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January 21, 2011

Transfer to a different retirement plan

Transfer to a different retirement plan
Overton v Southampton, 273 AD2d 242; Motion for leave to appeal denied, 95 NY2d 764

In the Overton case, the Appellate Division, Second Department, ruled that if a member of the State Employees’ Retirement System transfers from one plan to a different plan, he or she is subject to the relevant provisions of law concerning the plan into which he or she has transferred.

The Town of Southampton adopted a resolution on November 23, 1999. This resolution terminated the employment of its Chief of Police, James P. Overton, effective January 7, 1999, Overton’s 55th birthday. The Town’s action was based on the retirement plan to which Overton had previously transferred -- the Section 384-d plan.

According to the decision, although Overton was initially enrolled in a 25-year retirement plan with a mandatory retirement age of 70, he later elected to transfer into an optional 20-year retirement plan when the optional plan became available to the Town’s police officers pursuant to Section 384-d of the Retirement and Social Security Law.

Although Section 384-d requires members to retire no later than age 62, in 1971 a new subdivision, subdivision (m), was added to Section 384-d. Subdivision m applied only to Southampton law enforcement personnel and required police officers in the Section 384-d plan to retire at age 55.

Subdivision (m) provides that [n]otwithstanding any inconsistent provision of law, if the town board of the town of Southampton elects to make the benefits of this section available to the members of its police department, each member of such department shall be separated from service upon completion of twenty years of service, provided, however, that the town board may permit a member to continue in service on an annual basis after the completion of twenty years of service, but in no event shall such annual service be continued after a member has attained age fifty-five.

Approaching age 55, Overton decided he wanted to withdraw from the Section 384-d 20-year plan and transfer back into the 25-year plan so that he could continue his employment with the Town after reaching age 55. The Town, however, adopted a resolution separating him from service effective January 7, 2000, his 55th birthday.

Another factor in the litigation: The State Comptroller had issued an opinion indicating that Section 384-d(m) requires any Town police officer who ever enrolled in the 20-year plan to separate from service at age 55, regardless of whether the officer has subsequently withdrawn from the plan.*

Overton sued the Town and the Comptroller in an effort to annul the Town’s action and be approved for transfer into another plan. Unsuccessful in Supreme Court, he appealed. The Appellate Division reversed the lower court’s ruling, holding that the resolution in question adopted by the Town of Southampton on November 23, 1999, is annulled.

The rationale for the court’s annulling the Town’s resolution:

Section 384-d(b) of the Retirement and Social Security Law allows a member who elects to participate in a 20-year plan to withdraw from the plan and enroll in another retirement plan. According to the decision, the plain meaning of the statute, read as a whole, is that a Town police officer may withdraw from the 20-year plan and enroll in another available retirement plan.

The court rejected the Town’s arguments in support of its action, commenting that subdivision (m) does not require a member who changes plans to nevertheless retire at age 55.

The court said that nothing in the Retirement and Social Security Law suggests that Overton was required to retire at age 55 upon his transfer to another plan with a higher mandatory retirement age.

The bottom line: the court decided that Overton has the right to withdraw from the 20-year retirement plan and transfer to the 25-year retirement plan available to Town police officers with a mandatory retirement age of 70.

* The Comptroller was severed from the lawsuit, having earlier agreed that if the Town’s resolution is annulled, the Retirement System would not prevent Overton from continuing in service and obtaining credit for such service for “retirement allowance” purposes.

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