Lying In Application Process Does Not Prevent Later Disability Retirement

After serving for 26 years with the New York City Police Department and for brief stints with the U.S. Mint Police and the U.S. Federal Protective Service, Joseph O’Rourke joined the District of Columbia Metropolitan Police Department in 2001. He was then 52 years old. O’Rourke was assigned to the Third District, where he served for the next several years as a patrol officer.

In July 2007, O’Rourke sustained injuries to his head, hands, and left elbow when he fell onto a concrete walkway while chasing a suspected carjacker. O’Rourke was placed on medical leave; the Department classified his injuries as having been incurred in the performance of duty. A year later, after O’Rourke had undergone various unsuccessful medical treatments, the Department’s Police and Fire Clinic recommended to the Retirement and Relief Board that O’Rourke be retired on disability because his “ongoing pain and weakness of his left hand preclude him from carrying out the full duties of a police officer.”

In September 2009, while the Board’s decision was still pending, the Department served O’Rourke with notice of a proposed termination of his employment. O’Rourke was charged with having secured his appointment to the force in 2001 by falsely stating in his Personal History Booklet that he never had been examined by a physician for “a disease or incorrect functioning of any part of his body, when he in fact underwent a series of tests to determine his qualification for disability on account of a heart condition after he retired from the New York City police force.” O’Rourke was found guilty of this charge, and the Police Department terminated his employment effective May 7, 2010.

The Board took note of the disciplinary proceedings. On May 27, 2010, it convened in executive session to consider the impact of O’Rourke’s dismissal. Thereafter, in a decision dated August 26, 2010, the Board concluded that because O’Rourke was no longer a “member” of the Metropolitan Police Department, he was no longer eligible for a disability retirement pension.

A court reversed the Board’s determination. In reviewing the District’s disability statutes, the Court found that “the term ‘member’ is defined, somewhat circularly, to include ‘any officer or member of the Metropolitan Police force.’ The sections say that a ‘member shall be retired’ on disability only with the approval of the Mayor. The Board reasoned, an officer becomes ineligible for a disability annuity if he is discharged from the Police force while the Board is still considering his case – even if he would have been entitled to the annuity had the Board acted more promptly.

“An inquiry into statutory context and purpose in the present case persuades us that the Board’s reading of the law is unreasonable. Admittedly, a review of the usage of the term ‘member’ in the immediate statutory environment surrounding the statutes is inconclusive. Sometimes the term ‘member’ is used in other provisions of the Retirement and Disability Act to include or mean former members. For example, the Act refers to officers who have been separated from the service simply as ‘members’ when it provides how they may reestablish lost annuity rights. The section of the Act dealing with cost-of-living adjustments of annuities similarly refers to retired officers as ‘members.’

“But the Act is not entirely consistent in this regard; in other places it distinguishes ‘former members’ from ‘members.’ Considering how the disability retirement provisions fit into the overall statutory framework, we find that the Board’s interpretation leads to perverse or incongruous consequences.

“Consider, first, that the Board’s holding is not limited to situations in which the member’s employment was terminated, as in O’Rourke’s case, for misconduct. A member may retire voluntarily by giving advance notice, or he may be retired for non-disciplinary reasons; the Board’s rationale applies equally to all such situations. With that in mind, it is easy to see why the Board’s ruling is problematic. To give just one example, the statutes provide that the Mayor may retire any member of the Metropolitan Police force or the Fire Department who has reached the age of 60. Suppose an officer is injured in the line of duty and recommended for a disability annuity just as he is on the verge of retirement at age 60 – the very day before his retirement is set to commence, perhaps. Under the Board’s interpretation of the disability retirement provisions, the happenstance of his immediate, mandated retirement at 60 would deprive the officer of a disability annuity simply because the Board could not finish evaluating and processing the disability retirement recommendation quickly enough. We can conceive of no justification for such an arbitrary and harsh result.

“We therefore are compelled to conclude that the Board’s restrictive interpretation of the statutes is at odds with the conditional retirement statute and the statutory framework as a whole. It would be far more consistent to include former members within the scope of the ‘members’ who may be retired on disability under the law.”

O’Rourke v. District of Columbia Police and Firefighters’ Retirement and Relief Bd., 46 A.3d 378 (D.C. 2012).