October 26, 2001
By William Van Auken
More than a year after claiming the right to a line-of-duty disability pension from the Police Department, former Chief of Personnel Michael A. Markman failed in his bid for a retirement benefit worth approximately $140,000, tax-free.
The October 10 Police Pension Board meeting which rejected the application was unprecedented in that the majority of police union representatives failed to side with Mr. Markman. Routinely with contested applications, the unions' six votes go in favor of the officer. The other six votes are split between the Mayor's Office, the Finance Department and the City Comptroller's Office. Approval requires seven votes.
PBA Led Charge
In Mr. Markman's case, the Captains' Endowment Association, which represents senior police officers on pension matters, voted in his favor, as did the Lieutenants' Benevolent Association. The Patrolmen's Benevolent Association, which controls four of the unions' six votes, abstained, as did the Detectives' Endowment Association and the Sergeants' Benevolent Association which have one-half vote each.
The vote reflected lingering bitterness within the police unions over Chief Markman's tenure, which officials said was characterized by a ruthless campaign to force cops on sick leave or restricted duty back onto full duty or out of the department, and to catch officers claiming phony disabilities.
The dissenting unions also expressed concerns that Mr. Markman enjoyed more than a level playing field when his claim that he was disabled as the result of a seven-year-old automobile accident was approved by the Pension Fund's medical board.
Lower-ranking cops claiming disabilities from injuries suffered years earlier are routinely denied LOD pension, union officials said. While Mr. Markman was Personnel Chief, they also noted, the number of such pensions awarded to cops claiming disabilities which entitle them to allowances that begin with three-quarters of their final salary declined markedly.
"We did not want someone who has been so difficult and unfair to Police Officers with real injuries who have been denied line-of-duty pensions to get a pension for himself that he didn't deserve," said Patrolmen's Benevolent Association President Patrick J. Lynch.
PBA Put Pressure
The PBA president said he believed that the city would have voted for Mr. Markman's application had the unions not pressured its representatives on the board to take a second look at the Personnel Chief's claim.
The PBA and the two other police unions, he said, abstained because they did not want a vote against the claim to set a precedent that could hurt upcoming applications from cops who deserve the benefit.
Mr. Markman, who made his disability claim at the end of a 38-year career in the NYPD, received special treatment from the board, union officials charged. While rank-and-file cops are routinely compelled to wait for months before being called for a physical, Mr. Markman received a private examination in the office of the NYPD's Supervising Chief Surgeon Robert Thompson, his direct subordinate, just four days after filing for the pension.
"There was a controversy because he went outside the normal procedures that all our members are bound by," said Sergeants' Benevolent Association President Bernard B. Pound. "We're held to a certain standard and it should be the same standard for everyone from the top down; that's why we abstained."
The medical board determines whether a cop's injuries preclude a return to full duty, and whether they are duty-related. It then sends its recommendations to the Pension Board, which makes a final determination.
While Police Department sources said that Mr. Markman regularly worked out in the gym and ran long distances in the years after his accident, he also accumulated a continuous record of treatment for his back, with doctor's visits and sick days spaced out over the seven years leading up to his pension application, This "paper trail" plays a major role in decisions by the medical board, where physical examinations are usually perfunctory.
"He'll win in court" Said Captains' Endowment Association President John F. Driscoll, who represented the Personnel Chief before the Pension Board. "The board has no reason for saying it wasn't duty-related.
Mr. Markman is preparing to file an Article 78 lawsuit seeking to overturn the board's decision. He will argue that he was disabled as the result of a lint-of-duty injury entitles him to the accidental disability retirement allowance.
Sue's on the Other Foot
One union official saw some poetic justice in Mr. Markman being forced into the courts to pursue his three-quarters pension. "His favorite saying in meetings was 'screw him, let him sue for it if he wants it,' " the official recalled, "Well, now that's what he's getting for himself."
The vote by the Pension Board still allows Mr. Markman to retire on an ordinary disability pension, which in his case is significantly higher that the service pension that cops normally get.
The disability pension, which is subject to Federal taxes, is equal to 2 ½ percent of final year's salary times the number of years on the job. In Mr. Markman's case with 38 years of service, this means he will receive 95 percent of his final salary, or approximately $125,000.
With a service pension, he would receive 50 percent of his final year's salary along with 1/60th of all pension-able compensation he received for each of those years, however, and not final annual salary. In addition, service retirees receive a Variable Supplements Fund benefit, currently $9,000 a year, which does not go to those with disability pensions.
In Mr. Markman's case, because of the high salary earned by three-star chiefs, an ordinary disability retirement is the more lucrative option.
In a separate action, the Pension Board approved a posthumous upgrade in the pension benefit awarded to Police Officer Salvatore Glibbery, who committed suicide in July 19976 after the Pension Fund's medical board repeatedly rejected his application for a line-of-duty pension based on a claim of post-traumatic stress.
Officer Glibbery's mental and emotional problems began with a controversial on-duty shooting in 1987 of an emotionally disturbed transit worker who lunged at him with a knife.
Took Turndown Hard
The same medical board that approved Mr. Markman for an accidental disability pension rejected Officer Glibbery's claim. After his first appeal was rejected, he attempted suicide.
When the Pension Board itself split 6-to-6 on his application, he was put out of the department in 1997 on an ordinary 50-percent disability pension. Two years later, Suffolk County police found the cop dead in his car from a pill overdose.
In addition to the lower retirement benefit, his family was denied medical coverage that accompanies a line-of-duty pension.
"This was a case that had fallen through the cracks, and the right thing was done for the family," said Mr. Lynch. "It should have been acknowledged what happened to him; it might have saved his life.
The attorney for the Glibbery family, Jeffrey L. Goldberg, said that the board's approval of the upgrade, with the city's approval, was highly unusual. In the past, claims of psychiatric disabilities resulting from post-shooting trauma were invariably rejected.
"It shows that the Pension Board can at least acknowledge that police officers can suffer mental and emotional consequences from on-duty incidents," said Mr. Goldberg. "Hopefully, if any of the cops or firefighters who have gone through the World Trade Center disaster suffer similar problems, this case will set a guideline for future decisions."