Monday, October 21, 2013

NYC police officer’s pension vested as a result of the appointing authority’s failure to hold a timely disciplinary hearing


NYC police officer’s pension vested as a result of the appointing authority’s failure to hold a timely disciplinary hearing
2013 NY Slip Op 06772, Appellate Division, First Department

New York City’s Administrative Code §13-256 provides that a police officer's pension automatically vests thirty days after he or she "duly execute[s an] application for a deferred retirement allowance," provided, among other things, that the discontinuance of the officer's employment is not "by . . . dismissal."*

In this instance a police officer [Petitioner] submitted his retirement application. On the day before his  pension would have become vested, the New York City Police Commissioner dismissed Petitioner from the police force as the result of a disciplinary hearing held in absentia.

Petitioner challenged the Commissioner’s action and Supreme Court vacated the order of dismissal. The court ruled that that Commissioner’s notice of the disciplinary charges was not "reasonably calculated to give him actual notice and an opportunity to be heard" thus violating due process and rendering "the final determination . . . arbitrary and capricious and without sound basis in reason."

Supreme Court granted Petitioner’s petition to the extent of remanding the matter to NYPD for “a full hearing on proper notice,” which ruling was affirmed by the Appellate Division, 80 AD3d 530. The Court of Appeals denied Commissioner’s application for leave to appeal (see 16 NY3d 714).

While Supreme Court's remand order was stayed during the pendency of Commissioner’s appeals, the stay terminated five days after service of the Court of Appeals' order denying the Commissioner's leave to appeal with notice of its entry.

The Appellate Division said that the Supreme Court's initial ruling rendered the order of dismissal a nullity. Accordingly the thirty-day vesting period set forth out §13-256 “remained in effect upon remand and began running anew.” The Commissioner, however, failed to hold a hearing and issue a new order of dismissal in timely fashion.

Petitioner then asked Supreme Court to issue an order compelling NYPD to process his pension application. Supreme Court rejected the petition and Petitioner appealed.

The Appellate Division said that Petitioner’s “pension vested automatically” when the Commissioner failed to hold a hearing within thirty days of the date of the Court of Appeals’ order. Accordingly, the Appellate Division directed the Commissioner to vest Petitioner's pension.

* See §§13-256[a][1], [4] and § 13-256[b]).

The decision is posted on the Internet at:
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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