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Montgomery Disability Practices Under Fire

County Executive Isiah Leggett says the disability report is flawed.
County Executive Isiah Leggett says the disability report is flawed. (Kevin Clark - The Washington Post)
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By Ann E. Marimow and Dan Morse
Washington Post Staff Writers
Monday, September 8, 2008

More than 60 percent of Montgomery County police officers who retired in the past four years are collecting disability payments, including one who was a top finisher in a fitness contest a year after retiring on disability, according to an interim report scheduled to be released today by the inspector general's office.

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According to a draft of the report obtained by The Washington Post, Inspector General Thomas J. Dagley cited "questionable practices" and patterns or behaviors that a "prudent person would consider abusive." And he called on county officials to tighten oversight of the $32 million program.

County Executive Isiah Leggett (D) has acknowledged problems with the system and last month recommended a series of reforms after his own review found that a far greater percentage of the county's public safety retirees are collecting disability than those in Fairfax and Howard counties.

But Leggett's office took issue with the inspector general's findings in its formal response, questioning the value of the report and calling it "fundamentally flawed" and "simplistic." Leggett faulted investigators for not discussing their findings with the panel of doctors who evaluate applications and for not explaining the legal constraints of the system, designed largely through labor negotiations.

Retirees who qualify for service-related disability receive two-thirds of their salary tax-free for life. An officer who retires without disability after 25 years generally receives about 60 percent of his or her salary, and the benefit drops significantly when the retiree begins to collect Social Security.

The inspector general's office limited its investigation to the police department because of the high percentage of disability cases. According to the report, 62 percent of the 93 officers who retired between July 2004 and March 2008 were approved for disability benefits.

Walter Bader, a leader of the county's police union, the Fraternal Order of Police Lodge 35, said that he had not seen the report but that it sounded like a simplistic look that didn't examine retirement benefits as a whole.

Bader cited a consultant's report on the county's retirement system from April 2006 that found that the number of disability retirements was less than expected based on actuarial assumptions. "If there's fraud there, we'll deal with the fraud. Fraud is not tolerable to us," he said. But Bader said the inspector general instead seemed to be attacking the system's procedures.

Bader said many police officers delay taking disability retirement and work a few more years in pain. "I think they should be commended for that, not criticized," he said.

The review focused on officers who applied for disability retirement while they were also cleared to work their department assignment without restrictions in what is known as "full-duty status."

Of the nine officers approved, three had their police powers suspended because they were under investigation for "improper or illegal conduct," and two were competing for new law enforcement jobs outside county government, according to the report.

One officer, for instance, put in his disability application the day after his plea agreement in a theft scheme was filed in Circuit Court. He was approved for temporary disability and a tax-free pension of $36,000 for part of fiscal 2008.

The report questions the timing and approval of these applications because it "appears to coincide with factors unrelated to incapacitation, such as pending criminal/disciplinary charges involving work-related misconduct or the imminent selection for another position upon retirement."

Although the report does not name individual officers, county officials have said that several of the officers who resigned last year after involvement in a widespread double-dipping case are collecting disability benefits.

Leggett's chief administrative officer, Timothy Firestine, wrote in response that the county has "no legal authority" to treat such cases differently when deciding whether someone is eligible for benefits. One of Leggett's proposals, however, would allow the county to deny benefits when an employee is fired for "intentional wrongdoing."

Firestine also addressed the case of former assistant police chief John King, who retired last year and receives disability while serving as Gaithersburg's police chief. That an employee is "incapacitated for duty" in a county job, Firestine said, "does not necessarily mean that the employee is incapacitated for another non-county job." He said the panel of doctors was aware of King's imminent selection in Gaithersburg when they recommended him for disability.

Neither Firestine nor the inspector general's report mentions King by name, but Leggett has said that he was inspired to examine the system in part after hearing complaints about King's case. The report refers to specific news reports about King's move to Gaithersburg. King, and officers who have worked with him, have said he has extreme back pain. He has said his job as Gaithersburg chief is largely sedentary. King could not be reached for comment yesterday.

Dagley's report criticizes county officials for lax oversight, including the failure to share medical information among departments, the limited use of periodic physical exams to assess the health of current officers and the decision not to reexamine disabled retirees with annual checkups to determine whether their conditions have changed.

The report describes a retired senior police department manager who was approved for disability benefits in October 2006. One year later, the report says, the retiree finished second place for his age group in a physical fitness challenge that included push-ups, sit-ups, pull-ups, a vertical jump and a 1.5-mile run. Sources with knowledge of the manager's retirement confirmed that the officer is former assistant chief William C. O'Toole, who is now executive director of the Northern Virginia Criminal Justice Training Commission. He collects a tax-exempt county pension of about $95,000, according to the report. O'Toole did return a phone message left at his home yesterday.

Firestine said he does not know why the county stopped reexamining recipients in the mid-1990s, but he said that the county's human resources office is fast-tracking a plan to do so. The county is also reviewing its program to ensure that all current officers receive periodic medical exams, he said.

In two cases, the report describes officers who were approved for disability benefits soon after being cleared by a doctor to return to work on full-duty status following a workers' compensation injury. In response, Firestine said that the panel of doctors is in most cases aware of an officer's status but agreed that the county needs to do a better job communicating among offices.

Leggett's internal review of all public safety retirements in the past eight years found that 34 percent of Montgomery's police, fire, corrections and sheriff's department retirees receive service-related disability payments, compared with 25 percent in Prince George's County, 4 percent in Howard and 3 percent in Fairfax.

In response to Leggett's findings and in anticipation of the inspector general's report, County Council members Phil Andrews (D-Gaithersburg-Rockville) and Duchy Trachtenberg (D-At Large) have scheduled a hearing this week to consider legislative fixes to the disability retirement system.


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