Designation of a representative in writing found critical to making a lawful determination

Designation of a representative in writing found critical to making a lawful determination Matter of Richards v City of Binghamton, 2011 NY Slip Op 00306, Appellate Division, Third Department James Richards, a City of Binghamton firefighter, was receiving benefits pursuant to General Municipal Law §207-a as a result of his suffering a job-related disability. Binghamton's independent medical examiner subsequently determined that Richards was capable of returning to modified duty with specific restrictions and Fire Chief Daniel Thomas sent Richards a letter directing him to complete certain medical procedures and tests "within 30 days and report to work for light duty on a date six days from the date of the letter." Richards was also advised that he had 10 days to appeal the determination by submitting a written request for appeal, accompanied by medical documentation that he was unable to perform light duty tasks. Richards "was away on vacation" when Chief Thomas sent him the letter was sent and it was not received until after the deadlines for him to report to work or appeal had passed. Ultimately the city terminated Richards' §207-a benefits following a number of communications and Richards sued, complaining that Binghamton failed to "comply with proper procedures." Supreme Court agreed and directed the city to "continue paying benefits," ruling that Richards was entitled to a hearing. The Appellate Division agreed, holding that "Because [Binghamton] did not comply with its own procedures prior to terminating [Richards'] benefits, Supreme Court properly annulled the determination." The court noted that "A municipality is entitled to order medical examinations of a firefighter who is receiving benefits and direct the employee to return to light duty work if medically able (see General Municipal Law § 207-a [1], [3])." Further, said the court, a municipality may terminate benefits if a firefighter refuses to report for such work, citing General Municipal Law §207-a[3]. Although §207-a does set out a procedural framework that must be followed for such determinations, it does permit "each municipality to formulate its own procedure consistent with the demands of due process" and such procedures may be established through collective bargaining. In this instance, said the Appellate Division, the collective bargaining agreement [CBA] between Richards' union and Binghamton provides that disagreements concerning determinations, other than initial determinations, – including whether a firefighter is able to perform light duty work – "will be resolved in accordance with the current City procedure using an impartial hearing officer." The CBA, however, did not define what constituted the "current City procedure" and the parties did not agree on the meaning of that term. This did not create any insurmountable obstacle for the court, however, as the Appellate Division held that "Even if we accept [the city's] contention that the CBA incorporates an undated document entitled Firefighter's and Police Officer's Disability Procedure (FPODP) as the current procedure, [the city] cannot prevail because it failed to comply with the FPODP. The FPODP provided, in pertinent part, that "the Commissioner shall order the individual to report for such available modified duty." Further, the parties agreed that Binghamton's mayor is the "Commissioner," although that term is defined to also include "an agent appointed by" the Commissioner and so designated in writing by the Mayor.* The Appellate Division found that because the record did not contain any written designation by the mayor granting "an agent" authority to perform the functions of the Commissioner, Chief Thomas did not qualify as the Commissioner's agent. Accordingly, said the court, Thomas's letter does not constitute an order by the Commissioner, so Richards' "noncompliance with that letter" cannot serve as a proper basis for discontinuing benefits. Further, assuming that Chief Thomas' letter was proper, the FPODP merely requires an individual who disagrees with the Commissioner's determination regarding a modified duty assignment to serve the Commissioner with "a demand for a hearing," It does not mention any supporting medical documentation is required to perfect such a demand. Accordingly, the Appellate Division rejected the city's argument that "pursuant to case law, [Richards] was not entitled to a hearing because he did not provide medical proof that he is unable to perform modified duties. The court ruled that the case law cited by Binghamton, which included Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, was inapplicable as the city had chosen "a procedural framework that does not require that medical proof be submitted along with the hearing request." * The designation of an "agent" in writing may critical in other situations as well. For example, Section 75.2 of the Civil Service Law permits an appointing authority to designate "a deputy or other person … in writing" to conduct a disciplinary hearing for the purpose of making findings of fact and recommendations concerning the disposition of the charges filed against the employee and the penalty, if any, to be imposed. The importance of naming a hearing officer in writing is demonstrated by Perez v NYS Dept. of Labor, 665 NYS2d 714. Citing the Court of Appeals ruling in Wiggins v Board of Education, 60 NY2d 385, the Appellate Division said that because there was no written designation appointing the hearing officer, the appointing authority "lacked jurisdiction" to maintain the initial disciplinary proceeding" against Perez. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00306.htm =================== For additional information about concerning administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder go to: http://booklocker.com/books/3916.html ===================

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