1995Investigative Reporting

The Road to Reform

Proposals Abound to Stop Those Who Abuse System
By: 
Brian Donovan and Stephanie Saul
July 3, 1994

Erma Myers didn't take the money and run - she galloped off to the rodeo.

During a competition in 1992, the former California Highway Patrol officer, who had been found disabled, raced horses around barrels and wrestled calves to the ground as undercover surveillance cameras captured her on tape, prosecutors charged.

Three years earlier, when she obtained her disability pension, she had said her back and knees were injured so badly from an on-the-job car accident that she could no longer run, bend, do yardwork, hang up clothes or even take them out of the dryer.

But some of her colleagues were suspicious, put her under surveillance and videotaped her during her rodeo competition. Myers even helped organize the events for a police rodeo association, officials said.

The Sacramento County district attorney's office brought felony charges of grand theft and filing a false claim last year against the 36-year-old former officer. She has pleaded innocent, and the charges are pending. If Myers is convicted in September, when her case is set for trial, she could go to jail and lose her pension, according to Sgt. Steve Lerwill, one of the investigators on her case.

The California Highway Patrol has set up a special unit to crack down on disability fraud. Since the unit was formed two years ago, six officers have been arrested. Just last week investigators arrested an officer retired on disability for a back injury and allegedly working for a furniture-moving company. Other arrests include a patrolman who is charged with faking his own accident to collect disability pay. Officials say the unit has saved taxpayers $2 million.

In New York, however, senior state pension officials say they can't recall a single case anywhere in the state in which a police officer has been prosecuted for pension fraud. Disability retirees are never re-examined to see if they're still disabled. And even convicted drug-dealer officers can collect their tax-free disability pensions while serving time in prison.

The problem in New York, some officials say, isn't that there are no proposals for change. A number of other big states have adopted a variety of measures that officials say have helped to curb some of the pension abuses that Newsday reported last week. In New Jersey and Texas, for example, the state can re-examine retired officers periodically to see if they're still disabled - something that's not done in New York.

The problem, as some critics see it, is that the political establishment in Albany - Democrats and Republicans alike - have been unwilling to clash with the well-organized and well-financed police-union lobby, which pushes for more generous police benefits while helping to finance politicians' campaigns and delivering coveted endorsements.

"From the mood of elected officials all over the state, they are pro-police because of the type of job they do," said state Sen. Caesar Trunzo, the Brentwood Republican who heads the civil service and pensions committee. "It's quite obvious that everything seems to be working very well for the police unions - there's no doubt of that. I don't see a change happening."

"They have been sacred cows for many years," said Suffolk Comptroller Joseph Caputo. "And they continue to be, so they have lots of clout."

Even severe critics of the police disability system say that most cases are legitimate and that honest officers deserve a safety net. But police union leaders say they fear that attempts to crack down on the minority who abuse the system could wind up hurting legitimate applicants, too.

Nassau Police Benevolent Association President Gary DelaRaba agreed that there are "appearances of some abuses" in the police disability pension system, but advised proceeding cautiously with changes. "What you've got to do, I think, is place some safeguards to make sure the police are protected as well as the public."

State Comptroller H. Carl McCall said last week that he is planning to hire a consultant to evaluate the disability pension system and make recommendations to the Legislature next session. "I think that there are problems across the board in this system. And therefore it's going to take a very thorough examination and we'll have to come up with a thoughtful series of recommendations," McCall said. "I recognize that this is a serious problem and we're going to try to address it as expeditiously and as thoroughly as possible."

Many officials have been reluctant to discuss the disability pension system. State Senate Majority Leader Ralph Marino, a Republican from Muttontown, for instance, refused an interview with Newsday on the subject last week, but issued a statement from his office saying, "Police officers who are legitimately disabled in the line of duty deserve adequate compensation. And I believe our laws were designed to do just that. We have a system in place that is supposed to investigate, evaluate and approve claims so that individuals won't bilk the pension system or otherwise collect disability fraudulently. If there is evidence of widespread abuse, perhaps that system needs to be overhauled."

In dozens of interviews with law enforcement and county officials, and officials from other states, several suggestions emerged for making New York's police pension system less vulnerable to abuse:

Periodic medical re-examinations of disability retirees. In Massachusetts, authorities put a Marlborough police officer back to work last year, after 11 years on disability, when a medical review found he'd recovered. The officer had moved to Florida, but now he's back in uniform. On Long Island, Newsday found officers on disability pensions who could fly a hang glider, play ball and work as a Jones Beach lifeguard, a carpenter, a jail guard and even continue doing police work for a village department. The state comptroller's office has the authority to do such exams, but officials say it's a waste of time without the authority to revoke pensions. The state comptroller's office has drafted legislation to give them that authority. It would take an act of the Legislature.

More vigorous investigation of possible fraud. The retirement system has no fraud investigators and only 15 examiners to screen about 4,500 disability applications a year from police and civilian employees. Newsday found several cases in which senior Nassau and Suffolk police officials felt officers had filed fraudulent pension applications, but could not get state officials to consider their evidence. Fraud investigators could be hired through a budget increase approved by the governor and Legislature, or the governor could use State Police.

Limits on outside earnings by disability pensioners. Pension officials say the removal of an earnings cap on many disability recipients in 1987 helped cause an increase in the number of disability pension applications. In Florida, disability pensioners are barred from any outside work, and the state has rescinded the pensions of recipients found working. Connecticut revoked a retired officer's pension and ordered him to make restitution after he was found working as a policeman in Florida. Limiting earnings would have to be done by the Legislature, which voted overwhelmingly for the 1987 measure, and by the governor, who signed it into law.

Reductions in pension payments if a police officer gets Social Security disability benefits. A New York state advisory commission on pension matters recommended in 1986 that the combination of pension and Social Security benefits not exceed pre-retirement income. Retired Nassau Police Officer Angelo Amendolare, for example, collects his tax-free disability pension of $44,325 a year and said he also gets about $1,000 a month in Social Security disability checks. As a result, Amendolare's disability income exceeds his pre-retirement salary of $48,353. The Legislature and governor never acted on the commission's recommendation.

Pension forfeiture for criminal conduct. Police, most of whom do not contribute any of their own money toward their pensions, would lose their pensions if convicted of a crime involving malfeasance in office.

The state comptroller has introduced such bills, but they are opposed by the police lobby and other public employee unions. They die in legislative committees. Pennsylvania, Florida, Georgia, Illinois and Massachusetts all have statutes on the books mandating that officers forfeit their pensions if convicted of certain kinds of crimes. Newsday found cases in which the system approved disability pensions without knowing that the officers had filed their disability claims while under criminal or departmental investigation. Some of those officers were later convicted in connection with drugs or burglary.

A disability payment system based on the degree of injury. Police officials question why police officers should receive the same pension for a trigger-finger injury, such as the one suffered by Nassau Police Officer Benson Huggard, as for total paralysis. Huggard continued his strenuous hobby of marathon swimming after getting his disability pension in 1983 for an injury that weakened his trigger finger. A sliding-scale system of payments, such as that used in the workers' compensation system, would have to be approved by the Legislature and governor.

DelaRaba said last week that he opposed most of the recommendations for tighter controls. Suffolk Police Benevolent Association President Tom Tohill was not available for comment last week and has previously refused to talk to Newsday about police disability.

In its series on police disability pensions last week, Newsday reported that hundreds of Nassau and Suffolk police officers have taken advantage of loose guidelines and weak oversight to win lucrative tax-free windfalls at public expense, retiring on medical disability at a rate that's often among the highest in the country. In some recent years about a third of Long Island police who retire get the disability pensions; many are from slip-and-fall claims that do not involve criminals. About one out of three cases are believed by senior police officials to be fraudulent or highly questionable, but the state has failed to act on allegations of fraud. In addition, the report has detailed how some officers under investigation have managed to use disability pensions as a form of golden parachute. One officer, convicted of cocaine sales, collected his $32,304-a-year tax-free pension while serving time in Attica.

With the public ever fearful of crime, experts say Long Island police unions have won contracts that make them among the highest-paid police officers in the nation.

On Long Island, police unions often provide key endorsements for politicians running for office. They also help finance campaigns. Nassau's PBA last year bought banner advertisements on buses endorsing the re-election of County Executive Thomas Gulotta. In Suffolk, police unions used a computer list of hundreds of current and former law-enforcement officers to help get out the vote for candidates they favored.

"They have tremendous clout," said Michael Mahoney, former Suffolk PBA president. "Right now, crime is the number one political issue. Not only do the police unions have clout with their own negotiations, but also in terms of state and local law on crime."

"Unions in New York are stronger and are able to bargain for more generous packages," said Michael Bucci, a U.S. Bureau of Labor Statistics expert on police pensions. "New York also has a union tradition, where states like California and Florida don't have that tradition."

In Albany, where both the Nassau and Suffolk PBAs have representatives, their success is due partly to the fact that they're not professional lobbyists but active police officers.

Their lobbying organization, called the Metropolitan Police Conference of New York State, represents 35,000 downstate police officers. Kenneth Long, chairman of the group's legislative committee, was a Nassau County patrol officer until 1988, when he became the PBA's representative in Albany. Under the unions' contracts, the counties pay the salaries of officers who work much of the year as lobbyists.

"It's hard to argue against something in law enforcement," said Long, discussing the police lobby's success in Albany. "We move more bills as a group than other lobbying organizations because we're not doing it for personal gain, per se."

While public pensions generally have been shrinking in the past decade, police in New York have actually won some enhanced benefits.

In 1987, for example, police won the right to unlimited outside earnings for disability pensioners after they reach the 20th anniversary of their hiring date.

A state retirement system report in 1991 noted that the number of disability retirements jumped after the earnings cap removal.

Given the police lobby's ability to win expanding benefits in lean times, it becomes apparent that any retraction in the pension system would be politically difficult.

The last effort at major legislative revisions in the disability system, aimed at both police and firefighters and civilian state employees, came in 1986, when the Permanent Commission on Public Employee Pension and Retirement Systems recommended sweeping changes to the Legislature and the governor after an analysis by the Manhattan actuarial firm of Milliman & Robertson, Inc.

The commission was formed in the 1970s after a New York City bridge-tenders strike over pension benefits, and it remained unpopular throughout its existence.

"The pension commissioner was not liked by the unions," said Robert Helm, an Albany lawyer and former aide to Gov. Nelson Rockefeller who served as the pension commission counsel for 15 years. "They thought it was a management tool. It became a political thing for a number of years."

The 1986 report contained controversial recommendations. Among them were that disability pensioners undergo periodic medical exams to requalify for pension benefits; that pension benefits be reduced if the recipients also got Social Security disability payments; and that, after the first two years of disability, recipients be re-evaluated based on whether they were capable of performing any job, not just the job they had held.

None of the recommendations was adopted, Helm said, partly because of union opposition and partly because no one pushed for them. The commission was subsequently abolished.

Some officials recommend that the pension amount be based on degree of disability. Under the current system, police can collect the same amount from the state for a minor finger injury as they do for a crippling leg injury.

"We have had police officers getting disability retirements because their trigger finger has been impaired," said Sgt. Vincent Ward, former head of the Suffolk Police Department's medical evaluation unit. "Yet that person would get the same disability retirement benefit as someone who lost both his arms and both his legs in an accident." Ward's counterpart in Nassau, Det. Sgt. Robert Kiesel, suggests also that pension benefits be reduced depending on whether there was an element of negligence by the injured police officer.

In one Suffolk case, Capt. Harold McCormick reported that he stepped backward and fell over a parking lot stanchion, injuring his leg and back, while measuring a building for painting. Other police officers have filed injury claims for falling out of chairs, tripping over electrical cords, and slipping on stairs, snow and gasoline. "You fall out of your chair because you put your feet up on the desk and leaned back. That's your negligence. But you still get three-quarters," Kiesel said. "If a member steps on his shoelace and falls down, he should not be entitled to the same money as someone who gets shot and is disabled for the rest of his life."

Another proposal, pension forfeiture for criminal conduct, was introduced from 1988 through 1992 by Trunzo on behalf of the comptroller's office, but the bill was not seriously considered by the Legislature.

The proposal would allow forfeiture of a pension if a police officer or other public employee is convicted of malfeasance in office.

"It's not a burning issue up here," said an aide to Trunzo, explaining why the legislation died in his committee year after year. One problem, some officials suggest, is that the bill would also apply to state legislators, as well as other public officials convicted of criminal conduct.

Police lobbying groups oppose the idea. "If I spend 18 or 19 years serving the public and commit one indiscretion, I shouldn't be penalized for a life's work," Long said.

Robert Kearon, deputy Suffolk police commissioner, said the review of disability applicants should also include information that might bear on an applicant's credibility, such as disciplinary record, pending departmental investigations and actual prosecutions.

"Is internal affairs looking at him closely? Is his job in jeopardy? It's certainly not smoking-gun proof that perhaps there's a degree of fraud involved in the claim, but I would certainly be interested in knowing what's happening," Kearon said.

The pension commission also recommended medical re-evaluations of disability pension recipients. While state law allows medical reviews, Mauhs and other officials complain that the law has no teeth because it gives them no way of revoking a pension.

The comptroller's office has recently drafted legislation to deal with police who are found to have recovered from their disabilities, officials said in a recent interview. The proposed bill would give the retirement system the right to convert a police officer's pension to a regular service retirement, reducing the benefit and making it subject to federal income taxes. It would also give the pensioner the chance to go back on the public payroll rather than accept the reduced pension.

And experts agree that's what undermines New York's disability system most - its failure to weed out fraud and false claims. Pension officials could not identify one case of suspected police pension fraud that they had forwarded to local district attorneys. Police officials, meanwhile, say that even if fraud were suspected, a finding of disability by the state pension system would undermine any effort to prosecute officers for pension fraud at the local level. Other big states, such as California, actively prosecute fraud and have instituted a number of programs to curb abuses. In Florida, state officials use computers to compare the disability rolls to statewide data on employment. If disability retirees are found to be working, they are re-evaluated, and some pensions have been revoked, officials said. In New Jersey, if the state medical board decides that a retiree's disability might clear up over time, they are required to undergo annual physical exams by state doctors until age 50.

Texas state troopers who retire on disability are re-examined annually for the first five years and every three years after that until age 60. If it's found they are no longer disabled, their pensions can be revoked. In Massachusetts, disability retirees have to report annually on their income and employment situation, and a statewide oversight agency can bring proceedings to order them back to work or reduce their pensions.

None of these controls exists in New York. Long Island officials say they've been frustrated and baffled by the state's lack of response when presented with evidence suggesting fraud.

Nassau Deputy Insp. John Sharp, former head of the department's medical administration unit, said: "The thing that irked me about the system was that we would go out and absolutely document the fact that the injury was bogus, that they had no basis in reality, this is just a guy pulling a scam to get three-quarters, this is not a guy who's really injured.

"And then I would send a letter to Albany ... 'I have a videotape, tell me what to do with it.' They never even responded to say, 'Thanks, but no thanks.'"

One of the rare cases in which local authorities prosecuted police pension fraud took place in Suffolk during the late 1980s as an offshoot of another investigation. The target was retired Police Officer Albert Iannuzzi, who pleaded guilty to 10 misdemeanors in satisfaction of a 62-count indictment and had to file a statement in court acknowledging that he is no longer disabled and could work.

State officials, however, said there's nothing they can do to stop his pension payments. His prosecution didn't result from any vigilance by the pension system.

Comptroller McCall said his office does not have the money to increase fraud investigations. "We do not have the resources to do that. I don't have a room full of investigators sitting around," he said.

Sharp said changes are needed: "We're asking cops to do things that the public doesn't ask of anybody else, so we need to protect them," he said. "There are cops who'll never be right again because they did what we told them to do.

"On the other hand, we have guys who start scheming from their first day on the job how to get a disability pension. The sacrifice of good cops is diminished by these people who are abusing the system. It's unfortunate that the system is so shoddily managed that the phony cases get through. We need the system, but we need to fix it."


Key Players in Police Disability Pensions

  • H. Carl McCall

    State Comptroller.
    The comptroller's office administers the entire state pension system, including collecting and investing funds, processing applications and awarding disability pensions.
    Based: Albany

  • State Sen. Ralph J. Marino

    Senate Majority Leader.
    The Republican leader is a key figure in determining whether legislation will or will not be passed by the State Senate.
    Based: Albany and Oyster Bay

  • Assemb. Sheldon Silver

    The Democratic leader is a key figure in determining what legislation will or will not be passed by the State Assembly.
    Based: Albany and Manhattan

  • State Sen. Caesar Trunzo

    Chair, Committtee on Civil Service and Pensions.
    Heads the Senate committee that reviews all proposed changes in the pension disability laws.
    Based: Albany and Hauppauge

  • Assemb. Eric N. Vitaliano

    Chair, Committee on Governmental Employees.
    Heads the Assembly committee that reviews all proposed changes in the pension disability laws.
    Based: Albany and Staten Island

  • Gov. Mario M. Cuomo

    Can propose legislation, sign it into law or veto it.
    Based: Albany

  • Gary DelaRaba

    President, Nassau County PBA.
    His union lobbies the legislature and helps pay members' legal and medical bills.
    Based: Mineola

  • Thomas Tohill

    President, Suffolk County PBA.
    His union lobbies the legislature and helps pay members' legal and medical bills.
    Based: Bohemia

  • Kenneth Long

    Chairman, Legislative Committee.
    Metropolitan Police Conference. He is the chief lobbyist for this umbrella group of downstate police organizations.
    Based: Albany