Eligibility for GML 207 benefits

Eligibility for GML 207 benefits

Dearman v City of White Plains, 237 A.D.2d 603

Although William H. Dearman, a White Plains firefighter, was approved for accidental disability retirement benefits by the Police and Fire Retirement System, White Plains denied Dearman's application for General Municipal Law §207-a benefits. Dearman sued, seeking a court order compelling the City to pay him §207-a supplemental benefits.

The Appellate Division ruled that Dearman's petition was untimely, having been filed more than four months after the City had made its "final determination." Of greater significance, however was the Appellate Division's observation that the lower court was incorrect in viewing Dearman's action to be in the nature of mandamus to compel the City to perform a statutory duty.

According to the decision, the City is allowed to make its own determination as to whether Dearman was entitled to §207-a benefits and the Retirement Systems determination granting Dearman §363 disability benefits did not preclude the City from finding him ineligible for §207-a benefits. The Appellate Division noted the Court of Appeals' decision in Cook v City of Utica, 84 NY2d 833 concerning this point.

Duty of fair representation

Duty of fair representation

Ponticello v County of Suffolk, 225 A.D.2d 751

Joseph Ponticello filed a grievance. When the grievance was denied by Suffolk County, Ponticello asked his union, the Association of Deputy Sheriffs and Correction Officers, to demand arbitration. The union refused to demand arbitration and Ponticello sued the County, seeking a judgment confirming his right to arbitration under the collective bargaining agreement.

In reversing a State Supreme Court judge's ruling in Ponticello's favor, the Appellate Division addressed an number of issues concerning a union's duty of fair representation and the right of a member of the bargaining unit to pursue "self-help" should the union decline to proceed with the arbitration of a grievance.

The Appellate Division ruled that in order for Ponticello to prevail, he had to prove that the union's action constituted discrimination, arbitrariness or invidious or hostile treatment. The decision makes the following points regarding an employee's right to demand arbitration if the union elects not to do so:

1. If an employer and an union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract.

2. A union is not required to pursue arbitration in every grievance filed by a member of the negotiating unit and its failure to demand arbitration is not, standing alone, a breach of its duty of fair representation.

3. An employee may demand arbitration or sue the employer directly only if the collective bargaining agreement allows an employee to bring such an action or if the union breaches it duty of fair representation.

The Appellate Division found that the collective bargaining agreement gave the Association full control of which grievances may be submitted to arbitration. As Ponticello failed to establish that the Association had breached its duty of fair representation, he had no standing to sue the County.

Editor's Note: In Alston v Transport Workers Union of Greater New York, the Appellate Division pointed out that an amendment to the Civil Practice Law and Rules [Chapter 467, Laws of 1990], reduced the statute of limitations for bring an action against a union for breach of its duty of fair representation from six years to four months [§217(2)(a), CPLR]. The four months period commences to run from the date on which the employee knew or should have known that the breach had occurred or the date the employee suffers actual harm, whichever is later.

Drug tests for elected office

Drug tests for elected office

Chandler v Miller, Governor of Georgia, US Supreme Court, 520 U.S. 305

A Georgia statute requires candidates for designated state offices to certify that they have taken a urinalysis drug test within 30 days prior to qualifying for nomination or election and that the test result was negative. Libertarian Party candidates sued, arguing that the law violated their Fourth Amendment protection against unreasonable search.

The U.S. Supreme Court, in an opinion by Justice Ginsburg, decided that the Georgia law was unconstitutional because it failed to overcome the general principle that a search is justifiable only in the event of individualized suspicion. The Court said that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.

While there are a number of "particularized exceptions" to this main rule based on "special needs, beyond the normal need for law enforcement," the Supreme Court said that  "when such "special needs" - concerns other than crime detection - are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties," referring to its ruling in Von Raab, 489 U S at 665-666.

Georgia, the Court decided, failed to show a special need sufficient to override an individual's privacy interest or sufficiently vital to its interests to justify suppressing the Fourth Amendment's normal requirement of individualized suspicion for requiring an individual submit to testing for illegal drugs.

Holding that Georgia's requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches, the high court reversed the Eleventh Circuit's ruling upholding the statute. The ruling is consistent with decisions by New York State courts that, except where a negotiated agreement or statute authorizes or requires random drug testing, a public employer must have reasonable cause or justified suspicion to require an employee to take an involuntary drug test.

Appealing disciplinary decisions

Appealing disciplinary decisions

Wood v Cosgrove, 237 A.D.2d 616

Marilyn Wood appealed her demotion from her position as head clerk after being found guilty of two counts of incompetence to the Suffolk County Civil Service Commission pursuant to §76.3 of the Civil Service Law. When the Commission rejected her appeal as untimely, Wood challenged its ruling by filing an Article 78 petition.

§76.1 provides that appeals to the commission having jurisdiction shall be made within 20 days of the receipt of written notice of the determination to be reviewed. In the alternative, §76.1 allows the employee to appeal by filing an Article 78 petition with the court. The Statute of Limitations for filing an Article 78 petition is four months.

The Appellate Division affirmed a New York State Supreme Court ruling dismissing her Article 78 appeal on the grounds that the proceeding was barred by §76.3 of the Civil Service Law because she had elected to pursue an "administrative appeal." In addition, the Court said that Wood failed to demonstrate that the Commission's denial of her appeal as untimely was "in violation of State law, or that the Commission acted illegally, unconstitutionally or in excess of its jurisdiction."

In another case, also captioned Wood v Cosgrove, Wood unsuccessfully challenged her termination from her position with the Suffolk County Police Department after being found guilty of five specifications of misconduct. Wood claimed that she had been prejudiced by the hearing officer's refusal to "recuse herself" from the proceeding, which action demonstrated bias. 

The Appellate Division said that Wood had failed to rebut the presumption of the integrity of those serving as adjudicators.  The Court also said that the determination of the hearing officer was supported by substantial evidence in the record.

Sick leave abuse

Sick leave abuse

People v Robert Patino, Nassau County Court, affirmed, 259 A.D.2d 503

Robert Patino, a Nassau County police officer, was convicted of "disability fraud" after a jury found that he had collected sick leave payments for more than three years while he was able to work. Patino was charged with sick leave abuse and falsifying his application for Retirement and Social Security Law §207-c disability benefits.

Although Patino claimed that his back injury prevented him from performing even light duty work, it was reported that he was video taped doing a number of physical activities including bending and diving.

Charges filed against Patino: (1) Offering a False Instrument for Filing in the First Degree (Penal Law §175.35); (2) Attempted Grand Larceny in the Third Degree (§110/155.35); (3) Grand Larceny in the Third Degree (§155.35) and (4) Defrauding the Government (§195.20).

Among his defenses, Patino argued that because he was the first police officer to be prosecuted on such charges, this constituted his being "selectively and vindictively prosecuted in violation of his Fourteenth Amendment Rights." This, he contended, required that the indictment be dismissed "in the furtherance of justice." He did not prevail. The penalty imposed: 5 years probation plus a $5,000 fine. In addition, the Court ordered Patino to reimbursing Nassau County the $17,500 it incurred while investigating the matter as restitution.

On the issue of selective prosecution, the parties agreed that Patino was the first Nassau County police officer to be prosecuted for filing allegedly fraudulent disability applications or for the alleged fraudulent use of sick leave.

This, said the Court, "while meaningful, is not controlling." There exists no per se ban on one or another type of new prosecution. In other words, the fact that no one had been prosecuted for similar offenses in the past did not preclude the County from prosecuting Patino.

The decision comments that in order to sustain a claim of selective prosecution, it must be proven that a law has been (a) "applied and administered by a public authority with an evil eye and (b) an unequal hand," a standard set out by the U.S. Supreme Court in Yick Wo v Hopkins [118 US 356].

In other words, said the Court, "(T)here must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some arbitrary classification," citing 303 West 42nd Street Corp. v. Kelly, 46 NY2d 684.

The Court further noted that the Nassau County District Attorney, not the Nassau County Police Department, was prosecuting the case. Although the Police Department did the initial investigation and fact-gathering concerning Patino, it was the District Attorney's Office that subsequently reviewed and evaluated the information and decided to prosecute.

Another argument made by Patino was that criminal action could not be taken against him until he had been given a General Municipal Law "§207-c hearing."  The Court said that there is nothing to indicate that utilization of such a civil, administrative procedure in any way precludes the District Attorney from proceeding criminally against Patino.

The Court refused to dismiss the action against Patino, holding that "[a] dismissal in furtherance of justice would have a significant impact upon the public's confidence in our justice system. When a police officer, sworn to enforce the law, is charged with a crime, the public's confidence in the system is eroded. An outright dismissal of the charges prior to trial would damage this confidence still further."