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June 26, 2013

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member
Price v New York State & Local Employees' Retirement Sys., 2013 NY Slip Op 04405, Appellate Division, Third Department

An individual [Member] was employed in various positions by New York State public employers in 1968 until 1975 when he left public service. At no time during such period did Member join the New York State and Local Employees’ Retirement System [ERS] nor, according to the decision, was he advised that he was a “mandatory Tier 1 member” of ERS.

Member reentered New York State public employment in 1980 and joined ERS as a contributory Tier 3 member. In 1997, without notice to Member, ERS administratively granted him Tier 1 membership with service credit for the initial years he had worked (1968-1975). However, upon further review, ERS deemed that Member’s Tier 1 membership automatically terminated in 1975 for inactivity in accordance with the provisions of the Retirement and Social Security Law then in effect, thereby continuing him as a Tier III member of ERS.

Member subsequently applied for, and was approved for, reinstatement to Tier 1 pursuant to Retirement and Social Security Law §645.* He then requested a refund of the contributions he had made since 1980 as a Tier 3 member.

ERS denied his request indicating that “[Member] did not qualify for a refund under the … statute pursuant to which he was reinstated,” (see Retirement and Social Security Law §645[2]). Member then commenced an Article 78 proceeding challenging the Retirement System’s determination denying his request for a refund of the contributions he had made as a Tier 3 member prior to his reinstatement to Tier 1, a noncontributory tier, pursuant to Retirement and Social Security Law §645.

The Appellate Division sustained ERS’s determination, explaining that  “Under the unambiguous terms of [Retirement and Social Security Law §645(2)], ‘[a]ny contribution made to [ERS] pursuant to Article [14] or [15] of this Chapter by a member who rejoined his or her current system on or after [July 27, 1976] shall not be refunded.”" [Emphasis supplied by the Appellate Division.]

Where, as here, said the court, "the Comptroller's application and interpretation of the relevant statutes are not 'irrational, unreasonable or contrary to the statutory language,' the determination will be upheld.”

As to “procedural difficulties” experienced by Member, the court said that “erroneous advice by [Member’s] employer, misplacement [of him] by [ERS] in a contributory tier or [his] delayed reinstatement to a noncontributory tier ‘cannot estop the Comptroller from performing his duties and denying any reinstatement [or refund of contributions] that is contrary to the statutes.’"

The Appellate Division also addressed the various provisions set out in the Retirement and Social Security Law addressing “vesting” of a member's ERS benefits under certain conditions, none of which “conditions,” said the court, were applicable in Member’s situation.

* Retirement and Social Security Law §645, which was adopted in 1998, allows current members of ERS who had reentered public service to apply for reinstatement to their original Tier membership status under certain circumstances.

The decision is posted on the Internet at:


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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.