New York State Employees Retired System one of the best managed and best funded public retirement systems in the United States

On September 27, 2021, New York State Comptroller Thomas P. DiNapoli today announced reductions in employer contribution rates to the New York State and Local Retirement System (NYSLRS) for both of its systems – the Employees’ Retirement System (ERS) and Police and Fire Retirement System (PFRS). The adjusted rates will impact payments next State Fiscal Year 2022-23. In addition, DiNapoli lowered the long-term assumed rate of return on the Fund’s investments from 6.8% to 5.9%.

“The Fund’s strength gives us the ability to weather volatile markets. Our prudent strategy for long-term, steady returns helps ensure our state’s pension fund will continue to be one of the nation’s strongest and best-funded,” DiNapoli said. “While the reduction in employer contribution rates is welcome news for taxpayers, our investment decisions are always made based on what is best for our 1.1 million working and retired members and their beneficiaries.”

The estimated average employer contribution rate for ERS will be lowered from 16.2% to 11.6% of payroll. The estimated average employer contribution rate for PFRS will be reduced from 28.3% to 27% of payroll. According to the Fund’s Actuary’s estimates, the expected total employer contributions for Feb. 1, 2023 are $4.4 billion, which is $1.5 billion less than the expected employer contributions during the same period for 2022 – the lowest level since 2011.

This marks the fourth time that DiNapoli has lowered the state pension fund’s assumed rate of return as economic and demographic conditions have changed. In 2010, he decreased the rate from 8% to 7.5%, in 2015 to 7% and in 2019 to 6.8%.

The median assumed rate of return among state public pension funds is 7.0% as of August 2021, according to the National Association of State Retirement Administrators. Thirty-four out of the 133 state public pension plans listed had assumed rates of return of less than 7%. There are plans that have a fiscal year end date of June 30, 2021 and many have already announced intentions to lower their assumed rates of return further.

DiNapoli also announced the funded ratio of the state pension fund is 99.3%.

The state pension fund’s annualized rates of return are 11.17% over the past five years, 9.19.% over 10 years, 7.65% over 20 years and 8.96% over 30 years.

Employer rates for NYSLRS are determined based on investment performance and actuarial assumptions recommended by the Retirement System’s Actuary and approved by DiNapoli. A copy of the Actuary’s report can be found here.

In 2012, DiNapoli began providing employers with access to a two-year projection of their annual pension bill. Employers can use this projection in the preparation of their budgets. Projections of required contributions vary by employer depending on factors such as the types of retirement plans they adopt, salaries and the distribution of their employees among the six retirement tiers.

There are more than 3,000 participating employers in ERS and PFRS, and more than 300 different retirement plan combinations.

Payments based on the new rates are due by Feb. 1, 2023, but employers receive a discount if payment is made by Dec. 15, 2022.

Report

Click on the text highlighted in blue to access the Comptroller's report

Annual Report to the Comptroller on Actuarial Assumptions

About the New York State Common Retirement Fund 

The New York State Common Retirement Fund is the third largest public pension fund in the United States with estimated assets of $268.3 billion as of June 30, 2021. The Fund holds and invests the assets of the New York State and Local Retirement System on behalf of more than one million state and local government employees and retirees and their beneficiaries. The Fund has consistently been ranked as one of the best managed and best funded plans in the nation. The Fund's fiscal year ends March 31.

Considering the prior disciplinary record of an employee found guilty of disciplinary charges in determining an appropriate disciplinary penalty to be imposed

The Petitioner [Firefighter] in this CPLR Article 78 proceeding was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had engaged in an act of insubordination when he failed to obey an order while actively engaged in fire suppression operations.

Firefighter denied the charges and at the disciplinary hearing that followed Firefighter and his superior officer [Captain] provided sharply conflicting testimony as to what occurred in the course of his being engaged in a fire suppression operation.

The designated hearing officer credited the Captain's testimony at the hearing, found that a preponderance of the credible evidence supported the conclusion that the Firefighter was guilty of insubordination, and recommended that the Firefighter be:

1. Returned to the payroll without back pay;

2. Suspended for a period of three months without pay; and

3. His employment be on a "last-chance basis" for a period of two years.

City Administrator [Administrator] adopted the findings of the hearing officer that Firefighter was guilty of insubordination but declined to adopt the hearing officer's recommendation with respect to the penalty and sent Firefighter a letter informing him that his prior disciplinary record would be considered in setting the penalty to be imposed and attached the disciplinary records that would be considered. Firefighter responded to Administrator's letter.

Ultimately Administrator found that Firefighter "was incorrigible, based upon that incident, as well as a review of [Firefighter's] prior disciplinary record" determined that the appropriate penalty was termination of [Firefighter's] employment" as a firefighter.

Firefighter commenced this proceeding pursuant to CPLR Article 78 to review the City Administrator's determination, contending, among other things, that the findings of insubordination were not supported by substantial evidence. Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR 7804(g).

Contrary to Firefighter's contentions, the Appellate Division found that he was provided the appropriate due process in this matter, given access to his disciplinary record and was allowed to submit a written response offering mitigating circumstances. The court noted that the City Administrator did not rely on unestablished allegations when considering the penalty to be imposed on Firefighter as the record indicated that Firefighter "had prior knowledge of all unusual occurrence reports in his disciplinary records and had waived his rights as to the matter that he claimed was never settled or adjudicated."

Noting that in a proceeding pursuant to CPLR Article 78, judicial review of factual findings made by an administrative agency following an evidentiary hearing is limited to consideration of whether the findings are supported by substantial evidence, the court explained that "Substantial evidence means more than a 'mere scintilla of evidence,' and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides." Further, opined the Appellate Division, "Where there is conflicting testimony and questions of credibility, the reviewing court may not weigh the evidence or reject the administrative agency's determination of credibility."

Citing  Matter of Fernandez v Rodriguez, 180 AD3d 897, the Appellate Division said that the hearing officer resolved the issue of credibility as between the two witnesses, and it discerned "no basis to disturb that determination." Accordingly, the finding that Firefighter was guilty of insubordination was held to be supported by substantial evidence in the record.

Addressing the penalty imposed by the City Administrator, the Appellate Division opined that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness."  [A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals", the so-called Pell Doctrine.*

Further, said the court, "That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for ... refashioning the penalty", concluding with the observation that "[u]nder the circumstances presented here, the penalty of termination of [Firefighter's] employment with the City was not so disproportionate to the offense as to be shocking to one's sense of fairness."

Accordingly, the Appellate Division confirmed the City Administrator's determination, denied Firefighter's petition and dismissed the proceeding "on the merits, with costs."

* Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d at 234.

Click HERE to access the Appellate Division decision in this action. 

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Vacating an arbitration award in a disciplinary action conducted pursuant a disciplinary procedure set out in a collective bargaining agreement

The Appellate Division reversed, on the law, without costs, a Supreme Court ruling that granted an application filed by New York State Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA] to confirm an arbitration award and [2] granted the motion of the New York State Department of Corrections and Community Supervision's[Corrections] to dismiss [NYSCOPBA's] appeal and remitted the matter to the arbitrator "for further proceedings not inconsistent with [its] decision."

NYSCOPBA is the bargaining representative for all correction officers employed by Corrections. A corrections officer [CO] represented by NYSCOPBA was served with a notice of discipline that sought to terminate CO's employment based on three charges — two related to alleged unauthorized telephone contacts with two former inmates, and one for allegedly making false statements made to investigators.

Pursuant to terms set out in the relevant collective bargaining agreement [CBA] between NYSCOPBA and the Corrections, NYSCOPBA filed a disciplinary grievance on behalf of the CO and demanded arbitration.

In response to NYSCOPBA motion to dismiss the disciplinary charges as untimely and not sufficiently particularized, the arbitrator reserved decision on the motion and proceed to conduct "a full disciplinary hearing." After completing the hearing, the arbitrator dismissed — based on the face of the notice itself, not on the evidence at the hearing — the two charges related to the phone calls. The arbitrator, however, found CO guilty of the charge relating to his false making statements and imposed a 75-day suspension without pay as a penalty.

NYSCOPBA then commenced a CPLR Article 75 proceeding seeking to confirm the arbitration award. Corrections cross-moved to vacate the award with respect to the  two charges dismissed by the arbitrator concerning the alleged unauthorized telephone contacts. Supreme Court denied Correction's cross-motion and granted NYSCOPBA's petition, confirming the award. Corrections appealed.

The Appellate Division commenced it consideration of Correction's appeal by observing:

1. Although courts are generally bound by an arbitrator's factual findings and interpretation of the parties' contract, a court may vacate an award that "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power;"

2. In view of these narrowly circumscribed exceptions, "courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact"; and

3. If the arbitrator imposes requirements "not supported by any reasonable construction of the CBA, then the arbitrator's construction in effect makes a new contract for the parties and exceeds his or her authority."

Here, said the court, the CBA limits the role and authority of the arbitrator, as it provides that [1] disciplinary arbitrators shall confine themselves to the issues of guilt or innocence and the appropriate penalty; [2] directs that "[d]isciplinary arbitrators shall neither add to, subtract from nor modify the provisions of [the CBA]"; [3] sets a time limitation for disciplinary action"; and [4] provides that "[t]he conduct for which discipline is being imposed and the penalty proposed shall be specified in the notice."

Because it was undisputed that the allegations in charge 1 and portions of charge 2 fall outside the CBA's nine-month time limitation, for those allegations to be timely Corrections was required to invoke the exception that the alleged misconduct "would constitute a crime." 

The arbitrator determined that the bare identification and quoting of a criminal statute did not meet the requirements of "due process" — what the arbitrator defined as, "in essence[,] an underlying requirement that the charge that a crime has been committed must be fully communicated to the maximum possible degree in the 'charging instrument' (here, the [notice of discipline]) at the outset of the [p]roceedings" — as the notice did not provide factual details relating CO's conduct to each element of the cited crime. 

"On that basis," the arbitrator concluded that the notice of discipline did not satisfy the CBA's time exception.

However, the Appellate Division found that "the CBA does not refer to 'due process,' nor does it require that each element of the underlying crime be established in the notice." Citing People v Iannone, 45 NY2d 589, in which the Court of Appeals held that, "[w]hen indicting for statutory crimes, it is usually sufficient to charge the language of the statute unless that language is too broad," the Appellate Division opined that "by requiring [Corrections] to prove the underlying crime in the notice to support [applying] the CBA's time exception," the arbitrator essentially added a term to the CBA and, thus, exceeded his authority.

As the arbitrator dismissed the first two charges as untimely based on what he perceived to be deficiencies in the notice of discipline, he never determined whether Corrections met its burden of proof based on the hearing evidence. Accordingly, the Appellate Division remitted the matter to the arbitrator to determine whether charge 1 and any of the allegations under charge 2 were timely, i.e., "whether [Corrections] proved at the hearing that [CO's] conduct would constitute the crime of official misconduct" within the meaning of the State's Penal Law §195.00.

Further, said the court, "[e]ven if the arbitrator determines that those allegations are untimely ... some of the allegations in charge 2 occurred less than nine months prior to service of the notice of discipline; thus, the arbitrator must address those timely allegations.

As the arbitrator also based his dismissal of the first two charges on NYSCOPBA's argument that the charges lacked particularization with respect to the date of the alleged misconduct, the Appellate Division opined that, in general, "in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him [or her] and to allow for the preparation of an adequate defense." Here, however, the CBA requires somewhat more, a "detailed description" of the misconduct with "references to dates." The arbitrator found it significant that neither charge at issue "specif[ied] the specific dates on which the alleged wrongful acts occurred, nor any other substantive facts relevant to the occurrences of those phone conversations."

NYSCOPBA, said the court, focused their challenge to the notice on the absence of specific dates for each phone call. In the words of the Appellate Division, "[B]oth charges at issue listed dates, albeit as date ranges. Nothing in the CBA required respondent to list each phone call as a separate charge, nor to list the exact date of each call, especially for a continuing pattern of misconduct.... Charge 1 stated a range of only three days. For the second charge, the notice stated that [CO] engaged in 36 unapproved phone calls over a time period spanning six months. This comports with the CBA's requirement of "a detailed description of the alleged acts and conduct including references to dates" (emphasis in the decision).

Thus the Appellate Division concluded that the arbitrator modified the CBA and exceeded his authority by dismissing the first two charges as facially deficient due to an alleged lack of particularization in the notice of discipline. Rather, said the court, "the arbitrator should have rendered a determination as to [CO's] guilt based on the evidence presented at the hearing."

Accordingly, because the arbitrator exceeded his authority, the Appellate Division vacated the portion of the arbitration award dismissing the first two charges.

Click HERE to access the Appellate Division's ruling.

Failure to exhaust administrative remedies bars judicial review

In this CPLR Article 78 action, the Plaintiff [Petitioner] sought judicial review of two determinations of the New York State Workers' Compensation Board [Board] involving FOIL requests Petitioner had submitted to the Board seeking the production of certain documents from the Board. 

The Board promptly responded to Petitioner's requests, granting in part and denying in part the request. Petitioner then submitted an administrative appeal concerning the "denial in part" elements in his FOIL response. The Board denied the appeal on  the ground that it was untimely. Supreme Court agreed, dismissing Petitioner's Article 78 appeal. 

Subsequently Supreme Court considered Petitioner's application for reargument concerning the matter but adhered to its prior determination, in effect denying the petition and dismissing the proceeding. Petitioner next appealed the lower court's decisions to the Appellate Division.

The Appellate Division affirmed the Supreme Court's rulings, explaining "Public Officers Law §89(4)(a) provides that a person denied access to requested information under New York States Freedom of Information Law [FOIL] must appeal the denial in writing to the head of the entity or other designated person within 30 days."

As Petitioner failed to submit an appeal of the determination within 30 days, "he failed to exhaust his administrative remedies and, thus, could not resort to a judicial forum to gain relief."

Click HERE to access the Appellate Divisions decision.

Appeal to the Commissioner of Education involving a school board election, an alleged denial of "free speech," and failure to agree to a new collective bargaining agreement dismissed for procedural reasons

Noting that the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, the Commissioner of Education dismissed an appeal involving challenges to a school board election for a number of reasons, including:

1. Failure to establish any grounds for relief: The Commissioner opined that the Petitioner failed to submit a reply or otherwise addressed certain assertions advance by the school district and thus failed to establish any basis for relief in connection with this claim.

2. Standing to assert rights on behalf of another: To the extent that the Petitioner sought to assert the individual rights of another person or his “surrogate” with respect such person serving as a poll watcher for Petitioner, the Commissioner held that Petitioner lacked standing to do so.

3. Free speech: The Commissioner, noting that Courts have held that a school board meeting is a limited public forum for purposes of the First Amendment and a school board's placing “Reasonable time, place and manner restrictions on speech in limited public fora comport with the Constitution ... [if] they are content-neutral, serve a significant government interest and leave open alternative channels for expression”, held that Petitioner failed to establish that the school board violated his right to free speech in connection with a board meeting. Here, said the Commissioner, "the district clerk asserts that “[Petitioner] has been prohibited from publicly speaking at regular board meetings only to the extent that he has commented on matters outside the agenda, has gone beyond the time allotted for comment, or has made pejorative and/or repetitive comments.”

4. Lack of Jurisdiction to consider a matter: Addressing Petitioners assertions concerning the school board failing to agree to a new collective bargaining agreement, the Commissioner, citing Civil Service Law §205 [5] [d], held that this issue "must be dismissed for lack of jurisdiction," explaining that the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board [“PERB”].*

* See, also, Matter of New York City Transit Authority v. New York StatePublic Employment Relations Board, et al., 19 NY3d 876.

Click HEREto access the full text of the Commissioner's decision in the appeal. 

Government Technology lists live webinars available during the week of August 23, 2021

Tuesday, August 24 | 1:00pm Eastern
Getting Up to Speed on Cyber: Why Application Security is More Critical Than Ever
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Thursday, August 26 | 1:00pm Eastern
Reimagining the State & Local Workforce through Data
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The New York City Teachers Retirement System's rejection of a member's application for accidental disability retirement trumps the Social Security Administration's finding that member was disabled

The genesis of this Article 78 action was New York City Teachers Retirement System [NYCTRS] disapproval of a member's [Plaintiff] application for accidental disability retirement notwithstanding the fact that the Social Security Administration had earlier found that the Plaintiff was disabled.

Supreme Court dismissed Plaintiff's petition, which ruling was unanimously affirmed by the Appellate Division.

Citing Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 AD3d 430, the Appellate Division opined that NYCTRS' determination to deny Petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence. The court, noting that NYCTRS' Medical Board determination the Petitioner was not disabled was supported by its physical examination and interview of the Petitioner.

The Board, said the court, found upon examination, Petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. Further, the Medical Board noted that Petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints.

Although Petitioner claimed that the Medical Board had ignored his medical history, the Appellate Division said that any conflicting evidence was for the Medical Board to resolve.

Addressing Petitioner's reliance on the disability finding of the Social Security Administration that Petitioner was disabled, the court said the Social Security Administration's finding was not dispositive of the Medical Board's disability determination nor did the finding of a medical arbitrator, who examined Petitioner after the Medical Board made its determination, "warrant Article 78 relief." 

CLICK HEREto access the full text of the Appellate Division in this action.