Patrick Lynch,, et al., Respondents,v.The City of New York, et al., Appellants.BriefN.Y.May 8, 2014iJJtote .of fielt1l{J.ork €.om'/ .of f!fppenl.ff PATRICK LYNCH, as President ofthe PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., on behalf of the Aggrieved Police Officers, and the PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., & ROY RICHTER, as President ofTHE CAPTAIN'S ENDOWMENT ASSOCIATION OF THE CITY OF NEW YORK, INC., on behalf of the Aggrieved Police Surgeon and its future adversely affected members, & ALEXANDER HAGAN, as President of the UNIFORMED FIRE OFFICERS ASSOCIATION, on behalfofthe Aggrieved Medical Officer and its future adversely affected members, Of Counsel, Plaintiffs-Respondents, -against- THE CITY OF NEW YORK, the NEW YORK CITY POLICE PENSION FUND and the NEW YORK CITY FIRE DEPARTMENT PENSION FUND, Defendants-Appellants. BRIEF OF AMICUS CURIAE, SERGEANTS BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. GLEASON DUNN WALSH & O'SHEA Attorney for Amicus Curiae Sergeants Benevolent Association ofthe City of New York, Inc. 40 Beaver Street Albany, New York 12207 (518) 432-7511 rdunn@gdwo.net Ronald G. Dunn, Esq. Supreme Court, New York County, Index No. 650822110 Court of Appeals No. APL-2013-00257 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................. ....... ii PRELIMINARY STATEMENT ............................................................................... 1 INTEREST OF AMICUS CURIA£ .......................................................................... 4 ARGUMENT POINT I THE PLAIN LANGUAGE OF RSSL § 480 DICTATES THAT TIER III POLICE OFFICERS BE PROVIDED THE ITHP BENEFIT ...................................................................................... 5 A. The Plain Language of RSSL § 480(b) Unambiguously Requires the City to Assume 5% ofTier III Police Officers' Pension Contributions ................................ 5 CONCLUSION ........................................................................................................ 11 PRINTING SPECIFICATIONS STATEMENT ...................... .. .................... ......... 12 1 TABLE OF AUTHORITIES CASES Doctors Council v. New York City Employees' Ret. Sys., 71 N.Y.2d 669 (1988) ...................................................................................................... .... ........ 6, 8 Eaton v. N.Y.C. Conciliation & Appeals Bd., 56 N.Y.2d 340 (1982) ...................... 8 Matter of Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367 (2007) .......................................................................................... ......... ............. 9, 10 Matter ofChem. Specialties Mfrs. Ass'n. v. Jorling, 85 N.Y.2d 382 (1995) ............ 6 People v. Grasso, 42 A.D.3d 126 (1st Dep't 2007), aff'd 11 N.Y.3d 64 (2008) ................................................................................................................ .... 10 People v. Miller, 18 N.Y.3d 704 (2012) ........................................... ... ...................... 7 Pultz v. Economakis, 10 N.Y.3d 542 (2008) ............................................................. 5 Theroux v. Reilly, 1 N.Y.3d 232 (2003) ................................................................ 6, 8 STATUTES Laws of2009, Chapter 504 ... ..................................................................................... 9 McKinney's Cons. Laws ofN.Y., Book 1, Statute§ 222 .......................................... 9 McKinney's Cons. Laws ofN.Y., Book 1, Statute § 240 .......................................... 8 McKinney's Cons. Laws ofN.Y., Book 1, Statute§ 363 .......................................... 6 N.Y. General Municipal Law 207-c .. ...... .................. ........................ .. .. ........ .. ......... . 7 N.Y. Retirement and Social Security Law§ 480 .......................................... 2, 3, 5, 9 N.Y. Retirement and Social Security Law§ 480(b) ........................................ passim N.Y. Retirement and Social Security Law§ 480(b)(i) .............................................. 8 11 ~tote of .18eiv l{Jol'k ttOlut of fflppeolf1 PATRICK LYNCH, as President of the PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., on behalf of the Aggrieved Police Officers, and the PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., & ROY RICHTER, as President ofTHE CAPTAIN'S ENDOWMENT ASSOCIATION OF THE CITY OF NEW YORK, INC., on behalf of the Aggrieved Police Surgeon and its future adversely affected members, & ALEXANDER HAGAN, as President of the UNIFORMED FIRE OFFICERS ASSOCIATION, on behalfofthe Aggrieved Medical Officer and its future adversely affected members, Plaintiffs-Respondents, -against- THE CITY OF NEW YORK, the NEW YORK CITY POLICE PENSION FUND and the NEW YORK CITY FIRE DEPARTMENT PENSION FUND, Defendants-Appellants. BRIEF OF AMICUS CURIAE, SERGEANTS BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. PRELIMINARY STATEMENT Amicus Curiae, the Sergeants Benevolent Association of the City of New York, Inc. ("SBA") submits this Amicus Curiae Brief in support of the Plaintiffs- Respondents. The SBA urges that this Court affirm the Decision of the Appellate Division which affirmed the Supreme Court's grant of partial summary judgment. The Appellate Division ruled that the City has the continuing obligation to apply the Increased-Take-Home-Pay ("ITHP") benefit to Tier III police officers and firefighters placed into the retirement system by New York City after July 1, 2009. The SBA represents more than 5,000 Police Sergeants in the New York City Police Department. Currently all SBA members are Tier II employees. However, starting in 2014, Police Officers first hired in 2009, and as such enrolled in Tier III of the retirement system, will become eligible for promotion to Sergeant. Upon promotion each will become a member of the bargaining unit represented by the SBA. (Mullins Affidavit ,-r 4)1 The SBA seeks to protect the important bargained for ITHP benefit for these future SBA bargaining unit members. Over the course of more than 45 years, the City of New York and the City's Police and Fire Unions, including the SBA, have bargained for benefits as part of the total Collective Bargaining Agreement. Part of that bargain was the mutual agreement of the City and Unions to seek legislation that provided a pension benefit to all Police and Fire employees. That benefit is commonly known as the Increased-Take-Home-Pay ("ITHP") benefit. At one time the ITHP was tied to the annuity portion of the pension benefit. But since 1973 it has been applied to the pension plans generally for all employees without limitation as to the type of benefit or Retirement Tier of the employee. The current benefit is provided by Retirement Social Security Law ("RSSL") § 480. 1 The Affidavit of Edward Mullins, President of the SBA, is sworn to January 9, 2014 and attached to the motion for amicus curiae status. 2 There can be no doubt that the ITHP benefit in its current form is the product of the give and take of negotiations whereby the SBA and other unions traded important rights and benefits in reliance on the pledge that in the future members would continue to receive the ITHP benefit. The Decisions of both the Supreme Court and the Appellate Division recognize that under the plain language of the RSSL, all Police Officers and Firefighters in New York City are entitled to the ITHP benefit without regard to Tier or the type of pension that the employee earns. As such, the Courts below correctly declined to read new limiting words into the statute to obtain a different meaning. That reasoning is sound, consistent with the holdings of this Court in other statutory construction cases and should be affirmed. The SBA omits a separate statement of facts. The history of the bargaining between the City and Unions that created the ITHP benefit is exhaustingly recounted in the briefs of the named parties. We also omit a separate recounting of the legislative history that created RSSL § 480 in its current form. That history is also well described by the named parties in their briefs. 3 INTEREST OF AMICUS CURIAE The SBA has represented Police Sergeants in the New York City Police Department for many years. It was a party to the collective bargaining that created the ITHP benefit more than 45 years ago. Like all bargaining the ITHP deal involved "give and take" with the SBA and other Police Unions agreeing certain cost savings that benefited the City to the detriment of SBA members going forward. In exchange, the City agreed to the ITHP benefit going forward. Thus there was a bargained for agreement that traded future cost savings for future benefits. The SBA seeks to protect that agreement enforcing its terms. Since the City will continue to obtain the benefit of the cost savings the SBA agreed to over 45 years ago, it is fair to continue the ITHP benefit that agreement was based on. The SBA seeks amicus curiae status to protect the agreement to provide the ITHP benefits for its future members. 4 ARGUMENT POINT I THE PLAIN LANGUAGE OF RSSL § 480 DICTATES THAT TIER III POLICE OFFICERS BE PROVIDED THE ITHP BENEFIT The starting point of any examination of what a statute requires is the language of the statute itself. If, as here, the language is clear, the statute will be applied as written. A. The Plain Language ofRSSL § 480(b) Unambiguously Requires the City to Assume 5% of Tier III Police Officers' Pension Contributions Fundamental principles of statutory construction require that the plain meaning of a statute to be given effect. Pultz v. Economakis, 10 N.Y.3d 542, 547 (2008) ("The starting point is always to look to the language itself and where the language of a statute is clear and unambiguous, Courts must give effect to its plain meaning.") The plain language of RSSL § 480(b) mandates that every Police Officer and Firefighter receive a 5% ITHP contribution from the City: (i) Any program under which an employer in a public retirement system funded by the state or one of its political subdivisions assumes all or part of the contribution which would otherwise be made by its employees toward retirement. . . is hereby extended ... [and] the rate of such contribution assumed by an employer . . . shall be one-half the rate of such contribution assumed by such employer for the immediately preceding payroll period except as provided in paragraph (ii) of this subdivision. (ii) [T]he rate of such contribution assumed by an employer in the New York City Police Pension Fund and in the New York City 5 Fire Department Pension Fund shall be equal to the rate of such contributions assumed by such employer for the payroll period preceding January first, nineteen hundred seventy-six [5%]. RSSL § 480(b) (emphasis added). There is no language limiting the benefit to a member of a particular retirement Tier or a particular type of retirement benefit. In short, the statute applies to all employees in the New York City Police Pension Fund regardless of Tier. A limitation that the Legislature did not include cannot be read into the statute. See Theroux v. Reilly, 1 N.Y.3d 232, 240 (2003); Doctors Council v. New York City Employees' Ret. Sys., 71 N.Y.2d 669, 674-75 (1988); see generally Matter ofChem. Specialties Mfrs. Ass'n. v. Jorling, 85 N.Y.2d 382, 394 (1995) ("a Court cannot amend a statute by inserting words that are not there, nor will a Court read into a statute a provision which the Legislature did not see fit to enact") (quoting McKinney's Cons. Laws ofN.Y., Book 1, Statute§ 363. Here, the Appellate Division and the Supreme Court both found that the plain language ofRSSL § 480 compels that the City provide the ITHP benefit to all employees including Tier III Police Officers hired after July 1, 2009. These "plain language" statutory construction principles should be the end point in this case and requires affirmance of the Decision below. 6 That is also consistent with prior rulings of this Court dealing with who is covered by a statute. In evaluating the plain language of General Municipal Law 207-c, and who that statute covers, this Court wrote: "[i]f the Legislature had intended to restrict § 207 -c eligibility to employees injured when performing specialized tasks, it easily could have and surely would have written the statute to say so. We may not create a limitation that the Legislature did not enact." !d. at 240 (emphasis added). See also People v. Miller, 18 N.Y.3d 704, 709 (2012). ("If the Legislature intended harmless error analysis to be applied in cases like this, it had only to say so.") Similarly, in the Doctors case, the Court examined whether part-time employees were entitled to membership in the New York City Employees' Retirement System. 71 N.Y.2d at 672. In holding that they were, this Court relied on a plain reading of the statute, which stated that membership "shall consist of ... [all] persons in city-service," and "city service" shall include service "as a paid employee of ... the New York City health and hospitals corporation." !d. at 674 (internal quotations omitted). This Court emphasized the following: "The critical eligibility words are ' [all] persons in city-service' and 'employees' and they are nowhere limited or qualified. Thus, in this case, we need go no further than the statute." !d. at 675 (emphasis added). Accordingly, "an inference must be drawn that what is omitted or not included was intended to be omitted or excluded." !d. 7 at 676 (quoting McKinney's Cons. Laws ofN.Y., Book 1, Statute§ 240, and citing Eaton v. N.Y.C. Conciliation & Appeals Bd., 56 N.Y.2d 340, 345 [1982]). As in Theroux and Doctors, this Court should look to the plain meaning of RSSL § 480(b ), which does not impose any limitations based on a particular program of a particular state or local employer in a public retirement system that assumes all or part of any type of contribution its employees otherwise would make toward retirement. Rather, the statute applies to "[a]ny" such program that assumes "all or part" of the contribution toward retirement its "employees" otherwise would make. RSSL § 480(b)(i) (emphasis added). The word "[a]ny" in RSSL § 480(b )(i) performs precisely the same functions and is read in precisely the same way, as the word "all" in the statute at issue in Doctors. Nor does the statute impose any limitations based on the tier of a Police Officer. Instead, when the statute does address a particular public employer and certain of its pension funds - "the New York City Police Pension Fund and ... the New York City Fire Department Pension Fund" - it broadly and unambiguously states that the rate of ITHP contribution assumed by the employee "shall be equal to the rate of such contributions assumed by such employer for the payroll period preceding January first, nineteen hundred seventy-six," RSSL § 480(b )(i), a rate which all agree is 5%. If the Legislature had intended to restrict § 480(b )' s applicability only to a particular Tier of members of the Police Pension Fund, it 8 easily could and surely would have done so. This Court should decline to read into the word "employees" an exclusion of those employees belonging to Tier III. The legislative history also reveals that the Legislature intended that Tier III employees receive the ITHP benefits. The reality is that RSSL § 480 was amended by the Legislature ~fter the date when all newly hired New York City Police Officers became Tier III employees. That amendment contains no language limiting the ITHP based on Tier or type of pension. Basic statutory construction rules presumed that the Legislature is aware of the law in existence at the time of enactment. Matter of Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367, 373 (2007); see also McKinney's Cons. Laws ofN.Y., Book 1, Statute § 222 ("the Legislature is presumed to act with deliberation and with knowledge of the existing statutes on the same subject"). Applying that rule here, the Legislature was aware that as of July 1, 2009, all new New York City Police Officers would be Tier III employees yet enacted a bill which on its face does not exclude the Tier III Police Officers. That is compelling proof that the Legislature deliberately and intentionally acted to provide the ITHP benefit to Tier III New York City Police Officers. The relevant provisions of the Laws of 2009, Chapter 504, Part A, § 5 amending RSSL § 480(b) did not in any way limit § 480(b )' s application to a particular pension tier or tiers of Police Officers. Just as "[a] due respect for the 9 competence of the Legislature" requires the conclusion that it made considered choices, People v. Grasso, 42 A.D.3d 126, 138 (1st Dep't 2007), a.ff'd 11 N.Y.3d 64 (2008), it also requires the presumption that the Legislature is "aware of the law in existence at the time of enactment," Amorosi, 9 N.Y.3d at 373. Accordingly, the conclusion that the Legislature was aware of the consequences of a veto of one of its enactments - i.e., that Police Officers hired after June 30, 2009 would not receive the superior benefits of Tier III - is inescapable. For these reasons, the Legislature's decision, made six months after Police Officers were no longer placed in Tier II, not to limit the statutory language of§ 480(b) by tier, also amply evidences its intent that the statute be applied as written, i.e., without any limitations or restrictions. Finally, there is an obvious fairness to continuing the ITHP benefit for all employees regardless oftier. The ITHP benefit was created by an agreement between the City and the Police Unions. That agreement gave concessions to the City which it continues to enjoy. It is only right and fair to expect that the promised ITHP benefit for the employees who agreed to the concessions should continue for at least as long as the concessions. That is the essence of an agreement and the City should not shirk its obligations now. 10 CONCLUSION THE DECISION OF THE APPELLATE DIVISION COMPELLING THE CITY TO CONTINUE PROVIDING THE ITHP BENEFIT TO TIER III EMPLOYEES HIRED AFTER JULY 1, 2009 SHOULD BE AFFIRMED Dated: February 19, 2014 Albany, New York Respectfully submitted, GLEASON DUNN WALSH & O'SHEA 11 RON , ESQ. Attorneys for Amicus Curiae Sergeants Benevolent Association of the City of New York, Inc. 40 Beaver Street Albany, New York 12207 (518) 432-7511 rdunn@gdwo.net PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 201 0, using Times New Roman 14 pt. for the body and Times New Roman 12 pt. for footnotes. According to the aforementioned processing system, the portions of the brief that must be included in a word count pursuant to N.Y.C.R.R. §600.10(d)(l)(i) contains 2,386 words. 12