DEP v. Nuccio and Williamson  OATH Index #s 2360/08 &2361/08 (9/26/08)

Response to 911 call without supervisory approval was proper. 

Nuccio and Williamson were experienced officers who patrolled watershed areas in upstate New York. In May of 2007 the DEP issued an interim order directing officers not to respond to 911 calls without supervisory approval.  This directive was to avoid DEP officers responding to routine calls in local jurisdictions. In Ulster County a 911 call generates a 911 "poll" seeking response from local law enforcement.  When a 911 "poll" is transmitted the DEP supervisor would authorize a DEP response.  

On 10/2/07 when Nuccio and Williamson were patrolling near the Ashokan Reservoir Ulster County received a 911 call for a domestic violence complaint across from the Reservoir.  Respondent’s were 2 to 3 miles away at the time of the call.  No units responded to the first poll and it was retransmitted. Thereafter, respondents picked up the call.  They called their base and asked the officer assigned to desk duty to get the supervisors approval.  Sergeant Wood called the base and denied the officer request to handle the domestic violence 911 call. Inspector Milazzo overturned the Sergeant’s disapproval after learning that the officers had already comitted to pick up the job to the 911 operator.

ALJ Kevin Casey analyzed the "obey now, grieve later" principal as it applied to the respondents action.  Common sense dicates that the "obey now, grieve later" concept does not apply and common sense dictates that orders do not apply when adherence would pose a threat to health and safety of employees or others. Officers must show that an imminent threat justifies disobedience of an order.  eg.  officer with allergies, asthma, heart disease justified not reporting to site near Ground Zero;  failure to inspect justified not operating vehicle.  HRA v. Dottin OATH Index 1260/02 and DOS v. Jones OATH Index 2186/99 respectively. 

Judge Casey ruled that the respondents proved that the health and safety exception applied and dismissed the charges against the officers.