Disciplinary charges must be served on the target of the disciplinary action on or before the expiration of the period set by the controlling statute of limitations

Disciplinary charges must be served on the target of the disciplinary action on or before the expiration of the period set by the controlling statute of limitations

Lebron v Village of Spring Valley, 2016 NY Slip Op 06500, Appellate Division, Second Department

Following a disciplinary hearing, the hearing officer found David Lebron, a Village of Spring Valley police officer, guilty of certain charges of misconduct. The hearing officer than recommend that Lebron be terminated from his position with the Spring Valley Police Department. The Spring Valley Village Board of Trustees adopted the recommendation of the hearing officer and dismissed Lebron from his position.

Lebron file a petition pursuant to CPLR Article 78 challenging his termination, contending, among other things, that:

The Board's determination was not supported by substantial evidence.

Addressing the issue of the alleged lack of “substantial evidence,” the Appellate Division simply noted that the in brief submitted to the court Lebron “did not contend that the Board's determination was not supported by substantial evidence.”

The charges served against him were time-barred because they were served more than 60 days after the Department's Chief of Police became aware of the facts upon which the charges were based.

As to the question of the charges being timely served, the Appellate Division explained that the applicable statute of limitations are set out in The Rockland County Police Act, §7 of Chapter 526 of the Law of 1936. This section provides that the disciplinary charges must be served on the target of the disciplinary action within 60 days after the facts upon which the charges are based became known to the Village Board of Trustees. Here, said the court, there was no dispute that the charges were served upon Lebron within 60 days after the facts upon which the charges were based became known to the Board.

Accordingly, the court found that the disciplinary charges served on Lebron were not time-barred.

Lebron also argued that he had suffered “added stigma” as the result of the “circumstances of the disciplinary procedure.”  The Appellate Division, however, decided that this contention was without merit. In the words of the Appellate Division, “[n]othing in the record suggests that, as a result of the termination of his employment as a police officer with the Department, [Lebron] is prohibited from obtaining future law enforcement employment, or that he is subjected to a public registry of any sort.”

Lebron also contended that his due process rights were violated by the hearing officer's declining to reopen the disciplinary hearing to consider “newly discovered evidence.

Citing Russell v Del Castillo, 181 AD2d 680, the Appellate Division concluded that “the hearing officer providently exercised his discretion in denying [Lebron’s] application to reopen the hearing on the basis of newly discovered evidence."

The Russell decision is posted on the Internet at:

http://www.legal.com/decision/1992861181AD2d680_1486/MATTER%20OF%20RUSSELL%V%20DEL%20CASTILLO

The Lebron decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06500.htm

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law

Huffer v Nesconset Fire Dist., 2016 NY Slip Op 06535, Appellate Division, Third Department

§61.1 of the  Volunteer Firefighters' Benefit Law provides that "[a] claim for benefits for the death or disability of a volunteer [firefighter] due to disease or malfunction of the heart or of one or more coronary arteries . . . shall not be denied provided the claimant introduces evidence which establishes that a volunteer [firefighter] suffered disease or malfunction of the heart or of one or more coronary arteries which caused the disablement or death of the volunteer [firefighter], and that such disease or malfunction resulted from the duties and activities in which the volunteer [firefighter] was engaged."*

Appeal from a decision of the Workers' Compensation Board, filed October 23, 2015, which ruled that decedent's death was not causally related to his employment and denied claimant's claim for workers' compensation death benefits.

Ross Huffer, [Huffer] served as a volunteer firefighter with the Nesconset Fire District and worked as a first responder on Wednesdays and Thursdays. On Wednesday, February 26, 2014, Hufferresponded to two calls during the day and also attended drill that evening at the firehouse. Huffer then returned home, went to bed and died in his sleep early the next morning of hypertensive and atherosclerotic heart disease.

Huffer’ widow, Kathleen Ross [Claimant], filed a claim for workers' compensation death benefits. Following a hearing, the Workers' Compensation Law Judge denied her claim, finding that there was insufficient evidence as to the nature and extent of  Huffers’ activities on February 26, 2014 to find that his death was related to his volunteer firefighter duties. The Workers' Compensation Board affirmed the decision of the Workers' Compensation Law Judge and Claimant appealed.

The Appellate Division, citing the provisions of §61.1 Volunteer Firefighters' Benefit Law, affirmed the Board’s determination, explaining that neither Claimant’s testimony nor the testimony of doctors established the duties and activities that  Huffer undertook during the two emergency calls or at drill on the day before he died.**

Claimant testified that she was unaware of the specific nature of the calls to which Huffer responded or the nature of the drill. In addition, said the court, “the record establishes that the opinion of Lester Ploss, a physician who reviewed [Huffer's] medical records and opined that [Ross’] firematic duties contributed to his death, was based upon a lack of information, as well as certain assumptions made by Ploss regarding the specific activities that [Huffer] engaged in at the emergency calls and at the drill.

Considering the lack of evidence regarding the duties and activities in which  Hufferhad been engaged, the Appellate Division held that the requirements for the applicability of “the statutory presumption under Volunteer Firefighters' Benefit Law [§61.1] was not met.”

Accordingly, the court ruled that “the Board's decision denying [Claimant’s] death benefit claim will not be disturbed.”

* N.B.As currently enacted §61 of the Volunteer Firefighters' Benefit Law is “repealed effective July 1, 2020.”

** The Appellate Division noted that “No testimony or evidence was provided concerning Ross’ “responding to two calls during the day and also attending drill that evening] by any fire department officials”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06535.htm

Affordable Care Act Outreach for State and Local Governmental Employer Community

Affordable Care Act Outreach for State and Local Governmental Employer Community 

Source: The Internal Revenue Service

REMINDER

The Affordable Care Act [ACA] Office and the Tax Exempt and Government Entities [TE/GE] Counsel will present a live webinar to address governmental entities' concerns and needs as they relate to ACA information reporting requirements on Thursday, October 20, 2016 at 2 p.m. [Eastern time].

Topics to be addressed include:

Determining Applicable Large Employer (ALE) status

Identifying full-time employees

Defining hours of service

What is Minimum Essential Coverage?

E-Filing of information returns

2016 filing season corrections and replacements

Penalties and relief

TIN solicitation

Changes to forms and instructions for Tax Year 2016

Click here to Register for this event.

N.B. IRS is not offering participants Continuing Education Credit for this event.