Compensation paid to a member of public retirement system by a private entity not credited in determining the member's Final Average Salary
Matter of Andrews v New York State Teachers' Retirement Sys., 2011 NY Slip Op 00132, Appellate Division, Third Department
Donald Andrews joined the New York State Teachers’ Retirement System [NYSTRS] in 1967. He retired in 2005 while serving as Superintendent of Schools for the Wallkill Central School District.
Andrews had also “separately served on a part-time basis” from 1986 until 2005 as the chairperson of the Mid Hudson Athletic League (MHAL). MHAL is voluntary athletic association of public and private schools and is not a participating employer in NYSTRS although it operates under a Cooperative Services Agreement of the Ulster Board of Cooperative Educational Services (BOCES). The BOCES is a participating employer in NYSTRS.
When he filed his retirement application, Andrews sought to include the compensation he earned while working for MHAL included in determining his "final average salary" for the purposes of determining his retirement allowance. NYSTRS, however, determined that the compensation Andrews had earned as MHAL's chairperson could not be included in determining his final average salary.
Andrews then filed an Article 78 petition challenged NYSTRS’ decision. Supreme Court dismissed the petition, sustaining NYSTRS’ decision and Andrews appealed.
Essentially Andrews contended that his status and services as a MHAL's chairperson should have been deemed to have been performed as a BOCES employee.
The Appellate Division said that “rather than merely looking to the titles used during an employment relationship,” it must look to the actual conduct of the parties to determine if an employer-employee relationship existed.
The court found that there was a rational basis NYSTRS determining that Andrews was not a part-time employee of BOCES during the relevant period for the following reasons:
1. MHAL's association with BOCES was as a separate entity with its own constitution, bylaws and regulations.
2. BOCES did not certify that Andrews was a BOCES employee to NYSTRS during the period he served as MHAL's chairperson, although though it was required to so certify all its NYSTRS member- employees pursuant to Education Law §520(4).
3. Andrews was employed as a school superintendent while he served as MHAL's chairperson and BOCES's rules for Cooperative Services Agreements provide that "[a] person may not be employed by both a BOCES and a school district for the same contract period."
4. Andrews’ employment contracts with Wallkill Central School District provided that while it would pay him for his work as chairperson of MHAL, MHAL would ultimately bear the responsibility of reimbursing the school district for those wages.
Consequently, said the Appellate Division, NYSTRS’ determination that Andrews was employed by MHAL was not irrational, despite the evidence to the contrary that he presented.
In Jensen-Dooling v New York State Teachers' Retirement System, 68 AD3d 1264, and in Blais v New York State Teachers' Retirement System, 68 AD3d 1266, the Appellate Division ruled that individuals must be employed by a public employer to claim member service credit in a New York State public retirement system.
Both of these actions involved the same basic issue: the denial of member service credit in the New York State Teachers’ Retirement System claimed by Jensen-Dooling and by Blais based on their employment by an entity named “Project Lead The Way”, a private, not-for-profit corporation performing services for school districts pursuant to contracts.*
In a similar type of situation, the Appellate Division held that an individual employed by a private entity and paid with funds provided by the City of New York is not “paid by the City” for the purpose of membership in the New York City Employees Retirement System [Matter of Ivan v New York City Dept. of Health & Mental Hygiene, 63 AD3d 572].
The court explained that Richard Ivan worked for a private corporation under contract with New York City Department. of Health & Mental Hygiene. Although Ivan was paid with funds provided by the City, he was not "paid for by the city" as that term is defined in the Administrative Code of City of NY §13-101[3][a].**
* The Jensen-Dooling and Blais decisions are summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2009/12/individual-must-be-employed-by-public.html
** The Ivan decision is summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2010/03/individual-employed-by-private-entity.html
The text of the Andrews decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00132.htm
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com