November 18, 2014

Razzle Dazzle

On Disability Bill, Mayor Can’t Feel Cops’ Pain


A ‘MOTHERHOOD’ ISSUE: Patrolmen’s Benevolent Association President Pat Lynch (left) in a full-page newspaper ad last week assailed Mayor de Blasio’s priorities by contrasting his reportedly approving a far larger settlement for the Central Park Five than city lawyers thought was appropriate with his balking at restoring the tax-free, 75 percent of final-average-salary line-of-duty disability benefit that cops hired before 2010 receive on the grounds that it would be too costly. One veteran cop who called the old disability protection ‘like motherhood and apple pie for cops and firefighters,’ said of younger colleagues who would receive a considerably lesser benefit if disabled, ‘They’re not sticking their necks out for has a chilling effect; it really does.’  

HOW IS THIS PROGRESSIVE?: This Patrolmen’s Benevolent Association ad questions the fairness of Mayor de Blasio and City Council Speaker Melissa Mark-Viverito in approving a settlement of the Central Park Five lawsuit that many thought was too generous while opposing a bill granting a disability benefit equal to 75 percent of final average salary, and tax-free, for cops and firefighters hired after 2009 who are forced to retire due to line-of-duty injuries.


The Patrolmen’s Benevolent Association wasn’t aiming for subtlety in its full-page New York Post ad Nov. 12 that asked, “How do Mayor de Blasio and Speaker Mark-Viverito take care of their ‘moral obligations?’”

Below a photo of the Mayor and City Council Speaker Melissa Mark-Viverito on the left side of the page, the text read, “Central Park Five settlement: $41 million.” The right side of the page depicted an injured cop lying on the ground outside his patrol car and the statement, “Benefits for injured police officers: Nothing.”

The union was juxtaposing the Mayor’s opposition to restoring a meaningful line-of-duty disability pension to cops forced to retire by on-the-job injuries with the report in the Daily News three days earlier claiming that Mr. de Blasio had ignored recommendations by city lawyers to not pay more than $15 million to settle the lawsuit brought by the five men who as teenagers were wrongfully convicted in the brutal assault on the Central Park Jogger 25 years ago after stating during last year’s mayoral campaign that the city had a “moral obligation” to settle the suit filed back in late 2002. The Bloomberg administration had delayed acting on the case after the convictions were vacated at the request of then-Manhattan District Attorney Robert Morgenthau.

The ad said, “... he and the Speaker think it’s just too expensive to give recently-hired NYPD officers the same disability benefits as every other police officer in New York State. Their priorities speak for themselves...”

Not the Only Ones to Blame

The union was giving the Mayor and Ms. Mark-Viverito, who would make the decision on whether to send a home-rule message to the State Legislature to restore the old Tier 2 disability benefit, too much credit for cops and firefighters hired over the past five years being saddled with inferior disability benefits should they be forced to leave the NYPD or FDNY because of the severity of their line-of-duty injuries. After all, then-Gov. David Paterson’s dubious decision in mid-2009 to veto a Tier 2 extender bill that was routinely approved every two years by his four predecessors since Tier 3 took effect in 1976 could have been redressed by Governor Cuomo and the Legislature as part of the Tier 6 pension legislation that was pushed through in March 2012, and they chose not to do so.

But the PBA’s ad taps into a visceral feeling among more than a few cops that a Mayor who seems to have adopted “progressive” as the first word of his title doesn’t view them as his kind of working-class heroes.

One veteran cop, who spoke conditioned on anonymity, said that from the time of Mr. Paterson’s veto of the Tier 2 extender he was convinced it had created “a two-tier union,” with the protection against the financial ravages of a disabling injury no longer being offered to future cops and firefighters, and their placement in Tier 3 starting with those who came on the job in 2010, forcing them to work 22 years to qualify for a full pension.

‘Bloomberg’s Biggest Crime’

Convinced that then-Mayor Michael Bloomberg was a prime mover behind both that veto and the Tier 6 pension that Governor Cuomo made happen, this cop said, “I think the biggest crime Bloomberg committed was getting them to do away with the 20-year pension. Cuomo, Bloomberg, Paterson, they did away with something that was like motherhood and apple pie for cops and firefighters. This is symbolic of everything that’s wrong with this country today.”

Efforts were made by the police and fire unions to revive key provisions of Tier 2 for their members during the discussions on Tier 6, but Mr. Cuomo’s promise to legislators that he would allow them to continue drawing their own district lines for the next decade if they passed the bill in the form he wanted proved a stronger argument. The luck of the period following the discontinuation of Tier 2 producing virtually no cases in which new cops or firefighters were forced to retire and accept the sharply scaled-down disability benefit limited the sense of urgency felt by those workers and their unions.

That began to change abruptly this year, when Officer James Li in February was shot three times in the leg after confronting a fare-beater on the street in Brooklyn, suffering wounds that still have not allowed him to return to full duty.

Faces Major Reduction

Concerns really intensified after two Housing Bureau cops, Dennis Guerra and Rosa Rodriguez, suffered severe smoke poisoning while trying to rescue tenants from a fire in a Coney Island high rise in early April. Officer Guerra died a few days later, while Officer Rodriguez spent an extended period in the hospital and still has not returned to work. The possibility that she might have to retire on the inferior Tier 3 disability benefit that, counting a reduction equal to half of the Social Security benefits she would receive could reduce her retirement allowance after taxes to as little as 33 percent of her final average salary, served as a rallying point for the unions’ bid to restore the Tier 2 disability benefit later—which provides a pension equal to 75 percent of final average salary, tax-free—this spring. But the unwillingness of the Council, apparently at the Mayor’s urging, to send Albany a home-rule message on the measure guaranteed that it never came before the Legislature.

Her younger colleagues assigned to Police Service Area 1, according to the veteran cop interviewed last week, soon after that were talking about limiting the risks they would take for fear of facing the same financial predicament. “These cops are saying, ‘I’m not taking any police action unless it’s good for me,’”the officer, who is a Tier 2 member, said. “They’re not sticking their necks out for nothing—it’s not worth it for them. It has a chilling effect; it really does. They’re watching what this female cop is going through—she can’t support her kids on that kind of pension” if Officer Rodriguez is unable to return to work.

Take Hit on Light Duty

Recently-retired Chief Actuary Robert North shortly before he left city service questioned how much the city would save on the inferior Tier 6 disability benefit, observing that cops and firefighters were likely to remain in light-duty jobs because of the financial hardship posed by retirement under its terms (Earlier in the year, he had projected a worst-case annual cost of $35 million to restoring the Tier 2 benefit that became the justification for the Mayor’s opposition). The veteran cop contended that light-duty work took a significant financial toll as well.

“If you’re light duty,” he explained, “you can’t make overtime like you can if you’re full duty.”

And those who are more fortunate aren’t happy about the prospect of a single incident suddenly cutting into their earning power even if it doesn’t leave them disabled. That hangs over them nearly as much as the concerns caused by the fallout from the Eric Garner case, which is before a grand jury convened by Staten Island District Attorney Dan Donovan to determine whether criminal charges should be brought against the Staten Island police officers for the fatal confrontation that occurred after they were ordered to make arrests of those selling untaxed cigarettes near the St. George Ferry Terminal.

“Police officers should be like community care-takers,” the cop said, “but the stuff like Garner makes them afraid to take police action. And people who are under this pension tier, their benefits are so inferior that they’re bitter.”

‘Park’ Award Fuels Anger

The Daily News account claiming that attorneys at the city Law Department accused Mr. de Blasio of having undercut their attempts to either limit the Central Park Five settlement to no more than $15 million or take their chances by going to trial only reinforced suspicions many cops have about what matters to him.

Those date back, the veteran officer said, to the incident in February in which the Mayor reportedly made a phone call that prevented the arrest of Bishop Orlando Findlayter, a powerful Brooklyn minister who was an early supporter of his campaign, after cops stopped him for a traffic violation and discovered there was an outstanding warrant against him. (Mr. de Blasio denied making any calls, claiming the decision was made by the precinct’s commanding officer without any input from him.)

“When de Blasio cut that corrupt preacher loose early on,” the cop said, “that sent a message: there’s two sets of rules for people—that this guy could deliver the votes and so he should get special treatment.”

Asked why the Mayor would risk alienating at least part of his police force by leaving the impression that he cared more about his relationship with the Rev. Al Sharpton than with the cops, the officer replied, “De Blasio knows he’s never gonna get the support of the cops—his relationship with Sharpton, the stance on marijuana. A lot of cops don’t live in the city and don’t care if a neighborhood goes to s---, and they can’t vote. But Sharpton is just out for himself, and he’s got so much power now it’s incredible.”

Campaign Rhetoric Lingers

Union officials say that Mr. de Blasio since entering office has taken pains to “say all the right things about police,” as one of them put it. But some of them believe his campaign rhetoric helped produce the Council overrides of Mr. Bloomberg’s vetoes of bills creating an NYPD Inspector General and broadening the prohibitions against race-based profiling to the point where their members could be held personally liable in a civil suit.

Those past stands, his close alliance with the Reverend Al, and his unwillingness to discipline Rachel Noerdlinger right after it was revealed that she had failed to disclose to the Department of Investigation that she was living with a man with a long rap sheet that included a manslaughter conviction as a teenager who has a penchant for anti-cop postings on social media, the union official said, produced “messages the cops are reading as, he’s not particularly supportive of police.”

One Democratic politico more inclined to look at issues pragmatically rather than through the prism of bruised feelings, was nonetheless at a loss to understand why the Mayor remained opposed to improving the disability pension for newer cops, arguing that it wouldn’t have the negative ramifications of giving the PBA raises that went beyond the pattern he has set with civilian-employee unions.

‘A Fight He Doesn’t Need’

“I think he’s making a tremendous mistake and he’s picking a fight he doesn’t have to pick,” this official said. It wasn’t just the discrepancy between the stand on the disability pension and the high settlement in the Central Park 5 case; there was also his decision to try to remedy Mr. Bloomberg’s union-busting of school-bus workers by providing—in tandem with Ms. Mark-Viverito—$42 million to bus companies to restore salaries and benefits to previous levels.

“He’s picking and choosing who should be the recipients of his largesse,” the official contended. “If he was consistently giving the store away, then you’d just say he was a generous guy with the public’s money who loves the working class. But I think he’s got a hard-on for the [PBA}, and he really believes he’s the leader of a movement, not the leader of the city.”

One veteran government official, also speaking conditioned on anonymity, offered a different take, saying that the overriding factor for this or any Mayor would be that he was headed towards a bruising contract-arbitration battle with the union, which has made clear it’s not interested in the established city bargaining pattern.

“To give a benefit to a union you’re currently negotiating with is something you’d have OLR [the Office of Labor Relations] and the Budget Director saying, ‘Don’t do this—don’t give them anything if you’re not getting something in return for it,’” he said.

Arbitration Anxiety

He wondered whether the disability benefit had come up in collective bargaining before now, although indications are it has not been a factor in either the negotiations or the failed mediation that has set the stage for an arbitration panel to be convened. Over the first seven years of the Bloomberg administration, the PBA was able to do slightly better in arbitration than the established city pattern on three separate occasions, leading the veteran official to say, “An arbitration the city’s liable to come out on the losing end of has them in a position where they probably don’t want to give away anything” beforehand.

Asked whether the Mayor ought to be less concerned about satisfying the PBA and focus more on addressing an issue that is hurting him with rank-and-file cops, this official said of the possible impact if Mr. de Blasio suddenly announced he would support a home-rule resolution to restore a meaningful disability benefit, “If he did this, would [cops’ appreciation] last for more than 20 minutes?”

Helping to secure such a benefit outside the framework of the bargaining process while the two sides are at impasse, he said, would create “a pretty slippery slope. And is it really the top thing they want?”

Lynch’s Election Concern

That’s hard to say, but there’s no question that the injured cops who came on the job after the veto of the Tier 2 extender five years ago have created added urgency for PBA President Pat Lynch. He is up for re-election late next spring, and a growing percentage of his members are cops stuck not only with the inferior disability benefit but with the added problems caused by the fact that Tier 3 does not include the “presumptives” that allow for disability pensions to be granted based on the presumption that a heart condition, for example, is traceable to the rigors of being a police officer. (The newer pension tiers also require cops to stay on the job longer, but for cops hired beginning in 2010, concerns about having to work at least two years longer before qualifying for a full pension don’t yet have the immediacy that the sharply reduced allowances if they are forced to retire prematurely do.)

To put most of the blame on Mr. de Blasio for the inferior benefits newer cops and firefighters would receive if they became disabled is unfair. Even if Mr. Bloomberg wasn’t the silent force behind the veto of the Tier 2 extender and the implementation of Tier 6 without any remedy for the disability benefit, there is no question that he encouraged both those actions while stirring up public resentment of the comparatively generous pensions that cops and firefighters receive compared to the private sector. And ultimately Mr. Paterson was the one wielding the veto pen and Mr. Cuomo provided the mix of carrot-and-stick in his dealings with legislators that created the current situation.

One union official put it this way: “There was always that social contract between the city and police and firefighters that was broken when Paterson decided, on a whim, ‘I’m not going to sign this.’”

Cuomo Inhospitable?

But he and Mr. Bloomberg are gone, and Mr. Cuomo, who Arthur Cheliotes recently labeled “corporate Democrat” catering to big contributors rather than worrying about the working people who are his party’s bedrock, has never governed as a friend of public employees or the unions he has derided as “special interests.” And so to move a Tier 2 disability restoration through the Legislature with enough support to withstand a Cuomo veto if needed, the unions would need Mr. de Blasio leading the charge, both here at the Council and in Albany.

It might not sway the cops and union officials who are convinced he’s not on their side. But it might give them pause in their haste to read the worst into actions he takes that affect law enforcement in the city. It might also persuade others who wonder at how much more mud he’s going to allow the Governor to shovel in his direction anytime their interests diverge that he is capable of digging in his heels even for a cause that isn’t at the top of his agenda.

‘One Less Cop on Patrol’

One union official, referring to the prospect of a growing number of less-experienced cops being forced to work light-duty jobs because they couldn’t support themselves on the post-2009 disability pension, pointed out, “Every one that’s filling the slot of a police officer means there’s one less cop that’s out on patrol.”

And that’s before you start calculating how many street cops may not be giving the city their best efforts because they’re not convinced that its leader has their backs.