Friday, July 20, 2012

Compensation for 12-hour work shifts and vacation and days off canceled not considered in determining retirement allowance


Compensation for 12-hour work shifts and vacation and days off canceled not considered in determining retirement allowance
Port Auth. Police Benevolent Assn., Inc. v Anglin, 54 AD3d 495

The New York State and Local Police and Fire Retirement System determined that an Port Authority Police Sergeant’s final average salary was $166,432.83, a figure that did not include any of the premium payments the Sergeant had received for having to work instead of taking vacation days, etc., after the terrorist attack of September 11, 2001. All Port Authority police officers, including the Sergeant, were required to work daily 12-hour shifts and all vacation and days off were cancelled following the attack.

When the Sergeant retired, the Retirement System did not include any of the premium payments he had received for having to work instead of taking vacation days in calculating his retirement allowance. At the hearing held pursuant  the Sergeant's request for recalculation of this amount to include this additional compensation, the Hearing Officer found that the premium payments for lost vacation days were properly excluded from the calculation of his final average salary. The Deputy Comptroller adopted the decision of the Hearing Officer, denying the Sergeant’s application for recalculation of his final average salary. The Sergeant  appealed.

The Appellate Division sustained the Deputy Comptroller’s determination.

The court said that the Comptroller is vested with exclusive authority to determine applications for retirement benefits within the meaning of the applicable statutes. Accordingly, it said "we will uphold a determination of what constitutes a retiree's final average salary as long as it is not irrational."

The Appellate Division then noted that Retirement and Social Security Law §302(9)(d) and §431(1) expressly exclude lump-sum payments for accumulated vacation credit, and it has previously held that this exclusion applies even though the payments are made biweekly rather than in a lump sum upon retirement.

In this instance the Sergeant was seeking to have included in his final average salary payments that were made pursuant to the vacation provisions of a collective bargaining agreement that were invoked when his vacation days were cancelled. These premium payments were made in lieu of vacation and in addition to the regular, straight rate of pay that he received for working his normal eight-hour shift and the overtime pay he received for the hours he worked each day after his normal shift.

According to the decision, the fact that “a national emergency required [the Sergeant] to forgo his vacation time does not render the payments any less extraordinary” and the relevant statutes “attach no significance to whether the extra compensation was for vacation time lost voluntarily or involuntarily.”

Dismissing the Sergeant’s appeal, the court said that the Retirement System’s conclusion that such payments were compensation for lost accrued vacation credit, rather than for overtime work under General Municipal Law §90, cannot be said to be irrational.

For the full text of the opinion, go to:

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