Reemployment of public retirees
Connolly v McCall, CA2, 254 F.3d 36
Section 150 of the Civil Service Law and Section 211 of the Retirement and Social Security Law [RSSL] set out the rules governing the reemployment for compensation of an individual receiving a retirement allowance from a New York public retirement system. The basic purpose of these provisions: to control so-called “double dipping” by individuals retiring from State or municipal public service and subsequently accepting employment with their former or another New York public employer.
The basic provision, Section 150, directs that the individual's retirement allowance from a New York public retirement system “shall be suspended during such service or employment and while such person is receiving any salary.”
RSSL Section 211, on the other hand, allows an exception to Section 150's absolute bar to simultaneously receiving such compensation and a retirement allowance from a New York public retirement system. It permits the employment of a retired person in a position or positions in the public service, subject to certain earning limitations, without any effect on his or her status as retired and without suspension or diminution of his or her retirement allowance,” provided that certain conditions are met. Retirees granted such a “Section 211 approval” are barred from participating in the pension plan associated with their second public job.
Timothy J. Connolly retired New York City Police Department and subsequently was employed by the New York State Organized Crime Task Force. A number of Section 211 approvals were granted in connection with Connolly's post-retirement employment by the Task Force.
Connolly challenged the limitation of his joining a retirement system set out in Section 211, claiming that it violates the federal constitution by requiring a retiree to either forgo receipt of the pension benefits accrued from the first job or forgo accumulation of additional pension benefits from the second job. Connolly pointed out that no such limitation was imposed upon the employment of an individual who retired from the private sector or the federal government or who was receiving a “non-New York public retirement benefit upon employment by the State.
McCall argued that New York's approach regarding the re-employment of retirees furthers its legitimate interest in saving public money by barring pension practices that have the character of “double-dipping,” i.e., preventing an individual's continuing to receive a New York public pension while also receiving a New York public salary. This, said McCall, reflects the notion that such simultaneous income streams “could constitute an abuse of the public fisc.”
Considering the merits of Connolly's 14th Amendment arguments, the Circuit Court of Appeals ruled that Connolly failed to state a claim either under the Due Process or the Equal Protection Clauses of the 14th Amendment.
Connolly challenged “the substantive fairness of New York law.” However, said the court, in so doing Connolly failed to identify any protected property interest of which he has been deprived. In reality Connolly “is objecting to ... the very fact that New York law confers no property interest on people in his circumstances.”
As to Connolly's Equal Protection theory, which he based on the alleged disparity of treatment between New York state and local public employees who previously worked for another New York State or municipal employer, and those who previously worked for a private employer, or a non-New York public employer, the Circuit Court pointed out that “[o]nly the former class of employees is forced to choose between giving up the pension associated with their prior job and giving up accrual of additional pension benefits in their subsequent New York public employment.”
The basic rule applied by the courts in resolving a challenge based on “equal protection” claims: the classification must be upheld against the equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.
In the Circuit Court's view, whether or not New York's Civil Service Law Section 150-Retirement and Social Security Law Section 211 formula constitutes a sound policy is irrelevant. Here, said the court, “there is nothing irrational about the state deciding that at any one time a public employee should not both be accruing a new public pension and receiving an old public pension.”
In the words of the court, “[w]hen both the jobs, and their associated pension plans, involve New York public employment, the state's interests in, and control over, their financial consequences are stronger than when only the second job involves New York public employment.”
Ruling that New York's approach does not offend federal principles of equal protection, the Circuit Court dismissed Connolly's appeal.