An employee found eligible for accidental disability retirement after an accident at work aggravated a dormant medical condition

An employee found eligible for accidental disability retirement after an accident at work aggravated a dormant medical condition

Petras-Ross v DiNapoli, 2019 NY Slip Op 00939, Appellate Division, Third Department

A school crossing guard [Petitioner] employed by the Suffolk County Police Department was assisting a child cross the street when she was struck by a passing vehicle and was knocked to the ground. She got up, continued to escort the child and reported the incident to her supervisor. Subsequently Petitioner obtained medical treatment and underwent physical therapy, eventually returning to full-time work. Continuing to suffer pain while performing her duties, Petitioner ultimately stopped working completely and filed an application for accidental disability retirement benefits pursuant to Retirement and Social Security Law Article 15 claiming that she was permanently incapacitated due to back injuries that she sustained in the accident.

The New York State and Local Retirement System [ERS] denied her application on the ground that her disability was not the natural and proximate result of the accident. A Hearing Officer denied her application on the same ground following a hearing and the Comptroller later adopted the Hearing Officer's findings and decision. Petitioner sued, challenging the Comptroller's denial of her application for accidental disability retirement benefits.

The Appellate Division, noting that both Petitioner and ERS "concede that [Petitioner] is permanently incapacitated from performing her duties," said that the only issue to be resolved is whether Petitioner met her burden of demonstrating that her  back injuries were causally related to the accident.

The court said that the medical experts who examined petitioner all agreed that she suffers from degenerative disc disease of the lumbar spine but provided conflicting medical opinions as to the cause of Petitioner's disabling back condition. 

Noting that the Comptroller retains the authority to resolve conflicting medical opinions and may credit the opinion of one expert over another, the Appellate Division said that the expert medical opinion relied upon by the Comptroller in making the decision must be a "rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records."

In this instance, however, the Appellate Division found that the ERS' medical expert's opinion was not substantiated by the record developed by the Hearing Officer and "documented in the police report, [Petitioner's] disability retirement application and certain medical records." In addition, Petitioner had testified at the hearing that she had sustained trauma to her back and that she felt pain in her back the day after the accident and the medical records reveal that she verbalized her complaints of back pain following the accident.

In the words of the court, "although [ERS' medical expert] correctly observed that [Petitioner] returned to work ... he disregarded the fact that she stopped working completely ... because she continued to experience significant pain in various parts of her body, including her back."

Accordingly, the court found that ERS' medical expert did not provide a rational, fact-based opinion supporting the denial of Petitioner's application for accidental disability retirement, explaining that although the medical evidence suggests that Petitioner suffered from an underlying degenerative back condition that was asymptomatic, "when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability."

Concluding that the Comptroller's determination was not supported by substantial evidence, the Appellate Division ruled that it must be annulled and remitted the matter to the Comptroller "for further proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00939.htm

Termination of employment recommended by the Administrative Law Judge after finding the employee guilty of insubordination and incompetence

Termination of employment recommended by the Administrative Law Judge after finding the employee guilty of insubordination and incompetence

Dep't of City Planning v. Kelly, OATH Index No. 516/19

A New York City city planner was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging multiple instances of insubordination, incompetence, and calling 911 to have police respond to an incident with her supervisor.

OATH Administrative Law Judge John B. Spooner sustained most of the insubordination charges and the incompetence charge. The ALJ, however, noted that "references to insubordination on 'more than one occasion' in charge I, specification 9, without any further date reference, as well as the reference to harassing behavior on 'multiple occasions' in charge II, specification 2, with vague date references to November 2017 and after July 2018, provide more confusion than information as to what specifically is being alleged as misconduct."*

In addition, Judge Spooner found that as the result of the deficient pleading, "one minor act of discourtesy contained in [the appointing authority's] proof cannot be sustained as misconduct."

Ultimately Judge Spooner found that during a four- month period the planner failed to complete three successive assignments, although she was provided with several weeks to do so.

As to the 911 call, the ALJ credited the supervisor's account that she unplugged the employee's earphones without touching her and that this provided no justification for the worker to summon the police.

Judge Spooner recommended that the employee be terminated, explaining that the employee's misconduct in this case demands a severe penalty in consideration of the employee's "hostile and arrogant treatment of her co-workers, supervisors and staff members alike [which] demonstrates a warped and irresponsible attitude toward her job [and the employee's] insubordination and deplorable work performance strongly suggest that she will never be a satisfactory employee." The appointing authority adopted the ALJ's findings and recommended penalty.

* The employee's motion to dismiss was denied as [1] all of the specifications included at least one date and the ALJ ruled that the employee was placed on adequate notice of specific incidents by the discovery provided by appointing authority. In any event, the Judge Spooner noted that "the appropriate remedy for poorly pleaded charges is more typically an order compelling an amended pleading, not dismissal" of charges and specifications.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-516.pdf

Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law

Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law

Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 2019 NY Slip Op 01170, Appellate Division, First Department

Pursuant to New York State's Civil Rights Law §50-a, the personnel  records  of sworn police  officers used   to   evaluate   performance  with respect to an officer's continued employment or promotion "shall be considered confidential and not subject to inspection or review  without the express written consent of the police officer except as may be mandated by lawful court order."*

The Patrolman's Association of the City of New York [PBA] challenged New York City's [City] public release of police department body-worn-camera footage without a court order or the relevant officer's consent. Supreme Court denied the PBA's motion for a preliminary injunction on the grounds that the PBA "could not maintain this hybrid action because there is no private right of action under Civil Rights Law §50-a."

PBA appealed the Supreme Court's ruling. The Appellate Division unanimously affirmed the result of the lower court's decision, the release of the camera footage to the public could not be suppressed, but for a significantly different reason.

The Appellate Division agreed that although §50-a does not provide a private right of action, this does not serve to preclude review of the PBA's request for injunctive relief in an Article 78 proceeding "because the statute creates protected rights (for police officers) and does not explicitly prohibit a private right of action or otherwise manifest a clear legislative intent to negate review." However, said the court, PBA's petition must be denied because body-worn-camera footage at issue does not constitute a personnel record within the meaning of §50-a.

The Appellate Division explained that in order to determine whether something is a "personnel record" within the meaning of §50-a of the Civil Rights Law, the threshold question is to determine whether the documents are "of significance to a superior in considering continued employment or promotion." In this instance the court decided that "given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a" but rather satisfies other key objectives of a body camera program such as "transparency, accountability, and public trust-building."

Citing  Matter of Prisoners' Legal Servs., 73 NY2d 26, the Appellate Division noted that the Court of Appeals has held that, in the context of a FOIL disclosure of an officer's personnel records, preventing such disclosure requires more than merely demonstrating that the document "may be used" to evaluate performance.

Rejecting the PBA's argument that "the body-worn-camera was designed in part for performance evaluation purposes and is clearly 'of significance' to superiors in considering employment or promotion" and a finding that body camera footage "is not a personnel record" would result in an unprecedented invasion of privacy, the Appellate Division explained that "given its nature and use," the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a. The footage here, said the court, is more in the nature of an arrest or stop report, "not records primarily generated for disciplinary and promotional purposes."

In the words of the Appellate Division, "[a]lthough the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes."

* The provisions of Civil Rights Law §50-a also extend to a sworn officer in a sheriff's department, a firefighter, a firefighter/paramedic, a correction officer or peace officer serving with a department of corrections and community supervision or a probation department except as may be mandated by lawful court order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01170.htm

Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service

Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service

Sokol v New York City Civ. Serv. Commn., 2019 NY Slip Op 01314, Appellate Division, First Department

The New York City Civil Service Commission determined that Plaintiff, a candidate seeking appointment as a New York City police officer, was not qualified for the position. Supreme Court dismissed Plaintiff's CPLR Article 78 action challenging the Commission's decision and Plaintiff appealed.

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's Article 78 action. Citing Matter of Smith v City of New York , 228 AD2d 381,  the court explained that "Wide discretion is afforded to civil service commissions in determining the fitness of candidates," and "[t]he exercise of that discretion is to be sustained unless it has been clearly abused."

Noting that Plaintiff had not shown that the Commission's decision disqualifying Petitioner for appointment to the position of police officer was arbitrary and capricious or made in bad faith. Rather, said the Appellate Division, the Commission's determination was rationally based on a number of factors, including, but limited to, Plaintiff's making inaccurate relevant statements in application forms.

§50.4 of the Civil Service Law provides that the State Civil Service Department and appropriate municipal civil service commissions may refuse to examine an applicant, or after examination to certify an eligible for appointment for a number of reasons, including, but not limited to, having been found to lack any of the established requirements for admission to the examination or for appointment to the position or having been found to have intentionally made a false statement of any material fact in his or her application.

No person, however, may be disqualified pursuant to §50.4 unless he or she has been given a written statement of the reasons such disqualification and allowed to submit an explanation and to submit facts in opposition to such disqualification.*

In addition, §50.4 authorizes the review of the qualifications and background of an eligible after he or she has been placed on an eligible list or has been appointed to a position from an eligible list and further provides:

 1.  An individual may be disqualified for the position to which he or she has been appointed "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification," or "upon a finding of illegality, irregularity or fraud of a substantial nature in his [or her] application, examination or appointment," and

 2. The Civil Service Department or the responsible municipal civil service commission may "revoke such eligible's certification and appointment and direct that his [or her] employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud."

* In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals noted that no §50.4 hearing is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01314.htm

San Francisco using algorithm to wipe out Marijuana convictions

San Francisco using algorithm to wipe out Marijuana convictions

By Christopher Coble, Esq. 

Mr. Coble's article is posted on the Internet at:

https://blogs.findlaw.com/legally_weird/2019/02/sf-using-algorithm-to-wipe-out-weed-convictions.html?DCMP=cons_top:nwl