Labor & Employment Law

Application for retroactive credit/membership in the NYS Employees? Retirement System based on uncompensated service rejected

Application for retroactive credit/membership in the NYS Employees? Retirement System based on uncompensated service rejected
Matter of Bernard Carabello v DiNapoli, 2008 NY Slip Op 04815, Decided on May 29, 2008, Appellate Division, Third Department

Bernard Carabello was a resident of the former Willowbrook State School. Claiming that while a resident he was compelled to provide uncompensated services for the facility, he contended that he was entitled to both service credit and placement in tier 1 in the New York State Employees? Retirement System [ERS].

The ERS Administrative Hearing Officer ruled that Carabello was not eligible for the requested service credit because he was not paid a salary for the services he performed at Willowbrook. The Hearing Officer also denied Carabello's application for reinstatement to tier 1 because he ?did not meet the statutory requirements for tier 1 reinstatement.?.

The State Comptroller, in his capacity as the sole trustee of ERS, adopted the Hearing Officer?s findings and Carabello appealed.

The Appellate Divison sustained the Comptroller?s determination, noting that. "Retirement and Social Security Law §645 grants tier reinstatement only when a petitioner was a mandatory member of the Retirement System at the time of the prior service or actually joined the Retirement System at that time."

As there were no payroll records and information regarding a potential job title or civil service classification in which Carabello could have served while at Willowbrook, ERS could not determine whether the services performed by him would have resulted in mandatory membership in the Retirement System.

Under such circumstances, said the court, the Comptroller properly denied petitioner's application seeking reinstatement to tier 1.

The Appellate Division reached the conclusion with respect to Carabello?s request for service credit. While there is no dispute that Willowbrook was a "participating employer" [sic] in ERS, the court said that where, as here, a member seeks credit for "government service," such service must be ?[p]aid service" within the meaning of Retirement and Social Security Law §2 11).

Carabello conceded that he was not "employed" by Willowbrook. As he never paid a salary for the work he performed or the services he provided while there, the Comptroller appropriately concluded that he was not entitled to the service credit he requested notwithstanding the fact that Carabello claimed that he was "compensated" with nonmonetary privileges such as food and cigarettes.

Full post as published by New York Public Personnel Law on June 02, 2008 (boomark / email).