Friday, April 17, 2015

Employees’ requests to switch from the State University’s Optional Retirement Program to the New York State and Local Employees’ Retirement System rejected

Employees’ requests to switch from the State University’s Optional Retirement Program to the New York State and Local Employees’ Retirement System rejected
2015 NY Slip Op 03216, Appellate Division, Third Department

The State Comptroller denied requests submitted by four employees employed by SUNY’s Stony Brook University Medical Center [SBUMC] currently enrolled in the State University’s Optional Retirement Program [ORP] seeking to be enrolled in the New York State and Local Employees' Retirement System [NYSLERS] retroactive to  their respective initial dates  of employment by SBUMC.

Upon learning that they had been eligible for enrollment in NYSLERS when they were initially appointed by SBUMC, the four individuals applied for enrollment in NYSLERS but their applications were denied. Following an administrative hearing the employees’ enrollment applications were again denied by a Hearing Officer. The Comptroller subsequently adopted the Hearing Officer's determinations and the employees appealed in an effort to have the Comptroller’s decision annulled.

The Appellate Division noted that Education Law §393(1)(a), in relevant part, provides that employees eligible to enroll in ORP "shall elect" to join either NYSLERS [sic] or ORP.*The court said in the event an employee fails to make an election, he or she "shall be deemed to have elected membership in NYSLERS [sic]," (See Education Law §393[1][b]).** Upon enrollment in ORP, an employee becomes "ineligible for membership" in NYSLERS (See Education Law §393[2]).

The court ruled that the Comptroller's determinations should be upheld because they were supported by substantial evidence. Further, said the Appellate Division, “Courts will not disturb the Comptroller's application and interpretation of relevant statutes unless it is irrational or contrary to the plain language of the statutes.”

According to the decision, the record before the Comptroller indicated that:

1. Two of the employees each testified that they met with a human resources representative of SBUMC who informed them that they could not enroll in NYSLERS, so they filled out forms electing ORP.

2. A third employee said that she received the same information, but did not check the box for ORP on the retirement program election form. Although she alleges that someone else must have checked the box, the individual acknowledged that she completed and signed a separate application to enroll in ORP.

3. The fourth employee  testified that he never enrolled in a retirement program and the enrollment form produced by SBUMC was forged. Despite this alleged forgery and not having enrolled in a retirement program, this individual was aware that he had a pension plan, which was ORP, and did not object or raise any questions about it for 25 years after his employment began.

The Comptroller determined, “through a reasonable application of these facts and the relevant statutes,” that the four employees were ineligible for enrollment in NYSLERS because they were enrolled in ORP. The employees, in contrast, had contended that they did not "elect" to join ORP "as opposed to NYSLERS — inasmuch as an election implies a voluntary choice, which was impossible here because they were misinformed and told that they had no options — so they should be deemed members of NYSLERS pursuant to Education Law §393(1)(b)."

The Appellate Division held that “As Education Law §393 does not define 'elect,'*** and it is reasonable to interpret that word to include the filing of an enrollment form for one particular retirement program regardless of the applicant's knowledge of other options, we will not disturb the Comptroller's interpretation.”

Finally, the court observed that the Comptroller is not estopped from denying enrollment in NYSLERS, as required by statute, after the employees  enrolled in ORP due to erroneous advice supplied by the individuals’ employer, citing Retirement and Social Security Law §45.

The Appellate Division then confirmed the Comptroller’s determinations and dismissed the petitions filed by the employees.

* §393(1)(g) of the Education Law provides that “No election by an eligible employee of the optional retirement program shall be effective unless it shall be accompanied by an appropriate application, where required, for the issuance of a contract or contracts under the program.” Another element to be considered is set out in §393(5)(d) which provides that “Anything in this subdivision five notwithstanding, service as an eligible employee for which a contribution is made to the optional retirement program shall neither entitle any eligible employee to join or rejoin the New York state teachers' retirement system nor be creditable in such system.”

** Presumably the four employees were ineligible to enroll in the New York State Teachers’ Retirement System at the time they were appointed by SBUMC as §393(1)(b) provides, in pertinent part, “In the event an eligible employee fails to make an election as provided in paragraph (a) of this subdivision, he [or she] shall be deemed to have elected membership in the New York state teachers' retirement system, or such public retirement system in this state in which his [or her] membership may be otherwise required in accordance with law….”

*** See “Retirement Program Election Form,” on Page 16 of the State University of New York’s handbook entitled Retirement Plans for New Faculty and Staff

The handbook is posted on the Internet at:

The Appellate Division’s decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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