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August 12, 2013

Termination of a police officer while on leave pursuant to General Municipal Law §207-c

Termination of a police officer while on leave pursuant to General Municipal Law §207-c
Olsen v Dormer, 13 Misc 3d 1236(A)

Steven B. Olsen was terminated from his employment as a Suffolk County Police Lieutenant pursuant to §71 of the Civil Service Law [Workers’ Compensation Leave] while receiving the full amount of his salary pursuant to General Municipal Law §207-c after suffering a "line of duty" injury..

General Municipal Law §207-c provides that a police officer who suffers a line of duty injury that precludes him from performing his duties as a police officer shall receive his full salary and medical care “until such time as the disability arising therefrom ceases.”

Olsen argued that he could not be terminated from his position with the police department in view of his §207-c status and that he has an indefinite right to return to work either on a full-duty or limited duty status when able to do so.

Supreme Court disagreed, holding that “Neither this record, GML §207-c , the [relevant Taylor Law] contract, or case law persuade the Court that [Olsen] maintained an indefinite right to return to work in limited duty capacity.” Further, said the court, the provisions in the collective bargaining agreement that allowed Olsen to elect a due process hearing or a medical evaluation after a §207-c dispute had arisen, comports with procedural due process as GML §207-c benefits “are a property [interest] that may not be terminated without procedural due process”

As to Olsen’s termination pursuant to Civil Service Law §71, the Supreme Court noted that Olsen was absent from work for a period of one year, five months and fourteen days because of the disability he incurred while performing his police duties.

Supreme Court cited the ruling in Stewart v County of Albany, 300 AD2d 984, Motion to appeal denied, 100 N.Y.2d 505, in support of its decision. 

Stewart, a correction officer serving with the Albany County Sheriff's Department, was terminated pursuant §71 of the Civil Service Law after being absent from work for more than one year. He was receiving his salary and medical benefits pursuant to GML §207-c benefits as the result of a work related injury at the time of his termination. After reviewing the legislative history of §71, the Stewart court found that it was "clearly within the Sheriff's authority to avail himself of the §71 termination procedures to remove a disabled correction officer, even one receiving GML §207-c benefits via the County payroll, in order to appoint a replacement".*

In a footnote in the decision, Footnote 2, the Appellate Division observed that “It is well settled that a civil service employee is not deprived of due process if the employee is terminated without a pre-termination hearing pursuant to §71 of the Civil Service Law (Allen v Howe, 84 NY2d 665, 621 NYS2d 287 [1994])." The statute gives the employee post termination due process. This includes the right to demand to return to work, and to contest any determination that he or she is not fit to return to work.

Dismissing Olsen’s petition, Supreme Court ruled that the Suffolk County Police Department and Commissioner Richard Dormer acted within their discretion in terminating Olsen pursuant to §71 of the Civil Service Law. Further said the court, Olsen has post termination rights available to him under §71,"the most important of which is the right to reinstatement provided application for such reinstatement is made within one year of the cessation of the disability"

Civil Service Law §71, which is "leave without pay," provides, in pertinent part, "Reinstatement after separation for disability,” provides in pertinent part as follows: Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year.... Such employee may, within one year after termination of such disability, make application to the Civil Service Department or Municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. If, upon such examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position."**

The relevant language of GML §207-c, which provides for the continuation of compensation while a law enforcement employee is incapacitated as the result of a work connected injury, appears to provide a statutory imperative that the individual return to active duty full-time or in “light duty status” once he or she is found medically qualified to do so. Indeed, once his or her disability abates sufficiently to permit this or, in the alternative, he or she is directed to return to perform a "light duty" assignment if found medically qualified to do so, the individual risks having his or her §207-c benefits discontinued by the appointing authority should he or she fail to do so.

§71, in contrast, provides that should the employee be terminated pursuant to this provision of the Civil Service Law and thereafter determined to be qualified to resume the duties of his or her former position and in the event there is no suitable vacancy then available to which the individual could be reinstated, the individual's name is to be placed on a preferred list and his or her name is to be continued on such list for four years unless earlier appointed to a suitable vacancy.

It would appear that the only means available to the appointing authority to lawfully "terminate" an individual's §207-c benefits in the event he or she is found not medically qualified for reinstatement to full or light duty, is, should the employee declines to do so, to [1] file an employer application on behalf of the employee for accidental disability retirement pursuant to GML §207-c.2, which decision by the Employees' Retirement System would control as otherwise provided by law or [2] to determine that the police officer is otherwise disqualified from receiving GML §207-c benefits.*** 

In its Stewart decision, the Appellate Division states "Consistent with its statutory purpose, the Sheriff's resort to Civil Service Law §71 was presumably “to secure a steady, reliable, and adequate work force,” (Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 135; see Matter of Allen v Howe, 84 NY2d 665, 672), i.e., he wanted to hire another correction officer to replace petitioner.” However neither Duncan nor the two individuals in Allen [Cathy Allen and Diane Spiegel] were employees eligible for GML §207-c benefits.

** Significantly, in Stewart, supra, the Appellate Division held that “Termination of employment under Civil Service Law §71 does not necessarily involve a termination of benefits being received pursuant to GML §207-c as such benefits ‘are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment.’" 

*** For example, the police officer is ineligible for GML §207-c benefits if he or she "ceased to be an inhabitant within the geographical restrictions" set by law as the court explained in O'Connor v Town of Clarkstown, 221 AD2d 444.

The Olsen decision is posted on the Internet at:


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


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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