A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

Smeraldo v Rater, 55 AD3d 1298

Timothy J. Smeraldo brought an Article 78 proceeding challenging the penalty of termination of his employment with the Jamestown Police Department after he was found guilty of conduct that was disrespectful of a superior officer. Smeraldo contended that the penalty of termination is so disproportionate to the offense as to be shocking to one's sense of fairness. In addition, Smeraldo alleged that the Hearing Officer improperly relied upon facts that were not in evidence.

The Appellate Division rejected Smeraldo’s claim that penalty imposed was “shocking to one’s sense of fairness. The court said that it is well established that courts must uphold the disciplinary penalty imposed by an appointing authority unless, as a law, it is an abuse of discretion, citing Kelly v Safir, 96 NY2d 32.

The Appellate Division said that "A police force is a quasi-military organization demanding strict discipline" and "great leeway” must be accorded to “determinations concerning the appropriate punishment, for it is the [Chief of Police] . . . who is accountable to the public for the integrity of the Department."

In this instance the Hearing Officer found that Smeraldo had made a remark in front of several other officers that was disrespectful of a superior officer. Further, said the court, “the record establishes that [Smeraldo] has a prior disciplinary record, including a 30-day suspension and a demotion in rank that occurred less than one year prior to the present offense. In addition, the decision reports that Smeraldo that settlement agreement with the Department for the charge resulting in that suspension and demotion, Smeraldo expressly stated that "he will endeavor not to violate any other Department policy in the future" and that there was evidence at the hearing that he had previously been counseled on the issue of making inappropriate comments, including comments that demonstrated insubordination.

Noting that the settlement agreement was received as evidence in the course of the disciplinary hearing, the Appellate Division concluded that there was no basis for Smeraldo’s claim that the Hearing Officer improperly relied upon facts not in evidence.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07336.htm

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Independent contractors not entitled to retirement benefits or other fringe benefits

Independent contractors not entitled to retirement benefits or other fringe benefits
Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516

Michael Araneo was the owner, president, and sole employee of a corporation: Michael Araneo, Inc. In 1970 Araneo began performing work for the Town of Clarkstown at the Town dump and on September 15, 1997, on behalf of the corporation, signed an agreement with the Town providing that the corporation would perform certain services at the Town's solid waste facility and other facilities.

This contract expressly provided that the corporation and its employees would be acting as independent contractors and were not to be considered employees of the Town.

Araneo submitted vouchers to the Town Comptroller for payment and the payment was generally made to the corporation. The Town did not withhold taxes or insurance, and that the corporation paid the requisite taxes and insurance on behalf of Araneo. In addition, the corporation carried liability insurance, maintained its own offices, and that the Town paid the corporation more than an individual employee would have been paid for the same work. Further, Araneo used “many of his own tools” in performing his work and “was not instructed on how to perform the work he did for the Town.”

On January 8, 2002, Araneo sued the Town, for a judgment declaring that effective July 3, 1978 and through and including January 14, 2005, he was a Town employee entitled to all benefits enjoyed by such employees, including but not limited to, pension rights, health care, vacation time, sick leave, and personal time.

The Appellate Division said that “The determination of whether one is an employee or an independent contractor requires examination of all aspects of the arrangement between the parties,” although "the critical inquiry . . . pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results." Other elements include “assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule." Significantly, the court said “the fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive.

In this instance, said the court, the record plainly establishes that, at all times at issue, Araneo was an independent contractor to the Town and not a Town employee. Consequently, Araneo was held not to be an employee of the Town of Clarkstown at any time from July 3, 1978, to January 14, 2005.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07599.htm

Creditable medical evidence trumps presumption that a disease of the heart was incurred in the performance of police officer duties

Creditable medical evidence trumps presumption that a disease of the heart was incurred in the performance of police officer duties

Goodacre v Kelly, 2012 NY Slip Op 05096, Appellate Division, First Department

Supreme Court, granted the Article 78 petition filed by a New York City police officer, Charles Goodacre, seeking, among other things, to annul the determination by the Trustees of the Retirement System denying his application for accident disability retirement (ADR) benefits to which he claimed he was entitled pursuant to General Municipal Law §207-k (the Heart Bill)*. Although Supreme Court found that the officer was “entitled to such benefits as a matter of law,” the Appellate Division reversed the lower courts ruling.

§207-k sets out the rebuttable presumption that a police officer or firefighter suffering an  impairment of health “caused by diseases of the heart, resulting in total or partial disability or death … who successfully passed a physical examination on entry into the service … which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty….” The presumption may be rebutted by competent evidence to the contrary.

Citing Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the Appellate Division said that Supreme Court “exceeded the scope of its review,” which is to determine “whether ‘some credible evidence’ supported the Medical Board's determination as to disability.”

In this instance Supreme Court concluded, “contrary to findings of the Medical Board,” that although there were conflicting submissions, as a matter of law, Goodacre’s hypertension “… constituted a stress-related condition warranting ADR benefits.”

Such a determination, however, “was the sole province of the Medical Board and the Board of Trustees, not the court.” The Board and the Trustees were to resolve conflicts in the medical evidence. Having reviewed all of the medical reports and, in its most recent decision, recognizing the conflicting evidence, the Medical Board determined that although Goodacre had hypertensive heart disease, he did not have a stress related disability because there was insufficient evidence…. "

Accordingly, the Appellate Division ruled that the statutory presumption of §207-k was overcome by this credible evidence of Goodacre's disabling congenital heart condition.

Contrary to Goodacre's contention, and the Supreme Court's conclusion, the Appellate Division ruled that “it cannot be said as a matter of law that the cause of [Goodacre's] disability is job related stress” and the Medical Board's decision was supported by credible evidence. Further, said the court, the Board sufficiently set forth the reasons for its conclusions.

The Appellate Division then reversed the Supreme Court’s decision and denied Goodacre’s Article 78 petition.

* N.B.There are two “General Municipal Law Section 207-Kaddressing “Disabilities of policemen and firemen in certain cities.” The first sets out an expiration date of July 1, 1973; the second, 207-K*2, set out an expiration date of July 1, 1995. However, Retirement and Social Security Law §480.a extends certain temporary benefits and supplementation programs otherwise “scheduled to expire or terminate at any time” during the period January 1, 1974 through and including December 31, 2011, including the so-called Heart Bill.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05096.htm

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