If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

Kaslow v City of New York, 2013 NY Slip Op 00210, Appellate Division, Second Department

In this CPLR Article 78 proceeding David Kaslow asked Supreme Court to review a determination of the New York City Employees' Retirement System [NYCERS]. 

Kaslow had retired from employment with the New York City Department of Correction [DOC]. NYCERS however, had denied his request for service credit for his prior employment with the New York City Department of Environmental Protection [DEP] for purposes of determining his retirement allowance.

While Kaslow had contended that he was entitled to service credit for his prior employment with DEP, NYCERS said that in accordance with Retirement and Social Security Law §504-a, Kaslow, as a member of the Tier 3 CO-20 retirement plan, was not entitled to service credit for his civilian service with DEP prior to his employment with DOC.

Supreme Court granted Kaslow’s petition, holding that his service with the City's Department of Environmental Protection should have been credited. NYCERS and the City of New York appealed the court’s ruling.

The Appellate Division, noting that "An agency's interpretation of the statutes and regulations that it administers must be given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute,'" said that in the event the question is one of pure legal interpretation of statutory terms, “deference to the agency is not required."

In this instance, said the court, NYCERS's interpretation of the term "credited service," was irrational, unreasonable, and inconsistent with the other applicable statutes governing the retirement benefits of officers employed with the DOC.

Accordingly, and under the circumstances presented in this instance, the Appellate Division concluded that for purposes of determining Kaslow retirement allowance upon his retirement from DOC, his creditable civilian service with DEP should have been included in NYCERS's calculation of his benefits, and, thus, Supreme Court had properly granted Kaslow’s petition.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00210.htm

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings 

Firefighter admitted using cocaine

Penalty recommended: termination and forfeiture of the vesting his pension recommended

A firefighter who tested positive for cocaine admitted to using the drug but argued that he should be permitted to vest his pension and retire when eligible to do so.

Administrative Law Judge Alessandra F. Zorgniotti noted that pursuant to the Department’s “zero tolerance policy,” termination of employment is the usual penalty for a first time positive test, in the absence of exacerbating or extenuating circumstances.

Judge Zorgniotti found that respondent failed to present sufficient evidence in mitigation to justify a lesser penalty and recommended termination of the individual’s employment, without an allowance that his pension be permitted to vest fully.

The decision is posted on the Internet at:

Fire Dep’t v. Arcello (in PDF), OATH Index No. 109/13 

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

On January 28, 2013, State Comptroller Thomas P. DiNapoli announced that his office has finalized plans to implement a statewide fiscal monitoring system that would publicly identify local governments experiencing financial strain. The monitoring system will include nine financial indicators, such as cash-on-hand and patterns of operating deficits, together with broader demographic information like population trends and tax assessment growth. The system will start by analyzing those localities whose fiscal year ended December 31, 2012 and later apply it to villages and school districts whose fiscal years end at various periods throughout the year.

DiNapoli’s office drafted the ‘early warning’ monitoring system in September 2012 and shared details of the proposal with all of the state’s local governments and school districts for their review during a 60-day comment period. More than 85 local government and school district officials, as well as a number of affiliated organizations, submitted comments.

Using data already submitted by more than 3,000 local governments, DiNapoli’s office will calculate and publicize an overall score of fiscal stress for approximately 2,300 municipalities and school district across the state. They will be listed as in “significant fiscal stress,” in “moderate fiscal stress,” “susceptible to fiscal stress,” or “not in fiscal stress.”

Once the monitoring system has identified local governments and school districts experiencing fiscal stress, an array of services will be offered by DiNapoli’s office including budget reviews, technical financial assistance, guidance on multi-year financial planning, financial management publications and training.

Additional information concerning the Comptroller’s fiscal stress monitoring system is posted on the Internet at: www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm