Light duty assignments

Light duty assignments

Paeno v McCall, 235 A.D.2d 766

In Paeno the Appellate Division considered the impact of light duty assignments on an application for accidental disability retirement.

In December 1990 firefighter Joseph J. Paeno was injured at work. In 1992 Paeno was ordered back to work and given a "light duty" assignment. In November 1992 he filed for both accidental and performance of duty disability retirement, contending that he was unable to perform even light duty work. Both applications were rejected.

The significant issue in this decision relates to the standard to be used by the Comptroller in evaluating an application for disability retirement.

Here the Court decided that the Comptroller was not required to determine if Paeno was physically incapacitated from performing his normal duties. Rather the Comptroller was free to [and correctly] determine that the evidence failed to establish that Paeno could not perform the light duty assignments required.

The Appellate Division commented that new regulations of the Comptroller setting out new standards for evaluating disability applications were not in effect at the time the Comptroller made his determination. The Court also pointed out that the regulations were not applicable retroactively.

These  new regulations are found in 2 NYCRR 364. They provide the criteria to be used by the Retirement System insofar as the Systems considering the demands of the position in processing  an application for accidental or duty disability retirement.

Under the regulations, the System may require the employer to provide a written statement that accurately describes the actual duties performed by the applicant, together with a description of the relevant physical and, or, psychological requirements of the position. Significantly, §364.2 provides that the employer is not simply to provide the official Civil Service job description for the title of individuals if the applicant's duties and the applicant's  actual duties and the relevant job requirements are not accurately recited in the official Civil Service job description. [2 NYCRR 364.2]

Another element in the evaluation is that §364.3(a) of the regulations provides that if the applicant has been performing light, limited or restricted duties for less than two years prior to the date of his or her application for disability retirement benefits, the Retirement System will evaluate the applicant's ability to perform the job requirements of his or her regular, full duty assignment performed immediately prior the light duty assignment.

In contrast, if the applicant has been continuously assigned to light, limited or restricted duties for at least two years prior to the date of his or her application for disability retirement benefits, the evaluation is to be based on the written description of the duties and/or physical or psychological job requirements provided by the employer describing the light duty assignment.

Where, however, the applicant has performed at least 100 hours of paid overtime while on light duty during any twelve month period within the two year period prior to the filing of his or her application for disability retirement, the Retirement System will make its determination concerning on the issue of permanent incapacity on the basis of the applicant's ability to perform his or her light duty assignment.

What is the bottom line?

Under the regulations, where an individual is performing a light duty assignment at the time he or she applies for accidental or duty disability retirement benefits, the Retirement System will determine the issue of permanent disability based on:

 a. the individual's full duties of his or her position where the applicant has performed light duty for less than two years; or

b. if the applicant has performed a light duty assignment for more than two years, the issue of permanent disability will be resolved in consideration of the applicant's  actual light duty assignment.

Police officer dismissed after presenting and using false identification for self-identification

Police officer dismissed after presenting and using false identification for self-identification

Ildefonso v Bratton, 238 A.D.2d 142

One of the disciplinary charges filed against New York City police officer Gilberto Ildefonso alleged that he had brought a dog -- the precinct "mascot" -- to the ASPCA, presumably to be put to sleep. Ildefonso was accused of giving the ASPCA a false name, a false badge number and a false precinct. He also was charged with lying about the origin of the dog in documents he gave to the ASPCA concerning the animal.

Why did Ildefonso use false identification and misstate the facts? According to the Appellate Division, he did so in order "to avoid a potential unpleasantness concerning the fellow officer who owned and cared for this precinct mascot."

Found guilty, the Commissioner of Police dismissed Ildefonso from the force. The Appellate Division upheld the termination.

What was the Appellate Division's rationale in upholding the penalty imposed?

The Court said that "even if one were favorably disposed toward [Ildefonso] in connection with the other charges, the critical fact remains that [Ildefonso] lied with respect to matters of self-identification particularly important to police work and integrity."

The Appellate Division said courts give "great leeway" to the Commissioner's determination in disciplinary matters. It said that the Commissioner's decision was entitled to such great leeway in matters of police discipline and punishment because the Commissioner, and not the courts, is accountable to the public for the integrity of the Department."

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.