Negotiating administrative procedures to administer General Municipal Law Sections 207-a and 207-c
Riverhead v Foote, State Sup. Ct., [Not selected for publication in the Official Reports]
Exposure to the possibility of suffering a line of duty disability is a significant occupational hazard for law enforcement and fire personnel. Sections 207-a and 207-c of the General Municipal Law were adopted to give law enforcement and fire personnel some economic protection should they be disabled in the course of their performance of their official duties.
However, these provisions of law set few guidelines with respect to their administration. Accordingly, contracts negotiated under the Taylor Law are including provisions concerning the implementation and administration of Sections 207-a and 207-c with increasing frequency. Current negotiated provisions typically deal with processing disability claims and the procedure for evaluating disabilities for the purpose of receiving, or continuing to receive, Section 207-a benefits payable to disabled firefighters or 207-c benefits payable to disabled law enforcement personnel.
Courts are now setting out the basic principles to be applied in negotiating such provisions and in resolving disputes arising under such provisions.
The Riverhead case involved the determination of an arbitrator concerning assigning a disabled police officer to light duty. In Riverhead, the basic issue submitted to arbitration concerned a determination as to whether or not Riverhead police lieutenant Frederick Foote, then receiving Section 207-c benefits, could perform light duty.
Section 207-c.3, as does Section 207-a.3, provides for the discontinuation of benefits in the event a disabled individual refuses to accept an appropriate light duty assignment for which he or she is determined to be medically qualified to perform.*
In Foote’s case, the negotiated agreement provided that if Riverhead proposed to terminate the Section 207-c benefits being paid to a police officer and the police officer objected, he or she could submit the issue to arbitration. The agreement authorized the arbitrator to make a de novo determination, but provided that the arbitrator could not amend, modify, nullify, ignore, add to, or subtract from the provisions of the contract procedure.
The question Riverhead and Foote presented to the arbitrator:
Did Riverhead, by a preponderance of the evidence, show that Foote was capable of performing light duty work and [i]f so, or if not, what shall his employment status be?
After considering the evidence presented, the arbitrator concluded that Riverhead failed to provide sufficient evidence to demonstrate that Foote was capable of performing light duty work. But the arbitrator went further, finding that Foote was capable of performing very light duty work with severe restrictions and said the question should be submitted to a third impartial physician, to determine the nature of such very light duty work.
Riverhead filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the award; Foote asked the court to confirm the award.
The arbitrator’s referral of the matter to a third impartial physician for the purpose of determining an appropriate light duty assignment for Foote proved fatal to his award. State Supreme Court Judge Lester E. Gerard decided that:
1. The award was inherently contradictory; and
2. The arbitrator failed to make any determination as to Foote’s ability to perform light duty work as required by the agreement.
Judge Gerard vacated the award, holding that the arbitrator, under the terms of the collective bargaining agreement, was required to make a de novo determination concerning placing Foote in a light duty assignment and that he failed to satisfy this obligation.
While Riverhead deals with the resolution of an appeal from an administrative decision, sometimes a negotiated agreement will go beyond matters concerning the consideration and processing of Section 207-a and Section 207-c claims.
The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.
The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.
Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c. Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement. Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.
Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary.
Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.
Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:
1. Had been included in the contract by mistake and
2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.
The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.
Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.
As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.
Accordingly, it appears that Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement are entitle to Section 207-a type benefits.
* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.
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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 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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