Judge Rebukes N.Y. for Denying Whistleblower Ex-Cop's Claim
Tom Perrotta
New York Law Journal
04-02-2004
A Manhattan judge has rebuked New York City for its challenge to the disability benefits of a former police officer who helped uncover corruption and became a pariah within the New York Police Department.
Supreme Court Justice Louis York described the city's arguments as "pitiful." He said it had failed even to consider whether the officer, who was repeatedly harassed for his role in a corruption investigation, deserved a more generous disability package.
The ex-officer, Jeffrey W. Baird, has been diagnosed with post-traumatic stress disorder. He claims he is eligible for accident disability retirement owing to "an intense campaign of harassment" against him.
The Police Department claims his depressive disorder makes him eligible for ordinary disability benefits, but not the "accident" disability benefits he claims since the cause of his disability was not an accident.
Justice York angrily rejected the city's argument. He wrote that the term "accident" is not specifically defined in the Administrative Code and could, under Court of Appeals precedent, apply to a pattern of harassment.
"These 'accidental' events were not the usual falls or other unanticipated physical injuries, but legally they do not have to be," Justice York wrote in Baird v. Kelly, 101889/03. "If each act of harassment and retribution that petitioner was subjected to can be deemed by respondents to be 'expected' or 'ordinary,' then our police force -- and our society -- are truly in dire straits."
York wrote that Baird "should be lauded for his courage rather than destroyed by the system whose integrity he sought to preserve."
He ordered the Police Department to reconsider its ruling on Baird's benefits, and suggested there is little reason why the officer should be ineligible for the additional benefits.
In Matter of Lichtenstein, 57 NY2d 1010 (1984), the judge said, the Court of Appeals had adopted a common sense definition of accident as something "unexpected" and "out of the ordinary."
A city attorney said the ruling would be appealed.
Baird played an instrumental role in the work of the Mollen Commission, which investigated police corruption in the early 1990s.
As a member of the Internal Affairs Bureau, he revealed to investigators that officers routinely sabotaged inquiries into police corruption and hid evidence of corruption from prosecutors. After the commission finished its work, he was transferred from the bureau to the Department of Investigations.
Baird said his troubles began immediately. Other officers referred to him as a "rat" and harassed him, he said, and he began receiving anonymous, obscene letters at home.
He claimed he was denied promotions, assigned to the worst cases and often given the silent treatment by other officers.
In November 1995, Baird filed a petition under the city's whistleblowing ordinance, alleging that he had been retaliated against for his role in the probe. Justice York said he was unaware of the outcome of a subsequent investigation by the Corporation Counsel's Office, but said various parties to the litigation have said the office found Baird's allegations to be "not wholly unfounded."
Three years later, Baird applied for disability retirement based on his post-traumatic stress disorder, which had been diagnosed by his psychologist. He was hospitalized for a month in 1998 and returned to work on restricted duty.
In 2000, the Police Department's medical board examined Baird and found he suffered from a disability that would prevent him from performing his duties. The medical board recommended that he be retired with ordinary benefits.
To further his case, Baird submitted medical evaluations, letters from his attorney and a letter from Mayor David N. Dinkins, who created the Mollen Commission. The Board of Trustees of the police pension fund remanded his case to the medical board a few times, and the board each time adhered to its initial findings.
York heard Baird's Article 78 proceeding last August. His decision this week said the medical board repeatedly failed to address the cause of Baird's disability.
The board's "adamant refusal to give a reason for its denial of [Baird's] application, readily reminiscent of the treatment from co-workers and superiors suffered by [him], is per se arbitrary and capricious," York wrote.
The judge concluded: "In short, NYPD subjected [Baird] to an insidious 'death of a thousand cuts' in retaliation for his work on the Mollen Commission, with the Medical Board's refusal to even address the cause of his condition being the last gash. This the court will not condone."
Baird, reached at home yesterday, said, "To me, it strengthens my resolve that what I did was the right thing. Also, it restores my faith in the judicial process."
Leonard Koerner, chief of the appeals division at the Corporation Counsel's Office, said in a statement: "A pattern of alleged harassment does not constitute a line-of-duty accident as that term has been defined by the Court of Appeals. The Board of Trustees' determination denying accident disability retirement was entirely in accord with the applicable case law."
Assistant Corporation Counsel Magda Deconinck argued the case for the city. Jeffrey L. Goldberg of Lake Success, N.Y., represented Baird.