GML §207-c benefits to be discontinued if individual receiving such benefits is offered and refuses to accept a light duty assignment for which he or she is qualified
Howell v County of Albany, 2013 NY Slip Op 02308, Appellate Division, Third Department
Howell v County of Albany, 2013 NY Slip Op 02308, Appellate Division, Third Department
A petition submitted to Supreme Court a review of a determination by the Albany County Sheriff to suspend a correction officer’s General Municipal Law §207-c benefits was transferred to the Appellate Division.*
Petitioner was employed as a correction officer by Albany County Sheriff's Office and as a result of a work-connected incident, was receiving General Municipal Law §207-c benefits. Petitioner, however, subsequently rejected the Sheriff Department’s offer of a light duty assignment and refused to return to work.
A hearing was conducted to determine the extent of Petitioner’s disability. The Hearing Officer recommended that Petitioner be found capable of performing light duty and the Department adopted the recommendation and ordered Petitioner to report for a light duty assignment or face suspension of his GML §207-c benefits.**The Petition failed to report for light duty as directed and the Department suspended his GML §207-c benefits.
The Appellate Division affirmed the Department’s determination, rejecting Petitioner’s claim that the Sheriff's determination was made in violation of his due process rights because the Hearing Officer refused to consider proof that he suffered from posttraumatic stress disorder and, in addition, had considered evidence “outside the record.”
The court explained that "The right of a disabled officer to receive section 207-c disability payments constitutes 'a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated.'"
Noting that the GML §207-c does not provide a procedural framework for making such determinations, the Appellate Division said that municipalities are free to establish their own procedures, consistent with or exceeding what is required by due process, through collective bargaining. The court also noted that "due process does not require a hearing . . . until the employee has raised a genuine dispute on [the] operative facts", citing Davis v Westchester County, 42 AD3 79 (appeal dismissed 9 NY3d 953)
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The Appellate Division found the Petitioner had been provide with administrative due process in that when he objected to the Sheriff’s light duty he was provided with a predetermination hearing in which he was able to present his own witnesses and cross-examine the Department’s witnesses.
The court said that in its view the Hearing Officer did not violate Petitioner's procedural due process rights by refusing to consider evidence that he suffered from posttraumatic stress disorder as “there is no indication in the record before us that petitioner put that diagnosis in issue — i.e., he raised no genuine dispute with respect to that diagnosis, as opposed to his established claims — prior to offering his expert's testimony at the hearing“
The court also rejected Petitioner's claim that the Hearing Officer considered evidence “outside the record” by noting that, in the context of his assessment of the credibility of Petitioner's witnesses, “his observations of Petitioner's demeanor while leaving the hearings.”
* Although the Appellate Division noted that the proceeding had been “improperly transferred” to it because the petition does not raise a question of substantial evidence; it, nonetheless, ruled that it would “retain jurisdiction in the interest of judicial economy.”
** GML §207-c.3, in pertinent part, provides that an otherwise eligible individual “unable to perform his regular duties as a result of such injury or sickness but is able … to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him .…”
The decision is posted on the Internet at: