicization of the Police
Bureau and its ISB. At the very least, the Ethics Commission should now train and educate all
City employees concerning the existence, dictates and compliance with the Code of Ethics (See,
43-25), and provide its annual report to the Mayor and file it with the City Council, Clerk and
Corp. Counsel within 60 days of the end of each calendar year summarizing its activities and
making recommendations it deems necessary . (See, 43-25)
Respectfully yours,

PREMO LAW FIRM PLLC

Brian D. Premo, Esq.


cc: Chief John Tedesco