Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Gilles v DiNapoli, 2015 NY Slip Op 09342, Appellate Division, Third Department

Peter Gilles, a member of the Town of Greenburgh Police Department, received overtime pay for occasionally volunteering to work “special-duty details.” These special-duty details involved police services provided to private entities that paid the Town for such services.

Upon his retirement, the New York Stateand Local Retirement System notified Gilles that the compensation he received for such special-duty detail services would not be included in determining his final average salary for retirement allowance purposes.

Gilles objected and a hearing was held. The Hearing Officer ruled that Gillles’ compensation for working on special-duty details would not be included in determining his final average salary.

The Comptroller affirmed the Hearing Officer’s determination stating, in part, that Gilleshad "failed to sustain his burden of proving that he [was] eligible to have included in the calculation of his final average salary those payments received for services rendered to private entities and for which the employer [was] reimbursed by the private entities."

Stated another way, the Comptroller concluded that that Gilles did not provide services to the police department while he was on such special-duty details.

Gilles then filed a petition pursuant to CPLR Article 78 challenging the Comptroller's determination.

The Appellate Division rejected Gilles’ appeal noting that “The relevant issues [in Gilles] are the same as in [its] recently decided case of Matter of Tamucci v DiNapoli (133 AD3d 960 [2015]), and, for the reasons set forth therein, [it] confirm” the Comptrollers decision.

NYPPL’s summary of the Tamucci decision is posted on the Internet at http://publicpersonnellaw.blogspot.com/2015/11/overtime-paid-to-police-officer-for.html

In that posting it was noted that an off-duty police officer injured while he or she was off-duty and working for a private employer may not be eligible for General Municipal Law §207-c benefits or Retirement and Social Security Law accidental disability or service disability retirement benefits.

Further, a police officer off-duty and working for a private employer may not be eligible for "defense and indemnification" by his or her public employer pursuant to §18 of the Public Officers Law should he or she be sued concerning an event that occurred in the course of his or her working for a private employer.

The Disability Benefits E-book – 2016 Edition This electronic handbook addresses similar situations. For more information click on http://section207.blogspot.com/

The Tamucci decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08027.htm 

The Gilles decision is posted on the Internet at:
 http://www.nycourts.gov/reporter/3dseries/2015/2015_09342.htm

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Comptroller has the exclusive authority to weigh the evidence and credit the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement

Comptroller has the exclusive authority to weigh the evidence and credit the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement

Sugrue v New York State Comptroller, 2015 NY Slip Op 09595, Appellate Division, Third Department

Michael G. Sugrue, a correction officer, suffered injuries at work and applied for disability retirement benefits pursuant to Retirement and Social Security Law Article 15.

Sugrue claimed that he was permanently incapacitated from performing his job duties as the result of injuries he suffered to his right shoulder, his right wrist and middle fingers of his right hand. Following a hearing, the Hearing Officer found that Sugrue failed to establish that he was permanently incapacitated from performing his job duties.

The State Comptroller adopted the Hearing Officer's findings and denied Sugrue’s application for accidental disability retirement benefits and Sugrue filed an Article 78 petition seeking to have the court vacate the Comptroller’s determination.

Sugrue’s medical expert witness, a neurologist, opined that Sugrue was permanently disabled from the performance of his job duties “due to a median nerve injury at the right wrist, evidenced by positive Phalen's maneuver and Tinel's sign test results, an inability to flex and extend the first three fingers of his right hand and right carpal tunnel syndrome, finding that carpal tunnel surgery performed on petitioner was unsuccessful.”

On the other hand, the Retirement System’s medical expert, an orthopedic surgeon, found that Sugrue “had full range of motion of his shoulder, right wrist and fingers and concluded that [Sugrue’s] carpal tunnel syndrome was treated successfully and had resolved.”

Based on his findings, the System’s expert opined that Sugrue was not permanently disabled from performing the duties of a correction officer. The Appellate Division also noted that the System’s expert performed an independent medical examination of Sugrue and concluded that “based upon negative Phalen's maneuver and Tinel's sign test results, [Sugrue’s] range of motion and a lack of swelling of the wrist, that no further treatment to petitioner's right wrist was necessary.”

The Appellate Division confirmed the Comptroller’s decision, explaining that Sugrue bore the burden of establishing that he was permanently incapacitated from performing his job duties. "Where, as here, there is conflicting medical evidence, the Comptroller is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another."

The court said that inasmuch as the Retirement System’s expert offered a rational, fact-based opinion based upon a physical examination and a review of Sugrue's medical records, the Comptroller's denial of benefits is supported by substantial evidence and will not be disturbed, despite the existence of other evidence to support a contrary conclusion.

The court then turned to Sugrue’s remaining claims, including his claim that the Hearing Officer should have recused himself, and “found to be without merit.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09595.htm

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

New York City Dept. of Environmental Protection v Giacia, OATH Index No. 211/16, [Memorandum Decision]

In the course of an employee disciplinary proceeding, the New York City Department of Environmental Protection asked New York City Office of Administrative Tribunals and Hearing Administrative Law Judge John B. Spooner to recuse himself, alleging that Judge Spooner was bias against the agency.

The Department had earlier made similar motions in two prior cases presided over by Judge Spooner in which it alleged Judge Spooner had made statements demonstrating “enmity towards the agency.”

Judge Sooner found that the statements attributed to him did not suggest bias or prejudice against the agency but were simply relevant to determining the appropriate penalty, noting that the fact that he had agreed with some of the arguments made by the employee’s counsel when assessing the penalty to be imposed was not a basis for finding bias against the Department. The Department’s recusal motions in those hearing were denied.

Judge Spooner noted that OATH rules provide that an OATH administrative law judge “shall be disqualified for bias, prejudice, interest, or any other cause for which a judge may be disqualified in accordance with §14 of the Judiciary Law.”*

None of the remarks quoted, said Judge Spooner, demonstrate “bias” or “prejudice” against the Department, noting that “The remark that the Department alleged displayed some 'animus toward [the Department]' was based upon statements made during the disciplinary hearing “to explain the factors considered in arriving at a penalty recommendation and for no other purpose, any more than sustaining disciplinary charges would be a basis for finding bias against all employees.”

Citing Jump v Jump, 268 AD2d 709, Judge Spooner noted that, in general, “a judge’s presiding over and rendering decisions in prior cases involving one of the parties has not been held to warrant recusal or disqualification.”

In People v Glynn, 21 NY3d 614, the Court of Appeals said that “Unless disqualification is required under Judiciary Law §14, a judge's decision on a recusal motion is one of discretion.”

*§14 of the Judiciary Law provides for the “Disqualification of judge by reason of interest or consanguinity.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-211md.pdf