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NYS Common Retirement Fund employer contribution rates to increase in 2012

NYS Common Retirement Fund employer contribution rates to increase in 2012
Source: Office of the State Comptroller

On September 2, 2010 State Comptroller Thomas P. DiNapoli announced increases over the previous year in the 2011-12 employer contribution rates for the New York State Common Retirement Fund. At the same time DiNapoli announced that he accepted the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates.*

The average contribution rate for the Employee Retirement System will increase from 11.9 percent of salaries to 16.3 percent. The average contribution for the Police and Fire Retirement System is increasing from 18.2 percent 21.6 percent.

Comptroller DiNapoli commented that “Unfortunately, it takes the economy a lot longer to climb out of a hole than it takes to fall in it. The markets are still recovering from the 2008-09 financial meltdown, and that recovery continues to be volatile. We handled the meltdown better than most pension funds, but we’re still feeling the impact, and, as I have consistently cautioned, the employer contribution rates I’m announcing today will reflect the impact of the financial crisis.”

The Retirement System actuary by law reviews many actuarial assumptions for the Retirement System, including: the mortality rate for members and retirees, the expected investment rate of return on pension fund investments, the rate of inflation and anticipated salary scales. The actuary prepares a report with recommendations, which is presented to an independent actuarial advisory committee.

The Retirement System’s new assumption for its investment rate of return is more fiscally conservative than the national average for public pension funds and more conservative than the average for the top 100 private U.S. pension funds, according to Milliman’s 10th annual Pension Funding Study.

The Comptroller noted that a new law was enacted earlier in 2010 that will allow a political subdivision of the State to elect to participate in a program that would allow it to budget a portion of their increased pension fund payments over ten years.**

This “employer contribution payment plan” will help those localities electing to participate to mitigate the impact the increase in costs could have on local taxpayers. Those localities opting into the plan must also build reserve accounts during periods of decreasing pension contribution rates, which reserve accounts would be used to protect taxpayers from future rate spikes.

DiNapoli characterized the program as being similar to a household utility budget plan that enables homeowners to pay one level payment throughout the year rather than payments that spike at different times of the year.

* Click on "contribution rates" for the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates: contribution rates

** See Retirement and Social Security Law §19-a, Employer contributions for the two thousand ten - two thousand eleven fiscal year and subsequent fiscal years.


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A difference between judicial and administrative hearings

A difference between judicial and administrative hearings
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

Here is another case from Patty Salkin (Albany) on her Law of the Land blog, "FL Appeals Court holds that Neighboring Landowners in a Quasi Judicial Hearing Are Not Entitled to Cross-Examine Witnesses".

Petitioners, Carillon Community Residential Association, Inc., and its President, sought second-tier certiorari review of a circuit court order upholding the approval by the County Board of County Commissioners [BCC] of an amendment to the Carillon Planned Unit Development which allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to be built on two parcels of land adjacent to Petitioners’ subdivision.

The Court concluded that the circuit court afforded Petitioners procedural due process and did not depart from the essential requirements of law when the Board denied their request to cross-examine witnesses at the quasi-judicial hearing in which the amendment was approved.

The Court said that Florida law does not require that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses.

The Court states, that “land use hearings are not in the same form as traditional adversarial hearings during which opposing parties are clearly delineated and those entitled to cross-examine witnesses can be clearly identified.

Rather, land use hearings are public hearings during which any member of the public has a right to participate. At the hearing in question, in addition to the witnesses for the developers and the petitioners, twenty-five community members spoke at the hearing. It would be impractical to grant each interested party the right to cross-examine the witnesses at such a hearing, especially in light of the fact that the BCC provides a procedure by which the witnesses can be questioned.”

An administrative hearing is not a trial - not strictly speaking an adversarial procedure but rather an inquisitorial procedure. Due process does not require that the agency follow the rules of evidence or the procedures mandated by due process in litigation or criminal proceedings. Absent specific statutory requirements, we get notice and an opportunity to be heard.

Edward M. “Ted” McClure
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Fear of AIDS

Fear of AIDS
Barbara S. v Nassau County, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]

Emergency service personnel who believe that they have been exposed to HIV in the course of their employment may claim to have developed a fear of Acquired Immune Deficiency Syndrome [AIDS]. The Barbara S. case summaries how New York courts treat such claims.

An emergency room nurse at the Massapequa General Hospital, Barbara S. was stuck with a needle while caring for a patient. She and her husband sued, contending that the needle, which had been allegedly used to start an IV in a patient being transported to the hospital, had been negligently and improperly left on the stretcher by the Nassau County employees.

Barbara contended that she was fearful that she would contract Acquired Immune Deficiency Syndrome (AIDS) as a result of the puncture despite the fact that she has tested negative for AIDS in three tests administered over a 12-month period. The County asked Justice Joseph dismiss her claim on the grounds that she had not shown that she had been actually exposed to blood or fluid seropositive for HIV, citing Brown v New York City Health and Hospital Corporation, 225 AD2d 36.

Justice Joseph said that New York courts have repeatedly dealt with the elements required to establish a cause of action for negligence based on the fear of contracting AIDS. In order to maintain a cause of action for damages due to the fear of contracting AIDS, an individual who has not tested positive for AIDS must offer proof of “actual exposure.” Requiring proof of actual exposure insures that there is a genuine basis for the individual’s fear of developing the disease and that the fear is not based on public misconceptions about AIDS.

The Court said that although Barbara did posit a scientifically accepted method of transmission of the virus, i.e. the needle puncture, she failed to establish with either documentary evidence or testimony that the needle had ever been in contact with any blood or fluid of the patient or that the patient had AIDS.

Justice Joseph characterized Barbara’s claims as “an unsubstantiated allegation that the needle was used for the patient’s treatment” which was not supported by the record. The Court granted the County’s motion for summary judgment, dismissing her AIDS-related claims. However, Barbara’s action concerning her claim of a physical injury resulting from the needle puncturing her hand survived, since the County conceded that she had suffered such an injury.

Payment of hazardous duty pay while receiving GML Section 207-c benefits

Payment of hazardous duty pay while receiving GML Section 207-c benefits
Town of Carmel v PERB, Appellate Division, 246 A.D.2d 791

Prior to January 1995, Town of Carmel police officers assigned to “light duty” pursuant to Section 207-c of the General Municipal Law performed desk duty. Such light duty personnel wore “Class D uniforms,” did not carry a weapon and were assisted by a full-status officer, fully armed, dressed in a “Class A” uniform, at all times.

The Town changed this policy in January 1995, requiring officers on light duty status to wear a Class A uniform, including weapon and to perform desk duty unassisted by a “full-status” officer.

The Town of Carmel PBA, contending that this change adversely affected the safety of officers, both those on light duty status as well as those in full-status, demanded that the Town negotiate “safety stipends” for both the light duty and full-status officers. When the Town refused, the PBA filed an improper practice charge with PERB.

The PBA sought $100 a day for light duty officers serving without assistance; $15 an hour for full-status officers responsible for a prisoner while a light duty officer was the only other officer present and $10 an hour for a full-service officer assigned to desk duty when only a light duty officer was present.

A PERB administrative law judge [ALJ] dismissed the charge, finding that the additional compensation demanded for light duty officers “did not comport with the legislative scheme of General Municipal Law Section 207-c,” and thus constituted a prohibited subject of negotiations. PERB disagreed and reversed the ALJ’s ruling.

PERB decided that the salary demands advocated by the PBA were mandatory subjects for collective bargaining “not unlike hazardous duty pay.” The Town appealed, contending that it could not be compelled to negotiate wages to be paid an officer assigned to light duty above the amount to which he or she would have been entitled were he or she able to perform “regular duties.”

The issue to be resolved: did the demand for a safety stipend constitute a term and condition of employment, thus making it mandatorily negotiable, or did it constitute salary or wages in excess of that which are provided for under the clear and plain language of the Section 207-c.

The Appellate Division agreed with a lower court’s affirmation of PERB’s decision, concluding that the PBA’s demand involved a term and condition of employment since it directly relates to safety issues arising as a result of the change in policy. Further, said the Appellate Division, nothing in Section 207-c makes the PBA’s demand a prohibited subject of negotiations.

According to the decision, while the legislature intended to insure that Section 207-c police officers assigned light duty would receive an uninterrupted salary, “it did not simultaneously intend to prevent those same officers from bargaining for what they may perceive to be job-related risks.”

N.B. An Internal Revenue Service private letter opinion [#0104.02.00] advised that if an individual is assigned light duty, any compensation paid pursuant to Sections 207-a or 207-c is fully taxable.

Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion

Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion
Matter of Kaefer v New York State Off. of Parks Recreation & Historical Preserv., 2010 NY Slip Op 51503(U), Decided on July 16, 2010, Supreme Court, Nassau County, Judge Ute Wolff Lally, [Not selected for publication in the Official Reports]

Robert Kaefer had been employed as a “seasonal temporary” lifeguard for 18 years* by Jones Beach State Park [Parks].

Returning from an absence following surgery performed by a Dr. Halpern, Kaefer was told that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, Kaefer handed in a false doctor's note allegedly written by a Dr. Persaud, which he had obtained with the help of another lifeguard, James Green.** Subsequently Kaefer obtained an appropriate doctor’s note from Dr. Halpern.

Dr. Persaud's note, however, had raised some suspicion and Kaefer was told to provide evidence verifying its accuracy. Kaefer, in response, submitted “another bogus note from Dr. Persaud.”

Parks allowed Kaefer to continue serving as a lifeguard for the rest of the swim season.***

Thereafter Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 disciplinary hearing concerning the first bogus note -- the first formal step in the process taking disciplinary action against a lifeguard. The hearing, however, was adjourned to but prior to the rescheduled date Kaefer received a letter advising him that the step 1 hearing "has been postponed and will be rescheduled at a future date to be determined".

No notification of a rescheduled or cancelled Step 1 hearing was ever sent to Kaefer.

Ultimately Kaefer was refused reemployment as a lifeguard and he filed an Article 78 petition seeking a court order setting aside Parks decision banning from serving as a lifeguard, contending that the decision was arbitrary and capricious because:

1. Parks failed to adhere to its own policies and procedures; and

2. Parks imposed a different penalty than it has applied its prior determinations on essentially the same alleged acts of misconduct by barring him from employment as a life guard.

Judge Lally rejected Parks’ argument that Kaefer’s petition should be dismissed because he had “failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled," holding that the duty of providing for the rescheduling and notifying Kaefer of such a hearing was Parks'.

In contrast, Judge Lally ruled that Kaefer had the burden of proving that his punishment — a lifetime bar from employment as a lifeguard -- was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious.

In this regard, said the court, Kaefer failed to meet his burden as, except for James Green, Kaefer was unable to point to any lifeguard who was found guilty of submitting a bogus doctor's note. Further, Judge Lally said that he would not substitute his judgment for that of Parks, finding that there was no abuse of discretion as a matter of law in Parks’ treatment of Kaefer compared to its treatment of other lifeguards convicted of crimes.

As to Parks’ argument that it had merely exercised its discretion to terminate a “seasonal temporary” lifeguard pursuant to its authority to do so "for any reason without prior notice," Judge Lally ruled that it could not now rely on such discretion to excuse its failure to follow through with the disciplinary procedure it earlier initiated. In the words of the court, “Having invoked its authority [to discipline Parks] was obliged to comply with it. [Parks] scheduled, rescheduled and then canceling the rescheduled hearing with a promise to provide a new date."

In effect, "once initiated, [Parks] was required to complete the disciplinary process in accordance with the provisions set out in the collective bargaining agreement and by failing to do so it violated its own policies and procedures, which deprived Kaefer of any opportunity to explain his action and/or to plead his case."

In determining the appropriate redress to be given Kaefer to cure Parks’ “abuse of discretion in violating its policies and procedures,” Judge Lally said that he must consider the particular circumstances of Kaefer’s employment.

The court explained that although hired for numerous seasons, Kaefer consistently had been an employee for a fixed term for each season and he had no right to be rehired. However, in barring Kaefer from “taking the new hire test without having afforded him a Step 1 hearing,” Parks had, essentially, made a disciplinary decision without giving Kaefer the benefit of such a hearing.

Accordingly, Judge Lally directed Parks “to provide to [Kaefer] the hearings he is entitled to” and to permit him to take “the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.”

Significantly, the court, noting that Parks had “wrongfully prohibited” Kaefer from taking the new hire tests, commented that “there is no certitude that [Kaefer] would have passed same or that an opening existed.” Accordingly, Judge Lally declined to award Kaefer “lost wages.”

In contrast, however, as the prevailing party, the court said that Kaefer was entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR §8601).

* "Seasonal Appointment Letters" sent to Kaefer stated that "You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice...."

** James Green, Kaefer's co-conspirator in obtaining the bogus doctor's notes, had agreed as part of a plea bargain to a lifetime ban of employment as a lifeguard at Parks.

*** Subsequently Kaefer was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, submitting a false instrument for filing.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51503.htm

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