Applying the ""inherent risk" principle in evaluating an employee's application for accidental disability retirement benefits

The Comptroller denied a State Trooper's [Petitioner] application for accidental disability retirement benefits. Petitioner had filed an application for accidental disability retirement alleging that he was permanently disabled due to, among other things, posttraumatic stress disorder resulting from an incident in which Petitioner shot a suspect who was driving a car at a high rate of speed towards the Petitioner.

Citing Matter of McGoey v DiNapoli, 194 AD3d 1296, the Appellate Division noted that the applicant, here the Petitioner, bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law, and the Comptroller's determination on that point will be sustained "if supported by substantial evidence in the record as a whole substantial evidence."

In this instance, said the court, substantial evidence supports the Comptroller's determination that Petitioner's use of deadly force to protect himself from imminent danger, "although not typical, and certainly a traumatic experience, was inherent in his duties and training."

Applying the "inherent risk" principles set out by the Court of Appeals in Kelly v DiNapoli, 30 NY3d 674 and applied in Matter of Kowal v DiNapoli, 145 AD3d 1152, the Appellate Division opined that the Comptroller's determination that the incident at issue "did not constitute an accident within the meaning of Retirement and Social Security Law §63-bb will not be disturbed."

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

 

Selected bills introduced in the New York State Senate addressing certain public personnel situations on or before May 19, 2023

S23 by Daniel G. Stec 45th Senate District : Concerning the villages of Malone, Saranac Lake and Tupper Lake, in the county of Franklin, employing retired former members of the division of state police as part-time village police officers

 

S4087 by Pamela Helming 54th Senate District : Authorizes Michael Telesca to take the competitive civil service examination and be placed on the eligible civil service list for employment as a full-time police officer for the county of Livingston

 

S4811B by Andrew Gounardes 26th Senate District : Relates to increasing certain special accidental death benefits

 

S5015 by Andrew Gounardes 26th Senate District : Addresses the appointment and promotion of certain personnel of the sanitation department of the city of New York

 

S5361 by John W. Mannion 50th Senate District : Grants retroactive membership with Tier IV status in the New York state teachers' retirement system to Peter Guarino

 

S5494 by Robert Jackson 31st Senate District : Provides for crediting of probationary service

 

S5605 by Lea Webb 52nd Senate District : Authorizes the city of Binghamton to offer an optional twenty-five year retirement plan to firefighter Scott Pavlick

 

S6054 by Robert Jackson 31st Senate District : Relates to retirement benefits for certain employees

 

S6188 by Steven D. Rhoads 5th Senate District :Would provided for retroactive Tier V membership in the NY State and Local Employees' Retirement System to Daniel Miller

 

S6343 by Andrew Gounardes 26th Senate District : Relates to the limitation of overtime compensation in final average salary calculations

 

S6477 by Robert Jackson 31st Senate District : Provides home addresses of certain employees to employee organizations

 

S6482A by John W. Mannion 50th Senate District : Allows an individual with disabilities or a disabled veteran to hold full-time or part-time positions for purposes of eligibility for recruitment for state employment

 

S6861 by Robert Jackson 31st Senate District : Would provides for the automatic enrollment of employees of the City of New York eligible to join the New York City Board of Education Retirement System other than individuals provisional appointed

 

S6862 by Robert Jackson 31st Senate District : Provides for a line of duty presumption for disabilities of fire alarm dispatchers in certain cities

 

 S6976 by Robert Jackson 31st Senate District : Would grant eligibility of certain participants in the New York City Employees Retirement System to opt into the twenty-five year retirement program for EMT members

 

Imposing a reasonable disciplinary penalty under the circumstances

Petitioner was served with a notice of discipline setting out six charges of misconduct alleging violations of the agency's rules, regulations and code of conduct. Petitioner denied the charges and demanded a hearing pursuant to Civil Service Law §75. The Employer withdrew one of the six charges after the §75 disciplinary hearing. The Hearing Officer subsequently found Petitioner guilty of the five remaining charges and recommended that the Petitioner be terminated from his position. The Appointing Authority reviewed the record and Hearing Officer's recommendation, found Petitioner guilty of the five remaining charges of misconduct and terminated his employment. Petitioner appealed the Appointing Authority's decision.

The Appellate Division, opining that the five charges were supported by substantial evidence, explained:

1. New York State's Civil Service Law §75(1) provides an employee in the classified service of a public employer covered by the statute "shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges"; and

2. "The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence."

Turning to Petitioner's challenging the penalty imposed, of termination of his employment, as "excessive", the Appellate Division said in determining whether an imposed disciplinary penalty is excessive, "this Court must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one's sense of fairness",* citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317.

The court, recognizing that Petitioner had been employed by the Appointing Authority "for nearly 25 years with no prior disciplinary issues and that he submitted 15 letters by individuals acclaiming their belief in his good character," said "sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.'"

Noting that the record "establishes numerous incidents of sexual harassment" by Petitioner, the Appellate Division said: it "cannot conclude that the penalty of termination was so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness".

* A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court decisions addressing disciplinary penalties imposed on employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For more information click HERE. 

Click HERE to access the full text of the Appellate Division's ruling summarized above. 

 

 

Administrative appeal hearing decisions issued by New York State Commissioner of Education Dr. Betty A. Rosa

Decision of the Commissioner No. 18,263

    Concerning an appeal of a school district election and an application seeking the removal of certain members of the school board  and the school district's clerk.

Click HERE to access the Commissioner's decision posted on the Internet.

 

Decision of the Commissioner No. 18,264

    Addressing an appeal of an action taken by the board of trustees of a public library with respect to an election.

Click HERE to access the Commissioner's decision posted on the Internet.

 

Decision of the Commissioner No. 18,266   

    With respect to an appeal challenging the actions of the board of education in a school district election.

Click HERE to access the Commissioner's decision posted on the Internet.

 

City official alleged to have abused his position by stealing from relief donations and festival funds

On May 19, 2023, New York State Comptroller Thomas P. DiNapoli and Chautauqua County District Attorney Jason Schmidt announced the indictment of former City of Dunkirk Festivals Coordinator Hector Rosas for using his public position to pilfer more than $50,000 through several schemes.*

"Rosas allegedly used his position to steal donations meant to help Hurricane Maria victims and divert funds meant to benefit his community into his own pockets," State Comptroller DiNapoli said. "Public service is a privilege and a duty that he is charged with betraying. Thanks to our partnership with District Attorney Schmidt, we have exposed these schemes.”

“These types of crimes are not victimless,” said District Attorney Schmidt. “Dunkirk City, like many of our local municipalities here in Chautauqua County, is engaged in an every-day battle to service its residents with precious little money. City residents, themselves, and most of us here in Chautauqua County, live paycheck to paycheck. Every dollar stolen is a dollar not spent servicing our community. No one should use their public office for personal gain.”**

"Hector Rosas was employed since 1984 with the City of Dunkirk as a Water Meter Reader and then Laborer. In 2016, Rosas was promoted to the newly created position of Festivals Coordinator. In that capacity, Rosas ran the city’s summer festival programs through the city’s local development corporation.

"In 2017, in his role with the city, Rosas oversaw fundraising efforts to aid the people of Puerto Rico in recovering from the devastation wrought by Hurricane Maria. Rosas collected nearly $15,000 in donations from citizens, schools and civic groups. The investigation revealed that all of these funds were transferred by Rosas from the city’s festivals bank account, which he controlled, to his personal bank account. Although Rosas visited his mother’s home in Puerto Rico and spent some of the funds, he could produce no receipts, nor could he account for the money collected.

"As Festivals Coordinator, from the summer of 2016 to the summer of 2019, Rosas was responsible for collecting and depositing cash generated from beer sales at the annual summer festivals. The investigation revealed that over $42,000 in cash sales were collected by Rosas but never reported or deposited in the festivals account.

"Rosas was arraigned in Chautauqua County Court before Judge Stephen Cass and is due back in court on June 13, 2023."

* N.B. The charges against Mr. Rosas are merely accusations and Mr. Rosas is presumed to be innocent of such charges until and unless proven guilty in a court of law. 

** Using one's public office for personal gain is sometimes referred to as "jobbery". The Mirriam-Webster dictionary defines "jobbery" as "the improper use of public office or conduct of public business for private gain".

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Since taking office in 2007, Comptroller DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. allegations of fraud involving New York State taxpayer funds may reported by filing a complaint online at https://www.osc.state.ny.us/investigations, or by calling the toll-free Fraud Hotline at 1-888-672-4555,  or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.