Retired police officer seeking a special pistol carrying permit denied “retiree service letter”

Petitioner in this CPLR Article 78 action had asked his former employer [Respondent] for a “retiree service letter” that would assist Petitioner in obtaining a special pistol carrying permit. His former employer denied Petitioner’s request.

Supreme Court found that Respondent’s denial of Petitioner’s request for a retiree service letter was neither arbitrary or capricious, which ruling was unanimously  affirmed by the Appellate Division, which noted that Petitioner “had no right to issuance of" the retiree service letter "since his authority to carry firearms had been revoked … and had not been restored at the time he retired."*

Petitioner concedes that he was not authorized to carry a firearm under Respondent's policy at the time of his separation from employment, as he surrendered his firearm beforehand due to an injury and he failed to seek  reinstatement of such authorization. 

Further, opined the Appellate Division, Petitioner cannot demonstrate a violation of the Americans with Disabilities Act based on Defendant's refusal to issue the retiree service letter as Petitioner concedes that his injury rendered him unable to perform his duties as a law enforcement officer and there is no factual basis to conclude that Defendant’s decision was made in bad faith rather than as part of an across-the-board policy.

Nor, said the court, did Respondent’s denial of Petitioner’s request violate Petitioner's Second Amendment rights as such denial did not preclude him from applying for a permit under normal legal procedures.

* The Appellate Division’s decision notes that even assuming Petitioner had a private right of action under the Law Enforcement Officers Safety Act of 2004, Public Law 108-277, Petitioner cannot demonstrate that he met the qualification standards within one year of Petitioner’s retirement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01240.htm

Procedures concerning serving a second probationary period as an alternative to termination from the position

A Teaching and Research Center Nurse [Plaintiff] was permanently appointed to his position subject to the satisfactory completion of a one year probationary period. Plaintiff's initial period of probationary "was extended for six months" but he was ultimately terminated from his employment. 

Plaintiff brought a proceeding pursuant to CPLR Article 78 challenging this action by the appointing authority contending: 

[a] the six-month extension of his initial probationary term was not authorized under 4 NYCRR 4.5(b)(5)(ii) and thus he had attained tenure in his position and thus 

[b] he was entitled to certain protections pursuant to §75 of the Civil Service Law which were not provided to him.

Supreme Court denied Plaintiff's petition and dismissed the proceeding whereupon Plaintiff appealed the Supreme Court's ruling to the Appellate Division.  The Appellate Division affirmed the lower court's ruling, explaining, as relevant in this action:

1. The appointing authority was authorized to impose an initial probationary period of no more than 52 weeks, citing 4 NYCRR 4.5[b][2]).

2. 4 NYCRR 4.5[b][5][ii] provides that "[i]f the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service" but the he appointing officer may, as a matter of discretion, offer the probationer an opportunity "to serve a second probationary term . . . in a different assignment," which second probationary term may not be "less than 12 nor more than 26 weeks."

The Appellate Division then noted that the Court of Appeals in its decision in Palmer v Merges, 37 NY2d 177, observed that the rule authorizing a second probationary term, "if properly executed, is largely beneficial to the employee" and "[i]n determining whether another probationary term is necessary as the only alternative to dismissal, the administrator should be given latitude in defining a different assignment for purposes of fresh evaluation."

In this action, said the Appellate Division, the record demonstrates that the Plaintiff's initial probationary period was extended by "a second probationary term . . . in a different assignment" and Plaintiff failed to demonstrate that he did not actually serve the second probationary term in a "different assignment" or that the appointing authority's definition of that term was contrary to law.

Thus, opined the Appellate Division, Plaintiff's termination occurred while he was "still a probationary employee" and a probation employee who has completed the minimum period of probation may terminated "without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

As  Plaintiff failed to demonstrate that he was terminated in bad faith, for a constitutionally impermissible or illegal purpose, or in violation of statutory or decisional law, the Appellate Division said that "we agree with the Supreme Court's determination denying the petition and dismissing the proceeding."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01059.htm

Appointing authority's application for disability retirement filed on behalf of an employee injured on the job rejected

In this action to review a determination of New York State Employees’ Retirement System [NYSERS] denying an appointing authority’s [Petitioner] application for disability retirement benefits Petitioner filed on behalf of a Correction Officer [Officer] injured in the line of duty, the Appellate Division concluded that the NYSLERS determination “finding that [Officer] was not permanently incapacitated from performing the duties of a light-duty assignment” was supported by substantial evidence and thus “it will not be disturbed.”

Officer had sustained various injuries while attempting to subdue an inmate and underwent various surgical procedures. With the exception of performing light-duty work for one year, Officer remained out of work since the date of the incident, during which time Officer collected benefits pursuant to General Municipal Law §207-c. 

Ultimately Petitioner filed an application for disability retirement benefits upon the Officer's behalf.* Although NYSLERS had initially evaluated Petitioners' application based upon whether Officer was permanently incapacitated from performing the full duties of a Correction Officer, following receipt of additional documentation from Petitioners, NYSLERS concluded that Petitioners' application should be assessed under the light-duty standard set forth in 2 NYCRR 364.3 (b). A Hearing Officer reached a similar conclusion, finding, among other things, that denial of petitioners' application was warranted because Officer was capable of performing light-duty work. The Comptroller adopted the Hearing Officer's findings and conclusions, resulting in Petitioner’s filing a CPLR Article 78 proceeding to challenge the Comptroller's determination.

Citing 2 NYCRR 364.3 [b] which provides that in the event an employee "has been continuously assigned to light, limited or restricted duties for at least two years prior to the date [upon which the] application for disability retirement benefits was filed with the Comptroller . . ., the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment." the Appellate Division rejectected Petitioners argument that application of the cited regulation is arbitrary and capricious given that Officer actually worked in her light-duty assignment for less than one year and “did not work in any capacity after September 21, 2010,” the Comptroller has held that the phrase "continuously assigned" — as applied in the context of 2 NYCRR 364.3 (b) — "does not mean continuous performance and is not interrupted by absence[s] from work while on sick leave."

In other words, said the Appellate Division, “the dispositive inquiry is whether the employee has been continuously assigned to light-duty work — not, as [Petitioners] argue, whether such employee has in fact continuously performed the light duties to which he or she was assigned”.

As the record reflected that Officer was continuously assigned to a light-duty position beginning in October 2009 — even though Officer concededly did not work at all after September 2010 and given the continuous nature of Officer's assignment, the Appellate Division held that the light-duty standard set forth in 2 NYCRR 364.3 (b) was properly applied to Petitioners' application for disability retirement benefits filed on behalf of Officer.

* Petitioners were authorized to file such an application pursuant to General Municipal Law §207-c (2) and Retirement and Social Security Law §605(a)(2).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00904.htm

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