This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PAID FIREFIGHTERS -- Disability Benefits (procedure to terminate for engaging in prohibited employment)

FIRE PROTECTION AND PREVENTION -- Disability Benefits (procedure to terminate for engaging in prohibited employment)

GENERAL MUNICIPAL LAW, §207-a(6): Subject to any applicable collective bargaining or confidentiality requirements, a municipality may monitor compliance with the employment restriction of section 207-a(6) by requiring disabled firefighters to certify periodically that they are not engaged in prohibited employment or to file copies of their most recent income tax returns. Termination of payments and benefits for engaging in prohibited employment requires an adversarial hearing at which the municipality has the burden of proof.

You ask whether a city may require disabled firefighters receiving payments pursuant to section 207-a(2) of the General Municipal Law to certify periodically that they are not engaged in any prohibited employment activities or file copies of their most recent income tax returns as a condition of continued receipt of benefits under section 207-a.

Section 207-a(1) of the General Municipal Law requires a city (other than New York City), town, village or fire district to pay to a paid firefighter who is disabled as a result of injury or sickness incurred or resulting from the performance of duty the full amount of his or her regular salary or wages until the disability ceases. Section 207-a(1) also provides that the municipality or fire district is liable for all medical treatment and hospital care furnished during such disability.

Section 207-a(2) of the General Municipal Law requires payment of the full amount of regular salary or wages to be discontinued with respect to any firefighter who is permanently disabled as a result of such injury or sickness if the firefighter is granted an accidental disability retirement allowance (see Retirement and Social Security Law, §363), a retirement for disability incurred in performance of duty allowance (see Retirement and Social Security Law, §363-c) or a similar accidental disability pension. In that case, however, section 207-a(2) requires the municipality or fire district which employs the firefighter to continue to pay the difference between the amount received under such allowance or pension and the amount of the firefighter's regular salary or wages until such time as the firefighter attains the age or performs the period of service specified by applicable law for the termination of his or her service. Moreover, section 207-a(4) requires continuation of medical treatment and hospital care necessitated by reason of such injury or illness following the retirement of a firefighter under any available procedure including, but not limited to, the circumstances described in section 207-a(2).

With certain exceptions not here relevant, section 207-a(6) provides that any firefighter receiving payments or benefits pursuant to section 207-a, who engages in any employment, shall forfeit his or her entitlement to such payments and benefits. Section 207-a(6) also provides that any such payment or benefit unlawfully received by a firefighter shall be refunded to, and may be recovered in a civil action by, the municipality or fire district employing the firefighter. The provisions of section 207-a(6) apply to disabled firefighters receiving payments pursuant to section 207-a(2) (see 1991 Opns St Comp No. 91-25, p 73; see also 1992 Opns St Comp No. 92-12, p 27).

Neither section 207-a(6), nor any other provision of section 207-a, prescribes a procedure for ascertaining when a disabled firefighter is engaged in employment prohibited by section 207-a(6). Similarly, there is no express authority for a municipality or fire district to require a disabled firefighter to certify that he or she is not engaged in prohibited employment or to file a copy of his or her income tax return as a condition of continued receipt of benefits under section 207-a (cf. General Municipal Law, §207-a[1], pertaining to the waiver of payments and medical treatment or hospital care for refusal to accept such treatment or care, or to permit medical inspections; see also General Municipal Law, §207-a[3], pertaining to the discontinuance of payments for refusal to perform light duty under certain circumstances).

By expressly providing in section 207-a(6) for a refund to, and recovery in a civil action by, a municipality or fire district of payments or benefits received by a disabled firefighter who engages in prohibited employment, it is evident that the Legislature intended municipalities and fire districts to be able to identify those individuals who violate the employment restriction. Thus, in the absence of a statutory procedure for ascertaining when a disabled firefighter is engaged in employment prohibited by section 207-a(6), it is our view that section 207-a(6) confers implied authority on municipalities and fire districts to adopt reasonable procedures to monitor compliance with the employment restriction imposed by that provision, consistent with local needs (see Local 589, International Association of Firefighters, AFL-CIO v City of Newburgh, 116 AD2d 396, 501 NYS2d 369). Subject to any applicable collective bargaining requirements and federal or State confidentiality requirements, we believe that such procedures may include a requirement that disabled firefighters certify periodically that they are not engaged in employment prohibited by section 207-a(6), or a requirement that they file copies of their most recent income tax returns.

We also note, however, that the right to receive payment under section 207-a is a vested property interest protected by constitutional due process guarantees (see DiGiovanni v City of Rochester, 680 F Supp 80; see also International Association of Firefighters, AFL-CIO, supra). Thus, the courts which have considered the issue to date have held that termination of payments under section 207-a requires an adversarial hearing at which the municipality has the burden proof (see Legg v Fitzmaurice, 112 Misc 2d 283, 446 NYS2d 961; Kieper v Fitzgibbons, 91 Misc 2d 1067; cf. Bett v City of Lackawanna, 76 NY2d 900, 561 NYS2d 908, in which the Court of Appeals declined to determine whether a hearing is required to terminate section 207-a benefits).

Accordingly, it is our opinion that a municipality has authority, subject to applicable collective bargaining and confidentiality requirements, to monitor compliance with the employment restriction of section 207-a(6) by requiring disabled firefighters to certify periodically that they are not engaged in prohibited employment or to file copies of their most recent income tax returns. The municipality, however, may not condition continued receipt of benefits under section 207-a upon compliance with such requirements because termination of payments and benefits for engaging in employment prohibited by section 207- a(6) requires an adversarial hearing at which the municipality has the burden of proving that a disabled firefighter is engaged in employment prohibited by that provision.

September 22, 1994
Vincent J. McCardle, Jr., Esq., Corporation Counsel
City of Albany