[Adopted by the Laws of 1908, Chapter 452, Article XII, as
amended and superseded by L.L. No.
2-1931[2]; amended L.L.
No. 4-1939; L.L.
No. 6-1940; Laws 1943, Ch. 710; L.L. No. 2-1944; L.L. No. 15-1947; L.L. No. 5-1949; L.L. No. 12-1956; L.L. No. 7-1957; L.L. No. 7-1960; L.L. No. 11-1961; L.L. No. 13-1961; L.L. No. 18-1961; L.L. No. 17-1963; L.L. No. 21-1963; L.L. No. 30-1964; L.L. No. 31-1964; L.L. No. 32-1964; L.L. No. 14-1965; L.L. No. 4-1967; L.L. No. 8-1968; L.L. No. 11-1969; L.L. No. 7-1970; L.L. No. 9-1974; L.L. No. 7-1975; 6-15-1982 by G.O. No.
7-1982; 8-28-1995 by L.L. No. 11-1995[3]]
[1]
Editor's Note: Former Art. XXIII, Department of Fiscal Services, added 4-25-1978 by L.L. No. 6-1978, as amended, was superseded 9-8-1987 by L.L. No. 5-1987. See now Art. V, Department of Fiscal Services.
[2]
Editor's Note: L.L. No. 3-1973, adopted 8-28-1973, provided
that notwithstanding any provision of this chapter, the pensions of
all retired members and officers of the Fire Department, currently
receiving pensions pursuant to this chapter, shall be increased by
the sum of $281.48 per person, per year. This local law was made retroactive
to 7-1-1973.
[Amended 11-4-2008 by L.L. No. 10-2008]
The Mayor, the Commissioner of Finance and the Fire Commissioner
and their successors in office shall constitute a Board of Trustees
of the Firemen's Pension Fund; and they shall have the care, control,
management and distribution of said funds as provided by law. The
Commissioner of Finance shall be the custodian of the said fund, and
the treasurer thereof. All orders made payable from the said fund
shall be made upon the vote of said Trustees, and such orders must
be signed by the Fire Commissioner, and countersigned by the Commissioner
of Finance. The Trustees of the said fund shall invest for the benefit
of the fund all moneys not necessary for the payment of pensions as
hereinafter provided. Such investment shall be made only in securities
in which the savings banks of the State of New York are authorized
by law to invest. In addition to and as part of the pensions hereinafter
specified, the said Trustees are directed to cause group life insurance
policies in sum of one thousand dollars ($1,000) per member to be
issued upon the life of such member while employed in such service
and until such retirement therefrom and to pay out of said fund premiums
due thereon, provided the beneficiary named in said policies shall
be limited to the widow, minor children under eighteen (18) years
of age, or next of kin of such member. The Trustees of the said fund
shall report in detail to the City Council annually, in the month
of January, the condition and the disposition of the fund, and the
items of receipts and disbursements for account of the same during
the year ending on the 31st day of the December preceding, including
insurance policies then outstanding.
The Firemen's Pension Fund as it now exists is continued; and
in addition to the moneys and investments therein contained it shall
consist of:
1
All fines imposed by the Fire Commissioner on the members of the
Fire Department in the City of Yonkers.
[Amended 11-4-2008 by L.L. No. 10-2008]
2
All rewards, money, gifts, testimonials and emoluments that may be
paid or given to any member of the Fire Department for account of
fire service except such payments or gifts as have been or shall be
allowed by the Fire Commissioner to be retained by the members receiving
the same.
[Amended 11-4-2008 by L.L. No. 10-2008]
3
All money, pay, compensation or salary or any part thereof deducted
or withheld from any member or members of the Fire Department, for
or on account of absence or suspension from duty except in cases of
sickness.
4
All moneys which shall be deducted from the monthly pay, salary or
compensation of each member of said Department and which shall be
the sum of five per centum (5%) of the monthly pay, salary or compensation
of each of the said members; which said sum shall be deducted monthly
by the Commissioner of Finance of the City of Yonkers from the pay,
salary or compensation of each and every member of said Fire Department,
and the Commissioner of Finance is authorized, empowered and directed
to deduct the said five per centum (5%) of the monthly pay, salary
or compensation as aforesaid and to cause the same to be paid forthwith
to the Trustees of the said Firemen's Pension Fund. No member of said
Department shall be required to continue contribu-tions after completing
twenty-five (25) years of service.
[Amended 11-4-2008 by L.L. No. 10-2008]
5
An amount payable to the Trustees of the Firemen's Pension Fund from
the city treasury at the end of each fiscal year up to and including
the fiscal year commencing January 1, 1940, and ending December 31,
1940, equivalent to one and one-half (1 1/2) times the amount of moneys
deducted from the monthly pay, salary or compensation of each member
of the said Fire Department during such fiscal year as provided by
Subdivision 4 of this section.Whenever in any calendar year, up to
and including the calendar year beginning January 1, 1940, and ending
December 31, 1940, the disbursements from said fund shall exceed the
total income thereof, and the principal sum of said fund is less than
two hundred fifty thousand dollars ($250,000.), there shall be included
in the next annual budget and levy a sum to equal the amount of such
deficiency for such previous year, and the same shall be paid by the
Commissioner of Finance to the Trustees of the said fund. Commencing
on January 1, 1941, and continuing thereafter, the Trustees of the
Firemen's Pension Fund are directed to and shall as rapidly as they
deem it, in their judgment, advisable, liquidate and convert into
money all of the assets included in the principal sum of the said
fund and shall use, during the calendar year beginning January 1,
1941, and ending December 31, 1941, sixty thousand dollars ($60,000.)
of such money, or so much thereof as may be available up to the sum
of sixty thousand dollars ($60,000.), for the purpose of paying any
pensions, annuities, retirement allowances, refunds, death benefits,
dependent benefits and any other benefits granted under the provisions
of this Article, or may pay over to the city during such calendar
year the said sum of money or any part thereof at such time or times
and in one (1) payment or in several payments, as the said Trustees
shall determine, to be received by the city as a credit to the general
fund of the city and as an estimated revenue receivable in said year
deductible in the annual estimate for the purpose of ascertainment
of the tax budget in that year under the provisions of Section 77
of the Second Class Cities Law. Any part of the sixty thousand dollars
($60,000.) so directed to be disbursed or paid over by the said Trustees
that shall not for any reason be disbursed or paid pursuant to the
directions aforesaid in the said calendar year ending December 31,
1941, shall be disbursed or paid over by the said Trustees for the
same purposes and in the same manner in any subsequent calendar year
or years. In addition to any part of the said sixty thousand dollars
($60,000.) so disbursed, used or paid over, in any calendar year subsequent
to the calendar year ending December 31, 1941, the said Trustees shall
use in each calendar year subsequent to the calendar year ending December
31, 1941, forty thousand dollars ($40,000.) of the money into which
the assets of said fund have been liquidated and converted or so much
thereof as may be available up to the sum of forty thousand dollars,
($40,000.), for the purpose of paying any pensions, annuities, retirement
allowances, refunds, death benefits, dependent benefits and any other
benefits granted under the provisions of this Article, or for making
payments in each of such calendar years subsequent to the calendar
year ending December 31, 1941, up to the sum of forty thousand dollars
($40,000.) similarly as hereby permitted to be made during the calendar
year ending December 31, 1941, into the general fund of the city for
each of such calendar years, until such time as the whole of the said
principal sum of said fund shall have been liquidated and disposed
of in the manner aforesaid. The payment of all moneys directed under
the provisions of this Article to be paid by the Commissioner of Finance
to the Trustees of the said Firemen's Pension Fund shall be, except
for the contributions from salaries of members referred to in Subdivision
4 of this section, and are hereby made direct obligations of the city,
and the payment of all pensions, annuities, retirement allowances,
refunds, death benefits, dependent benefits and any other benefits
granted under the provisions of this Article is hereby guaranteed
by the city. The Fire Commissioner shall prepare and submit in each
year to the officer or officers of the city charged with the duty
of making the annual estimate at the same time and in the same manner
as the annual estimate of the Fire Department is submitted for each
fiscal year, an estimate of the amount necessary to be appropriated
by the city to the said fund to provide for payment in full during
the ensuing fiscal year of all such obligations of the city accruing
during the ensuing fiscal year and the payment of any deficiency accruing
for any previous fiscal year. The officer or officers of the city
charged with the duty of making the annual estimate in each year shall
include annually in the annual estimate and the City Council shall
annually appropriate an amount sufficient to provide for such obligations
of the city including any such deficiency. The Commissioner of Finance
shall pay the sum so appropriated into the said Firemen's Pension
Fund provided for by this Article.
[Amended 11-4-2008 by L.L. No. 10-2008]
[Amended 11-4-2008 by L.L. No. 10-2008]
The Trustees of the said Firemen's Pension Fund shall have the
power at any time to reopen and rehear the case of any member who
has been retired on or after August 1, 1939, solely for physical disability,
upon reasonable notice to such member he or she shall be removed from
the pension rolls and ordered back to active service, and if so ordered
a copy of such order shall be served upon such member and he or she
shall thereupon be removed from the pension rolls and be returned
to active service.
[Amended 11-4-2008 by L.L. No. 10-2008]
The Fire Commissioner shall have the power and authority to
retire from all service in the Fire Department and relieve and dismiss
from the said Department any member or officer of the Department who,
upon an examination by the Fire Surgeon ordered by the said Department,
is found to be disqualified physically or mentally in the performance
of his or her duties.
The Fire Commissioner shall retire from all service in the Fire
Department and relieve and dismiss from the said Department members
or officers thereof in the following cases:
A.
Notwithstanding the provisions of Section 136, Second Class Cities Law, Chapter 55, Laws of 1909, as amended, the Fire Commissioner is hereby directed to retire from all service in the Fire Department any member or officer attaining the age of sixty-five (65) years, and it is the purpose of this provision to retire the said member by operation of law and not by the exercise of any discretion on the part of the Fire Commissioner. The records of the Fire Department as to the age of the various members and officers supplied to said Department at the time of the appointment of said member shall be controlling as to his or her age.
B.
Any member or officer of the Department who shall have served continuously
as a member or officer of the Department for a period of twenty-five
(25) years or upwards, provided that such member or officer applies
for retirement. Nothing in this section contained shall, however,
be construed as a limitation on the powers otherwise conferred by
law with respect to the removal or dismissal of members or officers
of the Fire Department.
C.
All members or officers of the Department retired under the provisions
of this section shall be placed on the roll of the Firemen's Pension
Fund.
The said Board of Trustees shall grant pensions out of said
pension fund, in the following cases:
(1)
To any member or officer of the Fire Department who shall have been retired for disability not caused in or induced by the actual performance of the duties of his or her position and who has been relieved and dismissed from the Fire Department and who has been placed on the pension roll, as provided in Section 3 of this Article, an annual pension payable monthly during his or her lifetime of a sum of money amounting to one-half (1/2) of the full salary or compensation received by such member or officer at the date of his or her retirement from such service; and said pension or allowance so allowed is to be in lieu of any salary which such member or officer was entitled to receive at the date of his or her being so relieved or retired from duty, and the city shall not be held liable for any payment of any claim or demand for service thereafter rendered by the member or officer of the force so retired.
[Amended 11-4-2008 by L.L. No. 10-2008]
(1-a)
To any member or officer of the Fire Department who shall have been retired for disability caused in or induced by actual performance of the duties of his or her position and who has been relieved and dismissed from the Fire Department and who has been placed on the pension roll, as provided in Section 3 of this Article, an annual pension payable monthly during his or her lifetime of a sum of money amounting to three-quarters (3/4) of the full salary or compensation received by such member or officer at the time of his or her retirement from such service; and said pension or allowance so allowed is to be in lieu of any salary which such member or officer was entitled to receive at the date of his or her being so relieved or retired from duty, and the city shall not be held liable for any payment of any claim or demand for service thereafter rendered by the member or officer of the force so retired.
(1-b)
To any retired fireman of the Fire Department who shall have
been retired for disability caused in or induced by actual performance
of the duties of his or her position, a pension of six thousand one
hundred fifty-seven dollars and fifty cents ($6,157.50) per annum;
to any retired lieutenant of the Fire Department who shall have been
retired for disability caused in or induced by actual performance
of the duties of his or her position, a pension of seven thousand
one hundred sixty-two dollars and fifty cents ($7,162.50) per annum;
to any retired captain of the Fire Department who shall have been
retired for disability caused in or induced by actual performance
of the duties of his or her position, a pension of seven thousand
nine hundred eighty-three dollars and seventy-five cents ($7,983.75)
per annum; to any retired assistant chief of the Fire Department who
shall have been retired for disability caused in or induced by actual
performance of the duties of his or her position, a pension of eight
thousand eight hundred eighty-seven dollars and fifty cents ($8,887.50)
per annum; to any retired chief of the Fire Department who shall have
been retired for disability caused in or induced by actual performance
of the duties of his or her position receiving a pension of nine thousand
dollars ($9,000.) or less per annum, a pension of eleven thousand
six hundred forty dollars ($11,640.) per annum. In addition to the
aforementioned remunerations, any person having served ten (10) continuous
years in the Fire Department shall receive in addition to his or her
base retirement pay the sum of fifty dollars ($50.) per annum, or
any person having served twenty (20) continuous years in said Department
shall receive in addition to his or her base retirement pay the sum
of one hundred dollars ($100.) per annum. All of the aforementioned
benefits shall be paid in addition to any benefits that may accrue
to any individual qualifying for the benefits provided for under Local
Law No. 12-1960, except that the maximum amount of benefits payable
under any and all sections and subdivisions of this Article shall
not exceed seven-eighths (7/8) of the salary or compensation received
at the date of retirement or separation from service, or the base
salary or compensation for the year 1966, whichever is greater.
(2)
To any member or officer of the Fire Department who shall have been retired and who shall have been relieved and dismissed from the Fire Department in accordance with the provisions of § C23-3A or B of this Article and who has been placed on the pension roll as provided in § C23-3C of this Article, an annual pension, payable monthly during his or her lifetime, which shall be equal to one-half (1/2) of his or her final annual salary or compensation. In the event any member of the Fire Department has served as such for a period of twenty-five (25) years and thereafter continues in such service, upon his or her subsequent retirement for any cause whatsoever, there shall be added to the amount of the annual pension or retirement allowance to which he or she is entitled upon date of retirement an additional amount computed at the rate of one-sixtieth (1/60) of his or her final compensation for each year of such additional service, except that the maximum amount of benefits payable under any and all sections and subdivisions of this Article shall not exceed seven-eighths (7/8) of the salary or compensation received at the date of retirement or separation from service, or the base salary or compensation for the year 1966, whichever is greater.
[Amended 11-4-2008 by L.L. No. 10-2008]
(2-a)
To any retired fireman of the Fire Department, a pension of
four thousand one hundred five dollars ($4,105.) per annum; to any
retired lieutenant of the Fire Department, a pension of four thousand
seven hundred seventy-five dollars ($4,775.) per annum; to any retired
captain of the Fire Department, a pension of five thousand three hundred
twenty-two dollars and fifty cents ($5,322.50) per annum; to any retired
assistant chief of the Fire Department, a pension of five thousand
nine hundred twenty-five dollars ($5,925.) per annum; to any retired
chief of the Fire Department receiving a pension of six thousand dollars
($6,000.) or less per annum, a pension of seven thousand seven hundred
sixty dollars ($7,760.) per annum, and to any retired lineman of the
Fire Department, a pension of three thousand six hundred five dollars
($3,605.) per annum; to any retired ammonia mechanic of the Fire Department,
a pension of three thousand four hundred five dollars ($3,405.) per
annum. To any retired principal clerk of the Fire Department, a pension
of three thousand nine hundred seventy-five dollars ($3,975.) per
annum. In addition to the aforementioned remunerations, to any retired
member of the Fire Department who shall have served ten (10) continuous
years in said Department who shall have served ten (10) continuous
years in said Department, an additional fifty dollars ($50.) per annum,
or to any person having served twenty (20) continuous years in said
Department, an additional one hundred dollars ($100.) per annum. All
of the foregoing benefits shall be paid in addition to any benefits
accruing to an individual under Local Law No. 12-1960, except that
the maximum amount of benefits payable under any and all sections
and subdivisions of this Article shall not exceed seven-eighths (7/8)
of the salary or compensation received at the date of retirement or
separation from service, or the base salary or compensation for the
year 1966, whichever is greater.
(3)
To the widow of any member or officer of the Fire Department who
shall have been killed while in the actual performance of fire duty,
or who shall have died from the effects of any injuries received in
the actual discharge of such duty, provided such death occurs within
two (2) years from the date said injuries were received, a pension
which shall be equal to one-half (1/2) of the final annual salary
or compensation of such member or officer at the time of death, or
one-half (1/2) of the annual salary that said officer would have received
had he been employed on January 1, 1967 in the rank which he held
immediately prior to his death, whichever sum is the greater, payable
to said widow during her lifetime, unless she remarries, when said
pension is to terminate. If there be no widow of any such deceased
member, then a sum not exceeding six hundred dollars ($600.) per annum
shall be paid to the child or children of such member or officer until
such child or children arrive at the age of eighteen (18) years, when
such pension is to terminate as to each child. If there be no widow
or child or children under the age of eighteen (18) years, then a
sum not exceeding six hundred dollars ($600.) per annum shall be paid
to any dependent mother or father of such deceased member or officer,
in equal shares if both be dependent, for the support or maintenance
of such dependent mother or father, or both, as the case may be, for
a period of not more than one-half (1/2) of the number of years of
service to the credit of such deceased member or officer.
(4)
To the widow of any member or officer a sum not exceeding two thousand
four hundred dollars ($2,400.) per year, unless she remarries, when
such pension is to terminate. If there be no widow, then a sum not
exceeding two thousand four hundred dollars ($2,400.) per annum shall
be paid to the child or children of such member or officer until such
child or children arrive at the age of eighteen (18) years, when such
pension is to terminate as to each child. If there be no widow or
child or children under the age of eighteen (18) years, then a sum
not exceeding two thousand four hundred dollars ($2,400.) per annum
shall be paid to any dependent mother or father of such deceased member
or officer in equal shares if both be dependent for the support or
maintenance of such dependent mother or father, or both, as the case
may be, for a period of not more than one-half (1/2) of the number
of years of service to the credit of such member or officer.
|
To the widow of such member or officer who shall have been retired
on a pension sum not exceeding two thousand four hundred dollars ($2,400.)
per annum during widowhood. If there be no such widow, then a sum
not exceeding two thousand four hundred dollars ($2,400.) per annum
shall be paid to the child or children of such member or officer until
such child or children arrive at the age of eighteen (18) years, when
such pension is to terminate as to each child. If there be no widow
or child or children under the age of eighteen (18) years, then a
sum not exceeding two thousand four hundred dollars ($2,400.) per
annum shall be paid to any dependent mother or father of such deceased
member or officer, in equal shares if both be dependent, for the support
and maintenance of such dependent mother or father, or both, as the
case may be, for a period of not more than one-half (1/2) of the number
of years of service to the credit of such deceased member or officer.
|
(5)
In the event that a member or officer of the Fire Department, who shall also have been a member of the Firemen's Pension Fund of the city, shall die before retirement and a pension is not paid by the Board of Trustees pursuant to Subdivisions (3) and (4) of this section, the amount of salary deductions, with interest of four percent (4%) per annum, made from the pay, salary or compensation of such member pursuant to the provisions of § C23-2, Subdivision 4, of this Article, shall be paid by the Board of Trustees to the beneficiary or beneficiaries as such member or officer shall have nominated by written designation duly acknowledged and filed with such Board. Such designation shall be made within thirty (30) days after July 1, 1940, and may be changed from time to time by such member or officer upon filing with the Board a new designation duly executed.
(5-a)
In the event that a member or officer of the Fire Department, who shall also have been a member of the Firemen's Pension Fund of the city, discontinues service, except by death or retirement, the amount of salary deductions, with interest at two and one-half percent (2 1/2%) per annum, made from the pay, salary or compensation of such member pursuant to the provisions of Section 2, Subdivision (4), of this Article, shall be refunded and paid by the Board of Trustees to such member or officer.
(6)
Any widow receiving a pension pursuant to this Article shall between
January 2 and February 1 in each year file with the Commissioner of
Finance of the City of Yonkers an affidavit stating that there has
been no change in the marital status of said widow during the year
terminating on January 1 preceding the time of the filing of the affidavit,
and the Trustees of said fund shall have the power to suspend all
pension payments to any widow failing to file such affidavit until
such affidavit is filed.
[Amended 11-4-2008 by L.L. No. 10-2008]
(7)
Every person who knowingly or willfully in any way procures the making
or presentation of any false or fraudulent affidavit or affirmation
concerning any claim for pension or payment thereof shall in every
such case forfeit a sum not exceeding two hundred fifty dollars ($250.)
to be sued and recovered by and in the name of said Trustees of said
Firemen's Pension Fund and when recovered paid over to and thereupon
become a part of said Firemen's Pension Fund.
(8)
For the purpose of this act, the Board of Trustees of said Firemen's
Pension Fund is hereby authorized to administer oaths and take acknowledgments;
and any person who shall willfully swear falsely in any oath or affirmation
in obtaining or procuring any pension under the provisions of this
act shall be guilty of perjury. The Commissioner of Finance is authorized
to require sworn proof of the beneficiary's identity before delivery
of any pension check hereunder.
[Amended 11-4-2008 by L.L. No. 10-2008]
(9)
Moneys, securities and effects of said Firemen's Pension Fund and
all pensions granted and payable from said fund shall be and are hereby
exempt from execution and from all process and proceedings to enjoin
and recover the same by or on behalf of any creditor or person having
or asserting any claim against or debt or liability of any pensioner
of said fund.
(10)
The members of said Fire Department whose salaries contribute to
said pension fund shall annually select two (2) of their members and
the pensioners shall annually select one (1) of their members; and
the persons so selected shall constitute an auditing committee and
shall audit the accounts and proceedings of the said Trustees and
make and file with the Clerk of the City of Yonkers a written report.
(11)
Pension increase.
(a)
Notwithstanding any contrary provision contained in Article XXIII, Firemen's Pension Fund, of the Supplemental Charter of the City of Yonkers, the pensions of all retired members and officers of the Fire Department (excluding widows of members and officers) currently receiving pensions pursuant to said Article XXIII are hereby increased by applying the following formula:
|
The Commissioner of Finance shall compute ten percent (10%)
of the total amount of pensions paid to all retired members and officers
of the Fire Department (excluding widows) during the fiscal year 1974-1975.
The total number of such retired members and officers shall be divided
into the amount computed, and the pension of each such member and
officer shall be increased by the amount of such quotient.
[Amended 11-4-2008 by L.L. No. 10-2008] |
(b)
On April 1 of each year, the Trustees of the Fire Pension Fund
shall meet and shall review the amounts of the pensions paid to all
retired members and officers of the Fire Department; and by taking
into consideration the rate of inflation, cost of living index and
other factors they deem relevant, the said Trustees shall recommend
to the City Council whether or not an increase in pension should be
granted, and, if so, in what amount. Any such recommended increase
shall take effect at the beginning of the next fiscal year.
(c)
On July 1, 1982, the annual pensions payable to all members
of the Firemen's Pension Fund (excluding windows) shall be increased
by the amount of one thousand dollars ($1,000.). This increase shall
be paid in twelve (12) equal monthly installments.
[Added by L.L. No. 6-1940; amended 11-4-2008 by L.L. No. 10-2008]
Notwithstanding any inconsistent provision of this Article,
as amended, no member of the Police Department appointed on any day
between June 25, 1939, being the date upon which Local Law No. 1 of
the City of Yonkers for the year 1939 went into effect, and June 25,
1940, inclusive, and no member of the Police Department appointed
on any day subsequent to June 25, 1940, inclusive, and no member of
the Police Department appointed on any day subsequent to June 25,
2940, shall be a member of the Police Pension Fund, or be required
to pay any money, or part of any monthly pay, salary or compensation
to said pension fund, and no such member of the Police department,
his or her surviving spouse, children, parents, brothers or sisters,
shall be entitled to receive, granted, or paid any pension, allowance
or money from said pension fund.
Notwithstanding the provisions of any general, special or local law, there is hereby granted to the widow and members of the family of any member or officer of the Fire Department of the City of Yonkers, appointed on and after June 26, 1939, the same pension as widows and members of the family of members or officers of the said Fire Department appointed on or before June 25, 1939 are entitled to receive, as set forth in Sections C23-4(3) and (4) of the Firemen's Pension Fund of the City of Yonkers; provided, however that all widows and members of the family of all members or officers of the Fire Department of the City of Yonkers shall be subject to the provisions of Sections C23-4(6), (7) and (8) of the Firemen's Pension Fund aforesaid.[1]
[1]
Editor's Note: Former § C23-7, References to Commissioner
of Public Safety and Department of Public Safety, added 9-4-2002 by
L.L. No. 15-2002, which immediately followed this section, was repealed
11-4-2008 by L.L. No. 10-2008.
