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Due process requirements - filing an employer?s application for disability retirement

By Harvey Randall, Esq.

Due process requirements - filing an employer?s application for disability retirement
Matter of Davis v County of Westchester, 42 A.D.3d 791, Appeal dismissed, sua sponte, 9 N.Y.3d 953

Lemuel A. Davis was employed as a Westchester County correction. He injured his back at work in May 1993 when he tripped on the leg of a desk. He did not return to work, but he continued receiving full pay and benefits pursuant to General Municipal Law Section 207-c(1).

Westchester County submitted an application seeking disability retirement benefits to the New York State Employees? Retirement System on Davis? behalf. It did so without Davis? consent to having such an application submitted to the Retirement System on his behalf. The application was approved and Davis began receiving disability retirement benefits in lieu of his full-salary benefits under General Municipal Law Section 207-c 1).

Davis then asked for a hearing and redetermination of the Retirement and Social Security Law Article 15 disability application that Westchester had unilaterally submitted. He also initiated an Article 78 proceeding alleging, among other things, that his due process rights were violated by the County when it submitted an employer application for him to receive disability retirement benefits and also when the County discontinued his General Municipal Law Section 207-c(1) benefits.

Supreme Court dismissed Davis? Article 78 petition on the grounds that he failed to exhaust his administrative remedies and that his petition did not state a cause of action.

The Appellate Division agreed, citing Walton v NYS Department of Correctional Services, 8 NY2d 186. In Walton, the Court of Appeals said that ?[t]hose who wish to challenge agency determinations under [CPLR] Article 78 may not do so until they have exhausted their administrative remedies.?

The Appellate Division noted that ?Comptroller?s preliminary decision to grant disability retirement benefits is currently being reviewed pursuant to Retirement and Social Security Law §74 (d) and a ?final determination? under that statute has not yet been rendered.?

As to Supreme Court?s ruling that Davis failed to state a cause of action with respect to his claim that the County violated his due process rights, the Appellate Division said that it had earlier ruled that General Municipal Law §207-c benefits ?can be extinguished when the recipient retires, even where the recipient?s retirement benefit is less than the full-salary benefit provided by section 207-c.? and that Section 207-c ?expressly gives the municipality the authority to apply for a correction officer?s retirement without the officer?s consent.?

While the court agreed that Section 207-c disability payments constitute a property interest giving rise to procedural due process protection, the Appellate Division said that in the absence of a procedure being established through collective bargaining, a municipality is may establish a hearing remedy so long as its procedure affords due process.

Although Davis is entitled to notice when a municipality exercises its specific statutory authority to apply for the officer?s retirement without the officer?s consent, this does not mean that the individual is entitled to a hearing process separate from the proceeding before the Comptroller.

Davis also contended that he was denied due process because he was unaware of the County?s application filed on his behalf until he received the Comptroller?s preliminary determination granting him Retirement and Social Security Law Article 15 disability retirement benefits.

Although a ?total failure to afford a correction officer any notice that an application is being made on the officer?s behalf would not be countenanced since it would deprive the officer of the opportunity to submit information he or she deemed relevant to the Comptroller,? in this instance the court found that Davis? petition itself stated that prior to the Comptroller?s preliminary determination, he received notice from the County to submit to a medical examination by a physician retained by the Retirement System. Accordingly, the Appellate Division ruled that this constituted the required ?notice prior to the preliminary determination? sufficient to satisfy administrative due process.

As to Davis? claim that his due process rights were violated when the County removed him from the payroll based on the Retirement Systems preliminary determination, the Appellate Division said that ?[t]he County?s actions in such regard fully complied with the statute and, if [Davis] ultimately prevails in having the Comptroller?s preliminary determination reversed, he will be entitled to retroactive Section 207-c benefits (minus appropriate set offs).?

Full post as published by New York Public Personnel Law on April 15, 2008 (boomark / email).