Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]

Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]

2015 NY Slip Op 02134, Appellate Division, Second Department

General Municipal Law §207-a[1] guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased.”. If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."*

In Mashnouk v City of Newburgh, 55 NY2d 80, the Court of Appeals held that the provisions of §207-a[2] includes "prospective salary increases given to active firefighters subsequent to the award and therefore firefighters receiving §207-a benefits were to receive the benefits of the negotiated salary increases."

Disabled retired firefighters [DRF] who became disabled as a result of injuries they sustained in the performance of their duties were receiving performance-of-duty disability retirement allowances from the New York State Retirement System pursuant to Retirement and Social Security Law §363-c, as well as supplemental benefits from the employer in the amount of the "difference between the amounts received under [their] allowance[s] . . . and the amount of [their] regular salary or wages" pursuant to General Municipal Law §207-a[2].

However, the employer entered into a new Taylor Law [Civil Service Law Article 14] contract with its firefighters' union pursuant to which the salaries paid to active firefighters were temporarily decreased from the levels set forth in the previous contract by 5% for the period from January 14, 2011, through June 30, 2013, and by 3% for the period from July 1, 2013, through December 31, 2013. On January 21, 2011, the City notified the DRFs that the supplemental benefits they received pursuant to General Municipal Law §207-a[2] would be reduced in accordance with the new contract.

The DRFs commenced a proceeding pursuant to CPLR Article 78 in the nature of mandamus** to compel the employer to continue to pay supplemental benefits at the level that was in effect before the commencement of the new contract. Supreme Court dismissed their petition, which decision was sustained by the Appellate Division.

The Appellate Division explained that General Municipal Law §207-a guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased." If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay only "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."

Citing Farber v City of Utica, 97 NY2d 476, the court said that the amount of such a disabled firefighter's regular salary or wages under §207-a[2] "is calculated based on the current salary of an active firefighter at the same grade the [firefighter] held upon retirement." Thus, the term "regular salary or wages" as employed in General Municipal Law §207-a[2] includes salary increases given to active firefighters following the award of the disability retirement allowance or pension as well as the benefit of longevity pay increases provided to active firefighters’

The Appellate Division then ruled that "regular salary or wages" also includes salary decreases applied to active firefighters and thus the DRFs failed to establish a "clear legal right" to the relief they sought.

* Such fireman shall continue to receive this supplement until such time as he or she shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service. Further, this supplement to the retirement allowance benefit is limited to firefighters; police officers are covered by Section 207-c of the General Municipal Law, which does not provide for the payment of the difference between the police officers retirement allowance and his or her "Section 207-c benefit."

** In addition to "mandamus" and "certiorari," CPLR Article 78 provides for the modern version of two other "ancient writs:" the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02134.htm

____________

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

____________

A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot

A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot
2015 NY Slip Op 519109, Appellate Division, Third Department

A deputy sheriff injured his back during a foot pursuit in the course of his employment and received full pay for eight days of missed work immediately after the incident pursuant to General Municipal Law §207-c, as well as intermittent days during the next several months but ultimately was told that his benefits pursuant to General Municipal Law §207-c had been terminated. The deputy’s union filed a grievance on behalf of the deputy "and all similarly situated uni[on] members," charging a violation of the collective bargaining agreement between union and the County and demanded that the matter be submitted to arbitration.

The County filed a petition pursuant to CPLR §7503(b) seeking a stay of arbitration. Supreme Court granted the County’s application and the union appealed. While this appeal was pending before the Appellate Division, the deputy sheriff and union entered into a "global settlement contract" that, among other things, settled the deputy’s General Municipal Law §207-c claim, whereupon the County contended the appeal was moot and sought to have the appeal dismissed.

The Appellate Division agreed with the County that the “global settlement contract” rendered the union’s appeal moot, explaining that “In the absence of an exception to the mootness doctrine — that is, where an issue is likely to recur, presents novel or significant questions, or typically evades appellate review — ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment.’"

In so ruling, the Appellate Division said that it was “unpersuaded by [the union’s] contention that it was not a party to the settlement and that similarly situated employees represented by [the union] would be affected by the outcome of this appeal.”

The court pointed out that the parties "are now operating under the terms of an expired contract, limiting the potential for similar disputes in the future." Further, said the Appellate Division, the union “participated in the grievance procedures that led to the settlement, and by means of its counsel's representation of both [the union] and the deputy throughout the proceedings, may also have been apprised of the terms of the agreement that ‘fully, finally and globally’ settled the claim.

Dismissing the union’s appeal, the Appellate Division ruled that the settlement contract contained no provisions reserving any issues for appeal and the record was devoid of any indication that there are similarly situated employees who lost benefits available to them pursuant to General Municipal Law §207-c.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_519109.htm

On March 17, 2015 Governor Andrew M. Cuomo announced the following five appointments to his administration.

On March 17, 2015 Governor Andrew M. Cuomo announced the following five appointments to his administration.

Source: Office of the Governor

Seth Agata, Esq., has been nominated to serve as Chairman of the Public Employment Relations Board. Most recently, he served as Counsel to the Governor and, prior, as First Assistant Counsel and Assistant Counsel. Before joining the Governor’s staff, Mr. Agata served as Assistant Secretary for Program and Policy and as Senior Associate Counsel in the Office of Counsel to the Majority for the New York State Assembly. He was also Assistant Counsel Program and Counsel Staff in the Assembly. He served as Counsel for Investigations in the Office of State Comptroller, Assistant District Attorney for Columbia County, a trial examiner in the New York City Office of Collective Bargaining and was in private law practice in New York City and Columbia County. He is a co-author of The History of the New York Court of Appeals, 1932-2003 (Columbia U. Press, 2006) and has written articles on other topics, as well. Mr. Agata graduated from the New York State School of Industrial and Labor Relations at Cornell University as well the Cornell Law School. This nomination requires Senate confirmation.

Michael Weisberg has been appointed Chief Information Security Officer and Deputy Commissioner of Information Technology Services, with a special focus on cyber security. Most recently, Michael was CIO and Director of Information Technology for a consulting firm in Richmond, Virginia. Prior to that, Michael worked at the U.S. Federal Reserve as their Senior Information Security Architect, where he developed and published security architectures and designs, and advised Senior Federal Reserve Officers and management on security technologies and practices. In addition, he was the Vice President for Information Security for Bank of America and served as an Information Security Consultant. He is the Director of the Cyber Security program in the School of Professional and Continuing Education at the Sage Colleges. Mr. Weisberg has a Bachelor of Science from RPI and holds several industry recognized certifications, including Certified Information Systems Security Professional (CISSP) and Certified Scrum Master.

Johannah Chase has been appointed Assistant Secretary for Education. She previously was a consultant at Bank Street College of Education, where she worked with senior leadership on developing their strategic plan. Prior to that, Ms. Chase held a number of roles at the New York City Department of Education, most recently serving as Chief Executive Officer of the Office of Special Education and Chief Operating Officer of the Division of Students with Disabilities and English Learners. She also served as a Senior advisor on special education reform, Chief of Staff of the Division of School Support & Instruction and Associate Director of the Division of School Support & Instruction. She was also an eighth grade English and Math teacher in New York City for three years. Ms. Chase has a B.A from Cornell University and an M.S. in Teaching from Pace University.

Lisa Black has been appointed Director of Intergovernmental Affairs for the Department of Homeland Security and Emergency Services. She previously held a number of roles at the New York City Department of Homeless Services, most recently serving as Assistant Commissioner and, prior, Acting Deputy Commissioner, Director of Government Relations, and Acting Director of Communications and External Affairs. She also held a number of roles working in leadership in the New York State Senate for 14 years. Ms. Black has a B.A. from the College of Saint Rose.

Brian Shea has been appointed Upstate Director of Intergovernmental Affairs for the Department of Homeland Security and Emergency Services. He held a number of roles in the Office of Assemblywoman Donna A. Lupardo. Most recently, he served as Chief of Staff where he oversaw all office operations, legislative initiatives and external communications. Prior to that, he served as Clerk to the Assembly Committee on Children & Families and Legislative Director to the Assemblywoman. Mr. Shea has a B.A. in Political Science from Binghamton University.

The appointing authority rather than the Commissioner of Education determines if a school employee should be subjected to disciplinary action

The appointing authority rather than the Commissioner of Education determines if a school employee should be subjected to disciplinary action

Appeal of L.J., on behalf of his daughter A.J. regarding employee discipline, Decisions of the Commissioner of Education, Decision No. 16,722

The parent-petitioner in this appeal challenged a determination of the superintendent of schools regarding certain alleged conduct toward his daughter by district employees. 

The Commissioner dismissed the appeal for a number of technical reasons but indicated that had the appeal been properly before him “To extent that petitioner seeks my intervention in obtaining an apology, he is in effect asking that I engage in some form of discipline against district staff.”

Citing Appeal of J.K., Decisions of the Commissioner, Decision No. 14,705 and Appeal of Lloyd, Decisions of the Commissioner, Decision No. 14,303, the Commissioner pointed out that it is the board of education that has the authority and responsibility to determine whether disciplinary action against a district employee is warranted, not the Commissioner of Education.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16722

Dismissed probationary employee has the burden of showing that his or termination was made in bad faith

Dismissed probationary employee has the burden of showing that his or termination was made in bad faith

2015 NY Slip Op 00896, Appellate Division, Second Department

The appointing authority terminated a probationary employee [Individual] and Individual filed a petition in Supreme Court seeking a review of his dismissal from the position. Supreme Court denied the petition and Individual appealed.

The Appellate Division said that "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."*

In this instance, said the court, Individual failed to satisfy his burden of presenting competent proof that his termination was improper. Further, observed the Appellate Division, “The record demonstrates that the [Individual’s] performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith.”

Accordingly, ruled the Appellate Division, Supreme Court properly denied Individual’s CPLR Article 78 petition.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00896.htm