Neither GML §207-c nor a statutory equivalents distinguishes between categories of mental illness or disability for the purposes of eligibility for benefits

Neither GML §207-c nor a statutory equivalents distinguishes between categories of mental illness or disability for the purposes of eligibility for benefits

Matter of Wydra v City of Rochester, 2011 NY Slip Op 06780, Appellate Division, Fourth Department

In this action the Appellate Division held that standards applicable in determining an individual’s eligibility for §207-c benefits were equally applicable in a local law, rule or regulation providing similar benefits.

§8-A-6 of the City of Rochester’s Charter set out a “the local equivalent of General Municipal Law § 207-c.” When Petra Wydra, a City of Rochester police officer, challenged the City’s discontinuing its payment to her pursuant §8A-6 of the Charter terminating her employment as a police officer the Appellate Division concluded that Wydra’s petition should be granted.

The court said that §8A-6 of the Charter “provides in relevant part that the Chief of Police, on behalf of the City, shall compensate any member of the Police Department ‘who is injured in the performance of his or her duties or who is taken sick as a result of the performance of his or her duties . . . .’ [and] The parties agree that the section of the Charter in question is the local equivalent of General Municipal Law § 207-c.”

Although an arbitrator found that Wydra's disability is unrelated to her job duties and that she therefore is not entitled to benefits, the Appellate Division disagreed, finding that the arbitrator’s ruling was not supported by substantial evidence in the record.

Essentially the arbitrator found that Wydra suffered from depression and anxiety, and that she was unable to work as a result of those conditions. Thus, said the Appellate Division, the dispositive issue is whether there is a "direct causal relationship between [Wydra's] job duties and the resulting illness or injury."

The decision notes the following guidelines to used in determining if there is, in fact, a “direct causal relationship:”

Neither §207-c nor the City’s Charter section, “require that [employees] additionally demonstrate that their disability is related in a substantial degree to their job duties."

§207-c, and be inference, the City’s Charter, merely requires "a qualified petitioner . . . [to] prove a direct causal relationship between job duties and the resulting illness or injury.” Further, a preexisting non-work-related conditions does not bar recovery under §207-c where the individual demonstrates that the job duties were a direct cause of his or her disability.

The court noted that “even the City's expert witness, who evaluated [Wydra] several times, agreed that she suffered from depression and anxiety and that her condition "is certainly related to the job." Significantly, the Appellate Division said that “[t]he fact that the City's expert testified that Wydra had not suffered from posttraumatic stress disorder (PTSD) is of no moment, inasmuch as General Municipal Law §207-c does not distinguish between categories of mental illness or disability.”

The Appellate Division also annulled the arbitrator's determination that Rochester could lawfully terminated Wydra’s employment as the sole basis for the termination, as stated in a letter to Wydra from Rochester’s Chief of Police, was that she was "continuously absent for more than one (1) year due to a non-work related disability."

The court explained that “[i]nasmuch as we have concluded above that [Wydra] is entitled to benefits under the Charter because her disability is work-related, it necessarily follows that the termination was improper.

=======================

General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

========================

Employee found guilty of being AWOL when he absented himself from work notwithstanding disapproval of his request for a leave without pay to take a family vacation

Employee found guilty of being AWOL when he absented himself from work notwithstanding disapproval of his request for a leave without pay to take a family vacation

OATH Index No. 1997/11

OATH Administrative Law Judge Kevin F. Casey sustained a charge that a highway repairer, K.M., was AWOL for 16 days without obtaining approval for absenting himself from work.

K.M. had assumed that his request for unpaid leave would be granted and he made reservations and paid for family vacation to Nigeria. When his request was denied because he had a poor attendance record and no available leave balance, K.M. decided to go on the trip anyway, presumably because the reservation was “non-refundable”.

In light of K.M.’s “long unblemished work record,” Judge Casey recommended the penalty of a ten-day suspension for the proven AWOL charges.

ALJ Casey, however, dismissed another AWOL charge where the evidence showed that K.M. took emergency leave to drive his wife to the hospital so she could see her seriously ill brother even though his request for the leave was denied. K.M. submitted a note from the hospital upon his return to work about this exceptional life and death situation.

Finally, Judge Casey dismissed “An excessive lateness charge” failed against K.M., finding that the agency did not place him on notice that his lateness would result in discipline. K.M. was late 10 times in 14 months, but four of those latenesses were less than ten minutes each. Thus, Judge Casey ruled that the agency’s failure to comply with the notice provisions in the citywide lateness policy was prejudicial.

The decision is posted on the Internet at: 

http://archive.citylaw.org/oath/11_Cases/11-1997.pdf

Determining the distribution of a divorced pubic employee’s retirement allowance

Determining the distribution of a divorced pubic employee’s retirement allowance

Bodolato v Bodolato, Supreme Court, Judge Mills [subsequent appeal withdrawn, 305 A.D.2d 1124]

An individual's public pension benefit is a "marital asset" under New York State Law. Accordingly, it sometimes becomes necessary to determine the value of the pension and, or, the annuity available to a public employee in the course of a divorce action.

In Bodolato v Bodolato both parties conceded that each was entitled to one-half of the value of New York City police officer Bodolato's pension benefits and deferred annuity. But establishing the value of Bodolato's pension benefits and annuity proved to be another matter.

Mrs. Bodolato contended that she was entitled to one-half of the value of Bodolato's New York City Police Department pension and deferred annuity based on its value as of the date she commenced her action for divorce. Her spouse, in contrast, argued that the value of his pension and annuity should be determined on the basis of the pension's and annuity's "market or present value" at the time of the trial -- now several years later -- in order "to avoid [Mrs. Bodolato getting] a windfall."

In support of her claim, Mrs. Bodolato cited Majauskas v Majauskas 61 NY2d 481. Officer Bodolato, on the other hand, argued that the court's ruling in Burgio v Burgio, 278 AD2d 767, set out proper standard to be applied in this situation.

Justice Mills observed that there was a significant difference between the situation in Burgio and the situation in the Bodolato action for divorce. In Burgio the plaintiff wanted a lump sum payment of pension funds that had not yet vested. Here, in contrast, Bodolato had retired from the NYPD and thus, said the court, his pension and annuity benefits have been determined.

Mrs. Bodolato had commenced her divorce action before her husband had actually retired from the Police Department. Accordingly, Justice Mills ruled that the formula set by the Court of Appeals in Majauskas controlled and thus the value of the pension and the annuity to which Mrs. Bodolato was entitled should be determined:

1. As of the date of the commencement of the divorce action by Mrs. Bodolato; and

2. In accordance with the following "Majauskas formula."

The "percentage [of Bodolato's retirement and annuity allowance] to be derived by dividing the number of months the parties were married before the commencement of the action [divided] by the total number of months of credit [Bodolato] will have earned toward his pension as of the date of [his] retirement."

If nothing else, the Bodolato decision demonstrates the complex issues that the parties may experience in attempting to establish the value of an individual's retirement benefit in order to determine the "marital distribution" of the benefit in a divorce proceeding. If the marital distribution determination involves an individual entitled to a "vested retirement allowance" -- i.e., the individual has not actually retired but is entitled to "pension and annuity benefits" upon retirement -- there may be even more complex issues to address and resolve.

Duty of fair representation

Duty of fair representation
Bruns and Council 82, 35 PERB 2023

Unit member's dissatisfaction with his or her representation by the union in a grievance that resulted in a negotiated settlement rather than proceeding to arbitration, did not, without more, establish a prima facie case that the union breached its duty of fair representation as a member's "disagreement with the tactics utilized or his or her dissatisfaction with the quality and extent of representation" does not constitute a breach of the union's duty of fair representation. 

Union did not violate its duty of fair representation when union representative recommended that employer file disciplinary action

Union did not violate its duty of fair representation when union representative recommended that employer file disciplinary action
Mtr. of Donaldson and the UFT, et al., PERB case U-24893

PERB affirmed the decision of the ALJ dismissing the charge that UFT violated §209-a.2(c) of the Act when a UFT representative advised a Local Instructional Superintendent to initiate disciplinary charges against Donaldson, a negotiating unit member, and that the District violated §209-a.1(a) when it miscalculated his years of service, failed to approve his line-of-duty injury designation and issued an unsatisfactory performance evaluation.

PERB found that the settlement agreement Donaldson signed that provided for his resignation and the dropping of the Education Law §3020-a charges brought by the District against him waived his right to file a charge alleging that the District miscalculated his years of service.