Resolving a tie vote by the NYC Board of Trustees of Article 1-B considering a firefighter's application for accidental disability retirement

A New York City firefighter challenged denial of a firefighter's application for Accidental Disability Retirement [ADR] following a tie vote by the Board of Trustees of the Article 1-B Pension in the course of its considering the firefighter's application for ADR.

In this appeal the Appellate Division sustained the rejection of the firefighter's application for ADR after a "tie vote" by the Board of Trustees resulted in the firefighter receiving Ordinary Disability Retirement [ODR], explaining:

1. A firefighter becomes eligible for Accidental Disability Retirement [ADR] benefits when a medical examination and investigation results in a finding that the firefighter is physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an injury received in city-service; and

2. If the Medical Board concludes that firefighter is disabled, it must next determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service" and certify its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation; and

3. Although the Board of Trustees is "bound by the medical board's determination of disability," the Board is not bound by the medical board's determination that the disability suffered by the firefighter was the result of a service-related accident and the burden of establishing that the disability is causally related to a line-of-duty accident rests with the applicant for ADR; and ultimately

4. In the event the vote by the Board of Trustees results in a tie with respect granting the applicant ADR, the Board of Trustees is required to retire the applicant for ADR with Ordinary Disability Retirement benefits.

Further, opined the Appellate Division, a court may not set aside the denial of ADR resulting from such a tie vote unless "it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Click HEREto access the decision of the Appellate Division posted on the Internet.

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Former Village Treasurer alleged to have stolen over $70,000 from the Village

State Comptroller Thomas P. DiNapoli, St. Lawrence County District Attorney Gary Pasqua and the New York State Police today announced that Nancy Berger, formerly the Clerk/Treasurer of the Village of Norwood, was arrested for allegedly stealing $73,725 from the Village.*

The State Comptroller said that Berger "is accused of stealing funds from the Village of Norwood, a violation of her community’s trust and an abuse of her position as a public official. Thanks to my partnership with the St. Lawrence District Attorney’s Office and the New York State Police, we will make sure that justice is served on behalf of Norwood’s residents.”

Berger is alleged to have stolen Village funds between 2018 and 2022 by writing Village checks to herself. The alleged theft was initially uncovered by the Village and Berger resigned from her position shortly thereafter in June 2022. Berger was appointed Clerk/Treasurer in January 2017.

The alleged theft was reported by the Village to the St. Lawrence District Attorney’s Office, which then contacted the Office of the New York State Comptroller. District Attorney Pasqua pledged, “to work with the State Police and Comptroller’s Office to hold the [accused] accountable, rectify the financial losses incurred by the Village of Norwood, and assure the people of Norwood that my office will work to restore confidence in its public servants.”

* N.B. These charges are accusations and the individual is presumed innocent unless and until proven guilty in a court of competent jurisdiction.

 

Scope of employment determines if a federal officer or employee is entitled to absolute immunity for alleged tortious conduct claimed to "job related"

When an officer or employee [Employee] of the federal government is sued for alleged tortious conduct, the Employee is generally entitled to absolute immunity from personal liability under the Federal Employees Liability Reform and Tort Compensation Act of 1988 [the “Westfall Act]. However,  to be eligible to come with the ambit of the Westfall Act the Employee must prove two things:

"(1) That the Employee is a qualifying government official for purposes of the Westfall Act; and

"2) That the tortious conduct in which the Employee was allegedly engaged was within the scope of the Employee's employment."

If these requirements are met, the United States is substituted for the Employee as the sole defendant in the tort suit and the action proceeds against the United States in accordance with the rules set forth in the Federal Tort Claims Act.** 

That said, the Second Circuit held that the instant action, E. Jean Carroll v. Donald J. Trump, required it to determine whether "the President of the United States is eligible for this form of absolute immunity." 

With respect to New York State as the employer, §17 of the Public Officers Law provides for the defense and indemnification of state officers and employees and volunteer expressly authorized to participate in a state-sponsored  volunteer program, a former employee, his estate or judicially  appointed personal representative and persons who assist the education  department or the department of health as consultants or expert  witnesses in the investigation or prosecution of alleged professional  misconduct, licensure matters, restoration proceedings, or criminal  prosecutions for unauthorized practice pursuant to Title eight of the Education Law or Title II-A of the Public Health Law.

Further, §18 of the Public Officers Law provides for the defense and indemnification of officers and employees of public  entities whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation (i) to confer the benefits of §18 upon its employees, and (ii) to be held liable for the costs incurred under these provisions or where the governing body of a municipality, for whose benefit the public entity has been established, has agreed by the adoption of local law or resolution (i) to confer the benefits of §18 upon the employees of such public entity, and (ii) to be held liable for the costs incurred under these provisions.

§19 of the Public Offices Law provides for the reimbursement of defense costs incurred by or on behalf of a state employee*** in his or her defense of a criminal  proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of the employee's public employment or duties upon the employee's acquittal or upon the dismissal of the criminal charges against employee or reasonable attorneys' fees incurred in connection with the employee's appearance before a grand jury which returns no true bill against the employee where such appearance was required as a result of any act which occurred while such employee was acting within the scope of the employee's public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee. 

* See 28 U.S.C. §2679(b)(1). 

** See 28 U.S.C. §§2679(d)(1), 1346(b)(1). 

*** Although not all state employee are state public officers, all state public officers are state public employees. 

Click HEREto access the text of the Second Circuit United States Court of Appeals' ruling in this action.

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An applicant for accident disability retirement benefits has the burden of establishing that a disability is causally connected to a performance of duty accident

The New York City Employees' Retirement System [CERS] appealed a Supreme Court's ruling annulling CRER's decision to deny Plaintiff's application for duty disability retirement benefits and directed CERS to provide such benefits retroactive to February 24, 2015.

The Petitioner, a former correction officer with the New York City Department of Correction, had alleged that he sustained disabling injuries to his neck and back on December 29, 2013, during an altercation with an inmate. CERS denied Plaintiff's application after adopting the recommendation of the Medical Board of the New York City Employees' Retirement System [Medical Board] The Medical Board had determined that the Petitioner's disabling condition was not causally related to the December 29, 2013 incident.

The Appellate Division reversed the Supreme Court's ruling, on the law, with costs, denied Plaintiff's petition and dismissed the proceeding.

The Appellate Division, Judge Dowling dissenting in part, explained that an applicant for accident disability retirement benefits has the burden of establishing that a disability is causally connected to a performance of duty accident, citing see Matter of Giuliano v New York Fire Dept. Pension Fund, 185 AD3d 812, and as a general rule, the decision by CERS will not be disturbed unless its factual findings are not supported by substantial evidence* or its final determination and ruling is arbitrary and capricious".

The court opined that the conclusions of the Board, adopted by CERS were supported by "... credible evidence consisting of the Medical Board's independent interviews and examinations of the Petitioner, its review of the medical records and reports of the Petitioner's treating physicians, and the report of a radiologist consulted by the Medical Board, interpreting MRI studies of the cervical region of the Petitioner's spine." Further, said the Appellate Division, the resolution of conflicting medical evidence was within the province of the Medical Board.

Finding that there is no evidence supporting Petitioner's contention that the December 29, 2013 incident precipitated the development of a latent condition or aggravated a preexisting condition, the Appellate Division concluded that "Supreme Court should have denied the petition and dismissed the proceeding."

* Substantial evidence has been construed in disability cases, as requiring some credible evidence. Credible evidence has been described as evidence that proceeds from a credible source, which reasonably tends to support the proposition for which it is offered.

Click HEREto access the Appellate Division's decision posted on the Internet.

See, also, Matter of Young v DiNapoli, posted on the Internet HERE, addressing similar issues.

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