Lawyer: Affirms Fund’s Powers Drug-Using Ex-Cop’s Win Stirs Wrath, Pension Flap

May 2, 2011 at 8:50pm

By MARK TOOR | 0 comments

A state Court of Appeals ruling that preserves the disability pension of an ex-cop who was ruled healthy but can’t go back to the Police Department because he tested positive for cocaine is a victory for the independence of the pension system, said the former officer’s attorney.

After the test, the city Law Department instructed the Police Pension Fund’s board of trustees to revoke the $52,365 pension, Robert A. Ungaro said in an interview. That violates the law governing the pension system, he said: “The court definitely said that pensions are the Board of Trustees’ responsibility, not the Corporation Counsel’s.”

 

City Can’t ‘Dictate’

 

The 12-member pension-fund board is evenly split between city officials and union representatives, he said. The Corporation Counsel represents the city. “He serves the employers, not the employees,” Mr. Ungaro said. To allow the Corporation Counsel to “dictate” to the board, he said, would effectively give the city control of the pension system.

 

Mr. Ungaro cited a similar case involving the Captains Endowment Association, which was also represented by his firm, Ungaro and Cifuni. In that case, the CEA president, Dep. Insp. Roy Richter, who sits on the board, asked it to vote on an interpretation of the pension law. The city representatives on the board refused to do so, saying that the Corporation Counsel had already issued an interpretation, and that because the Counsel was the exclusive agent for city pension business, the board was prohibited from weighing in.

 

State Supreme Court Justice Cynthia S. Kern ruled for Mr. Richter, saying the provision of the City Charter cited by the city’s representatives does not prohibit the board from interpreting statutes. The city is appealing the decision.

 

The facts of the case concerning ex-cop James J. Seiferheld caused an outcry from some who say civil-service pensions are too generous.

 

‘Web of Irrational Laws’

 

“The case shows the complex web of irrational laws that can often protect people who seek to fraudulently gain taxpayer-funded disability pensions,” Marc LaVorgna, a spokesman for Mayor Bloomberg, told the New York Post.

 

A Daily News editorial called the ruling “blood-boiling” and said it was “further evidence that New York’s retirement system for government workers is out of control.”

 

Even the court’s majority ruling expressed some disappointment, writing, “While we recognize the technical merit of petitioner’s argument, we express our distress at the way the system has malfunctioned in this case.” The ruling said the case raised doubt about whether the former officer was ever really disabled.

 

Mr. Seiferheld was awarded a three-quarters disability pension in 2004 after reporting that he had fallen walking on ice and snow while on duty. Mr. Seiferheld, an 11-year veteran, said he had constant pain and had lost range of motion in his neck and shoulder.

 

In 2005, investigators videotaped Mr. Seiferheld installing vinyl siding, lifting sections of siding and nailing them above his head, according to court papers. The pension fund’s medical board re-interviewed Mr. Seiferheld, who said he still could not lift heavy objects or work with his arms over his head.

 

Coke Quenched Work Eligibility

 

In 2007, the Pension Fund voted him eligible to return to work for the city, but because his hair sample tested positive for cocaine he was ruled “medically disqualified” for a job with the NYPD. A week later, the Law Department told the Pension Fund that Mr. Seiferheld “is no longer deemed to be disabled, and he is no longer entitled to a disability pension.” Without a board vote, a Pension Fund official told him his benefit would be suspended.

 

“However well-justified a reduction or termination of benefits may be in this case, the board of trustees has to do it,” the Appeals Court ruled.

 

In the interview, Mr. Ungaro noted that, as a retiree, his client was not subject to the NYPD’s rules of conduct. “Petitioner was never convicted nor even charged with any criminal, disciplinary or administrative violation,” he said in the appeals brief. “...Even a felony conviction does not affect a pensioner’s rights to their civil-service benefits.” Further, he said, drug testing is required only for sensitive positions, and the city could have given him a less-sensitive civil-service job.

 

“We are studying the decision and have taken note of the court’s questioning of whether Mr. Seiferheld was ever disabled and its emphasis on the board’s duty to protect public funds,” said Paul Rephen, the city’s Executive Assistant Corporation Counsel. “Upon further review, we will advise the board consistent with the court’s decision.”

 

In a statement relayed by Mr. Ungaro, Mr. Seiferheld said, “I’m very grateful the state’s highest court decided to rectify this wrong.”