Inability to satisfactorily perform the duties of the position due to an alleged disability

Inability to satisfactorily perform the duties of the position due to an alleged disability

OATH Index No. 858/16

The appointing authority alleged that a Computer Associate was unfit to perform his job after employer proved that he had difficulty keeping up with technological changes and was confrontational when interacting with co-workers and supervisors. Designated “a disability proceeding” it was submitted to the Office of Administrative Trials and Hearings pursuant to §72 of the Civil Service Law [CSL].

Finding that the employer had demonstrated that employee is currently unfit for the duties of his job,* Oath Administrative Law Judge Alessandra F. Zorgniotti recommended that the employee be placed on an Involuntary Leave of Absence, explaining that in order to place an employee on an involuntary medical leave pursuant to CSL §72, the employer must prove by a preponderance of the evidence that: (i) employee suffers from a disability, (ii) he of she is unable to competently perform his or her job duties, and (iii) his or her inability to perform is caused by a disability.

ALJ Zorgniotti also observed that: “The focus of the §72 proceeding is on the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and that “[p]ast performance is relevant only to the extent that it is probative of [the employee’s] present condition and future conduct.”

Noting that “[a]n essential part of fitness to work in any job assignment is an ability to work with and be supervised by others, without being disruptive or abusive”, Judge Zorgniotti said earlier OATH decisions indicated that a “finding of unfitness is supported where an employee denies the existence of a disability. or refuses to treat it, [and there is competent medical evidence to the contrary] thereby creating a greater risk of future recurrence of the disability.” 

* Judge Alessandra F. Zorgniotti noted that employee’s behavior continued to be disruptive even after supervisors had made efforts to simplify his job, action that could be deemed to an effort to provide a reasonable accommodation of the employee's disability.

The appointing authority adopted the ALJ’s findings and recommendation.  
  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-858.pdf

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The Disability Benefits E-book:- This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Conducting disciplinary hearings in absentia

Conducting disciplinary hearings in absentia

OATH Index No. 1046/16

Although rare, an employee upon whom disciplinary charges have been served may refuses to participate in the scheduled disciplinary hearing. If the appointing authority goes forward with the disciplinary hearing notwithstanding the employee’s failure to participate, has the employee been denied due process?

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the employer is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.*

OATH Administrative Law Judge John B. Spooner conducted a Civil Service Law §75 disciplinary hearing with the employee in absentia when the appointing authority appeared at the scheduled time and place but the employee declined to do so. Judge Spooner characterized the hearing as being in the “form of an inquest” and found that the appointing authority had [1] properly served the employee with the disciplinary charges and the notice of the hearing, and [2] had then produced records and the provided testimony by the employee’s supervisors supporting the charges of the employee’s alleged misconduct at the "inquest." The ALJ found that that the appointing authority had proven the employee was guilty of the charges and recommended that the employee be terminated from service. 

This is another example demonstrating that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Holding a disciplinary action in absentia, however, is a two-way street. Case law demonstrates that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. 

In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the disciplinary arbitration because it believed that Hall was not entitled to the disciplinary arbitration. The arbitrator ruled in favor of the employee and directed Environment Conservation to reinstate the employee to his position with back pay. 

Environmental Conservation [DEC] sought a court order vacating the arbitration award, contending that its termination of Hall was not subject to being challenged pursuant to the “contract disciplinary procedure” because the State Department of Civil Service had disqualified Hall for employment. DEC argued that as Hall’s appointment had been voided by the Department of Civil Service he could not claim any rights under Section 75 of the Civil Service Law or the collective bargaining agreement.**

A Supreme Court judge granted the union’s motion to confirm that portion of the award providing for the payment of certain back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department’s action but declined to confirm that part of the award that directed DEC reinstate Hall to his former position. The Appellate Division sustained the lower court’s ruling.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

** Pursuant to Civil Service Law Section 76.4, many Taylor Law collective bargaining agreements provide that a permanent employee in the classified service may challenge a disciplinary action in accordance with the terms set out in a "contract disciplinary procedure" that is operative in lieu of disciplinary action pursuant to a statutory disciplinary procedure [see Antinore v State, 40 NY2d 6].

Judge Spooner’s decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1046.pdf

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits

Determining the impact of performing light, limited or restricted duty on an application for disability retirement benefits

Koenig v DiNapoli, 2016 NY Slip Op 03942, Appellate Division, Third Department

2 NYCRR 364.3 addresses situations in which a member of the New York Stateand Local Police and Fire Retirement System [SLPFRS] has been assigned to light, limited or restricted duty applies for disability retirement benefits.

If the SLPFRS member has been assigned to light, limited or restricted duties for less than two years prior to the date application for disability retirement benefits was filed with the Comptroller and has not performed at least 100 hours of paid overtime in any 12-month period within such two-year period, SLPFRS is to “render its determination on the issue of permanent incapacity on the basis of the duties and job requirements of such previous full duty assignment.”

In contrast, if the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits SLPFRS  is to render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.

If, however, the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS is to base its determination on the issue of permanent incapacity “on the basis of such light, limited or restricted duty assignment.”

In July 2007, Daniel G. Koenig, a police officer, was injured when a bullet fragment from another police officer's gunshot ricocheted off a target at the firing range and struck petitioner in the leg. Koenig returned to work in December 2007 and placed on light duty assignment. In January 2009, Koenig filed an application for accidental disability retirement benefits.

The New York State and Local Police and Fire Retirement System [SLPFRS] assessed Koenig's disability application on whether he was incapacitated from the performance of the duties assigned to light duty work in accordance with 2 NYCRR 364.3(c).*

The Comptroller, however, accepted the findings and conclusions of the Hearing Officer, concluding that whether Koenig was permanently disabled from the performance of his duties should be evaluated on the basis of his light duty assignment and thereafter denied his application for accidental disability retirement benefits. The Comptroller, in effect, held that Koenig was not disabled from continuing to perform his light duty assignment.

Koenig filed an Article 78 petition challenging the Comptroller’s determination, contending that as the hearing had already been commenced under the full duty performance standard, the provisions of 2 NYCRR 364.3(c) should not control. He also claimed that he had not worked 100 hours or more of overtime.

The Appellate Division held that Koenig's contention that it was error, following the commencement of the hearing, to change the standard upon which to evaluate his disability retirement application from full duty to light duty performance, particularly given that he already had presented medical testimony based upon his full duty assignment, “was without merit.” The court said that evidence in the record established that Koenig continuously performed light duty assignment for a year following his return to work and also performed at least 100 hours of paid overtime during a 12-month period prior to filing his application for disability retirement benefits. Accordingly, said the court, 2 NYCRR 364.3(c) requires that the determination on the issue of permanent incapacity be evaluated on the basis of the light duty assignment.

Although Koenig sought to deduct mandatory overtime for medical evaluations or court appearances and contractual travel overtime from his total hours of overtime, the Appellate Division said that it found “nothing irrational, unreasonable, arbitrary or capricious in the Comptroller's interpretation that, under the circumstances herein, such overtime was reasonably anticipated by the regulation and should not be excluded from the total overtime hours reported.”**  Further, explained the court citing Bombace v Nitido, 117 AD3d 1375, “[t]he Comptroller is vested with . . . the duty to correct errors and cannot be estopped to create rights to retirement benefits to which there is no entitlement.”

Although Koenig was given the opportunities to recall or have his medical expert submit an affidavit as to his ability to perform light duty work and also was informed that appropriate time would be given in order for him to present any additional evidence or witnesses, he declined to do so.

The Appellate Division ruled that as Koenig presented no evidence regarding his inability to perform light duty work, the Comptroller's denial of his application for accidental disability retirement benefits “will not be disturbed.”

* 2 NYCRR 364.3(c) provides the member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed with the Comptroller has performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS “shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.”

**The Appellate Division observed that even under his own assessment, Koenig completed more than 90 hours of voluntary overtime during the relevant 12-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03942.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016

Click on text highlighted in color to access the entire report

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

Metropolitan Transportation Authority -  Paratransit service “Access-A-Ride” accident claims

State Education Department (Center for Disability Services) - Compliance with the Reimbursable Cost Manual

State Education Department (Crossroads Center for Children) -  Compliance with the Reimbursable Cost Manual

State Education Department (Helping Hands School) - Compliance with the Reimbursable Cost Manual

Workers' Compensation Board – Examination of Workers’ Compensation daily payment requests by claimants and medical providers

Retailers agree to increased use of renewable energy

New York State Comptroller Thomas P. DiNapoli announced that Fortune 500 retailers Best Buy and Nordstrom have agreed to the New York State Common Retirement Fund’s request that they increase the use of renewable energy in their operations and supply chain.

http://www.osc.state.ny.us/press/releases/may16/051816.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160522&utm_campaign=pension+fund

State ends fiscal 2015-2016 with strong cash position due to “temporary resources”
 
The state collected $153.3 billion in State Fiscal Year (SFY) 2015-16, an increase of 2.8 percent from a year earlier, and ended the SFY $1.9 billion higher than initial projections, largely because of legal settlements and personal income tax collections, according to a reportreleased by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/may16/051316a.htm?utm_source=weekly+news&utm_medium=email&utm_term=fiscal+report&utm_content=20160522&utm_campaign=fiscal+oversight

State contract and payments – April 2016
 
State Comptroller Thomas P. DiNapoli announced his office approved 990 contracts valued at $750 million and approved nearly 3.9 million payments worth more than $10.4 billion in April. His office also rejected 116 contracts and related transactions valued at $330 million and nearly 6,000 payments valued at more than $10.7 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/may16/052016.htm?utm_source=weekly+news&utm_medium=email&utm_term=state+operations&utm_content=20160522&utm_campaign=fiscal+oversight

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”

DeMaio v DiNapoli, 2016 NY Slip Op 02505, Appellate Division, Third Department

VHB, a correction officer, applied for performance of duty disability retirement benefits alleging that he was injured while escorting an inmate away from an altercation between the inmate and another correction officer. The application was initially denied by the Retirement System and VHB requested a hearing and redetermination.

Following the hearing, the Hearing Officer upheld the initial denial of VHB’s application for duty disability retirement, concluding that VHB had not meet his burden of proof of establishing each and every element necessary to sustain his application and that the initial determination was supported by substantial evidence. The Comptroller accepted the findings and conclusions of the Hearing Officer and VHB initiated a CPLR Article 78 proceeding.

The Appellate Division said that the Hearing Officer's determination, which was adopted by the Comptroller, was affected by errors of law.

The court explained that the Hearing Officer had improperly noted that the applicable standard of review was whether the initial determination was "supported by substantial evidence." Rather than a review of the initial determination, the Appellate Division said that such a hearing is conducted to allow the Comptroller to make a “redetermination” with “the same powers upon such hearing as upon the original application.”

In addition, said the court, “the Hearing Officer's determination misstated the applicable burden.” VHB was required to establish that he is incapacitated from performing his work-related duties “as the natural and proximate result of an injury, sustained in the performance . . . of his or her duties by, or as the natural and proximate result of any act of any inmate” [emphasis supplied by the court].

Further, the Appellate Division said it has repeatedly held that the relevant statute, Retirement and Social Security Law §607-c[a],requires that an applicant for duty disability retirement benefits demonstrate that his or her injuries were “caused by direct interaction with an inmate … and have specified that such injuries must be caused by some ‘affirmative act on the part of the inmate’ … there is no legal support for the Hearing Officer's enhancement of such burden by indicating that VHB was required to demonstrate "an intentional overt act of an inmate” (emphasis supplied by the court).

Accordingly, the court annulled the Comptroller’s determination and remanded the matter to the Comptroller for a new hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02505.htm