Prior to the commencement of her second temporary period of employment with Tax and Finance Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*
Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.
In contrast, in Schuyler v New York State and Local Employees' Retirement System, 158 AD3d 909, the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit."
* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required by law to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and and Social Security [FICA] contributions. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.
The decision is posted on the Internet at:
Historical Note: Eligibility to participate in Social Security was made available to public employees of the State of New York pursuant to an agreement between the State and the Social Security Administration as authorized by §1 of Chapter 619 of the Laws of 1953. Members of a public retirement system in service prior to the effective date of the agreement could elect to decline to participate in Social Security. With respect to such individuals who chose to participate in Social Security, the employee could elect to either (a) pay the employee contributions for Social Security in addition to paying the required employee contributions for his or her membership in the retirement system or (b) elect to apply his or her required employee contributions for participation in the retirement system towards paying for his or her required FICA employee contributions for his or her participation in Social Security.