Tuesday, November 10, 2015

Overtime paid to a police officer for “special-duty” for service performed for a private entity not included in determining the “final average salary” for retirement purposes

Overtime paid to a police officer for “special-duty” for service performed for a private entity not included in determining the “final average salary” for retirement purposes
Tamucci v DiNapoli, 2015 NY Slip Op 08027, Appellate Division, Third Department

Between 1989 and 2009, Town and Village of Harrison Police Department [HPD] police sergeant Mark Tamucci was a member of New York State Police and Fire Retirement System [PFRS].

During his last three years of employment, Tamucci received special-duty overtime wages for services performed on special details.* After his retirement, the New York State and Local Retirement System sent Tamucci a letter indicating this his final average salary was based on calculations that did not include salary payments he received for his “special-duty overtime” work.

Tamucci asked PFRS to recalculate of his final average salary to include such overtime wages. A hearing was held and the Hearing Officer concluded that the wages that Tamucci earned for services performed on those special details were properly excluded from the calculation of his final average salary. The Comptroller adopted the decision of the Hearing Officer and denied Tamucci 's application for a recalculation of his final average salary.

Tamucci commenced a CPLR Article 78 proceeding in Supreme Court. Supreme Court, finding that Tamucci’s petition raised an issue of substantial evidence, transferred the proceeding to the Appellate Division.

The Appellate Division observed that the Comptroller is vested with the “exclusive authority to determine all applications for retirement benefits and the determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence.”**

The relevant elements set out in the Retirement and Social Security Law with respect to determining an individual’s "final average salary" for retirement purposes in this instance are:

1. The average annual compensation of the member for credited government service not exceeding his [or her] three years of credited government service immediately preceding his [or her] date of retirement (See Retirement and Social Security Law §302 [9] [a]).

2. Government service includes, among other things, paid "[s]ervice as an officer or employee of an employer (See Retirement and Social Security Law §302 [12])

The term "Employer" is defined as "[t]he state, a participating employer,*** and any other unit of government or organization obligated or agreeing . . . to make contributions to the retirement system on behalf of its police [officers] and fire [fighters]" (Retirement and Social Security Law §302 [8]).

The Appellate Division said that the Comptroller's finding that Tamucci's services during special details were provided to the relevant private entities, rather than to or for the police department, was supported by substantial evidence. Noting that uncontested evidence in the record established that the private entities HPD order to receive services performed by Tamucci and other officers in the form of special details, the court explained that “A reasonable person could infer that the police department required these private entities to pay for the services because it had determined that such services were not within the scope of its responsibilities to the public.”

The Appellate Division, citing Cannavo v Regan, 122 AD2d 523, said it had previously indicated that the voluntariness of such services is relevant to the inquiry and that  Tamucci “unambiguously testified that he had volunteered for all of the special details on which he had performed services.” In addition, the court noted that there was nothing in the records to indicate that HPD had ever ordered or otherwise compelled Tamucci or any of his fellow officers to perform services on special details.

Considering the evidence that the private entities had contracted with HPD to have these “special detail” services provided to them and the lack of any evidence these “special detail services” were, in fact, required to be performed by HPD, the court concluded that substantial evidence supported the Comptroller's determination that the services that Tamucci performed on special details were not provided to his employer, HPD.

NOTA BENE: An off-duty police officer injured while he or she was off-duty and working for a private employer may not be eligible for General Municipal Law §207-c benefits or Retirement and Social Security Law accidental disability or service disability retirement nor eligible for "defense and indemnification" by his or her public employer pursuant to §18 of the Public Officers Law should he or she be sued concerning an event that occurred in the course of his or her working for a private employer. The Disability Leave for fire, police and other public sector personnelhandbook addresses these and similar situations. For more information click on http://booklocker.com/3916.html

* These “special details” result from private entities contracting with the police department for its officers to provide various services that would not otherwise be provided to such entities.

** Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

*** The term "participating employer" includes "any municipality participating in the [police and fire] retirement system" (see Retirement and Social Security Law §302 [20]).

The decision is posted on the Internet at:

See, also, Pitzel v DiNapoli, 2015 NY Slip Op 08015, Appellate Division, Third Department,  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 http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/


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