Employer may not discontinue a firefighter’s GML §207-a(1) benefits without first providing the firefighter with an administrative hearing

Employer may not discontinue a firefighter’s GML §207-a(1) benefits without first providing the firefighter with an administrative hearing

2014 NY Slip Op 00408, Appellate Division, Third Department

A firefighter (Firefighter) injured his lower and about one and one-half years later he stopped working due to his injury. His employer (Village) then granted him disability benefits pursuant to General Municipal Law §207-a (1).

About six moths later Village told Firefighter that it was discontinuing his disability benefits. Firefighter appealed that decision, eventually resulting in a determination that he was entitled to General Municipal Law §207-a(1) benefits. While his administrative appeal was pending*Firefighter was granted performance-of-duty disability retirement benefits pursuant to Retirement and Social Security Law §363-c and retired.

The Village stopped paying Firefighter any benefits. Including “supplemental benefits” equal to the difference between his retirement allowance and his “full salary” as a firefighter. Firefighter asked Village pay him such supplemental disability benefits as authorized by General Municipal Law §207-a(2).

Ultimately the Appellate Division was presented with the issue: Does General Municipal Law §207-a provides one unified set of benefits, or are different and separate benefits are provided for under the different subdivisions of that statute.

The Appellate Division ruled that although the subdivisions provide for benefits that are different based on the qualifications, amounts and standards or requirements to obtain or retain them, the statute intends to provide for one unified set of benefits for the payment of salary to firefighters injured in the performance of duty.

In the words of the court: “Despite the differences between the subdivisions, the end result under their respective different scenarios is for the injured firefighter to receive his or her full regular salary.” Payment of the individual’s full regular salary is the benefit regardless of whether the firefighter is temporarily unable to work (General Municipal Law §207-a(1)], permanently unable to work and retired on that basis (General Municipal Law §207-a(2)], or unable to perform his or her regular duties but able to perform specified types of light duty (General Municipal Law §207-a(3)].”**

However, the Appellate Division said that although the benefits provided for in General Municipal Law §207-a are one unified benefit, an employer is not collaterally estopped from denying or considering if the firefighter is qualified to receive permanent supplemental benefits pursuant to General Municipal Law §207-a(2) based on the prior determination that he or she was entitled to temporary benefits under General Municipal Law §207-a(1).

The court explained that the standards and requirements to qualify for the benefits provided for under these two subdivisions are different. Subdivision (1) sets out the benefits to be paid to firefighters injured in the performance of duty until the municipality's health authorities certify that he or she is recovered and able to perform regular duties of his or her position.

In contrast, General Municipal Law §207-a(2) provides that in the event the firefighter is granted a specified type of disability retirement allowance as a result of an injury incurred in the performance of duties his or her employer no longer is required to pay the firefighter the full amount of his or her regular salary or wages but is required to pay the firefighter the difference between “the amounts received under such allowance or pension and the amount of his or her regular salary or wages until such time as he or she shall have attained the [relevant] mandatory service retirement age.”***

However, said the Appellate Division, as the benefits under General Municipal Law §207-a are one unified benefit, Supreme Court properly determined that Village could not terminate Firefighter’s benefits without a hearing, citing Park v Kapica, 8 NY3 302.

As the Court of Appeals held in Park, such disabled firefighters have a property interest in disability payments pursuant to General Municipal Law §207-a, giving rise to procedural due process protection before those payments may be terminated.

Here, said the Appellate Division, Firefighter submitted evidence of permanent disability related to his work-related injury, raising "a genuine dispute on operative facts" such that he is entitled to a hearing on the deprivation of his benefits by the Village and since Firefighter was already receiving benefits under the statute, he is entitled to due process "before those payments are terminated," he is entitled to a continuation of benefits pending the hearing.

* The decision notes that “It appears that (Village) later appointed a hearing officer and a hearing has been held, but no decision has yet been rendered.”

** Such benefits, however, may also be discontinued in the event the firefighter refuses to perform light duty work after the employer's health authorities determine that the firefighter is capable of performing such light duty.

*** N.B. GML 207-a(4-a) provides that “ Any benefit payable pursuant to subdivision two of this section to a person who is granted retirement for disability incurred in performance of duty pursuant to section three hundred sixty-three-c of the retirement and social security law shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00408.htm

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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 and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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The Warren M. Anderson Breakfast Series Seminar’s Municipal Finance session is scheduled for February 11, 2014

The Warren M. Anderson Breakfast Series Seminar’s Municipal Finance session is scheduled for February 11, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on February 11 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speaker is New York State Comptroller Thomas P. DiNapoli who will discuss Municipal Finance.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Employment of retired public employees receiving a retirement allowance

Employment of retired public employees receiving a retirement allowance

Source: New York State Department of Civil Service Transmittal Memorandum TM-69

The New York State Department of Civil Service has revised Part 1850(G0 of its State Personnel Management Manual which address the employment of retired public employees receiving a retirement benefit from a public retirement system of this State.

The Revised Part is set out below.

1850(G) Employment of Retired Public Employees

.1 BACKGROUND

.110 Legal Basis

.111Sections 211 and 212 of Article 7 of the. Retirement and Social Security Law provide statutory authority for the reemployment in the public service of retired public employees without suspension or diminution of retirement allowance. A "retiree" as defined in Section 210 of the Article is "a retired member of a retirement system or pension plan administered by the state (New York) or any of its political subdivisions who is receiving a retirement allowance for other than physical disability."

A.     Section 210 of the Article also defines various other terms which relate to such reemployments.

B.     In addition, retirees employed pursuant to Sections 211 or 212 must meet the normal legal requirements for appointment.

+ .112 Section 212 of Article 7 provides for a "retiree" to earn up to the maximum entitled under the New York State Retirement Law without diminution of retirement allowance, pursuant to section 203 of the Federal Social Security Act. The current maximum is $30,000 annually (as of 2013). However, there are no limitations on maximum earnings under section 212 during the calendar year the retiree reaches the age of 65 or in any year thereafter.

+ .113 Section 211 of Article 7 provides for a retiree to earn more than the maximum entitlement under 212, subject to some limitations determined on a case-by-case basis, with the approval of the appropriate body. In cases of State employment in the Classified Service, this body is the State Civil Service Commission. Section 211 should only be used for retirees under 65 years of age. Section 211 (2) (a) identifies the proper authority in the case of unclassified service positions in the State University system and certain positions in the municipal service and the judicial system.

.2 POLICY

.210 Limitations

+ .211 Section 211 should only be used for retirees under 65 years of age.

.212 Disability retirees are not eligible for approval under Section 211.

+ .213 Commission approval may be granted for a period up to two years. Once the approval has expired, a new request must be submitted. In those cases where approval under section 211 is not granted by the Civil Service Commission, the retiree who wishes to be employed should contact the Retirement System to determine the effect on retirement benefits.

+ .214 Approval for employment under section 211 and appointment to a position are separate and distinct from each other. While the section 211 approval may be valid for a period up to two years, the appointment is not guaranteed for two years. If, for instance, the appointment were not permanent and a mandatory eligible list comes into existence for the position before the end of the two year period, the employee would have to be replaced by an individual appointed from the eligible list even though he or she had section 211 approval. 

Conversely, someone with section 211 approval could receive a permanent list appointment and, while the appointment would likely exist for more than two years, the section 211 approval could not. Once the section 211 waiver expired, that person would then have the following options:

A.     resign and continue to collect full retirement benefits;

B.     remain in the position with his/her retirement benefits affected; or,

C.     apply through the agency for a new Section 211 approval.

.4 PROCEDURE

.410 Requests

+ .411 Section 212 - The retiree communicates with the Retirement System directly. No agency involvement is necessary.

+ .412 Section 211 - The agency must initiate the request by completing the section 211 waiver application form (CSC-1) available on the Department of Civil Service web site at: http://www.cs.ny.gov/retirees/.

Before doing so, the agency should determine if the retiree is eligible to be employed under section 211 by reviewing the State Civil Service Commission’s Guidelines for Approval of Requests pursuant to Retirement and Social Security Law section 211. The Guidelines are available on the Department of Civil Service web site at: http://www.cs.ny.gov/commission/211guidelines.cfm

Formal notification will be made by the Commission staff by e-mail to the requesting agency and the NYS Retirement System when the Commission determination has been made.

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TM-69; Replaces TM-7; + = Revised Material; 1/30/2014

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 1, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 1, 2014

Click on text highlighted in color  to access the full report

DiNapoli: State Agency Overtime Hits Record $611 Million

Overtime earnings at state agencies rose to a record $611 million in 2013, a nearly 16 percent increase compared to 2012, according to a reportreleased on Tuesday, January 28, 2014 by State Comptroller Thomas P. DiNapoli. Overtime increased in 2013 for the third straight year.

DiNapoli: Metro North and LIRR Lax in Monitoring Overtime Paid For with Federal Stimulus Funds

Separate audits of Metro–North Railroad and the Long Island Rail Road found they failed to properly manage overtime paid by funds from the American Recovery and Reinvestment Act, allowing abuses such as allowing some conductors to charge overtime for tasks such as washing up for work, New York State Comptroller Thomas P. DiNapoli announced on Monday, January 27, 2014.

DiNapoli: Ag & Markets Allowing Businesses to Serve Food Without Proper Inspections

The Department of Agriculture and Markets is not keeping up with the demands of its inspection schedule, allowing thousands of food manufacturers, supermarkets, bakeries and other food–related businesses to operate without updated inspections, according to an auditreleased on Thursday, January 30, 2014 by State Comptroller Thomas P. DiNapoli. The backlog has allowed hundreds of new establishments to start serving the public without the required initial inspection.

DiNapoli: The State May Have Your Money

New York State Comptroller Thomas P. DiNapoli on Monday, January 27, 2014 urged New Yorkers to see if any of the $12.5 billion in lost and forgotten money currently being held by his office could be theirs. More than 30 million accounts are unclaimed in New York, some dating back to the 1940s. An interactive mapcreated by DiNapoli’s office shows the number of outstanding accounts and monetary values by county.

DiNapoli Announces New Technology Investment Through Contour Venture Partners

Bounce Exchange, a New York City–based technology company specializing in boosting sales through tracking website visitor activity, received venture funding through Contour Venture Partners, an investment partner of the New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced on Friday, January 31, 2014. The investment was made through the Fund’s In–State Private Equity Program which makes investments in New York State–based companies.

DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of

Allegany County;

the City of Batavia;

the Caton No. 1 Fire District;

the Town of Henrietta;

the Village of Middleport;

the Slaterville Springs Fire District; and

the Village of Westbury.
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The 2014 Anderson Series Seminars scheduled

The 2014 Anderson Series Seminars scheduled

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will present the 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program held at the Capitol during the Legislative Session.

The program features informative speakers to address legal aspects of current public policy issues facing the State of New York. Since it was established 22 years ago, the Anderson Series has been one of the most prestigious and anticipated events on the GLC’s calendar. The program continues to be offered free of charge, but space is limited.

The following presentations are schedule to be held on the dates indicated:

MUNICIPAL FINANCE - February 11  

INFRASTRUCTURE FUNDING - April 8  

CAMPAIGN FINANCE - April 29  

EDUCATION REFORM AND THE COMMON CORE - May 20  

All session are held from 8-9 a.m. on the dates indicated above in the Assembly Parlor, at the State Capitol, 3rd FL

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329. 
.

Defending and indemnifying an educator sued in a civil action arising out of the exercise of his or her duties

Defending and indemnifying an educator sued in a civil action arising out of the exercise of his or her duties

2013 NY Slip Op 52173(U), Supreme Court, Cortland County [Not selected for publication in the Official Reports]

A lawsuit [Civil Action] was filed on behalf of a female student alleging five causes of the action: (1) a negligent supervision claim against the school district; (2) an assault claim against a teacher [Teacher]; (3) a battery claim against Teacher; (4) an intentional infliction of emotional distress claim against Teacher; and (5) a negligent infliction of emotional distress claim against Teacher.

Upon being served with the summons and complaint, Teacher, citing Education Law §3028*, asked the school district provide him with a defense and indemnification in the Civil Action. The school district notified Teacher that it would provide, through its liability insurer, a defense of the underlying action and indemnification for any damages that may be awarded against Teacher on the fifth cause of action — for negligent infliction of emotional distress — but that it would not provide indemnification for any damages that may be awarded for the intentional torts alleged in the second, third, or fourth causes of action.

In response to the school district's refusal to provide him with complete indemnification, Teacher filed an Article 78 petition seeking a court order directing the school district to so provide such indemnification. The school district moved, without answering Teacher’s petition, for summary judgment and dismissal of his petition as a matter of law.

Education Law §3811.1, in pertinent part, provides that in the event a superintendent, principal, member of the teaching or supervisory staff, member of a committee on special education or subcommittee thereof, surrogate parent as defined in the regulations of the commissioner of education, or any trustee or member of the board of education of a school district or non-instructional employee of any school district other than the city school district of the city of New York or any board of cooperative educational services shall defend any action or proceeding, other than a criminal prosecution or an action or proceeding brought against him by a school district or board of cooperative educational services hereafter brought against him, including proceedings before the commissioner of education, arising out of the exercise of his powers or the performance of his duties under this chapter,** all his reasonable costs and expenses, as well as all costs and damages adjudged against him … [emphasis supplied].

Addressing the school district’ motion to dismiss Teacher's claim for full indemnification in the Civil Action, Supreme Court said that it may properly consider the merits of Teacher’s petition “because the dispositive facts are undisputed and the parties had ample opportunity to present their respective arguments”, noting that such a motion to dismiss must be granted where the petition and supporting papers fail to allege facts sufficient to support the alleged claim.

The Education Law §3811(1), said the court, requires the school district defend Teacher in a civil actions arising out of the exercise of his duties and indemnify him from any resulting damages. The issue of whether the alleged conduct on which the Civil Action is based comes within the provisions of Education Law §3811(1) as having been within the discharge of Teacher's professional duties as an employee of the school district is for school district to decide in the first instance. The school district’s determination in this regard may be set aside only if it lacks a factual basis and, therefore, is arbitrary and capricious.

An employee's actions are within the scope of his or her employment only if the purpose of such acts is to further the employer's interest, or to carry out the duties owed to the employer. Here the school district concluded that Teacher's actions with respect to the fifth cause of action set out in the Civil Action was within the scope of his employment and, therefore, offered a defense of the entire Civil Action but limited its duty to indemnify Teacher with respect to the fifth cause of action.

In this regard, the court said that the fact that some of the alleged conduct may have arisen in Teacher's performance of his duties does not require that he be indemnified for damages based on conduct that exceeds the scope of his employment. With respect to the allegations on which the second, third and fourth causes of action are based the school district concluded that such conduct is not within the scope of Teacher's employment.

With respect to Causes of Actions 2, 3 and 5, Supreme Court held that there was no basis for concluding that Teacher's conduct, allegedly constituting an intentional tort, amounted to acting in good faith or that such conduct was merely the result of Teacher’s inartfully trying to fulfill his duties. Similarly, said the court, no reasonable argument may be made that such conduct either furthers the school district's legitimate interests or was required for Teacher to carry out his duties.

Finding that the school district had a rational basis for concluding that the conduct alleged in Causes of Action 2, 3 and 4 were not performed within the scope of Teacher's employment, the court ruled that the school district has no duty to indemnify Teacher with respect to those three causes of action. 

Supreme Court then “ordered that [the school district] provide Teacher with a defense of the underlying action and indemnity for damages arising from the fifth cause of action asserted therein” and dismissed the remainder of Teacher’s petition with prejudice.

* Teacher’s notice of petition and relief sought was deemed amended to conform to the proof (seeCPLR 3025[c]), by changing "3028" to "3811" on the representation that citing 3028 was a scrivener’s error.

** The court noted that the phrase utilized in Education Law § 3811 — "arising out of the exercise of his powers or the performance of his duties under this chapter" — is equivalent to the term "scope of employment," "scope of employment," "discharge of duties," "performance of duties," and similar phrases are interchangeable citing Segal-Cotler v Board of Education, 20 NY3d 671.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_52173.htm

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