Termination of a public employee based on conduct that, if proven in a court of law, would have constituted a felony.

Supreme Court denied the petition to annul an arbitration award that sustained the employee's [Petitioner] termination from employment and dismissed the proceeding brought pursuant to CPLR Article 75. The Appellate Division sustained the lower court's determination.

The termination of the Petitioner was based on conduct that, if proven in court, would have constituted a felony but was not against public policy. The Appellate Division explained that although Correction Law Article 23-A provides that "no employment . . . held by an individual . . . shall be . . . acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses. here observed the court, the conviction at issue occurred during Petitioner's employment and was not within the ambit of Article 23-A of the Correction Law.

Further, said the court, New York City's Human Rights Law (NYCHRL)* provides that it an unlawful discriminatory practice to "take adverse action against any employee by reason of such ... employee having been convicted of one or more criminal offenses" as that provision only applies in situations were the adverse employment actions based on arrests or criminal accusations are "in violation of subdivision 16 of section 296 [of the Correction Law]. Nor should an individual suffer adverse consequences "merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law." Significantly, the Appellate Division noted that the Petitioner had pled guilty to the offending acts and thus they were more than accusations.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division concluding that the denial of Petitioner's request for reinstatement to his employment was not arbitrary and capricious as under the governing regulations** the appointing authority "may consider such application but is not required to do so, and any approval thereof is discretionary."

The court then opined "It was not irrational for [the appointing authority] to conclude that in seeking reinstatement [P]etitioner merely sought to relitigate issues presented approximately six weeks before his reinstatement request, and decided three weeks beforehand by a neutral arbitrator in the grievance proceeding pursuant to a collective bargaining agreement, which resulted in his termination."

* See Administrative Code of City of NY §8-107[10][a].

** Personnel Rules and Regulations of City of NY [55 RCNY Appendix A] §6.2.6[a]-[b].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01008.htm

The Steel Bar: Pittsburgh Lawyers and the Making of America

Author Ron Schuler accurately characterizes his book, The Steel Bar: Pittsburgh Lawyers and the Making of America, as sounding like modern America. Indeed, each of the issues addressed in this work explore the historical drama of a developing United States "[f]rom the Whiskey Rebellion through the bloody Homestead Strike, to the Johnstown Flood, the creation of the world’s largest corporation, the witch hunts against anarchists in the 1910s and Communists in the 1950s, to a seminal constitutional battle over the rights of workers, a 20-year long federal antitrust prosecution, and the suspicious suicide of a district attorney accused of graft.

"The Steel Bar is the epic story of the rise and fall and rebirth of the Pittsburgh lawyer, from the earliest days of the Pittsburgh bar to the modern era, against the backdrop of American history." 

More at https://www.steelbarpittsburgh.com/book.

Among the reviews of this book posted on the Internet are the following: 

https://www.booktopia.com.au/the-steel-bar-ron-schuler/book/9781733184113.html

https://triblive.com/local/pittsburgh-allegheny/book-details-history-of-allegheny-countys-legal-community/

An employee suffering an injury on his way to work is not in service for the purposes of qualifying for accidental or performance of duty disability retirement benefits

The New York State and Local Police and Fire Retirement System [LPRFS] denied a state park police officer's [Officer] application for performance of duty disability retirement benefits. Officer had alleged that he was permanently incapacitated from the performance of his duties as a result of a slip and fall on his employer's premises. 

Officer requested and was granted a hearing. The Hearing Officer sustained the LPRFS denial, find that Officer was not in service at the time he suffered his injuries. The State Comptroller accepted the findings and conclusions of the Hearing Officer, and Officer filed a CPLR Article 78 challenging the Comptrollers decision.

The Appellate Division, noting that the claimant bears the burden of proving that he was [1] "[p]hysically or mentally incapacitated [from] performance of duty as the natural and proximate result of a disability . . . sustained in such service"; and [2] whether he actually "was in service turns on whether he . . . was performing job duties at the time of the injury," said that the Comptroller is vested with the exclusive authority to determine all applications for retirement benefits, including whether an injury was sustained while in service, and that determination will be upheld if supported by substantial evidence.

Officer's testimony at the hearing, said the court, made it apparent that he was actually on his way into work at the time he suffered his injury rather than being "on duty and at work" as he stated in his application for benefits. Further, citing a number of decisions, the Appellate Division pointed out that it had upheld findings that an employee who is injured before reporting for work and commencing his duties is not "in service" when the injuries were sustained within the meaning of the Retirement and Social Security Law.

Opining that the Comptroller's determination that Officer was not in service at the time he sustained his injury was "supported by substantial evidence," the Appellate Division said it declined to disturb it.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_09079.htm

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

_____________

Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on:
 http://booklocker.com/books/3916.html

Pension boosting offered to encourage retirement or to encourage an individual not to retire may not be “pensionable compensation” for the purposes of the Retirement and Social Security Law

The Court of Appeals sustained the New York State Comptroller’s decision that a New York - New Jersey Port Authority [Authority] compensation adjustment program [Program] that “artificially enhanced certain employees' final average salaries”* were not “pensionable compensation” under Retirement and Social Security Law §431(3).** The Authority’s Program served “to increase ... retirement benefits” for employees and thus, said the Court, "any additional compensation paid in anticipation of retirement" must be excluded from final average salary calculations.”

The Court opined that “[g]overnment pensions are based on employees' regular average salaries. All New York State employees rely on the integrity of the pension system. The protection against its manipulation is one of the Comptroller's primary responsibilities.

The genesis of the Program was a statutory retirement incentive program*** that offered additional pension benefits to certain public employees if they retired before the end of the 2002. The purpose of the retirement incentive was "to achieve cost-savings for public employers and to avoid layoffs of public employees in th[e] time of fiscal need" following the September 11 attacks. However the Authority employees [Petitioners] in this CPLR Article 78 action were key executives of the Authority and  exempted from the Program. As an alternative, the Authority’s Chief Administrative Officer [CAO] recommended "a compensation adjustment program" that would "achieve [an] equivalent level of pension benefit for" employees, including [the CAO] who would be exempted from the retirement incentive.”

A Retirement System member's pension benefit depends upon their final average salary, i.e., "the average salary earned by … a member during any three consecutive years which provide the highest average salary" (Retirement and Social Security Law §443 [a]). The CAO suggested a salary increase to replicate the level of pension benefit that the executive employees would not otherwise be able to receive and the CAO’s proposal was adopted as a "retention program" the Petitioners signed letter agreements acknowledging their exemption from the retirement incentive and their acceptance of the "retention program," which was described as being "designed to provide a limited number of staff members with a parity' benefit" and received “the promised pay raises, which ranged from 4.5% to 11% of salary and were included in biweekly payroll checks, for periods ranging from nine months to ten years.”

Subsequently all Petitioners received determination letters from the New York State and Local Employees Retirement System [ERS], stating that the compensation adjustment payments should have been, or (in the case of the last three) would be, excluded from final average salaries for pension calculation purposes. ERS explained that the allowances were "retention payments made to delay retirement," and constituted "compensation paid in anticipation of eventual retirement." RSSL §431, however, provides that "[i]n any retirement or pension plan to which the state or municipality thereof contributes, the salary base for the computation of retirement benefits shall in no event include … any additional compensation paid in anticipation of retirement" (Retirement and Social Security Law §431 [3].”

The Hearing Officer found that the Authority had given "each of the applicants additional compensation to increase their final average salaries so that their pensions would equal what their pensions would have been had they been eligible for the retirement incentive and taken it in December 2002" and ruled that the ERS had acted reasonably in excluding the allowance payments from final average salary, concluding that ERS "had the authority to determine what payments were excludable as . . . made in anticipation of eventual retirement . . . , whether the applicant joined ERS before or after the effective date of § 431." The Executive Deputy Comptroller adopted these findings and conclusions and denied petitioner employees' applications for reconsideration.

The Appellate Division annulled the Comptroller's determination, granted the petition, and remitted the matter to the Retirement System (164 AD3d 1038 [3d Dept 2018]). The Court concluded that the "payments are more appropriately characterized as . . . made to delay petitioners' retirements, not to artificially inflate their final average salary in anticipation of retirement."****

RSSL §431 provides that "retirement benefits are to be computed on the basis of an employee's regular salary and not on any kind of termination pay or other form of additional compensation paid in anticipation of retirement." The salary base for the computation of retirement benefits “shall in no event include any of the following earned or received, on or after April first, nineteen hundred seventy-two:”

1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked;

2. Any form of termination pay;

3. Any additional compensation paid in anticipation of retirement; or

4. That portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum."

However “pension boosting” may be made available to encourage individuals “to retire early” by promising an enhanced pension or may be offered in other contexts, including in exchange for a promise not to retire, as demonstrated by the decision in Thompson v New York State Teachers' Retirement Sys., 78 AD3d 1456.

Finding that the record contains substantial evidence supporting the Comptroller's determination that the Authority provided the compensation adjustments “to artificially increase the executive employees' final average salaries so that, upon retirement, they would receive pension increases roughly equivalent to those they would have received under the retirement incentive program” and supports the conclusion that the compensation, by design, was made in anticipation of petitioner employees' retirement within the meaning of the statute, the Court of Appeals reversed the ruling of by the Appellate Division and dismissed the petition.

* The decision characterizes such employees as “ executive employees” of the Authority.

** The Authority is a participating employer in the New York State and Local Employees Retirement System.

*** See Chapter 69 of the Laws of  2002.

**** See 164 AD3d at 1040.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_00997.htm