Appeals court rules Town Board controls punishment for suspended Tonawanda police officer

May 8—The Town of Tonawanda may proceed with disciplinary charges against a suspended police officer under which any punishment will be determined by the Town Board rather than an arbitrator, a state appeals court ruled Friday.

The town also owes back pay and benefits to Howard M. Scholl III, who has been accused of lying about who was driving his SUV at the time of a January 2019 car crash, the state Appellate Division's fourth department ruled.

Town officials suspended Scholl without pay in February 2019, a few weeks after an off-duty, late-night collision that followed a party for members of the town's SWAT team at a Kenmore Avenue restaurant.

The appeals court overturned part of State Supreme Court Justice Mark Grisanti's August 2019 ruling that the town improperly handled the officer's internal discipline case. Grisanti also ruled the town owed Scholl back pay and benefits.

Town officials estimate the amount of back pay and benefits it owes Scholl at between $200,000 and $250,000, Supervisor Joseph H. Emminger told The Buffalo News on Saturday.

Emminger said he believes the court ruling shows the town followed proper procedure, but he added he was frustrated the ruling leaves the town on the hook for "significant dollars."

Attorneys for both sides said they were considering their legal options.

"We're in the process of reviewing the Appellate Division decision and determining what options we have," Paul D. Weiss, Scholl's civil attorney, told The News.

The initial police report filed after the Jan. 19, 2019, crash listed Scholl's wife, Aimee, as the driver. A corrected police report states Howard Scholl was driving.

Scholl's SUV rolled through a stop sign and struck a vehicle on Englewood Avenue that had the right of way, according to authorities. At the time, police noted icy conditions may have factored in the crash.

Two occupants in the other vehicle were taken to a hospital for treatment of minor injuries.

Scholl, who also faces criminal charges to which he has pleaded not guilty, has admitted he initially gave police the wrong information about who was driving the SUV at the time but later corrected it, his criminal defense attorney has previously said.

Under this latest court ruling, the town may conduct disciplinary proceedings under town law that allows the Town Board to appoint a hearing officer who conducts a hearing. A decision on punishment based on the record created at the hearing lies with the Town Board.

If allowed to proceed under terms of the police union contract, the matter could either be adjudicated under civil service law or go before an arbitrator, said Sean P. Beiter, an attorney representing the town.

Scholl chose arbitration, Beiter said.

The town's position is that the collective bargaining agreement does not apply because the town adopted different disciplinary procedures under what's known as Town Law 155, he said.

Grisanti previously ruled the town had to pursue its charges against Scholl either under provisions of civil service law or through arbitration.

Town officials have previously taken steps to fire Scholl, but have seen the disciplinary hearing put on hold since Scholl's legal challenge.

The initial internal charges brought by the town against Scholl in February 2019 were: knowingly making a false report, conduct unbecoming a police officer and bringing disrepute upon the department, according to court documents filed in the appeal.

In May 2019, the town filed "amended" disciplinary charges, consisting of those previously filed plus a charge he failed to obey state law by allegedly filing a false insurance claim.

Last June, Howard Scholl was arraigned on a felony charge of falsifying business records and a misdemeanor count of insurance fraud. At the same time, Aimee Scholl was charged with a felony count of falsifying business records.

Three other Tonawanda officers who handled the accident investigation were briefly suspended without pay, department disciplinary records revealed.

The criminal cases against the Scholls continue in Erie County Court.

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