Section 75 of the Civil Service Law limits suspension without pay to thirty days notwithstanding the individual’s being found guilty of the charges

Section 75 of the Civil Service Law limits suspension without pay to thirty days notwithstanding the individual’s being found guilty of the charges
Vargo v Safir, App. Div., First Dept., 291 A.D.2d 268

Although the Appellate Division did not have any difficulty in affirming New York City Police Commissioner Howard Safir's imposing the penalty of dismissal after finding police officer guilty of misconduct, it did find that there was a question as to whether the officer was entitled to back pay.

The court said that it appeared that the officer had been suspended without pay for more than 30 days after he was served with disciplinary charges filed against him.

Civil Service Law Section 75.3-a, in pertinent part, provides that a New York City police officer may be suspended without pay for thirty days pending the determination of disciplinary charges.

Accordingly, said the court, and the Department agreed, it was necessary to remand the matter to the Department to determine if the police officer was entitled to back salary for any period of suspension without pay in excess of 30 days.

CSL Section 75.3-a further provides that if a New York City police officer is found guilty of the charges, the Commissioner "may punish the police officer pursuant to the provisions of Sections 14-115 and 14-123 of the Administrative Code of the City of New York."

The Appellate Division sustained the Commissioner's determination that Vargo was guilty of being the driver of a motor vehicle involved in "a hit-and-run" while off duty and that he used illegal drugs. Under the circumstances, said the court, "[t]he penalty of dismissal does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32, in support of its ruling.

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Conflicting medical opinions

Conflicting medical opinions
Buczynski v NYSERS, 291 AD2d 630

Daniel Buczynski, a marketing specialist for the State's Lottery Division, filed an application for disability retirement benefits in January 1997. The basis for his application: anxiety and depression.

Buczynski had stopped working in May 1996 for what was ultimately diagnosed as panic attacks and depression. Buczynski claimed that his condition was the result of increased work and he developed Bell's palsy.

His psychologist said that Buczynski:

1. "continued to exhibit significant cognitive deficits despite several years of therapy and medication" and

2. "was permanently disabled from performing his duties."

The Retirement System's psychiatrist who examined Buczynski in July 1997 "opined that [Buczynski] had suffered a major depression in 1996 that left him unable to perform his duties but that [Buczynski's] condition had improved, that he had no cognitive deficiency and that, with further treatment, he should be able to return to the type of work he had been doing."

In other words, the System's psychiatrist concluded that Buczynski was not permanently disabled from the performance of his duties. Based upon the psychiatrist's opinion, the System denied Buczynski's application for disability retirement.

In response to Buczynski's appeal, the Appellate Division held that there was no merit to Buczynski's claim that the psychiatrist's opinion was insufficient to provide the necessary substantial evidence to support the Comptroller's determination.

The court said that "[w]here, as here, the Retirement System's expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records, the expert's opinion generally will not be considered so lacking in foundation or rationality as to preclude the Comptroller from exercising the authority to evaluate conflicting medical opinions...."

Protected union activity

Protected union activity
CSEA Local 861 and Wyoming County, 34 PERB 3042
Local 814 and Town of Poughkeepsie, 34 PERB 3043

Where the employer's reason for dismissing a probationary employee is rejected by PERB as pretextual because the employee was not disciplined for the misconduct claimed as the basis for the dismissal, the inference that the employer retaliated against the employee for pursuing a grievance in violation of Civil Service Law Sections 209-a.1(a) and 209-a.1(c) has not been rebutted by the employer.

Similarly, in the Town of Poughkeepsie case, PERB held that the Town terminated an employee because of union organizing activities in violation of Civil Service Law Sections 209-a.1(a) and 209-a.1(c), finding that the reasons given by the Town justifying its action were pretextual because the employee had not been served with disciplinary charges for his alleged misconduct prior to his dismissal.

Depression resulting from being served disciplinary charges not a disability for the purposes of Workers’ Compensation Benefits

Depression resulting from being served disciplinary charges not a disability for the purposes of Workers’ Compensation Benefits
Youngs v Village of Penn Yan, 291 AD2d 852

A Village of Penn Yan police officer was suspended without pay for 30 days effective February 18, 1993. Found guilty of insubordination, the penalty imposed was a reprimand and the officer was directed to report to work effective March 22, 1993.

On the advice of his physician, the police officer did not report for duty on March 22, and subsequently applied for performance of duty disability retirement. His application was approved effective October 2, 1993 and the Retirement System told the Village not to pay any salary to the officer after October 1, 1993.

The officer had filed a claim for workers' compensation benefits, alleging that he was injured on February 18, 1993 and that his injury was depression. His claim was rejected by the Workers' Compensation Board based on its finding that the "major depressive illness was brought about by the ongoing frustration he perceived in his police work." This, said the Board, does not of itself rise to the level of compensability. The Board also considered other factors such as "the trauma of the arrest of [the police officer's] brother [and] the disciplinary action taken on February 17, 1993...."

The Board found that the officer had not sustain an "injury arising out of and in the course of the employment" within the meaning of Workers' Compensation Law Section 10[1] because the term injury "shall not include an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action ... taken in good faith by the employer."

The police officer next sued the Village, seeking damages in the amount of $25,000, his unpaid wages from March 18, 1993 through October 1, 1993, together with his medical expenses since March 18, 1993. He claimed that the Village actions in not paying his wages and medical expenses during this period violated Section 207-c of the General Municipal Law [GML]. A State Supreme Court justice determined that the officer was not entitled to GML Section 207-c benefits and the Appellate Division, Fourth Department, affirmed the lower court's ruling.

The Appellate Division explained its decision as follows:

1. A police officer is entitled to GML Section 207-c wages and benefits if he "is injured in the performance of his duties or ... is taken sick as a result of the performance of his duties."

2. A determination by the Workers' Compensation Board that an injury is work-related does not, "by operation of collateral estoppel, automatically entitle an injured employee to GML Section 207-c benefits," citing Balcerak v County of Nassau, 94 NY2d 253.

3. Conversely, the fact that the Board found that the officer did not sustain an injury in the course of employment is not dispositive of the issue concerning his entitlement to GML Section 207-c benefits.

The court, however, commented that the findings of the Board are relevant, particularly where, as here, they are the only evidence in the record concerning the nature of plaintiff's injury.

The frustration that the officer experienced at work and the disciplinary action brought against him involved a dispute that he had with a superior officer, and did not relate to the actual performance of his duties as a police officer. According, ruled the court, the injury sustained by the police officer is beyond the scope of GML Section 207-c.

On another issue in the case concerned certain "premium pay payments" the Village had provided the officer. The officer complained that he should not be required to reimburse the Village for alleged "overpayments of longevity pay and an Associate Degree stipend for the fiscal year from June 1, 1993 to May 31, 1994." The court responded "[w]e disagree."

The Appellate Division decided that the Village had calculated the officer's longevity payments and his Associate Degree stipend based on its expectation that he would be employed for the entire year. Accordingly the court ruled that they "were subject to adjustment pursuant to the contract between the parties" and thus the officer was entitled to the "premiums" only for the period from June 1, 1993 to October 1, 1993.

Free speech rulings by the federal courts

Free speech rulings by the federal courts
Selected decisions by U.S. Circuit Courts of Appeal

In Swartzwelder v McNeilly, 01-1085, the U.S. Circuit Court of Appeals, Third Circuit, held that a public employer may not require that its employee obtain its prior approval before he or she may give his or her opinion as an expert witness concerning matters of public interest at a trial unless the employer is able to demonstrate that such a requirement is appropriately tailored to the employer's interests.

In deciding Nieves v Board of Education, City of Chicago, 01-3814, the Circuit Court of Appeals, Seventh Circuit, rejected a claim advanced by Rose Nieves, a City of Chicago school employee, that she had been terminated in retaliation for her exercising her right to free speech, holding that there was no evidence connecting the timing of Nieves' termination when her position was abolished as part of a reduction in force to her exercising her First Amendment right to free speech.

According to another ruling by the Seventh Circuit, Thompson v Illinois Department of Professional Regulation, 01-4074, because Mark A. Thompson, a chief administrative law judge, held a policy making position, he could not maintain his law suit based on allegations that his demotion and transfer was in retaliation for his exercising his First Amendment rights to free speech concerning his political beliefs.

Freespeech issues raised by public employees have been considered by the U.S. Supreme Court. Its decisions suggest that the following general guidelines will be applied in addressing such free speech issues:

1. 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.

2. Speech by a public officer or employee that merely addresses a personal concern such as the individual's personal unhappiness working for the public employer or for a particular supervisor, or related to the individuals' particular position, work assignments or working conditions, or the individual's personal disagreement concerning the internal operations of the department or agency, that do not rise to the level of speech concerning a "public interest," does not involve "protected speech" within the meaning of the First Amendment.