General Municipal Law Section 207-c disability benefits forfeited following a change of residence

General Municipal Law Section 207-c disability benefits forfeited following a change of residence
Kevin O'Connor Et Al., v Police Commission Of The Town Of Clarkstown et al, 221 AD2d 444

Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to 30.1.d of the Public Officers Law because he "ceased to be an inhabitant within the geographical restrictions" set by law. Section 30.1.d provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.* Clarkstown also discontinued paying O’Connor disability benefits pursuant to 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County.

O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.

Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable." Further, O’Connor could not cure this difficulty by returning and again becoming a resident of Rockland County or to a county contiguous to Rockland County.

The Appellate Division said that there was ample evidence to support the determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Town’s decision was neither arbitrary nor capricious.

The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."

* Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located. Subdivision 19 of Section 3.2 sets out residence provisions applicable to police officers of the City of New York.
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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for further information about this electronic handbook.

The ground rules for individual holding two public offices simultaneously

The ground rules for individual holding two public offices simultaneously
Informal Opinions of the Attorney General, Informal Opinion 2000-9

Wondering if an attorney may simultaneously hold two different public offices? The answer: it depends on the situation!

The Attorney General recently advised Columbia County Attorney Beth A. O’Connor that an assistant county attorney could also serve as the mayor of a city located within the County (Informal Opinion 2000-9).

In contrast, the attorneys for Jefferson-Lewis BOCES were told that the office of district attorney was incompatible with that official’s membership on a BOCES or school board within his or her jurisdiction. [Informal Opinion 2000-13].

The standard applied by the Attorney General, citing Ryan v Green, 58 NY 295, is that except where prohibited by law, one person may hold two offices simultaneously unless they are incompatible.

What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.

In the assistant county attorney/mayor situation the Attorney General indicated that the two positions were compatible and based on the representation that the assistant county attorney would not engage in any legal matters involving the city, the duties of the two positions did not appear inconsistent.

In the district attorney/BOCES-school board situation, the Attorney General said that there appeared to be a conflict between the two offices in view of the district attorney’s broad discretion in determining when and in what manner to investigate suspected crimes. In addition, the Attorney General said that in view of the policy making functions involved in the BOCES/school board position, this dual office holding raises questions as to whether the district attorney can impartially carry out his [or her] broad prosecutorial discretion and, therefore, tends to undermine public confidence in the integrity of government.

In another dual office situation, the Attorney General concluded that an individual could simultaneously serve as a town assessor and as a member of a school board of a district that included the town [Informal Opinion 2000-14] because a town assessor determines the value of real property for the purposes of taxation while a school board member determines policy for the district.

Beware of Face Book

Beware of Face Book
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Can employers get access to your Face Book account? Increasingly, the answer may be yes. In a New York case, where the plaintiff's physical condition was at issue, a lower court judge ordered that a defendant be granted access, Romano v. Steelcase, Inc., ___Misc.3d____(Suffolk Co. 2010). See also, Law.com discussion.

There are also some cases granting disclosure of Face Book accounts in the context of attorney disciplinary proceedings as discussed in Legal Prof Blog.

Moral of the story: Beware what you post on the internet. It can come back to haunt you!

Mitchell H. Rubinstein

Hat Tip: Legal Writing Prof Blog

NYPPL Comments: See, also, Matson v. Board of Education of the School District of City of New York, USCA, 2nd Circuit, 09-3773-cv.

The Matson decision by the U.S. Second Circuit Court of Appeals concludes that “Not all ‘serious medical conditions’ are protected by a constitutional right to privacy” and is posted by NYPPL at http://publicpersonnellaw.blogspot.com/2011/01/not-all-serious-medical-conditions-are.html
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At-will employee’s claims of wrongful termination and defamation rejected by court

At-will employee’s claims of wrongful termination and defamation rejected by court
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department

George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.

The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.

Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."

The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.

NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.

As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm

Federal Court sustains employer application for employee’s involuntary retirement for disability

Federal Court sustains employer application for employee’s involuntary retirement for disability
Campbell v City of New York, USDC, SDNY

Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.

Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.

Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.

Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.

The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:

1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.

2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.

3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.

4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.

5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.

6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.

7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.

8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.

In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.

Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.

Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.

The district court began its review by noting that:

1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;

2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and

3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.

The elements that must be weighed determining if the individual was provided due process are:

(1) the importance of the individual’s interest affected by the official action;

(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and

(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.

Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”

Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.