Applying for disability retirement benefits

Applying for disability retirement benefits
Miata v McCall, 277 AD2d 590

Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995.

After conducting a hearing during which conflicting expert testimony was presented, McCall denied Miata’s application for benefits. Miata appealed, contending that the hearing officer’s decision was not supported by substantial evidence.

The Appellate Division, Third Department, dismissed the appeal. It viewed the testimony by Stuart Kandel, an orthopedic surgeon, that when he examined Miata he concluded that there were no objective abnormalities inasmuch as he noted no swelling, limping, instability nor restriction of motion in comparison to his right ankle to constitute the required substantial evidence.

While Kandel diagnosed Miata as having a sprained ankle and, in his opinion, not incapacitated from the performance of his duties, Miata’s expert testified to the contrary. Situations involving conflicting expert medical opinion present a credibility issue for McCall to resolve. The fact that the record could support a contrary conclusion did not require the court to vacate McCall’s determination.

Absence from an assigned post

Absence from an assigned post
Gamma v City of Newburgh, 277 AD2d 236

Absence from one’s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned.

Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command. As a result, Gamma was terminated.

In response to Gamma’s appeal, the Appellate Division decided that there was substantial evidence in the record to support the hearing officer’s findings. As to the penalty imposed, termination, the court said that [t]the penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The court said that a police force is a quasi-military organization demanding strict discipline and in matters involving police misconduct, great deference is to be accorded to determinations regarding the appropriate discipline of its members.

Seeking class action relief in arbitrations

Seeking class action relief in arbitrations
Correction Officers Benevolent Association v City of New York, 276 AD2d 394

May an arbitrator grant relief to a class of employees if but a single individual filed the grievance?

This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties’ collective bargaining agreement between the Association and the City of New York providing for military leave with pay. The City filed a cross motion seeking to have the court rescind the award.

The Appellate Division confirmed the award, holding that the arbitrator did not exceed his authority in awarding class relief.

Why was this a class action? Because, said the court, the request for arbitration, jointly submitted by the parties, expressly framed the proceeding as a Class Action grievance due to the fact that numerous employees represented by the Association were subject to call for military duty and were therefore affected by the manner in which respondents applied the clause in the case of the individual who filed the grievance.

The opinion suggests that the City could have withdrawn the request for class relief, but never did so. Although the issue framed by the parties did not refer to the class aspect of the submission, the remedy sought was expressed in open-ended terms that did not limit the arbitrator’s power to grant any specific relief. As the arbitrator’s interpretation of the clause in dispute was not totally irrational, it was properly confirmed.

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served
Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department

Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”

Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,* recommended termination as the penalty to be imposed by the appointing authority.

Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.

Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”

The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.

First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.

However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.

The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”

Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.

Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***

Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if 1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and 2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”

*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm
.

Eligibility for unemployment insurance

Eligibility for unemployment insurance
Geracitano v Comm. of Labor, 277 AD2d 558

Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season.

Geracitano, however, also served as an elected councilperson and received a salary together with health benefits and the was eligible to participate in the New York State and Local Employees’ Retirement system.

Her application for unemployment benefits was disapproved after the Unemployment Insurance Appeals Board ruled that she was ineligible to receive such benefits because she was not totally unemployed during the time in question.

The Appellate Division sustained the Board’s decision, holding that substantial evidence supports the Board’s ruling.... The court pointed out that in the past it had ruled that a council person was not totally unemployed where the proof showed that he or she received an annual salary for his [or her] work as a council person, performed a variety of duties in that capacity and was subject to inquiries by his [or her] constituents, citing Matter of Silverstein, 236 AD2d 757.