Legislative intent with respect to providing performance of duty disability retirement benefits to State and local correction officers

Legislative intent with respect to providing performance of duty disability retirement benefits to State and local correction officers
2015 NY Slip Op 519474, Appellate Division, Third Department

A New York State Correction Officer [Officer] challenged the New York Employees' State Retirement System's  denial of his application for performance of duty disability retirement benefits.

Officer had applied for performance of duty disability retirement benefits alleging that he was permanently incapacitated due to a work-related injury to his right knee. At the administrative hearing Officer testified that he had injured his knee while involved in a struggle to restrain an unruly inmate who had threatened another office and that he and the other officer were in the process of taking the inmate down to the floor when he felt pain in his knee.

However, Officer had signed a written report on the day of the incident that stated that, after the other officer had taken down and restrained the inmate, who had stopped resisting, he injured his knee when he slipped as he was placing shackles on the inmate's legs. 

Crediting the description of the incident in the written report over Officer's testimony, the Hearing Officer found that Officer failed to establish that his injury was the result of an act of an inmate and upheld the Retirement System's denial of the application. The Comptroller adopted that determination and Officer appealed.

Mindful "that inconsistencies between [Officer’s] sworn testimony and written documents present a credibility issue for the factfinder to resolve," the Appellate Division said that it deferred “to the Hearing Officer's decision to credit the account of the incident set forth in the contemporaneous written report over that testified to by [Officer] during the hearing.” However, said that court, even accepting as true the version of the event contained in the written report, the record lacks substantial evidence to support the determination that Officer’s injury was not "the natural and proximate result of any act of any inmate” within the meaning of Retirement and Social Security Law §607-c [a].

Retirement and Social Security Law §607-c (a) provides, in pertinent part, that “performance of duty disability retirement benefits shall be available to a correction officer ... who becomes physically or mentally incapacitated for the performance of duties . . . by, or as the natural and proximate result of [,] any act of any inmate" (emphasis by the court) and the statute requires "that the [correction officer] demonstrate that his or her injuries were caused by direct interaction with an inmate."

The Appellate Division concluded that even accepting the version of the incident set forth in the written reports, the necessary "direct interaction" was present as Officer was injured while attempting to shackle an inmate who, just seconds earlier, had been taken down to the ground after violently threatening another correction officer. The court noted that the Hearing Officer erroneously found, which finding was adopted by the Comptroller, "[Officer] simply injured himself when he slipped after placing shackles on the inmate's feet" (emphasis by the court). Neither the testimony at the hearing nor any of the documentary evidence supports a finding that Officer was injured after he had shackled the inmate (emphasis by the court).

Under these circumstances, said the court, there is simply no evidentiary basis in the record to conclude that Officer’s injury was not the natural and proximate result of an act of an inmate. Further, explained the Appellate Division, ”... it is clear that the act of restraining a combative and unruly inmate is precisely the type of activity that was intended to trigger the protections afforded correction officers by Retirement and Social Security Law §607-c and the legislative justification for the enactment of both Retirement and Social Security Law §§507-b and 607-c — which provide performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision and county-employed correction officers, respectively — was that "the increased inmate population of the state's prison system created strain and tension, manifesting itself in an increase in altercations among inmates and between inmates and correction officers." Thus, these statutes were thus "clearly intended to compensate correction officers who, because of the risks created by their 'daily contact with certain persons who are dangerous [and] profoundly antisocial.'”

Having determined that Officer’s injury was a natural and proximate result of an act of an inmate, the Appellate Division remitted the matter to the Comptroller “for further proceedings on the issue of the permanency of [Officer’s] alleged disability.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_519474.htm

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New York State's E-mail management and preservation policy

New York State's E-mail management and preservation policy

Source: Memorandum distributed by the State Office of Information Technology Services

A number of newspaper articles and editorials have addressed New York State’s “standard 90-day e-mail management system” implemented by State departments and agencies.

State departments and agencies were advised of this new procedure by means of a memorandum dated June 18, 2013 sent to the General Counsel of each State department and agency by the General Counsel of the New York State Office of Information Technology Services.*  

The memorandum stated that e-mails sent or received by State department and agency personnel on or after June 30, 2013 are  to be "automatically" purged from the user’s mailbox after 90 days unless the e-mail was subject to a Freedom of Information Law [FOIL] request or was relevant to litigation.

The complete text of the memorandum is posted on the Internet at:

http://www.propublica.org/documents/item/1184686-foil-2014-08-production.html

* The memorandum does not apply to political subdivisions of the State. 

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Employee alleged to have engaged in plagiarism

Office of Payroll Management v. Hassan, OATH Index No. 308/15

Computer systems manager who was assigned the task of developing a technical design document for the agency's new training application, was charged with plagiarism after he submitted a template which he had downloaded from the Internet and modified in part. ALJ Ingrid M. Addison recommended dismissal of the charge. Evidence showed that the manager's work was not in final form, he did not conceal that he was using a template, and the use of templates were not forbidden by petitioner's rules. Testimony suggested that downloading templates was common practice in the industry. ALJ Addison also recommended dismissal of the charge that respondent was incompetent because he failed to meet project deadlines. The ALJ found that the delay was caused by other factors not created by the manager. Charges that the manager was paid for work not performed and was excessively absent were also not proven.  

Employee charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at work

Fire Dep't v. Buttaro, OATH Index No. 2430/14

Firefighter was charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at the firehouse, while on and off-duty, instead of Department-issued attire. ALJ Alessandra F. Zorgniotti found that petitioner established the charge and the additional charge that the firefighter disobeyed orders to wear only authorized clothing in the firehouse. The Department showed that the potential workplace disruption caused by the firefighter's conduct outweighed the firefighter's First Amendment right to wear non-Department issued t-shirts in the firehouse. Termination of employment was recommended and imposed.  Fire Dep't v. Buttaro, OATH Index No. 2430/14

Testing positive for alcohol during random test

Dep't of Transportation v. Anonymous, OATH Index No. 147/15.

Ship carpenter was charged with testing positive for alcohol during random test administered under federal regulations. ALJ Addison rejected carpenter's claims that he was not randomly selected or that the technician who performed the test did not comply with federal regulations or that the positive result was caused by acid reflux. Termination of employment was recommended.  

Employee alleged to be mentally unfit to perform his job

Dep't of Environmental Protection v. J.B., OATH Index No. 321/15

Petitioner alleged that an environmental police officer was mentally unfit to perform his job under Civil Service Law Section 72, subjected the officer to examinations by psychiatrists employed by the Police Department who found him mentally unfit, and placed him on an immediate leave of absence, following an incident in which the officer engaged in a religious practice known as "speaking in tongues" in the workplace. ALJ Tynia D. Richard granted respondent's motion to dismiss the proceeding, finding petitioner failed to comply with statutory requirements and the officer was not afforded due process. Written notice that should have been provided to the employee to advise him of the facts that gave rise to the Department's belief that he was unfit and of its intent to place him on a Section 72 medical leave was untimely, occurring five months after psychological testing commenced; the exams were not conducted by doctors designated by the Citywide Administrative Services as required by statute; and an involuntary leave was imposed prior to hearing without probable cause to believe that the officer's presence at the job would present a danger or severely interfere with operations.   

N.B. OATH Index No. 321/15 decision rejected and remanded, Commissioner ruled that Section 72 procedures were inapplicable because the purpose of the exams was not to evaluate the officer for a leave of absence and remanded the case to the ALJ for a recommendation regarding the officer's mental fitness.

Submission of a fraudulent medical note alleged

Human Resources Admin. v. Lopez, OATH Index No. 496/15

ALJ Kara J. Miller found that a job opportunity specialist submitted a fraudulent medical note and was absent without authorization for two weeks. After the employee's request for summer vacation had been denied in part, he failed to report to work for two weeks and then submitted a medical note requesting that his absence be excused for the entire period due to poison ivy. Noting irregularities in the note, petitioner checked with medical office employees, who indicated that the note was valid for only one day excusal. Termination of employment recommended.  

Positive drug test

Dep't of Sanitation v. Petosa, OATH Index No. 758/15

ALJ Richard recommended dismissal of a disciplinary charge based upon sanitation worker's positive drug test, where worker had admitted his drug problem and sought in good faith to obtain rehabilitation. The positive test occurred after worker had voluntarily entered a drug and alcohol rehabilitation facility, and he was referred to the Department's Employee Assistance Unit for testing and monitoring. He was told that he would have to take a drug test to establish a baseline level of usage and he would not be punished for a positive test.  

Requiring employees absent on sick leave to be examined by a physician designated by the employer before returning from such leave

Requiring employees absent on sick leave to be examined by a physician designated by the employer before returning from such leave
New York State Corr. Officers & Police Benevolent Assn., Inc. v New York State Dept. of Corr. & Community Supervision, 2015 NY Slip Op 01853, Appellate Division, Third Department

Supreme Court dismissed the New York State Corr. Officers & Police Benevolent Association’s [Association] application to review the New York State Department of Correction and Community Supervision’s [Department] decision to deny an Association member’s [Employee] request to restore sick leave credit the member used while absent on sick leave.

Employee was on an approved medical leave on November 3, and November 4, but then advised the Department that she was not returning to work on November 5, because her treating physician “prevented her from doing so,”

Employee’s supervisor told her that a note from her physician explaining her absence was required before she could return to work. Employee submitted a note from her doctor stating that she was fit to return to work as of November 8.

The Department than said that Employee had to undergo an Employee Health Services (EHS) examination before she could resume active duty. On December 10, EHS found that the Employee was fit to return to work, which she did on December 12.

Employee then requested the Department restore the 22 days of sick leave credits that Employee used in order to remain on the payroll while she awaited EHS clearance to return to work. The Department denied her request and the Association filed an Article 78 petition challenging the Department's decision, contending that such refusal constituted a violation of Civil Service Law §72(5).

The Appellate Division said that it agreed with Supreme Court’s determination that the Association’s reliance on §72(5) “fails to afford them any relief.” The court explained that nothing in the record suggests that Employee was placed on involuntary leave pursuant to Civil Service Law §72(5) and “the evidence shows that Department exercised its right — under 4 NYCRR 21.3(e)* and Article 14 of the parties' collective bargaining agreement — to subject Employee to an EHS assessment to ensure that she could properly perform her job responsibilities.”

The regulation and relevant provision set out in the collective bargaining agreement allowed Department to require Employee, following a medical absence, to be examined by a Department designated physician in order to ensure that she was capable of performing her work duties before being permitted to resume her employment.

According to the decision, Employee absented herself on sick leave and Department had not initiated the procedural steps to place Employee on “Leave for Ordinary Disability” pursuant to Civil Service Law §72(1) nor placed Employee on “Leave for Ordinary Disability involuntarily pursuant to Civil Service Law §72(5). Further, the Appellate Division said that it was not persuaded that Department’s refusal to allow Employee to return to work for weeks after her personal physician indicated that she was fit to do so constituted a de facto involuntary leave for ordinary disability within the meaning of §72(5).

* 4 NYCRR 21.3(e), which applies to employees of the State as an employer, provides that “The appointing authority may require an employee who has been absent because of personal illness, prior to and as a condition of his [or her] return to duty, to be examined, at the expense of the department or agency, by a physician designated by the appointing authority, to establish that he [or she] is not disabled from the performance of his [or her] normal duties and that his [or her] return to duty will not jeopardize the health of other employees.” A number of local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:.

http://www.nycourts.gov/reporter/3dseries/2015/2015_01853.htm

Recent appointments announced by the Governor

Recent appointments announced by the Governor

Source: Office of the Governor

On Martch 9, 2015, Governor Andrew M. Cuomo announced the appointment of the individuals named below to his administration.

Tom Topousis has been appointed Special Adviser to the Communications Director and Director of Speechwriting. Most recently, he served as Editor in Chief of the Queens Courier and its sister publications. Before that, he spent more than 17 years at the New York Post, where he covered city and state government, transit and the reconstruction of the World Trade Center before becoming political editor in 2010, during which he oversaw coverage of the 2012 presidential campaign. He has also worked for the Bergen Record in New Jersey as well as several newspapers in New York State, including the Poughkeepsie Journal, Oneonta Star and the Times-Herald Record of Middletown. Mr. Topousis studied anthropology at the State University of New York at New Paltz.

Aimee Vargas, Esq., has been appointed Director of Downstate Intergovernmental Affairs, which covers the Hudson Valley, NYC and Long Island. Ms. Vargas previously oversaw Governor Cuomo’s regional affairs in the Hudson Valley and served as the Mid-Hudson Regional Director of Empire State Development and the Executive Director of the Mid-Hudson Regional Economic Development Council. Ms. Vargas also serves on the Governor's Tappan Zee Community Outreach team and will continue to do so in her new role. She was formerly Associate Counsel at the New York State Department of Environmental Conservation and, prior, Director of Finance for the Town of Clarkstown in Rockland County. Ms. Vargas is a member of the Rockland Community Foundation's Advisory Board and was recognized by Rockland Economic Development Corporation as a recipient of their "40 Under 40" award. She has also been recognized by the Dutchess County Exempt Volunteer Firefighters Association's Hispanic Heritage Award. Ms. Vargas is a graduate of the S. I. Newhouse School of Public Communications at Syracuse University and the Benjamin N. Cardozo School of Law.

Julissa Gutierrez has been appointed Deputy Director of Constituency Affairs. Ms. Gutierrez previously served in a number of roles at the National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund, most recently as Director of National Programs and Community Relations and Northeast Director for Civic Engagement. She was Special Assistant to the Commissioner of the New York City Department of Youth and Community Development and has had a long relationship with the Anti-Defamation League, having held various positions and participated in programs there since she was in high school. Ms. Gutierrez is Board Chair of New Immigrants Community Empowerment and a Board of Trustees for the Queens Public Library. Ms. Gutierrez has a B.A. from the University of Delaware and a M.A. from University of Chicago.

Rosemary Powers has been appointed Chief Operating Officer for the Department of Transportation. She most recently served as the Deputy Chief of Staff and Senior Director of Government Affairs for Massachusetts Governor Deval Patrick. She previously served as the Chief of Staff and Director of Government Affairs at the Department of Environmental Protection in Massachusetts. She has also served as the Director of Government Affairs at the Massachusetts Department of Conservation and Recreation and as Chief of Staff and Policy and Legislative Director for Senator Jack Hart of Massachusetts. She was co-chair of the Intergovernmental Affairs Team of the Mayor Martin J. Walsh Transition Committee. Ms. Powers has a Masters of Public Administration from Harvard University’s John F. Kennedy School of Government and a B.A. from Suffolk University.

Tanuja Mohapatra, Esq., has been appointed Director of Legislative Affairs for the Department of Financial Services. Ms. Mohapatra previously served as Chief of Staff and Counselor to New York Assemblyman N. Nick Perry, where she was instrumental in the advocacy of homeowners' rights during the financial crisis, including the passage of legislation that protected consumers from paying costly bank fees. Prior, she worked in the private sector in the areas of E-Discovery and Litigation Management representing fortune 500 companies in the financial sector, and was an attorney for Womble Carlyle Sandridge & Rice in Durham, NC engaged in pharmaceutical litigation. Ms Mohapatra is admitted in North Carolina’s 10th Judicial District and has a J.D. from the Columbus School of Law at the Catholic University and a B.A. in Political Science from North Carolina State University.

Catherine Youssef Kassenoff, Esq., has been appointed Special Counsel for Ethics, Risk and Compliance for the Energy and Finance Sub-Cabinet. She most recently served as the Executive Director, Executive Counsel and Head of U.S. Litigation and Government Investigations at Boehringer Ingelheim Pharmaceuticals where she oversaw all U.S. litigation and government investigations. She previously served as the Director of Corporate Compliance and Litigation at Edison Learning, Inc. and was an Assistant U.S. Attorney in the Eastern District of New York. Ms. Kassenoff has a J.D. from New York University School of Law and an A.B. from Dartmouth College.