Employer Cannot Unilaterally Suspend Disability Payments To Officer

Thomas Kempkes is a police officer with the Village of Bronxville, New York. Kempkes was placed on extended disability leave September 6, 2002, and was paid his full salary while on leave. On July 7, 2006, Kempkes was informed by the Chief of Police that he would be suspended without pay pending a disciplinary hearing involving his failure to report his whereabouts while on sick leave during what would have been his normal (but for the disability) scheduled tour of duty on July 6, 2006.

Kempkes sued the City, claiming the decision to suspend him without pay violated his due process rights. A New York court agreed.

The Court held that New York state law obligated the Village to pay Kempkes’ disability benefits until he was determined to no longer be disabled. The Court held that “the payment of disability benefits constitutes a protected property interest. The pertinent issue is whether New York law creates a protected property interest in disability benefits such that a pre-deprivation hearing must be held. The constitutional guarantee of due process requires that a recipient of benefits under the disability law be granted an evidentiary hearing prior to the deprivation of such benefits. Consequently, a municipality may not discontinue the payment of benefits as a disciplinary sanction without a prior evidentiary hearing.

“Here, it is undisputed that no pre-deprivation evidentiary hearing was conducted. Accordingly, the lower court properly annulled the Kempkes’ suspension.”

Kempkes v. Downey, 2008 WL 2669611 (N.Y.A.D. 2008).

This article appears in the December 2008 issue