Potential conflict of interest between official duties and private business should be eliminated by appointing authority

Potential conflict of interest between official duties and private business should be eliminated by appointing authority
Informal opinion of the Attorney General 98-39

A part-time village police officer also conducted a towing business. When asked if the officer’s towing business could be included on the village police force’s list of towing companies, the Attorney General said it could be listed, “provided the village takes appropriate steps to eliminate any potential conflicts of interests.”

The Attorney General said that an appearance of impropriety would be created if the police officer’s towing service were called when that officer is at the scene of an accident. Further, a conflict of interest would arise if village police officers recommended their colleagues’ business to individuals in need of towing services rather than resort to the list.
NYPPL

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith
Rosioreanu v New York City Off. of Collective Bargaining, 2010 NY Slip Op 07797, Decided on November 4, 2010, Appellate Division, First Department

Upon conclusion of a grievance procedure that resulted in her termination, Cleopatra Rosioreanu filed an improper practices petition with the New York City Office of Collective Bargaining [OCB] contending that her union failed to provide adequate representation throughout the grievance process.

OCB denied the petition and Rosioreanu filed an Article 78 proceeding challenging OCB’s determination.

The Appellate Division said that Rosioreanu’s Article 78 petition advanced the theory that because the grievance process ended with her termination, her union representatives must have acted arbitrarily, capriciously or in bad faith.

The court characterize Rosioreanu’s claim as a “conclusory assertion,” commenting that there was nothing in the record that suggests malfeasance by the union representatives, much less fraud, deceitful action, dishonest conduct or discrimination on the part of union representatives, citing Mellon v Benker, 186 AD2d 1020.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07797.htm
NYPPL

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)
Matter of Rivera v DiNapoli, 2010 NY Slip Op 07852, Decided on November 4, 2010, Appellate Division, Third Department

Although typically an applicant for accidental disability retirement benefits or performance of duty disability benefits has the burden of proof with respect to showing that his or her disability resulted from the performance of his or duties, such is not always the case.

For example, the Retirement and Social Security Law §507-b(c) sets out a rebuttable presumption that where an individual has "successfully passed a physical examination on entry into service as a correction officer" that did not reveal evidence of heart disease and later becomes disabled as the result of a heart condition sustained during employment, it is presumed that the disability was "incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence."

Juan C. Rivera’s had successfully passed his physical examination when he began his employment as a correction officer. He subsequently suffered a myocardial infarction after falling ill while at work.

When it was determined that he could not return to work because of his resulting medical condition, Rivera applied for performance of duty disability retirement benefits.

The New York State and Local Retirement System [ERS], however, denied his application, concluding that although Rivera was permanently incapacitated, his disability "was not sustained as a result of the performance or discharge of his . . . duties."

Ultimately the Comptroller sustained the ERS’s denial of his application for benefits and Rivera filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Comptroller’s determination.

Under the circumstances, said the Appellate Division, ERS had the obligation to rebut the statutory presumption that Rivera's disability occurred as a result of his performance and discharge of his duties as a correction officer.

The Appellate Division concluded that ERS had rebutted the presumption that Rivera’s disability was related to his employment as a correction officer by presenting evidence of risk factors coupled with expert testimony that excludes an applicant's employment as a causative factor" and sustained the Comptroller’s decision.

The court said that considering the record as a whole, it found that ERS had “effectively rebutted” the presumption set out in RSSL §507-b(c) and thus Rivera’s application for benefits was properly denied.

The record indicated that ERS had relied on the opinion of a cardiologist who, after examining Rivera, concluded that while work-related stress "can aggravate the symptoms of coronary artery disease," Rivera's coronary artery disease "was not related to his employment as a correction officer." The cardiologist made reference to the fact that Rivera suffered from a variety of risk factors commonly associated with coronary heart disease, including obesity and hypertension.

The Appellate Division said that it had previously held "the [statutory] presumption is effectively rebutted when evidence of risk factors is coupled with expert testimony that excludes an applicant's employment as a causative factor," citing Bryant v Hevesi, 41 AD3d at 932.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07852.htm
NYPPL