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Friday, January 04, 2013

An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged


An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged
White v County of Sullivan, 2012 NY Slip Op 09131, Appellate Division, Third Department

Supreme Court granted Earl White’s CPLR Article 78 to partially vacate Sullivan County’s determination denying White benefits pursuant to General Municipal Law §207-c.

White, a correction officer with the Sullivan County Sheriffs’ Department, was injured in the performance of his duties and filed for, and received, disability benefits pursuant to General Municipal Law §207-c. White’s physician subsequently cleared him to return to work in a light duty capacity, and White began working full time as a control room officer.

Some time later White again suffered an injured in the course of his employment and again filed for benefits pursuant to General Municipal Law §207-c. White’s superior at the Sheriff's Department approached him with a disability retirement application, but White refused to sign it or related medical releases.*

The County denied White's application for General Municipal Law §207-c benefits due to a lack of medical evidence. In response to White’s petition challenging the County’s decision, Supreme Court, concluding that the county's determination was arbitrary and capricious, remanded the matter and directed the County to hold a hearing.

The Hearing Officer determined, among other things, that White had established his eligibility to receive §207-c benefits beginning at the time of his injury but that he was able to resume light duty work. The Hearing Officer also found that White's eligibility for benefits ended effective July 24, 2009 due to his refusal to cooperate with County's attempts to file retirement paperwork on his behalf.** The County adopted the Hearing Officer's determination.

The Sheriff, however, preferred charges of misconduct against White pursuant to Civil Service Law §75, alleging that his refusal to sign retirement forms constituted misconduct. The disciplinary hearing officer found White guilty and the Sheriff adopted the hearing officer’s findings, imposing the penalty of termination from his position effective in January 2011.

White then initiated this action, challenging [1] the determination one denying him benefits pursuant to General Municipal Law §207-c and [2] the Sheriff’s decision finding him guilty of misconduct and terminating his employment. Supreme Court partially granted White’s petition, vacating the County’s determination that White was ineligible for benefits after July 2009 and vacated Sheriff’s decision terminating White from his position.***

As to that part of White’s appeal concerning the County’s termination of his §207-c benefits, the Appellate Division noted that Sullivan County Local Law No. 1 (1989) vested in the County’s “insurance administrator the exclusive authority’ to make determinations of eligibility for General Municipal Law §207-c benefits for Sheriff's Department staff.

Noting that both State Law and Sullivan County Local Law provided that the payment of §207-c salary benefits "shall be discontinued" for any officer "who is permanently disabled" as a result of the injury occurring in the performance of his or her duties if that officer is granted a disability retirement and in the event such an officer does not apply for a disability retirement, “the head of the police force may apply on behalf of the officer,” citing General Municipal Law § 207-c [2] and the relevant collective bargaining agreement with White's union, governing its procedure for compliance with General Municipal Law §207-c” pursuant to Local Law No. 1.

Local Law No. 1, provides that in the event the County’s insurance administrator determines that an officer is permanently disabled, the administrator "shall" notify [the County's] personnel officer, who then "shall request that the [officer] make application for" a disability retirement (Local Law No. 1 § 210). "If application for such retirement is not made by the [officer], application therefor[] may be made by the Sheriff or [p]ersonnel [o]fficer," again citing Local Law No. 1.

The court then explained that initially the County’s denied White benefits based on a lack of medical proof, without mentioning petitioner's refusal to sign retirement documents.

The Hearing Officer found that medical proof did exist, rejecting the basis relied upon by the County for its denial of benefits. Noting that the county “is not now challenging that finding,” said that the County “should not be permitted to create or rely upon different reasons for the denial that were not raised and stated at the time of that denial” and  "judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination."

Further, said the court, even were County permitted to rely on White's refusal to sign retirement documents despite not having included that reason in its denial letter, the County concedes that its personnel officer never requested White to apply for disability retirement. Accordingly, the Appellate Division granted that portion of White’s petition seeking the annulment of the County’s determination finding White ineligible for General Municipal Law §207-c benefits as of July 2009.

The Appellate Division then observed that White was entitled to §207-c benefits beginning at the time of his injury in June 2009 but that “No end period for those benefits has been established, as that may depend on the outcome of the remittal regarding the Sheriff's termination of [White’s] employment.”

* See  GML §207-c.2.

** The County contended that Retirement and Social Security Law §605 provides an alternate basis upon which it could apply for retirement benefits on White's behalf, but it did not make an application pursuant to that section. See, also, GML §207-c.2.

*** The Appellate Division, noting that the Sheriff was not named as a respondent in the action before Supreme Count with respect to White’s dismissal from his position, said that the Sheriff was a necessary party and “join the Sheriff as a respondent” in the action. The Sheriff, however, was not a necessary party with respect to that portion of White’s action challenging the County’s discontinuing his §207-c benefits.

The decision is posted on the Internet at:

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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