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April 22, 2011

Crediting prior public service upon reemployment by a public employer

Crediting prior public service upon reemployment by a public employer
Cherniak v Office of Court Administration, 269 A.D.2d 680

From time to time an individual will claim that he or she should be given credit for certain benefits, typically for the purpose of determining salary or member service in a retirement system, based on his or her prior service with another public employer. A claim for “service credit for salary” based on prior state service was the basic issue considered by the Appellate Division in the Cherniak case.

Samuel A. Cherniak, then an employee of the Unified Court System [OCA], accepted an appointment as an Assistant Attorney-General [AAG] with the State Law Department and served as an AAG until October 1995. In early 1998 OCA appointed him to the position of Court Attorney. OCA credited Cherniak with his OCA service prior to his employment as an AAG in setting his rate of compensation. However, said OCA, such credit upon reinstatement was allowed only for OCA service and it refused to give him any credit for his AAG service with the New York State Department of Law.

OCA gave Cherniak two reasons for it action. First, OCA’s rules allowed it to grant such credit upon reinstatement of former OCA employees. Second, the Comptroller’s policy allowed non-OCA prior State service to be given only to an employee who returned to public service within one year. Cherniak appealed, challenging the Comptroller’s interpretation of “continuous service” to mean a “break in service for salary determination” of one year or less.

Both the Section 37.8 of the Judiciary Law and Section 131.5 of the Civil Service Law allow for approving salary rates greater then the minimum of the salary grade for the position upon “reinstatement” for individuals having “continuous service.”

Was the Comptroller’s interpretation of the term “continuous service” reasonable?

The Appellate Division thought it was. Pointing out that purpose of these provisions is to encourage employees to remain in State service, the court said that “the Comptroller’s policy promotes that purpose by allowing salary credit for prior service where an employee returns to State service after a brief break in service, but not where there is a substantial break in service.”

Cherniak tried to persuade the Appellate Division that the Comptroller’s interpretation was irrational, contending that there was no particular reason for the Comptroller’s selection of one year as the limit for a break in service.

The court disagreed, holding that it was rational for the Comptroller to construe the statutory phrase “continuously occupying” a position as encompassing “a relatively brief break in service” -- one year -- while no rational construction of the phrase would encompass Cherniak’s 2 1/2 year break in service.

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