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May 30, 2014

State Employees’ Retirement System member must have been a public officer or employee earlier in order to “buy back” service credit for such service


State Employees’ Retirement System member must have been a public officer or employee earlier in order to “buy back” service credit for such service 
2014 NY Slip Op 03904, Appellate Division, Third Department

A member [Member] of the NYS Employees' Retirement System sought to "buy back" member service credit based on his service as a hearing examiner with the City of New York. The Comptroller determined that Member was not an employee of the City and thus was ineligible to purchase service credit for that work.

In an earlier action* Member contended that he served as an “officer” of the City of New York and the matter was remanded to the Comptroller to address that claim. The Comptroller rejected Member’s claim that he was a public officer by reason of his so serving as a hearing examiner and Member appealed that determination as well.

The Appellate Division affirmed the Comptroller’s decision, explaining that the Comptroller "is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence.” Further, said the court, Member had the burden of establishing his entitlement to the additional service credit.

The service credit question's result was dependent on whether Member had been engaged in "previous service with a public employer” that would have been creditable in one of the public retirement systems of the State, in this instance the New York City Employees' Retirement System. In other words, Member would have had to have been eligible for membership in NYCERS based on his work as a hearing examiner being deemed service as an officer of the City.

The City of New York Law Department, however, had taken the position that hearing examiners were neither city officers nor employees and NYCERS had determined that hearing examiners were not city officers such as to render them eligible for membership. The Comptroller relied upon these determinations in formulating his decision.

The court commented that even if the Comptroller had not relied on the views of the City’s Law Department and NYCERS in this regard, substantial evidence nevertheless supported the Comptroller's finding that Member was not a city officer entitled to claim prior service credit. Member, said the court, did not demonstrate that he served as a public officer in that he failed to show that he had been appointed for any specific length of time, was "a manager or policy maker," had filed a financial disclosure statement and that he had taken or filed an oath of office.

Although evidence in the record could support a different result, the Appellate Division concluded that there was sufficient substantial evidence in the record to support the Comptroller's determination that Member was not entitled to “prior service credit.”

* See 81 AD3d 1156.


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