Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits
Matter of Brunner v Bertoni, 2012 NY Slip Op 00167, Appellate Division, Third Department

A police officer sustained serious injuries in an off-duty motorcycle accident. Upon his return to work with the Village of Endicott Police Department, he undertook mandatory firearms training that involved repeatedly firing his sidearm with his left hand. He could not complete the training due to pain in his left thumb and, as a result, stopped working for eight months until learning how to shoot his weapon with his right hand.

The police officer had applied for benefits pursuant to General Municipal Law §207-c. His application was ultimately denied by the Mayor and the officer filed an Article 78 petition seeking a court order directing the Village to provide him with §207-c benefits.

The Appellate Division sustained the Supreme Court’s dismissal of the petition explaining that although "[p]reexisting non-work-related conditions [would] not bar recovery . . . [if the police officer’s] job duties were a direct cause of the disability," substantial evidence in the record amply supported the Mayor’s finding that “they were not a direct cause” in this instance.

General Municipal Law §207-c provides eligible law enforcement personnel with benefits, including full wages, in the event they are injured in the performance of their duties. Such individuals, however, must "prove a direct causal relationship between job duties and the resulting illness or injury" in order to be entitled to such benefits.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00167.htm

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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.

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Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Source: Office of the Governor

In his 2012-2013 Executive Budget and Reform Plan, Governor Cuomo stated that in  2011-12 the State started the process of merging and consolidating State agencies to achieve efficiencies and reduce redundancies.

The Governor indicated that “This process continues ... with consolidations, ... resulting in better, streamlined services." 

Among the proposed mergers set out in the 2012-2013 proposed budget: merging the Department of Civil Service and the Governor’s Office of Employee Relations "to provide the State with a single entity responsible for a strategic approach to workforce management, including recruiting, training, promoting, and developing a best in class workforce for the people.”

The Governor's 2012-2013 Executive Budget and Reform Plan is posted on the Internet at:

http://publications.budget.ny.gov/eBudget1213/fy1213littlebook/BriefingBook.pdf

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Rogan v Nassau County Civ. Serv. Commn, 2012 NY Slip Op 00217, Appellate Division, Second Department

A candidate in Nassau County”s Police Officer Examination No. 7000 failed to attain a passing score on the physical fitness screening test.

The candidate sue, contending that the Commission acted irrationally or arbitrarily and capriciously in relying upon a proctor's assessment that the candidate failed to complete the number of sit-ups required to pass the physical fitness screening test promulgated by the State’s Municipal Police Training Council.

Supreme Court denied his petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division, noting that “An appointing authority* has wide discretion in determining the fitness of candidates,” explained that such discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

A court, said the Appellate Division, “may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, [it] may not annul it.”

* Although this decision may give the reader the impression that the Commission was the appointing authority with respect to police officers, a Civil Service Commission is the agency responsible for determining the eligibility of candidates seeking appointment to positions in the competitive class of the classified service by examination and then certifying those found eligible and qualified to the appointing authority for selection for appointment to the position. [People v Gaffney, 201 NY 535]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00217.htm

Will the next NYSERS retirement tier be based on defined contributions?

Will the next NYSERS retirement tier be based on defined contributions?

A NYPPL comment*

It is expected that there will be yet another “membership tier” grafted onto the New York State Employees’ Retirement System [ERS] and possibly the New York State Teachers’ Retirement System [TRS]. The question to be resolved is whether the next “Tier” will be a modification of the existing model – i.e., a defined benefit plan -- or whether the legislation will go in a new direction and provide that this new tier will be a Defined Contribution Plan [DCP].

The key elements of a viable DCP plan would provide that:

1. All new members would join a DCP;

2. Employer and employee contributions would be negotiated through collective bargaining;

3. Employees would “vest” immediately;

4. Current members of a public retirement system would be permitted to elect to become members of the appropriate DCP; and

5. ERS and TRS, respectively, would administer their DCP plans by essentially expand the existing “employee contribution” operations of the Systems, with, perhaps, a variable annuity option made available to interested members.

Since 1965 the State University’s Optional Retirement Plan, a retirement plan based on defined contributions rather than defined benefits, has been available to certain employees of the State University of New York, the Statutory Contract Colleges at Cornell and Alfred Universities, and the community colleges.** Further, since 1968 the City University of the City of New York has offered certain of its employees the opportunity to elect to participate in an optional DCP retirement program as well.***

The model for such legislation may well be the State University’s DCP, which is set out in Education Law §390, et seq. The State Education Department Optional Retirement Program is set out in §180 of the Education Law.

* GOVERNOR CUOMO'S 2012-13 EXECUTIVE BUDGET, presented on January 17, 2012, included the following proposal:

Enact pension reform: Next to Medicaid, pension costs are the most significant burden on local governments. The Governor called for a new tier in the State pension system that will save the State and local governments outside of New York City $83 billion and New York City $30 billion over the next 30 years. The new pension plan would have progressive contribution rates between 4% and 6% with shared risk/reward for employees and employers to account for market volatility. It includes a voluntary option for Defined Contribution following the TIAA-CREF model. Employees taking this Defined Contribution will vest in this system after one year. This option will be portable. No current employees will be affected by the Governor's pension reform plan. 

** Since 1968 the State Department of Education has offered its DCP Optional Retirement Program to eligible employees.

*** See Article 125-A of the Education Law

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

Clark v Schriro, 2012 NY Slip Op 00118, Appellate Division, First Department

Jesse Clark filed a CPLR Article 78 petition “in the nature of mandamus” seeking to compel the New York City Office of Administrative Trials and Hearings [OATH] to hold a disciplinary hearing on charges that had been filed against him by the NYC Department of Correction. Supreme Court dismissed Clark’s petition and the Appellate Division affirmed the lower court’s decision.

In the words of the Appellate Division, “Supreme Court properly found that since respondents were not required to provide [Clark] with a hearing within a specifically prescribed period, but only within a "reasonable time" (New York City Charter §1046[c]), their failure to do so for more than a year after charging [Clark] with misconduct did not constitute failure to fulfill a nondiscretionary duty or perform a purely ministerial act.”

Should an employee be suspended from his or her position without pay upon his or her being served with disciplinary charges, however, typically the individual must be restored to the payroll after a specified period of time if such action is mandated by law [see, for example, Civil Service Law §75.3] or as required by a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00118.htm