Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71
In NYPPL's opinion, an individual receiving §207-c benefits as the result of a work-related disability [and, indeed, GML §207-a with respect to firefighters receiving similar benefits] remains an employee and is continued on the payroll of the appointing authority, albeit in a leave of absence at full pay status, and is not placed simultaneously, or independently, on leave pursuant to §71 of the Civil Service Law.
Footnote 2 in Stewart 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, termination of employment under Civil Service Law §71 does not necessarily involve a termination of benefits awarded pursuit to General Municipal Law §207-c, as such benefits 'are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment' (Matter of Gamma v Bloom, 274 AD2d 14, 16; see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 691; Matter of Meehan v County of Tompkins, 219 AD2d 774, 775). Nor does our determination have any effect on the separate dispute between these parties concerning whether petitioner can perform light duty."
While NYPPL agrees with the Appellate Division’s conclusion that the Sheriff "wanted to hire another correction officer to replace petitioner," this does not resolve the underlying issue: the employment status of the individual receiving the §207-c benefit and source of the funds necessary for the compensation to be paid to (1) the replacement and to (2) the individual receiving §207-c benefits upon the appointment of his or her replacement.
Indeed, the relevant language of GML §207-c provides a statutory imperative that the individual involved return to active duty once found medically qualified to do so. 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.
Contrast this with §71, whereby should the employee be terminated and thereafter determined to be qualified to resume the duties of his or her former position and there is no suitable vacancy available at the time, 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.
In NYPPL's view, the only means available to the appointing authority to lawfully "terminate" an individual in a §207-c leave situation and not qualified for reinstatement to full or light duty is to file an employer application on behalf of the employee for accidental disability retirement or performance of duty disability retirement benefits pursuant to GML §207-c.2 should the employee declines to do so, which decision by the Employees' Retirement System would control as otherwise provided by law.
As to the Sheriff's desire to "replace" the individual during the disabled employee’s absence on §207-c leave, he or she may do so by establishing an appropriate "supernumerary position," provided that there are funds available sufficient for this purpose.
Without engaging in an extended analysis of §207-c, suffice it to note that in support of NYPPL's view that the individual remains an employee and is to be continued on the payroll -- i.e., he or she is not terminated and is not paid by means other than via salary or wages, Subdivision 6 of §207-c provides, in pertinent part, as follows:
6. Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and, or, for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party [emphasis supplied].
Accordingly, absent the individual continuing in an "employee status" and continuing to receive his or her "salary or wages" it could be argued that the appointing authority could not maintain a cause of action to recover such payments.