In the Matter of David Kaslow, Respondent,v.City of New York, et al., Appellants.BriefN.Y.February 11, 2014APL-2013-00102 Kings County Clerk’s Index No. 3752/10 Court of Appeals STATE OF NEW YORK In the Matter of the Application of DAVID KASLOW on behalf of himself and all other similarly situated correction officer retirees, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules against THE CITY OF NEW YORK and THE NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Respondents-Appellants. >> >> BRIEF FOR PETITIONER-RESPONDENT KOEHLER & ISAACS LLP Attorneys for Petitioner-Respondent 61 Broadway, 25th Floor New York, New York 10006 917-551-1300 Of Counsel: Mercedes Maldonado Date Completed: August 14, 2013 To Be Argued By: Mercedes Maldonado Time Requested: 15 Minutes i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 QUESTION PRESENTED ........................................................................................ 3 BACKGROUND ....................................................................................................... 3 Tier 1 ................................................................................................................... 4 Tier 2 ................................................................................................................... 4 Tier 3 ................................................................................................................... 5 ARGUMENT ............................................................................................................. 5 A. The Standard of Review is De Novo; NYCERS’ interpretation of credited service under RSSL 504-a(b)(4) is entitled to no deference .............................................. 5 B. RSSL §504-a(b)(4), by way of Plain Language and Legislative Intent, Entitles Kaslow to the Same Application of Credited Service as a Tier 2 Plan Member and therefore entitles Kaslow to the same Civilian Service Credit that Applies to Tier 2.............................................. 9 C. Legislative History also Supports that the CO-20 Plan did not forfeit Credit for Civilian Service .................................................. 18 D. By Forfeiting Credit for Civilian Time, NYCERS Has Diminished Kaslow’s Pension in Violation of Article V, Section 7 of the New York State Constitution ........................................... 20 CONCLUSION ........................................................................................................ 21 ii TABLE OF AUTHORITIES Page Cases Auerbach v. Board of Educ., 86 N.Y.2d 198, 630 N.Y.S.2d 698, 654 N.E.2d 972 (1995) ...................................................................................... 16 Ballentine v. Koch, 89 N.Y.2d 51, 674 N.Y.S.2d 362 (1996) ................................. 20 Doctors Council v. New York City Employees’ Retirement System, 71 N.Y.2d 669 (1988) ................................................................................... 8, 12 Kranker v. Levitt, 30 N.Y.2d 574 (1972) ................................................................ 21 Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 403 N.E.2d 159, 426 N.Y.S.2d 454 (1980) ................................................................................ 6, 7 Matter of DeBlasio v. City of New York, 24 Misc. 3d 789, 883 N.Y.S.2d 843 (NY Sup. 2009) ..................................................................... 2 Matter of Guzman v. New York City Employee’s Retirement Sys., 45 N.Y.2d 186 (1978) ....................................................................................... 21 Matter of McGarrigle v. City of New York, 4 Misc 3d 1004A, 791 NYS2d 870, (NY Sup 2004), aff’d, 23 A.D.3d 196, 803 N.Y.S.2d 529, (1st Dept 2005) aff’d., 7 N.Y.3d 701 (N.Y. 2006) ..................................................................................................... 2, 6 Matter of Schriro v. New York State Teachers’ Retirement Bd, 63 A.D.2d 751 (1978) ....................................................................................... 13 Orens v. Novello, 99 N.Y.2d 180 (2002) ................................................................. 16 Patrolmen’s Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 391 N.Y.S.2d 544, 359 N.E.2d 1338 (1976) .................................................... 16 Servomation Corp. v State Tax Commn., 51 NY2d 608 ........................................... 7 Tier 2 officers who opt-in to the Tier 2 CO 20 ........................................................ 10 iii Statutes New York State Constitution Article V, Section 7 ...........................................passim RSSL § 445-a ................................................................................................. 3, 10, 17 RSSL § 445-a(a)(3) and (c) ...................................................................................... 17 RSSL § 445-a(4) ...................................................................................................... 10 RSSL § 500-520 ......................................................................................................... 5 RSSL § 501(c) ............................................................................................................ 5 RSSL § 503(c) ............................................................................................................ 5 RSSL § 504 .............................................................................................................. 17 RSSL § 504-a ..................................................................................................... 1, 3, 7 RSSL § 504-a(b)(4) ...........................................................................................passim RSSL § 504-a(c) ....................................................................................................... 14 RSSL § 504-a(c)(2) ...........................................................................................passim Regulations Admin. Code § 13-101 [3] [a], [b] ............................................................................. 8 Admin. Code § 13-104 ............................................................................................... 8 Admin. Code § 13-155 ......................................................................................passim Admin. Code § 13-155(a)(3)(c) ........................................................................passim Admin. Code § 13-255(3) ........................................................................................ 19 Admin. Code § 13-359(a)(3) ................................................................................... 19 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------X In the Matter of the Application of DAVID KASLOW on behalf of himself and all other similarly situated correction officer retirees, Case No. 2011-4984 Petitioner-Respondent For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- THE CITY OF NEW YORK and THE NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Respondents-Appellants -----------------------------------------------------------------------X RESPONDENT’S BRIEF PRELIMINARY STATEMENT This case involves a “credited service” dispute under Retirement and Social Security Law (“RSSL”) §504-a enacted on December 19, 1990 (the “Tier 3 CO-20 Plan”). As correction officers first began retiring under the new Tier 3 CO-20 Plan, it became apparent to their labor union, the Correction Officers Benevolent 2 Association (“COBA”), that the New York City Employees Retirement System (“NYCERS”) was intent on shortchanging them their service credit. This is the third COBA-backed litigation involving credited service under the Tier 3 CO-20 plan. The first two cases were won handily by the petitioning COBA members and resulted in pension recalculations for hundreds of correction officers: Matter of McGarrigle v. City of New York, 4 Misc 3d 1004A, 791 NYS2d 870, (NY Sup 2004), aff’d, 23 A.D.3d 196, 803 N.Y.S.2d 529, (1st Dept 2005) aff’d., 7 N.Y.3d 701 (N.Y. 2006) and Matter of DeBlasio v. City of New York, 24 Misc. 3d 789, 883 N.Y.S.2d 843 (NY Sup. 2009). Now before the Court is this, the third credited service dispute under the Tier 3 CO-20 plan. Petitioner Kaslow maintains that he is entitled to civilian service credit under the Tier 3 CO-20 plan and that NYCERS’ failure to provide this credit amounts to a violation of Article V, Section 7 of the New York State Constitution, known as the pension impairment clause. Respondents claim that RSSL § 504-a(b)(4) does not entitle Kaslow to credit for civilian service and, therefore, his civilian service is of no value toward his pension, a result that is unprecedented in any of the retirement tiers applicable to correction officers. As set forth below, NYCERS’ claims are contrary to the plain language of RSSL § 504-a(b)(4). 3 QUESTION PRESENTED Did NYCERS violate RSSL § 504-a(b)(4) when it refused to give Petitioner service credit for civilian city service, thereby diminishing his pension in violation of the pension impairment clause of the New York State Constitution? The Lower courts found that Petitioner was entitled to an additional benefit calculation for civilian city service. Petitioner agrees. BACKGROUND On December 19, 1990, the New York legislature simultaneously enacted Chapter 936 of the Laws of 1990; RSSL § 445-a, known as the Tier 2 CO-20 Plan and § 504-a, which is the Tier 3 CO-20 Plan. Tier 2 and 3 correction officers who became members of NYCERS before December 19, 1990 had the right to elect their respective CO-20 year plan. Those who became correction officers after December 19, 1990 were mandated into the Tier 3 CO-20 Plan. Kaslow is among the first of the Tier 3 CO-20 Plan members to retire, having joined the plan on April 25, 1991. R. 38. Kaslow met his 20-year service requirement using just over 17 years of correction officer service and three years of prior military service. R.40-45. When Kaslow’s retirement took effect on July 2, 2009, he challenged NYCERS’ decision to totally forfeit his 3 years and six months of prior civilian service credit under the pretense that Tier 3 CO-20 Plan disallowed 4 such service credit. Thus, the issue raised in this appeal is one of first impression, as the interpretation urged by NYCERS has not actually been applied until now, as officers first began to retire under the Tier 3 CO-20 Plan. Appellants’ Brief at pgs 6-8 provides an explanation of the Tier 1, 2 and 3 pension plans in existence prior to enactment of the Tier 2 and 3 CO-20 Plans on December 19, 1990. Appellants’ summary distills to the following relevant facts about credit for civilian service in the various tiers prior to enactment on December 19, 1990 of the Tier 2 and 3 CO-20 Plans: Tier 1 Tier 1 correction members must have 20 or 25 years of “allowable service rendered in the uniformed correction force” to retire with full benefits. In addition, a Tier 1 member receives credit for civilian city service at the lesser monetary value prescribed under Admin. Code §13-155(a)(3)(c). Therefore, credited service under Tier 1 includes correction service and civilian city service. Tier 2 Tier 2 correction members must have either 20 or 25 years of correction service to retire with an unreduced benefit. In addition, “credited service” for all tier 2 members who retire with 20 or 25 years of correction service, includes civilian service which is credited at the rate of 3/4 of 1/60th of final average salary in 5 accordance with Admin. Code §13-155(a)(3)(c) - the same provision that gives credit for civilian service to Tier 1 members. Given Appellants own description of the Tiers, it is undisputed that credited service under Tier 2 includes correction service and civilian city service. Tier 3 Tier 3 is governed by the provisions of RSSL Article 14. See RSSL § 500-520. Correction officers who became NYCERS members on or after July 27, 1976 are Tier 3 members. Prior to the enactment of the CO-20 Plan on December 19, 1990, Tier 3 members enjoyed a broad definition of credited service which allowed them to retire after completing 25 years of any service (including non-uniformed) in one of the public retirement systems within the state. See RSSL 501(c). The enactment of the Tier 3 CO 20 Plan on December 19, 1990 burdened new members with the narrower “credited service” requirements of Tier 2, RSSL § 504-a(b)(4), but benefitted them by decreasing from 25 to 20 the amount of credited service needed to be eligible to retire. Compare RSSL § 503(c) with 504-a(c)(1). ARGUMENT A. The Standard of Review is De Novo; NYCERS’ interpretation of credited service under RSSL 504-a(b)(4) is entitled to no deference. This court is not constrained to review NYCERS’ determination for 6 “rationality” or under the very limited “arbitrary and capricious” standard. Rather the Court may review the determination de novo. As pointed out by the Court of Appeals in Howard v. Wyman, judicial deference to an agency’s statutory interpretation is only warranted where it is apparent from the statute that “the agency administering the statute must determine it initially.” 28 N.Y.2d 434, 438 (1971). For example, Howard v. Wyman, is an example of when the arbitrary and capricious standard is appropriate. There, a welfare recipient whose apartment was burglarized sought replacement of the lost items under a section of the Social Services Law that allowed for replacement in cases of “fire, flood or other like catastrophe.” Id. The agency denied replacement because it interpreted “other like catastrophe” as not encompassing burglary. Id. The court found that the interpretation of “other like catastrophe” was within the agency’s discretion to initially determine. Id. This case is totally inapposite. This appeal calls on the court to engage in “pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent." Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, 403 N.E.2d 159, 426 N.Y.S.2d 454 (1980). The construction of the term “credited service” is not a discretionary matter for NYCERS to undertake. In McGarrigle v. City of New York, a case involving another correction officer and NYCERS in a dispute arising out of the same Tier 3 7 CO-20 pension plan at issue here, the Appellate Division noted: “the controlling issue on this appeal is a pure question of law: the meaning of the phrase ‘credited service’" in RSSL § 504-a as it applies to correction officers who opt-in to the Tier 3 CO-20 plan. 23 A.D.3d 196, 198, 803 N.Y.S.2d 529, 531 (A.D.1st Dept 2005). The court in McGarrigle accorded no special deference to NYCERS’ interpretation and ultimately ruled that NYCERS could not construe credited service in the collective bargaining agreement applicable to correction officers, to forfeit McGarrigle’s statutory right to the pensionability of certain longevity earnings. The court determined that NYCERS’ exclusion of his longevity earnings, based on an erroneous application of credited service, diminished McGarrigle’s pension in violation of the New York Constitution’s pension impairment clause, Article V, Section 7. Since this case involves pure statutory reading and analysis, as opposed to the exercise of discretion, the Court’s review is de novo. The Court of Appeals has held it to be beyond cavil that: the NYCERS Board of Trustees surely lacks the authority to create retirement eligibility; it likewise lacks the power to disentitle employees whom the Legislature has endowed. To countenance the latter, as has been urged here by the City, would allow the agency to, in effect, amend the heart of this statute. An administrative agency cannot by regulatory fiat directly or indirectly countermand a statute enacted by the Legislature" (Servomation Corp. v State Tax Commn., 51 NY2d 608, 612, supra; see, Kurcsics v 8 Merchants Mut. Ins. Co., 49 NY2d 451, 459, supra). Doctors Council v. New York City Employees' Retirement System, 71 N.Y.2d 669, 676 (1988). In Doctors Council, the court was asked to determine whether NYCERS had statutory authority to exclude part-time employee doctors employed by the New York City Health and Hospitals Corporation from membership in the pension system based on their part-time status. The statutory provision on membership stated simply "[Membership] * * * shall consist of * * * [all] persons in city-service" (Administrative Code of City of New York § 13-104 [former § B3-3.30]). 'City-service' was defined as ‘service, whether appointive or elective, as an officer or employee of the city * * * so far as such service is paid for by the city’ and shall include ‘[service] as a paid employee of * * * the New York city health and hospitals corporation’ Administrative Code § 13-101 [3] [a], [b] [former § B3-1.0 (3)].” NYCERS urged that the court defer to its practical construction of the statute. The Court of Appeals refused to accord such deference when it ran contrary to the plain language of the statute. In holding that part time employees are eligible for membership, the court in Doctors Council noted that “the critical eligibility words are "[all] persons in city-service" and "employees" and they are nowhere limited or qualified. 71 N.Y.2d at 675. 9 This case, as in McGarrigle and Doctors Council, involves pure statutory construction, as opposed to discretionary decision making. This court should reject NYCERS’ contention that its application of “credited service” under the Tier 3 CO- 20 plan may only be reviewed for “rationality” under the “arbitrary and capricious” standard. B. RSSL §504-a(b)(4), by way of Plain Language and Legislative Intent, Entitles Kaslow to the Same Application of Credited Service as a Tier 2 Plan Member and therefore entitles Kaslow to the same Civilian Service Credit that Applies to Tier 2. Interestingly, both parties to this case claim that plain, unambiguous statutory language is on their side. The Court will see that Petitioner asserts the far more convincing argument, whereas Respondents torture the simple statutory text. The plain, unambiguous language of RSSL §504-a(b)(4) requires that “credited service” apply to Kaslow in the same manner as it applies to a Tier 2 correction member. Appellants’ Brief at p. 14 concedes that Tier 2 members enjoy service credit for both correction service up front and civilian city service at the back of the 20 or 25 year correction service requirement. In relevant part, RSSL §504- a(b)(4) states: 4. . . .. Notwithstanding any other provision of law to the contrary, a New York city correction officer below the rank of captain who becomes a participant in the twenty- year retirement program pursuant to this paragraph by 10 becoming subject to the provisions of this article after the starting date of the twenty-year retirement program shall have the term "credited service" applied to him or her in the same manner as such term would be applied to a similarly situated correction officer below the rank of captain who is governed by article eleven of this chapter, and who is a participant in the twenty-year improved benefit retirement program pursuant to section four hundred forty-five-a [445-a] of such article eleven. (Emphasis added). RSSL §504-a(b)(4) refers to RSSL § 445-a which, for its part, sets forth yet another simple recitation of the fact that Tier 2 officers who opt-in to the Tier 2 CO 20-year plan receive the same service credit as those who choose not to opt-in. In this regard, RSSL § 445-a(4) states: “notwithstanding any other provision of this article to the contrary, a participant in the twenty-year improved benefit retirement program shall be entitled to the application of the same provisions with respect to credited service as now or hereinafter apply to a similarly situated correction officer under this article who is not a participant in such retirement program.” (Emphasis added). Thus, and conceded by Appellants, all Tier 2 correction officers receive service credit for civilian city service under Admin. Code 13-155(a)(3)(c) as follows: (c) seventy-five percent of one-sixtieth of his or her final compensation multiplied by: (1) the number of years of city-service after October first, nineteen hundred fifty-one, acquired other than in the uniformed correction force, 11 Appellants argument to support excluding service credit for civilian city service is two-part. First, Appellants believe that the interpretation of credited service under RSSL §504-a(b)(4) is discretionary with the Agency and that they have reasonably exercised their discretion to interpret RSSL §504-a(b)(4) as excluding civilian service credit, despite that the legislature imposed no such exclusion in the plain language of RSSL §504-a(b)(4). Second, Appellants contend that the benefit calculation provision of RSSL §504-a(c)(2) does not ascribe a monetary value for non-correction service and, therefore, it is not credited service. As to the first argument, because RSSL §504-a(b)(4) mandates that Kaslow “shall have credited service applied to him or her in the same manner” as it applies to a Tier 2 correction officer, Admin Code §13-155(a)(3)(c) must apply to Kaslow since it applies to give civilian service credit to all Tier 2 correction officers. Since civilian service applies to a Tier 2 officer, then it must apply to Kaslow, as prescribed by RSSL § 504-a(b)(4). Presumably, the legislature was well-aware when it enacted the Tier 2 and 3 CO-20 Plans on December 19, 1990 that all Tier 2 correction members received credit for civilian city service under Admin. Code § 13-155. Appellants simply have no “discretion” to interpret “as such term would be applied to a similarly situated correction officer . . .[under Tier 2]” to mean that Kaslow is limited only to “allowable correction service” especially when Appellants 12 concede that Tier 2 credited service includes both civilian service and correction service. Since the legislature mandated that petitioner receive the same credited service as a Tier 2 member, RSSL 504-a(b)(4) provides explicit direction to include credit for civilian city service. As the Court of Appeals stated in Doctor’s Council, the eligibility words “are nowhere limited or qualified.” 71 N.Y.2d at 675. Here, as in Doctor’s Council, the NYCERS Board of Trustees “lacks the power to disentitle employees whom the Legislature has endowed.” Id. at 676. If the legislature intended for Tier 3 “credited service” to only mean “allowable correction service,” as Appellants contend, they could easily have done so using those three magic words - allowable correction service” instead of: “shall have the term "credited service" applied to him or her in the same manner as such term would be applied to a similarly situated correction officer below the rank of captain who is governed by article eleven of this chapter, and who is a participant in the twenty-year improved benefit retirement program pursuant to section four hundred forty-five-a of such article eleven.” RSSL §504-a(b)(4). Think how easy it would have been for the legislature to simply state that credited service is limited to allowable correction service, if that is what was intended. They did not. Appellants argument that the Tier 3 CO-20 plan is a “stand alone 13 retirement structure” with requirements for retirement that are “independent of” the other tiers is a red herring. App. Brief at p. 15. The Tier 2 and 3 CO-20 plans, enacted together on December 19, 1990 are related statutes dealing with the same subject matter and as such “are said to be in pari materia and we must construe them together * * * [and they] must be applied harmoniously and consistently. * * * [citation omitted]” Matter of Schriro v. New York State Teachers’ Retirement Bd, 63 A.D.2d 751, 752 (1978). The statutory definition of “credited service” in the Tier 3 CO-20 Plan (RSSL §504-a(b)(4)), says to apply the Tier 2 service credit provisions, which makes it obvious that Tier 3 CO-20 Plan is not a “stand alone retirement structure.” It is impossible to know the meaning of “credited service” under the Tier 3 CO-20 Plan as it applies to members hired after 12/19/90 without referring to the Tier 2 provisions. Since all of Tier 2 is entitled to credit for civilian city service at the lesser monetary value prescribed under Admin. Code 13-155(a)(3)(c), this provision must apply harmoniously and consistently to the Tier 3 CO-20 plan members. Appellants argument that RSSL 504-a(b)(4) does not include this service is nothing but an illegitimate attempt to save money on the backs of correction officers by torturing the statute. 1RSSL § Section § 504-a(c) provides: 1. A participant in the twenty-year retirement program: (i) who has completed twenty or more years of credited service; and (ii) who has paid, before the effective date of retirement, all additional member contributions and interest (if any) required by subdivision e of this section; and (iii) who files with the retirement system of which he or she is a member an application for service retirement setting forth at what time he or she desires to be retired; and (iv) who shall be a participant in the twenty-year retirement program at the time so specified for his or her retirement; shall be retired pursuant to the provisions of this section affording early service retirement. 2. (i) Notwithstanding any other provision of law to the contrary, the early service retirement benefit for participants in the twenty-year retirement program who retire pursuant to paragraph one of this subdivision shall be a pension consisting of: (A) an amount, on account of twenty years of credited service, equal to one-half of his or her final average salary; plus (B) an amount for each additional year of credited service, or fraction thereof, beyond such twenty years of credited service equal to one-sixtieth of the final average salary for such credited service during the period from the completion of twenty years of credited service to the date of retirement. (ii) The maximum pension computed without optional modification payable pursuant to subparagraph (i) of this paragraph shall equal that payable upon completion of thirty years of service. 14 Appellants second argument is that since RSSL 504-a(c)(2)1 does not set forth a benefit calculation for civilian city service or refer to Admin. Code 13-155, Admin Code §13-155(a)(3)(c) cannot apply to give credit for civilian city service. Contrary to Appellants contention, RSSL §504-a(b)(4) does express the legislature’s 15 intent to provide the benefit application of another pension provision. RSSL 504- a(b)(4) explicitly states that another pension provision - Tier 2 - “applies” to determine credited service for Tier 3 CO-20 plan members hired after December 19, 1990. It is no mistake that RSSL 504-a(b)(4) uses the word “applied” twice in connection with credited service: “shall have the term credited service applied to him or her in the same manner” and “as such term would be applied to a similarly situated correction officer” under Tier 2. Since RSSL 504-a(b)(4) makes it crystal clear that Petitioner is entitled to the same credited service as a Tier 2 officer, and since Tier 2 includes civilian city service under Admin. Code 13- 155(a)(3)(c), it follows that Kaslow is likewise entitled to the benefit calculation under Admin. Code 13-155 (a)(3)(c), the same as for Tier 2 correction officers. In order to give effect to the broad service credit prescribed under RSSL 504-a(b)(4), the Court must read RSSL § 504-a(c)(2) in tandem with Admin. Code § 13-155 and not to its exclusion. The Court should not conclude that the legislature gave service credit for civilian time under RSSL 504-a(b)(4) and then took it away under RSSL § 504-a(c)(2) simply because it does not refer to the Administrative Code. Moreover, RSSL 504-a(c)(2), on its face, deals only with “the early 16 service retirement benefits for participants.” Since “early” refers to the reduction from 25 to 20 years of service needed to retire with a full pension, this provision is primarily concerned with the initial 20 years of eligible service. Only uniformed or military service can meet the 20 year requirement, not civilian time. Therefore, it is apparent that this section only addresses the benefit calculation for service that meets the 20-year requirement and does not even purport to deal with civilian service credit. However, this does not mean that credit for civilian service is contrary to or prohibited by RSSL 504-a(c)(2). Quite the opposite is true, and the absence of a calculation for civilian service credit under RSSL §504-a(c)(2) does not overcome the plain language in RSSL § 504-a(b)(4), in which the legislature chose to “credit” and “apply” civilian service to Kaslow the same as it is credited and applied to Tier 2. The Merriam Webster dictionary defines “credited” as “to place an amount to the credit of.” Ascribing an amount is the only consequence of being denominated as “credited” service. The plain meaning of “credit” and “apply” is that the service carry with it a monetary value. This Court must construe the statute so as to give effect to the plain meaning of the words used. Orens v. Novello, 99 N.Y.2d 180, 185-186 (2002) citing Auerbach v. Board of Educ., 86 N.Y.2d 198, 204, 630 N.Y.S.2d 698, 654 N.E.2d 972 (1995) and quoting Patrolmen's Benevolent Assn. v. City of New York, 17 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338 (1976). Therefore, the absence of a pension calculation for civilian service in RSSL §504–a(c)(2) is not dispositive. It does not vitiate the plain language of “credited” and “applied” in RSSL 504-a(b)(4) which makes unavoidable a pension calculation for civilian service. It follows that the benefit calculation applicable to Kaslow derives from Admin. §13-155(a)(3)(c) because RSSL §504-a(b)(4) prescribes that Petitioner is entitled, without limitation, to the same service crediting provisions as a Tier 2 member, which indisputably includes civilian city service under Admin Code §13- 155(a)(3)(c). Resort must, therefore, be made to the monetary value ascribed to civilian city service in Admin. Code §13-155(a)(3)(c). This is especially true since the Tier 2 provisions of RSSL § 445-a mention Admin. Code §13-155 at least twice. See § 445-a(a)(3) and (c). Lastly, when the legislature required that service credit be applied to Kaslow in the same manner that it applies to a Tier 2 officer, it specified that this must be the case “notwithstanding any other provision of law to the contrary.” RSSL § 504-a(b)(4). To the extent that Respondents now read the benefit calculation provision of RSSL § 504-a(c)(2) as negating credit for civilian service, its interpretation is contrary to RSSL 504-a(b)(4) and must be rejected. The Tier 2 service crediting rules in § 504-a(b)(4) apply “notwithstanding any other provision 18 of law to the contrary” which shows that the Tier 2 service crediting provisions of Admin Code §13-155(a)(3)(c) are not forfeited by the fact that the RSSL § 504- a(c)(2) does not mention civilian service credit. C. Legislative History also Supports that the CO-20 Plan did not forfeit Credit for Civilian Service. Appellants concede that “the purpose of enacting the Tier 2 CO-20 Plan was to create a 20-year plan similar to the other city 20-year uniformed plans . . .” App. Brief at p. 2. The legislative history shows that the bill sponsors sought to bring about parity between police and firefighters and correction officers when it enacted the Tier 3 CO-20 plan. The “sponsors memorandum” notes that: Correction officers are the only uniformed employees in New York City that do not receive 20 year half pay pensions. This disparity in benefits not only discriminates against correction officers, but also inhibits the Department of Corrections’ ability to compete with other law enforcement agencies in attracting qualified applicants. In an effort to reduce this disparity in benefits without causing undue hardship to the city, the union representing correction officers below the rank of captain (COBA) agreed, in collective bargaining negotiations, to forego certain wage improvements in order to finance these benefits. This bill effectuates the substance of these negotiations.” R. 259. Interestingly, members of the Police Pension Fund and the Fire Department 19 Pension Fund are subject to Tier 2 and are entitled to a retirement allowance that includes credit for civilian service under provisions that are substantially the same as Admin. Code § 13-155 (a)(3)(c). Thus, Admin. Code § 13-255(3), applicable to members of the police pension fund, entitles police officers to “seventy-five per cent of one-sixtieth of his or her final compensation” for civilian city service. Likewise, Admin. Code § 13-359(a)(3), applicable to members of the Fire Department Pension Fund, entitles firefighters to “seventy-five percent of one-sixtieth of his or her five- year-average compensation” for civilian city service. The construction that NYCERS has chosen would eliminate parity in the area of service credit for city civilian time which is an absurd and unintended result. While the legislature clearly was seeking to bring about parity as it relates to the ability to retire with an unreduced pension after 20 years of credited service, it strains credulity to argue that this same legislation could have been intended to take away parity as it relates to civilian service credit at the end, particularly since RSSL 504-a(b)(4) mandates that “credited service” apply to Kaslow in the “same manner as such term would be applied to a similarly situated correction officer” who is a participant in the Tier 2 CO-20 Plan. Moreover, as the sponsors memorandum in the bill jacket shows, COBA “agreed, in collective bargaining negotiations, to forego certain wage improvements in order to finance these benefits” in pursuit of this legislation. R. 259. It is difficult 20 to imagine that COBA would have given up wage improvements for a retirement plan that entailed a forfeiture of civilian time that would otherwise have accrued to the officer absent the legislation and participation in the plan. Certainly, making correction officers inferior to police and fire could not be what COBA or the legislature contemplated when it approved legislation that entitled officers, like Kaslow, to the service crediting requirements of Tier 2. D. By Forfeiting Credit for Civilian Time, NYCERS Has Diminished Kaslow’s Pension in Violation of Article V, Section 7 of the New York State Constitution. Once the Court finds that RSSL § 504-a(b)(4) granted Kaslow credit for allowable correction service and civilian time in the same manner as a Tier 2 officer, then those benefits are indeed protected by the New York State Constitution pursuant to Article V, Section 7, known as the “pension impairment clause,” which protects the benefits of membership in a public retirement system from being unilaterally impaired or diminished by either the employer, the retirement system or the legislature. Ballentine v. Koch, 89 N.Y.2d 51, 56, 674 N.Y.S.2d 362 (1996). Article V, Section 7 provides: [After July 1, 1940] membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired. 21 The foregoing clause “fixes the rights of the employees at the time of commencement of membership in [a pension or retirement system]” rather than at the later time of retirement. Id., citing, Matter of Guzman v. New York City Employee’s Retirement Sys., 45 N.Y.2d 186, 190-19 (1978); see also Kranker v. Levitt, 30 N.Y.2d 574 (1972). Kaslow has shown that, as a Tier 3 CO-20 Plan member, he is entitled to credit for his civilian city service pursuant to Admin. Code §13- 155(a)(3)(c) because a Tier 2 officer receives credit for such service thereunder. Kaslow’s civilian service credit is, therefore, entitled to the constitutional protections of Article V, § 7. CONCLUSION When the legislature enacted RSSL § 504-a(b)(4), it mandated that Kaslow receive credit for his civilian city service in accordance with § 13-155 because RSSL § 504-a(b)(4) broadly ordained that “credited service” shall be applied to Kaslow “in the same manner” as credited service applies to a Tier 2 correction officer. Thus, the legislative intent was to keep alive the service crediting rules of Tier 2, which include, under Admin. Code § 13-155(a)(3)(c), credit for civilian time after 20 years of allowable correction service at the rate of 3/4 of 1/60 per year of such service. If the legislature intended to forfeit credit for civilian time, it would not have broadly and without restriction made the Tier 2 service credit requirements 22 applicable to Kaslow. NYCERS has failed to apply the term credited service to Kaslow “in the same manner” that such term applies to a Tier 2 correction officer as required by RSSL § 504-a(b)(4) and in so doing, NYCERS has diminished Kaslow’s pension in violation of Article V, Section 7. Should Kaslow prevail in this litigation, all those retiring under the Tier 3 CO-20 plan with civilian service are entitled to the same relief under the principles of stare decisis. Dated: New York, New York August 14, 2013 Respectfully submitted, KOEHLER & ISAACS LLP By: ______________________________ Mercedes Maldonado, Esq. Attorneys for Petitioner Kaslow 61 Broadway, 25th Floor New York, New York 10006 Tel: (917) 551-1300 Fax: (917) 551-0030