Retirees are not employees within the meaning of the Taylor Law

Retirees are not employees within the meaning of the Taylor Law
New Action and United Federation of Teachers, 30 PERB 3048

New Action, a retiree group, asked the United Federation of Teachers [UFT] for a list of the names and addresses of its retired members. When UFT refused, New Action complained to PERB, contending UFT violated Section 209-a.2(a) of the Taylor Law. Section 209-a.2(a) prohibits an employee organization from interfering with the rights given public employees under the Act.

PERB affirmed the Director of Public Employment Practices and Representation's dismissal of New Action's claims. It agreed with the Director that UFT was permitted to refuse to provide New Action with the names of its retired members because:

1. New Action was not an employee organization within the meaning of the Taylor Law;

2. New Action's demand was not related to the terms and conditions of employment; and

3. The information sought by New Action concerned matters internal to UFT.

While PERB noted that an employee organization has a "general duty" to provide information to the employees it represents concerning their terms and conditions of employment when asked, retirees are not public employees, have no terms and conditions of employment and are not in the UFT bargaining unit.

PERB also rejected New Action's theory that it was entitled to the names and address of UFT retirees because UFT supposedly "allows retirees to vote on ratification of collective bargaining agreements and in elections for union officers." Even if true, PERB ruled, this would not matter as such participation concerns internal union affairs falling outside the scope of the Taylor Law.

.

Ignoring directives given by superiors

Ignoring directives given by superiors
Lowery v Office of Court Admin., App. Div., 244 AD2d 192

Patricia Lowery, an employee of the Office of Court Administration, was alleged to have "disregarded express directives" given to her by her supervisor.

Found guilty, Lowery was terminated from her position.

Was termination an excessive penalty to impose on Lowery for being insubordinate? The Appellate Division did not think it was and affirmed the decision of the Chief Administrative Judge to dismiss Lowery.
.

Evaluating applications for disability retirement

Evaluating applications for disability retirement
Vasquez v Board of Trustees NYCFD, NYS Supreme Court [Not selected for publication in the Official Reports]
Furch v Bucci, Appellate Division, 245 AD2d 749, Motion to appeal dismissed as not a final order, 91 NY2d 953

The rejection of an application for accidental disability retirement typically hinge on the resolution of two important questions: (1) Did the individual suffer a line-of-duty injury? and, if so, (2) did the injury result in a permanent disability? The Vasquez and Furch consider the elements involved in making such determinations.

The Vasquez Case:

Vasquez, a New York City firefighter, claimed that he had sustained line-of-duty injuries including the rupture of his right Achilles tendon in 1983, a meniscus injury to his left knee in 1988, partial rupture of his left Achilles tendon in 1991, and a herniated disc in the cervical spine in 1993. The Fire Department filed an application for disability retirement on behalf of Vasquez on December 19, 1994 and on February 20, 1996 and on August 26, 1996, Vasquez filed his own applications for accident disability retirement. On September 10, 1996, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund [Trustees] decided to retire petitioner on ordinary disability retirement, not accidental disability retirement.

According to the ruling, the 1-B Medical Board concluded that the Achilles injuries and the lumbar degeneration were non-disabling; the herniated disc in the cervical spine was non-duty related; and the knee problem was not permanently disabling.

Vasquez sued, seeking a judgment annulling the Trustees' decisions. He argued there was no credible or substantive dispute as to his condition among the medical experts. The Trustees, on the other hand, argued that Vasquez failed to meet his burden of proof that his line-of-duty accidents caused his disability. Significantly, the Trustees contended that Vasquez had filed untimely line-of-duty injury reports concerning the events underlying his claims, "although over the years he had filed many."

Two fellow firefighters provided affidavits supporting Vasquez’s account of the events at issue. But the Trustees urged that the Court not give much weight to the fact that because the statements were dated more than a year and a half after the incident Vasquez claimed caused his disability.

Finally, the Trustees contended that the fact that Vasquez never returned to full duty "is not sufficient to overcome the copious medical evidence on the record."

Although the Medical Board's determination as to whether an applicant is disabled is binding upon the Trustees, the Court said that the issue of whether the disability is service-related is solely for the Board of Trustees to decide, citing Canfora v. Board of Trustees, 60 NY2d 347, 351. Commenting that there was an "exhaustive review of the objective and subjective evidence" by the 1-B Medical Board, the Court concluded that the record supported the Trustees' determination.

New York State Supreme Court Justice Belen noted the Trustee's vote was 6-6. Justice Belen commented that "if the Trustees' decision is based on a tie vote, the court cannot disturb an administrative determination unless it can find causation as a matter of law (City of New York v Schoeck, 294 NY 559, 570)." To prevail, Vasquez had to show that "the circumstances admit but one inference," i.e., that his line-of-duty injuries were the proximate cause of his disability. As he did not meet this test, "nor has he proved that they exacerbated a latent condition," the Court sustained the Trustees' determination and dismissed Vasquez's petition.

The Furch Case:

City of Binghamton firefighter James L. Furch applied for General Municipal Law Section 207-a benefits, claiming that he suffered from arteriosclerosis brought on by job-related factors. He claimed these job-related factors ultimately resulted in a heart attack while he was raising a flag while on duty at a fire station.

The hearing officer appointed by the City, Director of Personnel and Safety David W. Watkins, ruled that Furch's "myocardial infarction and underlying arteriosclerosis were not caused by the performance of his duties as a firefighter" and his application for Section 207-a benefits was rejected by the City.

Among the points made by the Appellate Division in the appeal that followed was the following:

The fact that a Workers' Compensation Law Judge ruled that Furch's myocardial infarction was causally related to his employment, the binding effect of the decision rendered in the workers' compensation proceeding did not preclude [Binghamton] from denying [Furch's] application for benefits pursuant to General Municipal Law Section 207-a.

============================================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
============================================
.

Retirement benefits and divorce

Retirement benefits and divorce
Massaro v Massaro, NYS Supreme Court, [Not selected for publication in the Official Reports, see 2002 WL 243385]

In Massaro v Massaro, New York State Supreme Court Justice Blydenburgh answered an important question concerning the rights of a divorced spouse to benefits from a public retirement system such as the New York State Employees' Retirement System [ERS]. The question:

Should the final pension amount to be divided between divorced spouses include benefits due an employee at the time of his or her retirement that can be attributed to promotions received by the employee after the commencement of an action for divorce?

Both parties agreed that the divorced wife "is entitled to one half that pension that was earned as martial property." When the divorce action was commenced, the husband was a sergeant with the Suffolk County Police Department and a member of the Police and Firefighters Retirement System [PFRS].

Although there was no question that "an increase in the final pension amounts due solely to length of years in service, is marital property" and his former wife was entitled to share in that increase, Massaro argued that any increase because of promotions which came after the commencement of the divorce action are similar to a change of job, and no increase in his pension due to his increased salary because of promotions should be considered marital property. Massaro's theory was that "any promotion ... beyond Sergeant, coming not only after the commencement of this action, but subsequent to the divorce itself, could not be attributed to any action of [his former spouse] and for which she did not reasonably have any expectation."

His former wife, on the other hand, contended that she was entitled to her percentage of the retirement allowance actually paid to her former spouse, regardless of the reasons why his pension may have been increased.

According to Justice Blydenburgh, Massaro's promotion resulted from tests taken or lists established after the commencement of the divorce proceedings. Justice Blydenburgh reasoned that since neither party had any expectation of future pension increases due to promotions, any promotion earned by Massaro after the commencement of the divorce would have resulted from his actions alone.

Accordingly, the Court ruled that Massaro's former spouse was not entitled to share in any increase to his pension at the time of his retirement resulting from increases as a result of any post divorce promotions. What should she receive? The amount she would have been entitled to receive had Massaro not been promoted and retired from service as a Sergeant.

In dollars and cents, this means that Massaro's former spouse will be only entitled to that portion of Massaro's retirement allowance based on his "final average salary" as a Sergeant, but calculated using his total period of PFRS member service.

Massaro's portion of his retirement allowance, on the other hand, will be determined on the basis of his post-promotion "final average salary," which, presumably, would be higher than his "Sergeant final average salary," and his total member service credit in the system.
.