Volunteer firefighter injured while engaged in the Fire District’s program to maintain his or her ability to perform his or her duties compensable under the Volunteer Firefighters' Benefits Law

Volunteer firefighter injured while engaged in the Fire District’s program to maintain his or her ability to perform his or her duties compensable under the Volunteer Firefighters' Benefits Law

All volunteer firefighters and emergency medical technicians in the Volunteer Fire District were informed that the swine flu vaccine was going to be provided for them at a designated clinic. One firefighter/EMT was refused the vaccine at that clinic but subsequently went to different clinic to receive her flu shot. Returning home, the firefighter/EMT was involved in a one-car accident that resulted in multiple injuries.

The individual filed a claim for benefits available pursuant to the Volunteer Firefighters Law and a hearing was held to determine whether her claim fell within the provisions of the Act. Ultimately, the Workers' Compensation Board determined that her injuries were incurred while she was engaged in an activity covered by the law and awarded her benefits. The District and its workers' compensation carrier appealed.

The Appellate Division affirmed the Board’s determination, explaining: “[W]hether a given activity of a volunteer fire fighter falls within the line of duty is a question of statutory construction particularly within the Board's expertise.” In this instance the Board found that injuries suffered by the firefighter/EMT were compensable pursuant to Volunteer Firefighters' Benefit Law §5(1)(p).

§5(1)(p). covers individuals participating in a "supervised physical fitness class, group session or program for the purpose of promoting or maintaining the performance of their duties as firefighters, as well as necessary travel to and necessary travel from such activity."

Here, said the court, the record demonstrates that “the District, at the very least, strongly encouraged EMTs to receive the swine flu vaccination and made arrangements for them to receive the vaccine at no cost.” Under these circumstances, the Appellate Division found that the Board could reasonably conclude that individual's injuries were sustained pursuant to her participation in a program to maintain the performance of her duties and, thus, its determination was supported by substantial evidence

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03920.htm

Filing of an amicus brief with PERB

Filing of an amicus brief with PERB

Selected Rulings posted by PERB  – Matter of the County of Suffolk, Decision U-28610

The Board granted motions by the Police Conference of New York and the Suffolk County Police Conference to file amicus briefs* with respect to exceptions from an ALJ decision dismissing a charge alleging that the County of Suffolk violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred supervisory police duties previously performed on the Long Island Expressway and Sunrise Highway by the members of the Supervisor Officers’ Association of the Police Department of the County of Suffolk. 

* This decision reflects PERB’s view that an amicus brief may be valuable during consideration of pending exceptions. 

Failing to provide for the timely removal of a contested writing from an employee's personnel file or record is not fatal to filing §3020-a charges against the employee

Failing to provide for the timely removal of a contested writing from an employee's personnel file or record is not fatal to filing §3020-a charges against the employee

The arbitrator found a New York City school teacher guilty of various specifications filed against her pursuant to §3020-a of the Education Law. The penalty imposed: a four months' suspension of employment without pay and benefits.

Supreme Court denied a New York City school teacher’s petition seeking to vacate a post-hearing arbitration award brought pursuant to Education Law §3020-a(5) and CPLR 7511, unanimously affirmed, without costs.

In affirming the lower court’s ruling, the Appellate Division said that the arbitration award had been made in accord with due process and was not arbitrary and capricious, irrational, or lacking in evidentiary support, citing City School District v McGraham, 17 NY3d 917.

In response to the teacher’s challenge to the award on the theory that the New York City Department of Education [DOE] had failed to meet the time requirements set forth in Article 21(C)(3) of the collective bargaining agreement, the Appellate Division said the even if DOE had failed to comply with such time requirements “dismissal of the disciplinary charges against the educator was not required.

Article 21(C)(3), explained the court, “merely provides for the removal of a contested writing from an employee's personnel file or record in the event the procedural requirements of the Article are not followed.” Accordingly, such a defect “does not preclude the filing of formal disciplinary charges pursuant to Education Law §3020-a.”

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that “The penalty imposed does not shock our sense of fairness,” and dismissed the educator’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03879.htm

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Terminated probationer not entitled to a pre-termination hearing

Terminated probationer not entitled to a pre-termination hearing

The Appellate Division affirmed a Supreme Court’s ruling dismissing an Article 78 petition filed by a former employee challenging his termination from his position during his probationary period.

In dismissing the former employee’s appeal the Appellate Division said that “It is well-settled that a probationary employee may be discharged without a hearing and without a statement of reasons, in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law, citing Swinton v Safir, 93 NY2d 758.

In this instance, said the court, evidence in the record regarding the individual’s unsatisfactory completion of his duties provide a rational basis for the employer’s determination, “particularly since petitioner received ample opportunity to improve.”

As there was nothing substantial in the former employee’s allegations purporting to show bad fait, the Appellate Davison held that no hearing was required and the petition was properly denied by Supreme Court.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03875.htm

 

NYC police officer forfeited his pension benefits following his removal from his position pursuant to Public Officers Law §30.1(e)

A police officer was one of five committee members responsible for receiving applications and making recommendations to the New York City Police Department [NYCPD] Contract Administration Unit regarding contract bids submitted by entities seeking to care for retired NYPD horses.

Among the specification was one that required that the facility consist of at least 30 acres. A friend of the police officer was one of the entities that submitted a bid. However, although the bid filed by the police officer’s friend claimed that the facility had 35 acres of land, it, in fact, it had only 19 acres. The police officer recommended that his friend’s facility be awarded a contract and ultimately the Contract Administration Unit awarded a contract in the amount of about $2.5 million to the police officer’s friend.

Both the police officer and the bidder were arrested and both pled guilty to one count of Offering a False Instrument for Filing in the Second Degree, a Class A misdemeanor. (Penal Law §175.30). As a result, the police officer was terminated from his position by operation of law pursuant to Public Officers Law §30.1(e), Justice Stallman held that the police officer was (1) not entitled to a pre-termination hearing nor (2) was he was eligible to retire and collect his pension.

In the words of Justice Stallman: [The police officer’] conviction by guilty plea automatically caused his office to become vacant because his crime constituted a violation of his oath of office. [The Police Commissioner’s] recognition of {the officer’s] automatic termination was neither arbitrary nor capricious, nor in violation of law

Addressing another aspect of the police officer’s loss of his pension benefits, Justice Stallman noted that “formal departmental disciplinary charges” had been filed against the police officer and that the officer and the Department had agreed to a "Negotiated Settlement" which stated, in pertinent part:

"I understand that if this Negotiated Settlement is approved by the Police Commissioner, the penalty against me will be as follows:

I shall forfeit all time, pay, and benefits for the period while under suspension … and agrees to immediately file for SERVICE RETIREMENT. Respondent will not file for SERVICE RETIREMENT unless and until this Negotiated Settlement is approved by the Police Commissioner ….”

The Negotiated Settlement also contained the following statement: "NOTE: THIS AGREEMENT IS SUBJECT TO APPROVAL OF THE POLICE COMMISSIONER.”

Although the NYPD Department Advocate recommended approval of the negotiated plea agreement, which was endorsed by the Department’s First Deputy Commissioner, the Police Commissioner disapproved the negotiated plea.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22132.htm