Retiree’s survivors application to modify the retiree’s election of a retirement option rejected

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected
Kevin M Gorey, Jr. v New York State Comptroller, 2011 NY Slip Op 03329, Appellate Division, Third Department

Kevin M. Gorey Sr. applied for service retirement effective September 1, 2004 and elected benefit payments under the "Single Life Allowance" option. This option provided that Gorey Sr. would receive the maximum lifetime retirement allowance payable to him and the payments would stop upon his death. Further, this option did not permit Gorey to designate a beneficiary.

New York State and Local Employees’ Retirement System [ERS] sent Gorey Sr. a letter confirming his option selection and detailing his annual benefit payments. In addition, ERS told Gorey Sr. that he could his selection of his retirement option prior to September 30, 2004. Gorey Sr. did not submit any change and died on November 19, 2004.

Gorey Sr.’s children [Gorey, Jr.] asked ERS to void decedent's selection of the "Single Life Allowance" option, contending that Gorey, Sr. was incompetent at the time he made the selection. Ultimately ERS rejected Gorey Jr.’s application, holding that Gorey Jr. had not established that Gorey Sr. was incompetent* when he made his retirement option selection and Gorey Jr. sued in an effort to overturn the Retirement System’s decision.

The Appellate Division affirmed the Retirement System’s determination.

Noting that Gorey Jr. contend that the Retirement System “did not take adequate steps to ensure that [Gorey Sr.] made a proper retirement option choice, the court said that the Retirement System is "not required to insure that proposed retirees receive the best possible entitlement," citing Matter of Cummings v New York State & Local Employees' Retirement Sys., 187 AD2d 862, appeal dismissed 81 NY2d 834.

Further, said the court, the State Comptroller "has the exclusive authority to determine all applications for any form of retirement or benefits" and his decision will not be disturbed if it is supported by substantial evidence.

* The applicant for a retirement allowance is presumed to have been competent at the time he or she made his or her retirement option selection and the burden is on those challenging that election to prove the contrary.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03329.htm

Infringing on constitutionally protected speech

Infringing on constitutionally protected speech
Timothy M. Wrobel v County of Erie, CA2, 2007 WL. 186264

In reviewing Wrobel’s claim that Erie County had violated his right to free speech and association, the U.S. Court of Appeals for the Second Circuit said:

1. Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment.

2. Conditioning public employment on the provision of support for the favored political party “unquestionably inhibits protected belief and association”.*

The court concluded, “When reasonable inferences are drawn in Wrobel’s favor, the amended complaint sufficiently alleges that Wrobel was retaliated against for his lack of political affiliation with, or his refusal to pledge his allegiance to, the new Erie County administration.”

The Circuit Court also noted that in Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir. 2006), it explained that “actionable retaliation” in the context of the First Amendment was employer actions that “well might have dissuaded a reasonable worker [from asserting First Amendment-protected rights]”.**

As to Wrobel’s claim that the County had violated his First Amendment free speech rights, the Circuit Court said that "While we agree with the District Court that Wrobel’s pre-transfer speech was not on a matter of public concern, and was therefore not constitutionally protected we do not agree with its conclusion that Wrobel had not sufficiently alleged actionable retaliation following his expression of protected speech.”

Wrobel alleged that “defendant Douglas Naylon implicated him as the perpetrator of a theft of government property shortly after Wrobel discussed the corruption and politicization of his place of employment with an FBI agent.” Wrobel also alleged that other county officials had bribed others to testify against him at an arbitration hearing shortly after he engaged in protected speech.

In Conrick v Myers, 461 US 1l38, the United States Supreme Court established a two-prong test with respect to claims of dismissal in retaliation for "whistle blowing." To win, the individual must prove that (1) his or her speech is protected, i.e., the speech was a matter of public concern, and (2) that the protected speech was a substantial factor in motivating the termination

These adverse actions, said the court, “are sufficient to support a First Amendment retaliation claim,” because Wrobel’s petition “sets forth the necessary nexus between [Wrobel’s] statements concerning a matter of public concern and the defendant[s’] subsequent alleged retaliatory acts.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution.***

The decision is posted on the Internet at:  

http://nypublicpersonnellawarchives.blogspot.com/2007/01/freedom-of-association.html

* See also §107 of the Civil Service Law setting out certain prohibitions against certain political activities and improper influence.

** The court commented that monitoring of Wrobel’s phone calls, transfer of Wrobel to a faraway location, initiation of a criminal investigation against Wrobel, and other adverse actions alleged in the amended complaint—if proven true—would be sufficient to dissuade a reasonable worker from asserting his First Amendment rights. Wrobel, said the court, adequately alleges that the adverse actions were taken in retaliation for his protected associational activity.

*** See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, where the court held that a public employee’s speech was not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

In re Police Officer Ruben Olavarria, etc., v Raymond W. Kelly, as Police Commissioner of the City of New York, et al., 37 AD3d 191

The so-called Pell Doctrine frequently is cited as the standard against which a disciplinary penalty imposed on a public employee by the appointing authority is to be measured.*

In Olavarria, the Appellate Division affirmed the imposition of the penalty of dismissal on a New York City police officer found guilty of a number of alleged acts of misconduct, including assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty.

Ruling that it found no basis to question the credibility of the findings underlying holding that Olavarria was guilty of these charges, the Appellate Division said the “Under the circumstances, the penalty of dismissal does not shock the judicial conscience,” citing another leading decision addressing the imposition of the “ultimate” administrative disciplinary penalty, -- dismissal. Harp v New York City Police Dept., 96 NY2d 892.

For the full text of this decision, go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/penalty-of-dismissal-sustained.html

* Pell v Board of Education, 34 NY2d 222, a disciplinary penalty imposed by an appointing authority will not be overturned unless the court finds that it is shocking to one's sense of fairness.

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

“Important practice reminder

An important reminder that applies in most administrative jurisdictions: "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations", on the New York Public Personnel Law blog. Neither do settlement negotiations or even (sometimes) administrative appeals. And, as in the case discussed in [another post*], the statutes of limitations for judicial review of administrative decision are often very short (four months for a personnel decision in this case). In my practice days, one of the first research tasks I set myself when taking on an administrative matter was "how many days do I have to take this to the Court of Appeals if it goes south?" Or north, as the case may be. Just in case.

“And typically the S/L is measured from the promulgation of a "final" order. When is "final" in this context in this jurisdiction? Do you know?” 

* Dean Patty Salkin (Albany Law School) describes such a situation in "Fed. Dist. Court Prevents Performing Arts Center From Relocating to Dilapidated Historic Warehouse" on her Law of the Land blog: 

Edward M. McClure

Malpractice in disciplinary actions

Malpractice in disciplinary actions

Tinelli v Redl, CA2, 199 F.3d 603, Affd. 121 S.Ct. 47

After being found guilty of disciplinary charges, an individual decides to sue his or her attorney, contending that the lawyer’s action, or failure to act, in the disciplinary hearing or an appeal constituted malpractice.

In the Tinelli case, the U.S. Circuit Court of Appeals, Second Circuit considered such a malpractice claim. The decision sets out a test for determining if there is a basis for such an action against the attorney.

Joseph Tinelli was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He retained an attorney, Frank Redl, to represent him in the matter. Following a two-day hearing, the hearing officer found Tinelli guilty of three charges of “misconduct and incompetence.”

The appointing authority adopted the findings of the hearing officer and imposed the penalty recommended by the hearing officer: termination.

Tinelli appealed. According to the decision, Redl failed to take any “further action ... after the initial filing of the petition for Tinelli’s appeal” in New York State Supreme Court. As a result, six months later Tinelli’s “appeal expired.”

Tinelli sued Redl, contending that the attorney’s (1) failure to perfect the Article 78 appeal and (2) his failure to ask the court for an extension of time to perfect the appeal, constituted malpractice.

He also charged that Redl’s performance at the administrative disciplinary hearing constituted malpractice.

The U.S. Circuit Court of Appeals decided that whether or not Redl’s handling the appeal constituted malpractice depended on whether or not Tinelli’s appeal would have been successful. In other words, if Tinelli would not have won the appeal regardless of the action or inaction of his attorney, there was no basis for holding the attorney liable for malpractice.

After reviewing the record, the circuit court said that “Tinelli’s appeal would not have succeeded because the hearing officer’s findings of misconduct and incompetence were supported by substantial evidence and because there was no abuse of discretion in recommending Tinelli’s termination under the circumstances.”

The court dismissed Tinelli’s claim, holding that his attorney could not be held liable for malpractice because he failed to perfect the appeal since Tinelli would not have been able to overturn either the administrative disciplinary determination or the penalty imposed.

As to Tinelli’s claim that “Redl’s poor performance at the administrative hearings constituted malpractice,” Redl’s motion for summary judgment dismissing this allegation was also granted.

Mandatory subjects of negotiations

Mandatory subjects of negotiations

Carmel PBA v PERB, 267 AD2d 858

The Carmel PBA case involves a “legal interpretation” made by the New York State Public Employment Relations Board [PERB].

The Appellate Division ruled that the administrative agency’s determination would be upheld if it is not affected by an error of law, is neither arbitrary nor capricious, and does not constitute abuse of discretion.

The case arose when PERB ruled that Town of Carmel’s changing an “early vacation procedure” was a nonmandatory subject of collective bargaining. The PBA challenged PERB’s decision, claiming that in addition to being arbitrary and capricious and against the substantial weight of the evidence, the ruling constituted “an error of law.”

Carmel had in place a scheme for selecting vacation to be taken during the year -- “vacation picks.” PBA members could select their vacation before the beginning of the year in which vacation time is to be taken (“early vacation picks”) or during the year prior to the taking of the requested vacation time (“later vacation picks”). In addition, a “minimum staffing level rule” required that at least four police officers be assigned to patrol shift.

The Town changed the “staffing” requirements to be observed in selecting vacations in October 1995. The new procedure:

1. Barred the “overlap of vacations” by police officers and sergeants on the same tour; and

2. If the department had only one lieutenant, the chief of police, lieutenant and/or sergeant could not “overlap [their respective] vacations.”

PBA filed an improper practice charge with PERB contending that the Town violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally imposed the new policy.

Initially, PERB deferred its consideration of the charge because a grievance arbitration concerning the matter was pending.

The arbitrator ruled that the parties’ 1994 agreement’s provision concerning vacation selection did not apply after 1995. After the arbitrator’s issued the award, PERB accepted jurisdiction and addressed the merits of the PBA’s petition.

PERB decided that “the vacation selection procedure was necessarily and “inextricably entwined with the Town’s staffing determination.” This, it held, meant that it was not a mandatory subject of negotiation. The PBA appealed.

The Appellate Division commenced its review by pointing out that while “the refusal of public employers to negotiate in good faith with recognized employee organizations concerning the terms and conditions of employment constitutes an improper employment practice within the meaning of Section 209-a,” not all terms and conditions of employment are subject to mandatory negotiation.

What is a mandatory subject of collective bargaining?

The court said that PERB has the authority to make this determination and so long as its “interpretation is legally permissible and * * * there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation.”

Accordingly, said the court, PERB’s determination that the Town’s policy prohibiting certain overlaps of vacation was not a mandatory subject of collective bargaining under the Taylor Law must be confirmed.

In explaining its ruling the Appellate Division cited International Assn. of Firefighters of City of Newburgh, Local 589 v Helsby, 59 AD2d 342, 345, leave to appeal denied, 43 NY2d 649.

In that decision the court held that the number of employees the municipality will hire “is clearly a basic policy decision to be made solely by the municipal governing body as to the allocation of its resources and the extent and quality of fire protection to be provided by the [municipality] for its citizenry.”

How does this impact on the PBA’s claim that the Town should be required to negotiate the policy change? The Appellate Division’s answer:

Since the Town’s determination to increase its minimum staffing level is clearly a basic policy question for it to make, to hold that here is a duty to bargain the early approval of overlapping vacations is incompatible with the Town’s managerial prerogative to set and change minimum staffing levels at the employer’s discretion.

Finding that PERB’s decision was not arbitrary or capricious or based on an error of law, the Appellate Division dismissed the PBA’s appeal.

A postscript to "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual"

A postscript to "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual" [See: http://publicpersonnellaw.blogspot.com/2011/04/doctrine-of-estoppel-not-available-to.html ]

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

"In his New York Public Personnel Law blog, Harvey Randall reviews a case involving one kind of administrative law issue that often darkens an attorney's door: The government has given your client something by mistake and now intends to take it back. But your client, ignorant of the error, has spent the money or made plans or persuaded investors or otherwise reasonably relied on the erroneous decision and doesn't want to pay it back, change plans, return investments, or otherwise reverse course. In the case discussed by Mr. Randall in "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual", a retired city government lawyer finds out seven years after retirement that she has been overpaid almost $1000 per month, and the New York City Employees' Retirement System is going to deduct 25% of her (reduced) pension until it is repaid. She has spent the money and made all sorts of plans that depend on the original monthly payment. Sounds like a job for Equitable Estoppel!

"Not. The opinion from the reviewing court cites to a lot of state precedent, but doesn't really get to the meat of the law here. The City is relying on a N.Y. statute:

"Should any change or error in records result in any member or beneficiary receiving from the retirement system more or less than he or she would have been entitled to receive otherwise, on the discovery of any such error such Board shall correct such error, and as far as practicable, shall adjust the payments in such a manner that the actuarial equivalent of the benefit to which he or she was entitled shall be paid.

"New York City Administrative Code §13-182 (emphasis added).

"According to Mr. Randall:

"Accordingly, in the event an overpayment is made, the agency has authority to recoup the overpayment by withholding or reducing the current pension benefits to which the retiree would otherwise be entitled. As to applying the doctrine of estoppel in this case, Judge Mendez ruled that the doctrine could only be applied against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.

"Not just the authority to recoup the overpayment, but the obligation to recoup the overpayment. The court's opinion does not explain the law behind why estoppel fails in this case, but we can look at what is sometimes termed the first maxim of equity: "Aequitas sequiture legem" - "equity follows the law". 30A C.J.S. Equity § 128 (updated March 2011); Story, Joseph. Commentaries on equity jurisprudence: as administered in England and America (Boston, 1836), §64. This maxim means different things in different contexts. For our purposes in this case, equity will not contradict a statute or common law rule on point (subject to a bunch of exceptions that rarely apply against governments and that don't apply here). Here we have a statutory - a legal - requirement that the City get the money back.

"I'm sorry but your client is, ummmm, going to be disappointed."

EMM

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits
Matter of Seiferheld v Kelly, 2011 NY Slip Op 03309, Court of Appeals

New York City police officer James J. Seiferheld retired for alleged disability in 2004 and was awarded accident disability benefits. Seiferheld had applied for disability retirement benefits claiming that he suffered from constant pain in his right shoulder and neck, loss of range of motion in his neck and shoulder, and pain radiating into his arm as the result of a line-of-duty accident. This injury, he contended, prevented him from performing police duty. His application was granted, and he was awarded accident disability retirement on May 12, 2004.

Subsequently the police department received information that Seiferheld was working. It instituted an investigation that ultimately reported that Seiferheld was "performing construction work on a daily basis," which work included “picking up siding, passing it to others, lifting it over his head and nailing materials above his head with both arms extended for some time — all tasks performed without apparent difficulty.” A number of these activities were recorded on videotape.

The police department notified the Police Pension Fund that Seiferheld "may no longer be disabled" and the Pension Fund subsequently reexamined him. During his interview with the Pension Fund’s Medical Board Seiferheld said that he "cannot lift any heavy objects . . . cannot work overhead . . . has no outside work and his major occupation is babysitting his two children."

The Pension Fund's Medical Board concluded that Seiferheld’s condition "has improved dramatically," and recommended disapproval of his retirement application. Ultimately the Pension Fund board of trustees voted, over the dissent of several trustees, to invoke New York City Administrative Code §13-254** entitled "Safeguards on disability retirement," under which a disability pensioner found to be able to work may be returned to city service. Seiferheld was placed on a list of candidates eligible to become police officers, but subsequently he was informed that he was "medically disqualified" for that position "due to the presence of an unauthorized substance, cocaine, in your hair sample."* 

When the Pension Fund's Director of Pension Payroll advised Seiferheld "that your pension benefit will be suspended beginning with the July 2007 payroll," Seiferheld filed an Article 78 petition seeking to annul the determination to suspend his pension benefits.

Supreme Court denied the application; the Appellate Division reversed, annulling the suspension of benefits; the Court of Appeals “reluctantly” affirmed the Appellate Division’s ruling.

Characterizing New York City Administrative Code §13-254 as “complicated,” the Court of Appeals explained, in a “simplified summary,” that a “disability pensioner found to be able to work is put on a civil service list, and his or her pension is reduced based on outside earnings and the amount ‘earned . . . or earnable’ in any City job that is offered.”

Noting that the application of the statute to this case presents something of a puzzle, because although Seiferheld was put on a civil service list, he was not, and evidently could not be, offered a job because of his cocaine us, the court commented that “if the statute is mechanically applied, [Seiferheld] might actually benefit from using cocaine, because he presumably does not want to be offered a City job; he wants to remain retired and receive his pension.

Supreme Court, in a thoughtful opinion, correctly concluded that this anomaly could not have been intended by the statute's authors.

The Appellate Division, however, reversed Supreme Court's order, without discussing Supreme Court's analysis of the statute, because the suspension of Seiferheld's benefits "was not directed by the Board of Trustees" of the Pension Fund.

The Court of Appeals concluded that the Appellate Division was correct as it is “clear from a reading of the safeguards statute that action under that statute must be taken by the board.” The court explained that  “However well justified a reduction or termination of benefits may be … the board of trustees has to do it.”

The majority*** of the Court of Appeals, at the conclusion of its opinion, wrote:

“Though [Seiferheld] is entitled to prevail here, the case as a whole is very troubling. It seems from the record that [Seiferheld] either has received or is in a position to claim accident disability benefits for the last seven years, and counting. Yet any reader of this record must have serious doubt that he was ever really disabled. Whether any of the benefits paid to him may be recouped is a subject on which we express no opinion. But we do express the hope that the Pension Fund's board of trustees will generally act to protect the Fund and the public with more efficiency than it has displayed in this case.”

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03309.htm 

* General Municipal Law §207-a5 provides “The appropriate municipal or fire district officials may transfer such a fireman to a position in the same or another agency or department where they are able to do so pursuant to applicable civil service requirements and provided the fireman shall consent thereto.” while General Municipal Law §207-c4 provides “The appropriate municipal officials may transfer such a policeman to a position in another agency or department where they are able to do so pursuant to applicable civil service requirements and provided the policeman shall consent thereto.” 

** The "safeguards" statute, New York City Administrative Code § 13-254, under which the Pension Fund tried to bring Seiferheld back to work, provides, in relevant part: "Once each year the board [of trustees of the Police Pension Fund] may . . . require any disability pensioner, under the minimum age or period for service retirement elected by him or her, to undergo medical examination. . . . Upon the completion of such examination the medical board shall report and certify to the board whether such beneficiary is or is not totally or partially incapacitated physically or mentally and whether he or she is or is not engaged in or able to engage in a gainful occupation. If the board concurs in a report by the medical board that such beneficiary is able to engage in a gainful occupation, he or she [sic] shall certify the name of such beneficiary to the appropriate civil service commission . . . and such commission shall place his or her name as a preferred eligible on such appropriate lists of candidates as are prepared for appointment to positions for which he or she is stated to be qualified. Should such beneficiary be engaged in a gainful occupation, or should he or she be offered city-service as a result of the placing of his or her name on a civil service list, such board shall reduce the amount of his or her disability pension . . . if any, to an amount which, when added to that then earned by him or her, or earnable by him or her in city-service so offered him or her, shall not exceed the current maximum salary for the title next higher than that held by him or her when he or she was retired." 

*** Justice Pigott, in his dissent, said: “In my view, the Appellate Division erred in finding that the Board of Trustees had not considered what action should be taken with respect to revocation of the Accident Disability Retirement benefits. This error, which the majority of this Court repeats, rests on an assumption that the Board's final determination had merely been that Seiferheld should be returned to work as a police officer. This leaves out a crucial part of the Board's ruling. The Board's final determination was that Seiferheld was not disabled, should not receive disability benefits, and should be returned to work” and would “reverse, deny the petition and dismiss the article 78 proceeding.”