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January 15, 2016

Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes


Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes
Gilles v DiNapoli, 2015 NY Slip Op 09342, Appellate Division, Third Department

Peter Gilles, a member of the Town of Greenburgh Police Department, received overtime pay for occasionally volunteering to work “special-duty details.” These special-duty details involved police services provided to private entities that paid the Town for such services.

Upon his retirement, the New York Stateand Local Retirement System notified Gilles that the compensation he received for such special-duty detail services would not be included in determining his final average salary for retirement allowance purposes.

Gilles objected and a hearing was held. The Hearing Officer ruled that Gillles’ compensation for working on special-duty details would not be included in determining his final average salary.

The Comptroller affirmed the Hearing Officer’s determination stating, in part, that Gilleshad "failed to sustain his burden of proving that he [was] eligible to have included in the calculation of his final average salary those payments received for services rendered to private entities and for which the employer [was] reimbursed by the private entities."

Stated another way, the Comptroller concluded that that Gilles did not provide services to the police department while he was on such special-duty details.

Gilles then filed a petition pursuant to CPLR Article 78 challenging the Comptroller's determination.

The Appellate Division rejected Gilles’ appeal noting that “The relevant issues [in Gilles] are the same as in [its] recently decided case of Matter of Tamucci v DiNapoli (133 AD3d 960 [2015]), and, for the reasons set forth therein, [it] confirm” the Comptrollers decision.

NYPPL’s summary of the Tamucci decision is posted on the Internet at http://publicpersonnellaw.blogspot.com/2015/11/overtime-paid-to-police-officer-for.html

In that posting it was noted that an off-duty police officer injured while he or she was off-duty and working for a private employer may not be eligible for General Municipal Law §207-c benefits or Retirement and Social Security Law accidental disability or service disability retirement benefits.

Further, a police officer off-duty and working for a private employer may not be eligible for "defense and indemnification" by his or her public employer pursuant to §18 of the Public Officers Law should he or she be sued concerning an event that occurred in the course of his or her working for a private employer.

The Disability Benefits E-book – 2016 Edition This electronic handbook addresses similar situations. For more information click on http://section207.blogspot.com/

The Tamucci decision is posted on the Internet at:

The Gilles decision is posted on the Internet at:
 http://www.nycourts.gov/reporter/3dseries/2015/2015_09342.htm
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