Chief Leader – June 16, 2015
by SARAH DORSEY and RICHARD STEIER
A bill that would give cops and firefighters hired after 2009 the same disability rights as more-senior colleagues may be in danger of faltering in Albany as the legislative session closes this week despite the full-throated support of Governor Cuomo after pressure tactics by Mayor de Blasio prompted the City Council to approve a less-generous alternative measure.
Eye on 75% Benefit
State legislators had previously said they were prepared to grant Tier 2 disability benefits, which provide those injured on the job with pensions equal to 75 percent of final average salary, tax-free, to newer police and fire hires even if a required home-rule message wasn’t passed by the Council. They currently are entitled to a taxable Tier 3 disability benefit equal to 50 percent of salary but reduced by Social Security benefits they receive.
But the passage instead of the alternative home-rule message put forth earlier this month by the de Blasio administration has raised concerns that the union-backed bill could be successfully challenged in court if it were approved by the Legislature and then signed by the Governor.
Referring to a measure already approved in the State Senate, which has a small Republican majority, that would secure the Tier 2 benefit by placing post-2009 hires in Tier 5 of the state pension system—which already covers cops and firefighters in all other parts of the state—Assemblyman Peter J. Abbate Jr. said in a June 11 phone interview, “If we pass that bill, we’re gonna go to court and we’re gonna lose.”
An added complication is that the Tier 5 bill goes further than the home-rule message that has been pushed by the Uniformed Firefighters Association and the Patrolmen’s Benevolent Association and was backed last week by Mr. Cuomo during a speech to its cheering supporters at an Albany rally. That home-rule measure would grant the Tier 2 disability benefit but would leave intact other provisions imposed on post-2009 police and fire appointees when then-Gov. David Paterson in June 2009 vetoed a Tier 2 extender bill that had routinely been approved for the previous three decades.
An Extra 2-Year Wait
Tier 3 requires that employees work for at least 22 years to qualify for a full pension, rather than the traditional 20 for cops and firefighters, and that they remain in service for 25 years to be entitled to cost-of-living adjustments. The Tier 5 bill covering cops and firefighters elsewhere in the state, however, continues the 20-year retirement plan, and if adopted for the city would further add to its costs.
Mr. Abbate, who is Chairman of the Assembly Committee on Government Employees, described the problem in logistical terms, saying, “If we rolled the titles into the statewide bill, how do we do that and still say 22 [years] rather than 20” is required for the newer hires to receive a full pension?
One veteran of Albany pension battles was more direct about what he perceived as the dilemma for Mr. Abbate and other Assembly Democrats, saying, “He wants to help the cops and firefighters but he doesn’t want to bankrupt the city, either.”
But UFA President Steve Cassidy was furious at what he called the Mayor’s “stunt” in moving his alternative proposal before the Council for a vote after months of refusing to sit down with union officials to discuss their plan, then putting forward his own and quickly revising it when legislators were cool to the original one.
‘They Never Read It’
“People hadn’t seen it or read it,” he said of the latest mayoral plan, although it had been detailed in last week’s edition of this newspaper.
He also accused the Mayor and Ms. Mark-Viverito of threatening to sharply reduce funding in the final city budget for districts represented by Council Members who did not support their home-rule message, a charge that was also made by State Sen. Diane Savino, who represents Staten Island and a part of western Brooklyn.
“The Mayor twisted arms and the Council Speaker twisted arms and they got what they wanted: a bill that is unacceptable,” Ms. Savino said in a phone interview. “This is not the home-rule message we asked the City Council to send us.”
A day earlier, Mr. Cuomo, who previously had scaled back pension costs statewide, during a union-organized rally in Albany pointed out that newer cops and firefighters in the rest of the state continued to receive the more-generous disability benefit that was a feature of Tier 2 even though they now belong to Tier 5, and said the Council should “do the right thing” and provide equal treatment to those working in the five boroughs.
‘How is This Fair?’
“Because the way the law turned out,” the Governor said, “is every other cop and every other firefighter in the State of New York gets 75 percent for [a line-of-duty] disability and New York City gets 50 percent and then we deduct Social Security, which could come out to as little as $27 a day. And the bottom line is, how is this fair? How is this right?”
The Mayor has argued that his proposal would do much to close the gap, since it would eliminate the reduction in benefits tied to Social Security payments and peg the basic benefit to the maximum salary for the positions of Police Officer and Firefighter rather than to the final average salary at the time the cop or firefighter became disabled, which could be particularly harmful for less-experienced employees. The unions claimed this wasn’t sufficient, saying it would actually work to the disadvantage of their members who had already qualified for maximum salary and that the Mayor’s proposal made a 75-percent tax-free payment contingent upon the employee having also qualified for Social Security disability benefits. Those who were deemed still able to work at other jobs would still be limited to collecting just 50 percent of final average salary, as is already the case for those covered under Tier 3.
Presumptions At Issue
The unions have also raised questions about whether the Mayor’s bill would grant those workers the presumption that any disabling cancer, heart or lung disease was the result of their job duties and therefore entitled them to the full disability pension, as is the case under the Tier 2 benefit.
City Budget Director Dean Fuleihan had told the Council prior to the vote that the cost difference between the Mayor’s proposal and the union-backed one was substantial: $105 million through 2019 versus $400 million. Mr. Cassidy has called the city’s actuarial assumptions about the cost of the bill pushed by the unions unreasonably steep and based on the false premise that disability rates would continue to be as high as they were during the previous decade. He noted the rise in such pensions among firefighters was largely due to the health impact of laboring at Ground Zero on 9/11 and in the months that followed when they were searching daily for first survivors and then remains of those who perished there.
The union leader added during a phone interview that the Mayor seemed oblivious to the urgency of providing an equal disability benefit, even if the number of claims made figure to decline unless there is a similar cataclysmic event to the World Trade Center attacks.
Sees Fiscal Hypocrisy
“Does he really think that the new crew of firefighters are not gonna breathe in toxic smoke—that only older firefighters are going to have to deal with that impact?” Mr. Cassidy asked.
Nor is he convinced that concern about the cost is the prime reason for the Mayor’s opposition to the union-backed bill, contending that ideology played a greater role.
“Suddenly he’s a fiscal conservative while throwing money at every progressive project that comes in front of them,” the UFA leader said.
Senator Savino referred to the fact that the police and fire unions have often been at odds with Mr. de Blasio and were unlikely to endorse him for re-election even if he supported the bill they favor. But she pointed out that there was a paradox in the Mayor counting on black voters in particular and Latino ones to a somewhat lesser degree as his prime political supporters, but resisting a pension equalization that would help members of those groups far more than in the past based on the makeup of recent classes in both the NYPD and the FDNY.
“This is the largest group of minority police and firefighters they’ve ever had, and now you have the so-called progressives in the Mayor’s Office and the Council saying we can’t afford to give them the same benefits,” Ms. Savino said.
“We expected this from Bloomberg.”
‘Writing Us Off’
Mr. Cassidy, asked whether it was possible the Mayor was less concerned about antagonizing rank-and-file cops and firefighters because many of them live outside the city or weren’t inclined to support him politically, replied, “I find it hard to believe somebody would be willing to write off cops and firefighters simply because they thought they weren’t their best voting bloc.”
Assemblyman Abbate spent the weekend trying to craft alternative legislation that might pass legal muster even if it wasn’t accompanied by a home-rule message. He contended that the city would still be “making money” if the disability benefit was equalized because of other provisions of Tier 2 that wouldn’t be restored, but worried that unless the Mayor had a change of heart before the Legislature was due to adjourn June 17, supporters of pension equalization would find themselves stymied.
“I just think he’s trying to run the clock out,” he said of Mr. de Blasio. “These are bad people writing these bills where their only concern is to save money.”
Mr. Cassidy conceded last Friday that Mr. Abbate’s perception that the Mayor’s prime intent was to place the issue in a stalemate might be accurate. “They never tried to negotiate in good faith or have a real discussion with us,” he said.
And, he said June 15, as this newspaper went to press, talks a day earlier involving the UFA, PBA and administration officials went nowhere because of the city’s insistence that “under no circumstances would they go back to the Tier 2 benefit.”
Mr. Cassidy added, “You can’t negotiate with someone who tells you they won’t make any changes.”
He said his union’s lawyer was more optimistic than Assemblyman Abbate that the union-backed bill if passed by the Assembly and signed by the Governor could survive a court challenge.
Unintended DC 37 Damage
Ms. Savino said failure to act on the union-backed bill would actually cause collateral damage that would affect public employees who are a key segment of the Mayor’s voting base.
Two police officers who were seriously injured last year and may not be able to return to full duty but would have trouble making ends meet under the current Tier 3 benefit have remained on the NYPD payroll and can continue working indefinitely in light-duty desk jobs, an accommodation Mr. Cassidy noted is also afforded to firefighters under state law.
But such workers continue to be counted as part of their respective uniformed forces and receive full salary, and they occupy desk jobs that otherwise would figure to be filled by civilians. Noting District Council 37’s long battle to increase its ranks in those jobs in the NYPD, as a court ruling it won a decade ago on that subject has been largely ignored first by former Mayor Michael Bloomberg and more recently by Mr. de Blasio, Ms. Savino said, “Whatever happened to the idea of civilianization in the Police Department?”
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