Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"

Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"
Kopetz v Article 1-B Pension Fund, 255 A.D.2d 443

The so-called Cancer Bill, General Municipal Law Section 207-kk, provides eligibility for accidental disability retirement under certain conditions.

Frederick Kopetz, a former New York City firefighter, challenged a determination by his pension fund rejecting his application for an accidental disability retirement allowance. Kopetz's claim was based on his having had cancer and undergoing a nephrectomy for removal of the right kidney.

Kopetz had returned to full duty, and had been cancer-free since the surgery. He was placed on light duty because of other medical conditions. Eventually the Medical Board of the New York City Fire Department Article 1-B Pension Fund concluded that he was not capable of full duty and recommended that he be retired on ordinary disability.

The Board of Trustees of the pension fund concurred. It observed that Kopetz's own physicians indicated that his disability was caused by hypertension and cerebrovascular insufficiency. Because his disability was not result of cancer or any line-of-duty injury, the board concluded that he was not entitled to benefits under the cancer bill.

Kopetz objected, contending that he should be retired on accidental disability retirement on the theory that he was entitled to an ADR because he once had cancer.

He contended that the law granted accidental disability retirement benefits to qualified persons who suffer:

... any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems or (ii) melanoma resulting in total or partial disability or death to a paid member of a fire department in a city with a population of one million or more [i.e., the City of New York], who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.

New York State Supreme Court Justice Vaughan dismissed Kopetz's petition. The court commenting that Kopetz, who bore the burden of proof, had not met his burden. A court cannot disturb an administrative determination unless it finds that the determination is arbitrary or capricious or erroneous as a matter of law. Justice Vaughn said there was no basis for such a determination in this case.
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Retirees’ rights to health insurance benefits

Retirees’ rights to health insurance benefits
Prater v Ohio Education Assoc. CA6, Docket #06-4393

Retired employees of Education Association sued, contending that the Association had improperly terminated their health benefits that had been provided in accordance with the terms of a series of collective bargaining agreements.

The Circuit Court ruled that descriptions of health insurance benefits prepared by the Association cannot supersede the provisions set out in a collective bargaining agreement.

The full text of the decision is posted at:

http://www.ca6.uscourts.gov/opinions.pdf/07a0405p-06.pdf
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Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee

Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee
Delia v. City of Rialto, USCA, 9th Circuit, No. 09-55514, decided September 9, 2010

In this 42 USC §1983 action, Firefighter Nicholas B. Delia sued the City of Rialto, the Rialto Fire Department, a number of Rialto Fire Department officials and a private attorney, Steve Filarsky alleging violations of his constitutional rights during a departmental internal affairs investigation in which he was involved.

Although the Ninth Circuit concluded that Delia’s constitutional right under the Fourth Amendment were violated as the result of a warrantless search of his home, it also determined that this right was not clearly established at the time of this constitutional violation. Accordingly, the Circuit Court affirmed the district court’s order granting qualified immunity to the several fire officials named in Delia’ complaint and affirmed the lower court’s granting the City’s motion for summary judgment dismissing Delia’s complaint.

The Circuit Court, however, reverse the district court’s granting qualified immunity to Filarsky, the private attorney retained by the City in the course of its investigation of Delia.*

The court explained that the doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” citing Pearson v Callahan, 129 S. Ct. 808.

In Pearson the Supreme Court indicated that the basis for proving public officials with “qualified immunity” was to balance “two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Addressing the lower court’s deeming Filarsky eligible for such qualified immunity, the Circuit Court said that “Unlike the other individual defendants in this case, Filarsky is not an employee of the City." Rather, said the court, he is a private attorney, retained by the City to perform certain services in connection with an internal affairs investigation.

Delia contended that Filarsky, as a private attorney, was not entitled to claim a qualified immunity while Filarsky argued that under the circumstances, and his work on behalf of the City, this was “a distinction without a difference.”

In support of his argument Filarsky cited Culliman v Abramson, 128 F.3d 301. In Culliman the Sixth Circuit Court of Appeals held that a law firm that had been hired by the City of Louisville to serve as outside counsel was entitled to qualified immunity against plaintiffs’ §1983 claims.

In Culliman the court said “We see no good reason to hold the city’s in-house counsel eligible for qualified immunity and not the city’s outside counsel.”

Acknowledging the 6th Circuit’s ruling, the Ninth Circuit court noted that in Gonzalez v Spencer, 336 F.3d 832, a different panel of the 9th Circuit held that a private attorney representing a county was not entitled to qualified immunity.

The defendant in Gonzales was a private attorney retained to defend Los Angeles County in an underlying civil rights suit brought by the plaintiff.

In rejecting the attorney’s claim of qualified immunity, the Gonzales court reasoned, “[the attorney] is not entitled to qualified immunity. She is a private party, not a government employee, and she has pointed to ‘no special reasons significantly favoring an extension of governmental immunity’ to private parties in her position.’”

The Circuit Court said that it was bound by the Gonzalez decision as Filarsky did not allege any “intervening en banc decision [by the Ninth Circuit], Supreme Court decision,** or intervening legislation which would permit us to overrule the holding in Gonzalez.”

Thus, said the court, Filarsky was not entitled to qualified immunity as a private attorney performing services for a public entity and reversed the district court’s grant of summary judgment in his favor. It then remanded the matter for trial or “further proceedings as determined by the district court.”

* Filarsky had previously represented the City in conducting interviews during internal affairs investigations.

** The 6th Circuit’s holding in Culliman and the 9th Circuit’s holding in Gonzalez suggests that the issue of whether an attorney in private practice performing services on behalf of a government entity may claim a “qualified immunity” if named as a defendant as the result of some act or omission in the performance of his or her duties may be ripe for consideration by the Supreme Court.

The decision is posted on the Internet at:
http://www.ca9.uscourts.gov/datastore/opinions/2010/09/09/09-55514.pdf
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