Only overtime payments paid pursuant to a comprehensive written overtime plan may be included in determining an eligible employee's pension benefit at the time of his or her retirement

Although General Municipal Law §90 provides for the payment of overtime to eligible employees of a political subdivision of the State, such payments must be made pursuant to an overtime plan setting out in detail the terms, conditions and remuneration for such overtime employment in order for such payments to be considered by the retirement system in its  determining the employee's final average salary to be used to set the pension benefit of his or her retirement allowance.

"Matter of Gallante v DiNapoli

2024 NY Slip Op 03370

Decided on June 20, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 20, 2024

CV-23-1408

[*1]In the Matter of Tory Gallante, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, et al., Respondents.

Calendar Date:April 25, 2024
Before:Egan Jr., J.P., Aarons, Fisher, McShan and Mackey, JJ.

Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn of counsel), for petitioner.

Letitia James, Attorney General, Albany (Kevin C. Hu of counsel), for respondents.

Aarons, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller denying petitioner's application for recalculation of his final average salary.

After a 30-year career as a firefighter, petitioner retired as Chief of the Arlington Fire District in March 2019 and began collecting retirement benefits. In 2020, the New York State and Local Retirement System notified petitioner that, after receiving salary information from the District, certain earned compensation would be excluded from the calculation of his final average salary. Accordingly, petitioner's monthly retirement benefit amount was reduced, and petitioner was advised that he would be charged with an overpayment. Petitioner applied for a hearing and redetermination of his retirement benefits (see Retirement and Social Security Law §§ 74 [d]; 374 [d]). Following a hearing, the Hearing Officer determined that the Retirement System properly excluded petitioner's overtime pay, a staff development stipend and a portion of holiday pay from his final average salary. Respondent Comptroller adopted the Hearing Officer's findings of fact and conclusions of law and denied petitioner's application, prompting this CPLR article 78 proceeding.

The Comptroller is vested with the exclusive authority to resolve 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" (Matter of Schwartz v McCall, 300 AD2d 887, 888 [3d Dept 2002] [internal citations omitted]; accord Matter of O'Brien v DiNapoli, 116 AD3d 1124, 1125 [3d Dept 2014]). "Consistent with the provisions of the Retirement and Social Security Law, a member's retirement benefit is based upon his or her final average salary, i.e., the average salary earned by such member during any three consecutive years which provide the highest average salary" (Matter of Glozek v DiNapoli, 221 AD3d 1231, 1233 [3d Dept 2023] [internal quotation marks, ellipsis and citations omitted]; see Retirement and Social Security Law § 2 [9]).

Regarding the payment of overtime, General Municipal Law § 90 authorizes governing boards to provide for the payment of overtime compensation to public officers and public employees who "are required to work in excess of their regularly established hours of employment" and mandates that the payments be considered as salary "for any of the purposes of any pension or retirement system." This language must be strictly construed in view "of the constitutional provision against the expenditure of public funds absent express statutory authority" (Conrad v Regan, 175 AD2d 629, 629-630 [4th Dept 1991], lv denied 78 NY2d 860 [1991]; see NY Const, art VIII, §1; Matter of Murray v Levitt, 47 AD2d 267, 269 [3d Dept 1975], lv denied 37 NY2d 707 [1975]). Consequently, "overtime [*2]payments are not duly authorized or considered as salary within the meaning of General Municipal Law § 90 unless paid pursuant to 'an overtime plan setting forth in detail the terms, conditions and remuneration for such employment' " (Matter of Shames v Regan, 132 AD2d 743, 744 [3d Dept 1987] [emphasis omitted], quoting Matter of Murray v Levitt, 47 AD2d at 269; see Matter of Mowry v New York State Employees' Retirement Sys., 54 AD2d 1062, 1063 [3d Dept 1976]).

Petitioner first contends that the Comptroller's interpretation of General Municipal Law § 90 is unreasonable. We disagree. At the hearing, the assistant director of the Retirement System's Benefit Calculation and Disbursements Bureau explained that, under General Municipal Law § 90, salary may only include overtime payments that are part of a comprehensive written overtime plan. To determine whether petitioner's employment agreements with the Arlington Fire District Board of Fire Commissioners met the requirements of such a plan, the Retirement System considered five factors: (1) the amount of compensation to be paid; (2) whether there is a cap on the compensation; (3) whether the plan provides when and how the payments are made; (4) whether approval is required prior to the overtime being performed; and (5) whether the plan provides that the pay is for work performed beyond the regular workday. In our view, these factors rationally correspond to statutory language authorizing overtime for employees who "are required to work in excess of their regularly established hours of employment" at either their regular rate of pay or some other rate set by the governing board (General Municipal Law § 90 [emphasis added]; see Matter of Bascom v McCall, 221 AD2d 879, 880 [3d Dept 1995]; Conrad v Regan, 175 AD2d at 629-630; Matter of Shames v Regan, 132 AD2d at 745).

Next, and contrary to petitioner's view, the Comptroller rationally excluded petitioner's overtime payments because the employment agreements (i) did not prescribe when and how overtime would be worked, (ii) did not identify petitioner's regularly scheduled hours of employment, and (iii) did not indicate whether prior approval was required for the performance of overtime work. The agreements established that petitioner's "[w]orking hours will be 40 hours per week on a five day a week basis." Although "[t]he typical work week is Monday through Friday," petitioner had discretion to vary his weekly schedule "for the best use to fit the District's needs." Further, neither the agreements nor the Board's eight-hour workday resolution specified which hours of the day petitioner was required to work. Taken together, the Comptroller rationally concluded that petitioner did not have "regularly established hours" within the meaning of General Municipal Law § 90.

As to overtime requirements, the agreements specified that any work in excess of 40 hours per week would be paid with compensatory time. According to the record and representations at oral [*3]argument, compensatory time was generally calculated at petitioner's hourly rate of pay. Petitioner testified that he earned compensatory time for off-hours meetings and non-emergency work. Emergency call-back hours — time spent fighting fires outside of the regular workday — were compensated at time and a half pay. Although these provisions authorized petitioner to work overtime, they did not specify any terms or conditions that would require him to do so (see General Municipal Law § 90; Conrad v Regan, 175 AD2d at 629-630). Given the absence of a provision for prior approval — a finding that petitioner does not dispute — the Comptroller appropriately found that the agreements do not cover when or how petitioner worked overtime.^[FN1] In sum, because the employment agreements appear to have given petitioner a "free hand in determining when and for how long [he] would work" (Matter of Murray v Levitt, 47 AD2d at 269), the Comptroller's determination excluding petitioner's overtime payments from his final average salary is reasonable, supported by substantial evidence and will not be disturbed (see Matter of Shames v Regan, 132 AD2d at 745; Matter of Mowry v New York State Employees' Retirement Sys., 54 AD2d at 1063).

Petitioner also challenges the exclusion of the increased compensation paid to him in 2019 for staff development from his final average salary. "Pursuant to the Retirement and Social Security Law, the salary base used to compute retirement benefits shall not include . . . compensation paid in anticipation of retirement" (Matter of Franks v DiNapoli, 53 AD3d 897, 898 [3d Dept 2008] [internal quotation marks and citation omitted]; see Retirement and Social Security Law § 431 [3]; Matter of Smith v DiNapoli, 167 AD3d 1208, 1209-1210 [3d Dept 2018]). "In determining what constitutes . . . compensation paid in anticipation of retirement, we must look to the substance of the transaction and not to what the parties may label it" (Matter of Green v Regan, 103 AD2d 878, 878-879 [3d Dept 1984]; see Matter of Smith v DiNapoli, 167 AD3d at 1210; Matter of Chichester v DiNapoli, 108 AD3d 924, 925 [3d Dept 2013]). The record reflects that petitioner informed the Board in 2018 that he was planning on retiring. By stipulation entered into in January 2019, the Board increased petitioner's hourly rate of pay by $15 effective January 7, 2019 to March 31, 2019. According to the stipulation and testimony, the extra compensation was to train his successor — a newly appointed Deputy Chief — and staff before he retired and took with him all of his institutional knowledge. Yet, the record shows petitioner's job already included planning and directing the training of staff and that petitioner had not received staff development stipends in the past. Further, the stipend was not limited to the time spent on work it was intended to compensate — it was essentially a $15 per hour raise. Accordingly, substantial evidence supports the Comptroller's determination that the [*4]January 2019 pay increase constituted compensation in anticipation of retirement and was properly excluded from the calculation of petitioner's final average salary (see Matter of Chichester v DiNapoli, 108 AD3d at 926; Matter of Franks v DiNapoli, 53 AD3d at 898).

Finally, the Retirement System concedes, and we agree, that the calculation of petitioner's final average salary improperly failed to take into account all 144 hours of his earned holiday pay. Accordingly, the matter must be remitted for a recalculation of petitioner's final average salary that includes 144 hours of holiday pay. Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be without merit.

Egan Jr., J.P., Fisher, McShan and Mackey, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as excluded certain holiday pay from the calculation of petitioner's final average salary; petition granted to that extent and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed.

Footnotes

Footnote 1: Petitioner testified that, under the District's time tracking system, he would fill out a form indicating the overtime he had worked on a given day either immediately after completing the work or the day after. According to petitioner, the Board had the option of reviewing payroll records at their twice-monthly meetings after the payroll process was complete. In other words, this system "does not set out any procedure for the regulation of overtime" worked by petitioner (Matter of Shames v Regan, 132 AD2d at 745), and therefore does not affect our conclusion.

 

New York State Comptroller DiNapoli releases municipal and school district audits

On June 24, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school district audits were issued.

Town of Keene – Records and Reports (Essex County)  The supervisor did not maintain complete, accurate and timely accounting records. As a result, the board lacked reliable records and reports to manage the town’s financial operations, account balances were inaccurate and certain revenues and expenditures were not reported in the annual financial report. Of the 20 journal entries reviewed, six were not properly recorded, six were not supported and eight were not recorded in a timely manner. In addition,  no one independently reviewed and approved entries. Bank reconciliations also were generally not prepared or provided to the board in a timely manner and adjusted bank balances did not agree with general ledger cash balances for 55 of 133 bank reconciliations. The supervisor also did not provide adequate monthly financial reports to the board and the board did not annually audit the supervisor’s records, as required.

Town of Bergen – Town Supervisor (Genesee County)  The supervisor generally maintained complete and accurate accounting records but needs to provide more oversight over the individuals carrying out recordkeeping duties. Furthermore, the supervisor did not annually submit sufficient accounting records to the board for audit and while he filed the annual financial report (AFR) in a timely manner, it was not accurate. The supervisor also approved bank reconciliations without determining whether they were performed correctly and without verifying that cash balances in the accounting records were accurate and overstated cash by $747,000 in the 2022 AFR. In addition, the supervisor did not perform a periodic review of all journal entries and financial transactions as required and the accountant recorded financial transactions without oversight.

North Babylon Union Free School District – Online Banking (Suffolk County)  Auditors determined that online banking transactions were appropriate, but the board and district officials did not meet all the requirements of state law and must improve controls over online banking to ensure these transactions are secure. In addition, auditors found that district officials did not enter into an adequate written bank agreement with their banking institution, and the board did not adopt an online banking policy. Employees who performed online banking activities did not receive cybersecurity awareness training. The district’s acceptable use policy was insufficient and not communicated to employees who performed online banking transactions.

Whitney Point Central School District – Information Technology (IT) (Broome County)  District officials did not adequately manage nonstudent network user accounts, adopt an IT contingency plan and were unaware of all the network users that had access to the district’s network, leading to an increased risk it could suffer a serious interruption to operations and face a potential inability to communicate during a disruption. In addition to sensitive IT control weaknesses that auditors confidentially communicated to officials, district officials did not disable 19 nonstudent network user accounts that were not needed or used in more than five years.

South Jefferson Central School District – Payroll (Jefferson County)  Auditors reviewed salaries and wages paid to 40 employees totaling $471,526 to determine whether they were accurately paid. Auditors also reviewed payroll change reports for two months during the audit period to determine whether salary and wage increases from one paycheck date to the next paycheck date for 76 employees totaling $126,395 were authorized and supported by time records. Except for minor discrepancies, the employee salaries and wages reviewed were accurately paid and the payroll increases were calculated correctly and supported by adequate time records.

KIPP Troy Prep Charter School – Resident Tuition Billing and Collections (Rensselaer County)   School officials and staff accurately billed and collected resident district tuition for the sample of 50 students reviewed. They also accurately recorded and deposited intact the 30 collections reviewed. However, they did not deposit collections in a timely manner. Officials and staff did not deposit and record district tuition collections totaling $5.5 million within three days, as required by the school’s policy. Because school officials did not deposit collections as required, the school did not have access to the undeposited funds, and the risk of loss, diversion or theft of school funds was increased.  

The United Federation of Teachers withdraws its support of New York City's effort to move New York City's retired employees to privately-managed Medicare Advantage health plans

On June 23, 2024, the United Federation Teachers President, Michael Mulgrew, advised the New York City Municipal Labor Committee on Sunday that the Federation was withdrawing its support of the City's Medicare Advantage proposal and from healthcare negotiations with the Municipal Labor Committee on behalf of its members it represents in the collective bargaining pursuant to Article 14 of the Civil Service Law.

Marianne Pizzitola, President of NYC Organization of Public Service Retirees, commented that “For three years, an ad-hoc coalition of retirees ... have been continuously successful – winning 9 victories over three separate lawsuits", blocking the Committee's efforts to unilaterally impose its proposed Medicare Advantage plan on already retired former employees of the City of New York City.

A school's district's providing a per diem substitute paraprofessional educator a reasonable assurance of performing services for the school district in the upcoming academic year is not a guarantee of such employment

§590 (11) of New York State's Labor Law bars nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment. A "reasonable assurance" of continued employment has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period.

  

Matter of Alongi (City Sch. Dist. of the City of N.Y.--Commissioner of Labor)

2024 NY Slip Op 02957

Decided on May 30, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:May 30, 2024

CV-23-0618

[*1]In the Matter of the Claim of Diane Alongi, Appellant. The City School District of the City of New York, Respondent. Commissioner of Labor, Respondent.

Calendar Date:April 23, 2024
Before:Pritzker, J.P., Reynolds Fitzgerald, Ceresia, McShan and Mackey, JJ.

 

Diane Alongi, New York City, appellant pro se.

Letitia James, Attorney General, New York City (Camille J. Hart of counsel), for Commissioner of Labor, respondent.

Mackey, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 25, 2022, which, upon reopening and reconsideration, adhered to its prior decision ruling that claimant was ineligible to receive unemployment insurance benefits because she was unable to file a valid original claim.

Claimant worked as a per diem substitute paraprofessional for the employer beginning in 2012 and was notified of work available at the employer's public schools through a registry known as SubCentral. SubCentral maintained a record of, among other things, each substitute paraprofessional's availability and notified such individuals of available work via an automated telephone system, its website and/or administrator-initiated assignments, the latter of which occurred through direct contact with a school administrator who, in turn, would enter the assignment into SubCentral.

The 2020-2021 academic year consisted of 182 days; claimant was offered 182 days of work through SubCentral and worked 144 days as a per diem substitute paraprofessional — accepting all of her assignments through the direct-contact method. At the start of the academic year, the pay rate was $151.82 per day and, beginning May 14, 2021, the pay rate increased to $166.67 per day pursuant to a contract applicable to all per diem substitute paraprofessionals in the school district.

By letter dated June 17, 2021, claimant was advised that SubCentral would continue to be used to grant her assignments during the upcoming 2021-2022 academic year and that the "economic terms and conditions" for the impending school year were expected "to be substantially the same" as had existed in the preceding year. Although the letter did not specify claimant's rate of pay, such rate was governed by the existing contract ($166.67/day), and claimant was expressly advised that the employer anticipated that "there [would] be as much day-to-day work for [s]ubstitute [p]araprofessionals during the 2021-2022 [s]chool [y]ear, as was available in the 2020-2021 [s]chool [y]ear." Claimant acknowledged receiving was what denominated as a reasonable assurance letter, electronically signed such letter on June 28, 2021 and returned to work during the 2021-2022 academic year.

By notice of determination dated November 10, 2021, the Department of Labor found claimant to be ineligible to receive unemployment insurance benefits because she had a reasonable assurance of performing services as a per diem substitute paraprofessional during the 2021-2022 academic year.^[FN1] When the employer failed to appear for the scheduled hearing, an Administrative Law Judge overruled the initial determination. The employer's subsequent application to reopen was granted and, following a hearing, the initial determination was sustained and claimant was found to be ineligible for benefits because she had received a reasonable assurance of performing services for the employer in the upcoming academic year. Upon claimant's administrative appeal, the [*2]Unemployment Insurance Appeal Board affirmed. By decision filed October 25, 2022, the Board granted claimant's application for a reopening and reconsideration and adhered to its prior decision, and this appeal by claimant ensued.^[FN2]

"Labor Law § 590 (11) . . . precludes nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment" (Matter of Enman [New York City Dept of Educ.-Commissioner of Labor], 161 AD3d 1368, 1369 [3d Dept 2018] [citations omitted], lv denied 32 NY3d 902 [2018]; accord Matter of Johnson [Commissioner of Labor], 222 AD3d 1115, 1118 [3d Dept 2023]). "A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period" (Matter of Overacker [Churchville-Chili Cent. Sch. Dist.-Commissioner of Labor], 213 AD3d 1127, 1128 [3d Dept 2023] [internal quotation marks and citations omitted]; accord Matter of Johnson [Commissioner of Labor], 222 AD3d at 1119; Matter of Barnett [Broome County Community Coll.-Commissioner of Labor], 182 AD3d 763, 763-764 [3d Dept 2020], lv denied 35 NY3d 1077 [2020]). "Notably, the question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board's findings in that regard are supported by substantial evidence, they will not be disturbed" (Matter of Gracy [Commissioner of Labor], 182 AD3d 871, 872 [3d Dept 2020] [internal quotation marks and citations omitted]; see Matter of Overacker [Churchville-Chili Cent. Sch. Dist.-Commissioner of Labor], 213 AD3d at 1128).

Contrary to claimant's assertion, a reasonable assurance of reemployment is not a guarantee (see Matter of Enman [New York City Dept. of Educ.-Commissioner of Labor], 161 AD3d at 1370), and the June 2021 letter sent to claimant upon the employer's behalf clearly indicated that work would be available for claimant in her capacity as a per diem substitute paraprofessional during the upcoming 2021-2022 academic year and that the "economic terms and conditions" for the impending school year were expected "to be substantially the same" as had existed in the preceding year (see Matter of Gracy [Commissioner of Labor], 182 AD3d at 872-873). This letter, which claimant received and electronically signed, further advised that claimant's name would remain on SubCentral for purposes of receiving her assignments. Such proof, "together with the testimony concerning the per diem rate of pay for the [2021-2022] academic year and number of potential work days available, provides substantial evidence supporting the Board's finding that the employer provided claimant with a reasonable assurance of continued employment" (id[*3]. at 873; see Matter of Johnson [Commissioner of Labor], 222 AD3d at 1119; Matter of Overacker [Churchville-Chili Cent. Sch. Dist.-Commissioner of Labor], 213 AD3d at 1128-1129; Matter of Enman [New York City Dept. of Educ.-Commissioner of Labor], 161 AD3d at 1370-1371; Matter of Cieszkowska [Commissioner of Labor], 155 AD3d 1502, 1502-1503 [3d Dept 2017]). Accordingly, we discern no basis upon which to disturb the Board's decision. Claimant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Pritzker, J.P., Reynolds Fitzgerald, Ceresia and McShan, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Footnotes

Footnote 1: It is not clear from the record when claimant applied for unemployment insurance benefits. The notice of determination found claimant to be ineligible effective June 28, 2021, but claimant purports to have applied for benefits in 2020.

Footnote 2: Claimant did not appeal from the denial of her subsequent applications for a reopening and reconsideration, and claimant was not charged with a recoverable overpayment of the benefits she received.

NYPPL personnel law e-books available from BookLocker

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State and its political subdivisions set out in an e-book. For more information and access to a free excerpt from this e-book, click here: http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

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Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

N.B. New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.