Comptroller may select between conflicting medical opinions and his decision will be sustained if supported by substantial evidence in the record

Comptroller may select between conflicting medical opinions and his decision will be sustained if supported by substantial evidence in the record
Matter of Micalizzi v DiNapoli, 2011 NY Slip Op 00772, Appellate Division, Third Department

A police officer alleged that he harassed at work after he had publicly supported several fellow officers facing disciplinary action and further accused department officials of misconduct.

Following “a verbal and near-physical confrontation with a coworker” the officer took a medical leave of absence from work and eventually resigned from his position. He then filed an application for performance of duty disability and accidental disability retirement benefits with the New York State Employees’ Retirement System, asserting that the confrontation and related harassment had inflicted disabling psychological and related physical ailments.

His applications were disapproved and the officer requested a hearing. The Hearing Officer found that, among other things, the alleged psychological disability was not caused by the harassment and did not permanently incapacitate the individual from the performance of his law enforcement duties.

The Comptroller adopted the Hearing Officer’s findings and conclusions and denied the member’s applications and the individual appealed.

The Appellate Division said that “In order to obtain either accidental or performance of duty disability retirement benefits, ‘petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of an accident or disability sustained in service.’"

In this instance, said the court, the individual’s treating psychologist and doctor, as well as an independent psychologist, opined that he suffered from a psychological disability that arose out of the workplace harassment and permanently disabled him from performing the duties of a police officer.

However, the psychiatrist who examined the former officer on behalf of the New York State and Local Police and Fire Retirement System, while agreeing that the individual “suffered from a disability,” concluded that the disability would have arisen absent the alleged harassment and that factors outside of the individual’s duties as a police officer,” namely disciplinary proceedings resulting from his alleged improper recording of conversations with his coworkers, exacerbated it.

The System’s psychiatrist also indicated that the individual “could potentially resume work as a police officer if properly medicated and that a finding of permanency was not warranted based upon the medical evidence presented.”

The Appellate Division, confirming the Comptroller’s decision, said that the Comptroller was free to credit the System’s psychiatrist’s rational and fact-based opinion over other evidence in the record and that his determination was supported by substantial evidence.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00772.htm

Are employees required to file a written answer to Section 75 disciplinary charges?

Are employees required to file a written answer to Section 75 disciplinary charges?
A NYPPL analysis

Section 75.2 provides that the appointing officer must allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.*

From time to time a NYPPL reader will ask “If an individual does not file an answer to Section 75 charges and specifications that have been served on the individual, may his or her silence be deemed an admission permitting the appointing authority to impose the proposed disciplinary penalty without holding a disciplinary hearing?”

A close reading of Section 75 suggests that an employer’s deeming an employee’s failure to file an answer to Section 75 disciplinary charges an admission of the employee’s guilt would not survive judicial review.

Section 75 does not require that the employee submit an answer to disciplinary charges in contrast to its mandate that the appointing authority allow the individual at least eight days to file an answer to the disciplinary charges.

Accordingly, it appears that the accused individual may remain silent and appear at the hearing without having submitted any answer to the charges without jeopardizing his or her right to administrative due process.

Furthermore, Section 75.2, in pertinent part, places “the burden of proving incompetency, and, or misconduct shall be upon the person alleging the same.” In other words, the failure of an employee to offer an explanation or a defense does not absolve the employer of its obligation to prove the charges of incompetency, and, or misconduct served on an employee in an administrative hearing before imposing disciplinary sanctions.

It is well-settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold a hearing in absentia rather then to merely proceed to impose a penalty on the individual simply because of his or her failure to appear at the hearing as scheduled [see Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 613]. Further, the charging party must prove its case by presenting substantial evidence of the employee’s guilt in the course of the hearing.

Given the fact that the courts require employers to conduct a hearing if an employee fails to appear at the disciplinary hearing, it seems unlikely that the courts would approve imposing a penalty on an individual without holding a hearing simply because he or she failed to “answer” the charges.

Moreover, Section 75 does not require an employee to ask for a hearing -- it is to be provided as a matter of right. Section 75 also requires that a transcript of the hearing be provided to the employee free of charge.

N.B. In contrast, Section 3020-a(2) of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires the individual request a hearing within 10 days after being served disciplinary charges [see Education Law Section 3020-a(2), subdivisions (c) and (d)]. The individual’s unexcused failure to request such a hearing permits the appointing authority to impose the proposed penalty without holding a disciplinary hearing.

Most alternative disciplinary procedures negotiated pursuant to the Taylor Law follow the Section 3020-a model. Typically, if the employee fails to file a timely “disciplinary grievance,” the collective bargaining agreement usually authorizes the appointing authority to impose the penalty proposed in the “notice of discipline” served on the individual without further action on its part and without referring the matter to arbitration.

* Section 75.2, in pertinent part, provides: “A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing.”

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Civilian and military service

A NYPPL analysis

What is the status of the State’s Division of Military and Naval Affairs’ [DMNA] positions staffed by civilian employees? This was the question recently posed by a reader. In the opinion of the editor, such positions are in the competitive class of the classified service unless placed in a different jurisdictional class by law, rule or regulation.

Positions in the public service of the State are in either the civil service or the military service. Positions in the civil service are in either the classified service or the unclassified service; and positions in the classified service are automatically in the competitive class except where the statute provides otherwise or they have been placed in a different jurisdictional class by a rule or regulation adopted by the responsible civil service commission.

Has this issue -- what is the status of DMNA’S civilian employees -- ever been considered by a court? There is one decision in the files of Plain English Legal Publications addressing this question, at least peripherally -- Division of Military and Naval Affairs v PERB, 103 AD2d 876. This action tested a PERB decision holding that the Taylor Law applied to DMNA’s civilian employees.*

First, the Appellate Division, Third Department, rejected DMNA’s long-standing view that personnel employed by DMNA are in the military service and not in the civil service of the State by holding that DMNA’s view on this matter is not dispositive of the issue.

The court observed that DMNA’s personnel consists of a number of different classes of individuals including persons in the organized militia; persons on the state reserve list; persons on the state retired list; ... and all military (including air), naval and civilian personnel who may be serving or employed therein.**

Although DMNA argued that its civilian employees were not covered by the Taylor Law, contending that Section 201(7)(a) of the Civil Service Law specifically excludes persons holding positions by appointment or employment in the organized militia of the state, PERB decided that civilian employees in DMNA were not members of the organized militia and thus the Taylor Law did, in fact, apply to them.

Accordingly, such personnel could organize for the purposes of negotiating the terms and conditions of there employment with their employer. The Appellate Division agreed, sustaining PERB’s decision. The court said that PERB ruling was not irrational and therefore should not be disturbed.

Accordingly, as DMNA’s civilian employees are not in the military service, they must be employed in the civil service of the State.

The court explained:

1. DMNA is a division of the Executive Department, a public employer

2. Public employees are persons holding positions by appointment or employment in the service of a public employer.

3. Civilian employees fall within this definition and must be so considered.

4. Only individuals in the military service of the State, in contrast to all DMNA employees, are excluded from the provisions of the Taylor Law.

As the Taylor Law only applies to individuals holding positions in the public service, DMNA’s civilian employees must be in the public service and as they are not in the military service, such persons must be employed in positions in the civil service of the State.

* The minimum qualifications for employment as a civilian employees of DMNA may require the individual to be a member of the Organized Militia or some other military service or hold a particular military rank.

** The State’s organized militia consists of the New York Army National Guard; the New York Air National Guard; the Inactive National Guard; the New York Naval Militia; the New York Guard ... and such additional forces as may be created by the governor.

Establishing an employee organization

Establishing an employee organization
Declaratory ruling, 32 PERB 6601

Thinking of starting your own employee organization for the purpose of collective bargaining with a public employer? Then your next question should be: What does it take to be considered an employee organization for the purposes of the Taylor Law.

This was the question underlying the New York State Public Employees Association’s [NYSPEA] petition seeking a determination by PERB that it was an employee organization within the meaning of the Public Employees’ Fair Employment Act -- Article 14 of the Civil Service Law.

PERB Administrative Law Judge Philip L. Maier ruled that NYSPEA was such an employee organization, having met the following standards:

1. NYSPEA had adopted a constitution and by-laws indicating that it was organized and exists to improve the terms and conditions of employment only of employees in the public sector and was not affiliated with any other employee organization.

2. NYSPEA’s officers were to be elected from among its members and NYSPEA dues and agency fees were the property of the association and negotiations were to be conducted by its members.

3. NYSPEA established negotiating committees staffed by its members and had adopted a contract ratification procedure.

As NYSPEA satisfied these minimal requirements, its petition was granted.

Exception to the exclusion of a “pre-reporting for work accident” for the purposes of receiving workers’ compensation benefits

Exception to the exclusion of a “pre-reporting for work accident” for the purposes of receiving workers’ compensation benefits
Matter of O'Neil v City of Albany Police Dept., 2011 NY Slip Op 00759, Appellate Division, Third Department

In general, accidents that occur outside of work hours and in public areas away from the workplace are not compensable. However, there is an exception to this general rule when the individual suffers an injury near the work site and the injury was the result of “an incident and risk of employment.” The O’Neil case illustrates the application of this exception to the general rule.

Theresa A. O’Neil, a City of Albany police officer, was expected to be present at roll call each morning at 8:15 A.M. to receive her duty assignment for the day. About 15 minutes before roll call O’Neil suffered an injury when she was in her private vehicle that was parked on a public street in the course of her reaching for a bag containing both personal and work-related items that was in her car.

The “work-related items” included O’Neil’s police radio, handcuffs and Penal Law books, all of which she needed to perform her duties as a police officer.

The “personal items” included O’Neil’s cans of soda, her lunch, spare clothing and “a variety of other personal items.”

O’Neil admitted that she was not required to bring her work-related equipment home and could have left these things in a locker at work. However, she said that she “elected to keep them in her car while off-duty so she would always know where they were.” She also conceded that she was not considered to be "on duty" until the moment she entered the police station.”

The Workers’ Compensation Board ruled that O’Neil had not sustain the underlying injury as the result of “an incident or risk of her employment” and dismissed her application for workers’ compensation benefits.

The Appellate Division agreed.

In this instance, said the court, O’Neil’s injury did not fall within an exception to the general rule that the accident or injury must have occurred while the individual was "on the job.

Although there is a so-called "gray area" exception that might be relevant when the accident or injury occurred near the work site, the Appellate Division pointed out that the test of compensability becomes "whether the accident happened as an incident and risk of employment," citing Matter of Husted v Seneca Steel Serv., 41 NY2d 140.

In this instance, said the court, O'Neil's accident did not fall within the "gray area" exception to the general rule.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00759.htm
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