June 16, 2014

Mayor, Council Stand In Way of Improved Police/Fire Disability

Cost an Issue for Granting ‘75%’ Tax-Free Pension For Post-’09 Hires


The effort to gain cops and firefighters hired over the last five years the same meaningful disability-pension rights enjoyed by more-senior workers in those jobs may be stalled by Mayor de Blasio’s opposition to the legislation after a business-backed watchdog group warned of its potential cost.

The bill’s prime sponsor in the State Assembly, Peter J. Abbate of Brooklyn, said June 11 that he was pessimistic about getting equal treatment for newer cops and firefighters approved before the Legislature adjourns June 19 because the City Council appears unlikely to approve the necessary home-rule messages that would allow legislators to act on the bills.

‘Want Individual Bills’

Mr. Abbate, who chairs the Assembly Committee on Government Employees, said during a June 11 phone interview from Albany that during a meeting of Council leaders a week earlier, there was opposition to producing the home-rule messages for reasons that went beyond Mr. de Blasio’s stance against it.

“Some Council Members thought it was too expensive, some of the less-experienced ones wanted to do individual bills for anyone who’s affected,” he said.

The issue began to gather momentum a month ago with the hospital discharge of Police Officer Rosa Rodriguez, who spent six weeks in New York Presbyterian/

Weill Cornell Medical Center in Manhattan after suffering serious lung damage when she responded to a Coney Island housing-project fire April 6 along with her partner, Dennis Guerra—who died from his injuries.

Patrolmen’s Benevolent Association President Patrick J. Lynch said then that if Ms. Rodriguez, who has expressed the desire to return to work once fully recovered, is unable to do so, she would be the first police officer among those hired on or after July 1, 2009 to accept a disability pension that would be vastly inferior to the benefit equaling 75 percent of final year’s salary, tax-free that traditionally was awarded to those forced to retire due to line-of-duty injuries.

‘Immoral’ Expectation

“It is immoral to expect someone to risk their life for the good of the city and not be prepared to care for them and their family should some catastrophic harm befall them in the line of duty,” he said May 19.

Five years ago this month, then-Gov. David Paterson vetoed a Tier 2 extender bill that had allowed cops and firefighters to remain under that tier of the pension system if they were hired after July 27, 1976, when Tier 3 took effect. The measure had been routinely extended by legislators and Governors for 30-plus years until then.

Placing newer cops and firefighters under Tier 3 subjected them to less-generous pension provisions, among them requiring that they work 22 years rather than the traditional 20 before qualifying for a full pension, something government officials argued was essential given the added costs incurred as the average lifespan of those workers has continued to increase.

The reduction is particularly acute when it comes to the disability allowance, since Tier 3 essentially eliminates the accident-disability pension and consigns the newer cops and firefighters to the sharply reduced terms that are granted to those who are given Tier 3 ordinary-disability status. They are guaranteed a minimum of one-third of their final average salary over a three-year period regardless of years of service but can receive no more than 44 percent of that amount—a reduction even from the ordinary-disability provisions of Tiers 1 and 2 that grant 50 percent of final salary as the benefit. And that payment is further offset by however much the pensioner collects in Social-Security benefits.

Cites $35M Initial Cost

The Citizens Budget Commission, a business-funded fiscal watchdog, sounded an alarm about the potential cost of the bill, which City Actuary Robert C. North has pegged at $35 million in the first year if it were enacted. If the bill took effect, the CBC warned in a June 9 letter to Mr. de Blasio, it “may serve as a precedent for benefit enhancements for the uniformed employees of other localities.” The group also expressed concern that the bill would reverse pension reforms enacted first by Mr. Paterson and then Governor Cuomo in the form of the Tier 6 pension adopted in the spring of 2012 covering all state and local government workers hired after March 31 of that year.

Mr. Lynch sharply questioned the cost estimate submitted by Mr. North, noting that to this point no cop hired in the past five years has qualified for an accidental-disability pension and saying the number who would do so in the future was likely to remain small.

Mr. North noted that his estimate is not pegged to the immediate cost, and that cases like Ms. Rodriguez’s are relatively rare, both in terms of the severity of her injuries and her relative lack of service time: less than four years on the job. It is more typical for cops and firefighters to qualify for accident-disability pensions a decade or more into their careers, and as a result of the cumulative physical toll taken by their jobs rather than a single incident. Under Tiers 1 and 2 of the system, there are presumptions that certain injuries—notably cancer and diseases affecting the heart and lungs—are the result of their work, meaning they do not have to prove they were incurred as the result of a specific incident to qualify for an accident-disability pension.

Those Costs Add Up

It is the number of people who may qualify based on the long-term effects of the job that raises the cost estimate; the $35 million pegged as the first-year cost is just an actuarial way of preparing for the eventual payouts by providing funding early.

Assemblyman Abbate expressed skepticism that the actual cost would be that high, and one other veteran of the legislative process, speaking conditioned on anonymity, said Mr. North tended to make projections based on worst-case scenarios.

In a June 6 letter to Council Speaker Melissa Mark-Viverito, Mr. Lynch said that a Tier 3 disability benefit would provide Ms. Rodriguez about $24,000 a year based on her current salary if she were unable to return to work. “This benefit would be below the minimum wage for a full-time job, if the New York City minimum wage were set at $13 as some Council Members have proposed,” he stated.

Giving her the old accident-disability provisions would bring her allowance up to $39,000, he said. “We believe the cost does not rise to a meaningful level in the scheme of the city budget, and that the fiscal note accompanying the bill is not reflective of the real cost,” his letter continued. “P.O. Rodriguez’s heroic actions and her resulting injuries are only one example of the daily risks that are borne equally by all New York City police officers, regardless of how long they have served. A system of benefits that recognizes these unique risks in some cases but not in others is simply unconscionable.”

De Blasio Stance a Factor

Ms. Mark-Viverito has not stated a reason for her opposition to home-rule messages at this time, merely saying that the bill is “not on our agenda,” a PBA spokesman noted. It is believed that Mr. de Blasio’s reluctance to act at this time is a significant factor in her position.

The firefighter unions in making their case for putting more-recent hires on level footing with more-senior members with a Tier 2 accident-disability benefit cite the experience of one beneficiary: Robert Wiedmann, who was so severely burned during a December 2011 fire in Crown Heights, Brooklyn that early in a process that required more than 30 skin grafts, cadaver skin had to be used because he did not have enough healthy skin remaining on his body that could be utilized.

The 14-year-veteran Firefighter, who was caught on video making a dramatic crawl through flames out a window and onto an aerial ladder after sustaining second- and third-degree burns over more than 50 percent of his body, was initially in a medically-induced coma—like Police Officer Rodriguez—and remained in the burn unit of New York Presbyterian Weill-Cornell for more than three months before he could return home. He had related surgery on one of his hands six months ago, nearly two years after the incident.

‘Would Face Financial Ruin’

In a June 11 memo from Uniformed Fire Officers Association President Al Hagan to his counterpart at the Uniformed Firefighters Association, Steve Cassidy, that was obtained by this newspaper, he stated, “Rob Wiedmann gave more than 60 percent of his skin to the people of Crown Heights, Brooklyn! If he was a new hire, both he and his family would be facing a life of financial ruin to go along with his painful disability. I am hoping that we will be able to gain an audience with the Mayor...if not in time for this legislative session, then for next year.”

Assemblyman Abbate, who along with State Sen. Martin Golden of Brooklyn is co-sponsoring both the police and fire bills, was equally passionate on the subject. The Tier 3 disability provision, he said, means, “We’re asking men and women to put their lives on the line and come home with maybe 35 or 40 percent of their pay” if an injury leaves them unable to continue working. “I know there’s a cost to [the old Tier 2 disability benefit] but you’re talking about someone who’s risking their life in their job.”

He offered sharp criticism of both Mr. de Blasio and the Council Members who are unwilling to allow a vote on a home-rule message that is supported by at least 18 persons in the 51-member body.

“I was very disappointed with the Mayor,” Mr. Abbate said. “After all this talk of helping working people, I thought this [bill] would be a way of showing concern for the heroes of police and fire.”

Sees Council Hypocrisy

He continued, “In the old days, the Council stood up for the working man,” mentioning former Speaker Peter F. Vallone Sr. by name. “If, God forbid, something happens, they’re the first ones to run to the hospital or the funeral, but if [cops or firefighters] survive, a year later these brave people are barely gonna be getting by.”

In a letter to Mr. de Blasio, CBC President Carol Kellermann stated that disability pensions were being received by “more than one-third of all police retirees, approximately 15,000 people.” One expert said the percentage is actually slightly lower, at 30 percent, with one-sixth of that group receiving the lesser, Tier 2 ordinary-disability benefit of 50 percent of final average salary over a three-year span.

Ms. Kellermann added that the problem is even more acute among firefighters, “two-thirds of whom retire on disability pensions.”

The expert, who spoke conditioned on anonymity, said firefighters traditionally have qualified for accident-disability pensions at a higher rate than cops, in large part because the nature of their jobs makes them more susceptible to workplace maladies. This stems from a combination of factors, including the toxic materials they are exposed to not only while battling fires but from the diesel fumes of the firetrucks with which they share quarters. And because firefighters assigned to 15-hour night tours are permitted to sleep in their quarters until an emergency call comes in, the swift movement from sleep to rigorous and sometimes grueling activity can take a toll on their hearts.

Main Reason: 9/11 Toll

But the rise in the number of disability pensions among firefighters to the level cited by Ms. Kellermann is largely the result of the cumulative effect of one cataclysmic event: the terrorist attacks on the World Trade Center and firefighters’ work not only during the rescue attempt on Sept. 11 but their search in the months afterward first for possible survivors and then for remains in the toxic conditions that pervaded the site.

The expert pointed out that a 21-year sampling of retirements for the Fire Department concluding in 2009 showed that 38 percent of firefighters received service pensions based on completion of 20 or more years’ service, 7 percent got ordinary-disability pensions, and 55 percent received accident-disability retirement benefits. But the impact that 9/11 and its aftermath had on those numbers becomes clear when looking at smaller, more-recent samplings for that period: for the 10-year span from 2000-2009, service retirements fell to 31 percent, ordinary-disability retirements dipped to just 2 percent, and 67 percent qualified for accident-disability pensions. And for the period from 2006 to 2009, the numbers were even more stark: 21 percent service retirements, 1 percent ordinary-disability retirements, and 78 percent accident-disability retirements.

Likely to Drop for Newbies

Because that rise is so closely linked to the toxic exposure caused by extended work at the Trade Center site, it is likely that the numbers will level off sharply for those hired over the past two years (the FDNY was restricted from doing any hiring in the first couple of years after the Tier 3 change prompted by Governor Paterson’s action by a court order linked to the Federal hiring-discrimination lawsuit brought against it) if they do not experience a similar catastrophe.

With the clock ticking on this year’s legislative session, Mr. Abbate said it would still be possible to get a bill passed (he predicted the separate measures covering cops and firefighters would be combined) prior to adjournment if the Council passed a home-rule message by June 18.

The memo from UFOA President Hagan also wondered “why was the pension disability portion reduced just as the FDNY entered a time when we’re appointing from the most-diverse hiring list in our history?”

It concluded, “What is the proper cost of morality?”

An Unjustified Fear?

Assemblyman Abbate said some city officials’ reluctance to act on the measure, which may have been fueled by a New York Post article June 10 headlined, “Sneaky $35M bid to boost cop pensions,” may stem from the fear that the improved disability benefit made it appear that legislators were “pulling the reforms” implemented by Governor Paterson and Governor Cuomo to limit pension costs.

He argued that this was an erroneous assumption, pointing out that the bill does not look to undo other Tier 3 provisions, most notably the requirement that cops and firefighters serve two years longer than in the past before qualifying for a full pension.

“We’re just looking to correct an injustice,” Mr. Abbate said.