Patrick Lynch,, et al., Respondents,v.The City of New York, et al., Appellants.BriefN.Y.May 8, 2014State of New York Court of Appeals DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Supreme Court, New York County, Index No. 650822/2010 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 of THE 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 behalf of the 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. TO BE ARGUED BY: PHILIP H. SEELIG, ESQ. APL 2013-00257 TIME REQUESTED: 15 MINUTES SEELIG LAW OFFICES, LLC Attorneys for Plaintiff-Respondent Alexander Hagan, as President of the UFOA, on behalf of the Aggrieved Medical Officer and its future adversely affected members 299 Broadway, Suite 1600 New York, New York 10007 (212) 766-0600 BRIEF FOR PLAINTIFF-RESPONDENT ALEXANDER HAGAN, as President of the UNIFORMED FIRE OFFICERS ASSOCIATION, on behalf of the Aggrieved Medical Officer, and its future adversely affected members Date Completed: January 2, 2014 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 500.1(f) of the Court's Rules of Practice, the Plaintiff- Respondent Alexander Hagan, as President of the Uniformed Fire Officers Association., on behalf of the Aggrieved Medical Officer and its future adversely affected members, states that the Uniformed Fire Officers Association is a labor organization that has no parent corporation, subsidiary or affiliate. TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT i TABLE OF AUTHORITIES iii QUESTION PRESENTED 1 PRELIMINARY STATEMENT 1 STATEMENT OF FACTS 5 A. The Pension Tier System 6 B. Firefighters' Pension Contributions 8 C. Increased-Take-Horne-Pay 8 PROCEDURAL HISTORY AND DECISION BELOW 10 A. Supreme Court, New York County.......................................................... 11 B. Appellate Division, First Department 14 ARGUMENT THE PLAIN LANGUAGE OF RSSL § 480(b) REQUIRES THE CITY TO CONTRIBUTE UP TO 5% TOWARD ALL FIREFIGHTERS' AND POLICE OFFICERS' PENSIONS, REGARDLESS OF TIER. THE LEGISLATURE'S INTENT AND THE HISTORY OF AMENDMENTS TO RSSL § 480(b) DEMONSTRATE THAT ITHP APPLIES TO ALL FIREFIGHTERS AND POLICE OFFICERS 17 CONCLUSION 26 PRINTING SPECIFICATIONS STATEMENT 27 11 TABLE OF AUTHORITIES Cases Pages Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367,373 (2007) 21 Brady v. Vill. ofMalveme, 76 A.D.3d 691,693 (2d Dep't 2010) 22 Caminietti v. U.S., 242 U.S. 470, 485 (1917) 17 Eaton v. New York City Conciliation & Appeals. Bd., 56 N.Y.2d 340, 345 (1982) 4 Parochial Bus Sys. v. Bd. ofEduc. of City ofN.Y., 60 N.Y.2d 539, 548-549 (1983) 4, 17, 24 Theroux v. Reilly, 1 N.Y.3d 232 (2003) 18, 19,25 Statutes 22 N.Y.C.R.R. § 600.10(d)(1)(i) 27 Administrative Code of the City ofNew York § 13-214 12 Administrative Code of the City ofNew York § 13-215 12 Administrative Code of the City ofNew York § 13-226 passim Administrative Code of the City ofNew York § 13-326 12 New York Retirement and Social Security Law § 440 20 New York Retirement and Social Security Law § 440(a) 21 New York Retirement and Social Security Law § 480(a) 9,20 111 Statutes Pages New York Retirement and Social Security Law § 480(b) passim New York Retirement and Social Security Law § 500 6 New York Retirement and Social Security Law § 500(a) 20 New York Retirement and Social Security Law § 500(c) 6 New York Retirement and Social Security Law § 508-a 15,21 New York Retirement and Social Security Law § 517(a) 8 IV QUESTION PRESENTED Have Appellants violated the plain meaning ofNew York Retirement and Social Security Law ("RSSL") § 480(b)(i) and (ii) by denying to continue assuming a portion of employee pension contributions to New York City Firefighters ("Firefighters") and New York City Police Officers ("Police Officers") appointed on or after July 1, 2009, known as Tier III members of the pension system? The Appellate Division, First Department, and the Supreme Court, New York County answered in the affirmative. PRELIMINARY STATEMENT Plaintiff-Respondent Alexander Hagan, as President of the Uniformed Fire Officers Association ("UFOA"), on behalf of the Aggrieved Medical Officer and its future adversely affected members, respectfully submits this responding brief in opposition to the appeal by Defendants-Appellants ("Appellants") from an Order of the Appellate Division, First Department, entered May 16, 2013, which affirmed a January 20,2012 order of the Supreme Court, New York Country, in which Honorable Carol Edmead adjudged and declared that Appellants violated RSSL § 480(b)(i) and (ii) through its failure to contribute the monetary amounts required to those in Tier III of the New York City Fire Department Pension Fund and the New York City Police Pension Fund. (R 6-15,572-594)1. RSSL § 480(b) concerns a right owed to Firefighters and Police Officers known as Increased Take Home Pay ("ITHP"). RSSL § 480(b) states: (i) Any program under which an employer in a public retirement system funded by the state or one of its political subdivision assumes all or part of the contribution which would otherwise be made by its employees toward retirement.. .is hereby extended...the rate of such contribution assumed by an employer in any of the public retirement systems funded and maintained by a city, 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) Commencing with the first payroll period the first day of which is subsequent to October first, two thousand and until July first, two thousand eleven, the rate of such contribution assumed by an employer in the New York city police pension fund and in the New York city 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. The history of ITHP shows that it was first implemented in 1963 as a result of contract negotiation between the City and police unions. (R 559). From 1963 through 2009, as a result of statutes enacted by the legislature, the City assumed up to a 5% pension contribution for Tier I and Tier II firefighters and police officers. (R 559-560). In 2009, Governor Patterson vetoed a bill that would have continued placing firefighters and police officers in Tier II; and therefore, newly-hired firefighters and police officers were placed in Tier III. As a result of this, after over 1 Numbers in parentheses following the letter "R" are references to the Record on Appeal. 2 forty-five years of making a pension contribution pursuant to RSSL § 480(b), the City ceased making payments for firefighters and police officers that were placed in Tier III of the pension system, claiming that RSSL § 480(b) does not require them to make an ITHP contribution for Tier III firefighters and police officers. A review of RSSL § 480(b) demonstrates that the plain meaning requires the City to assume up to a 50/0 pension contribution for each firefighter. The City does not dispute the validity ofRSSL § 480(b), and in fact they make up to a 5% pension contribution for current Tier I and II firefighters and police officers. (R 560). However, the City does not make a pension contribution for Tier III firefighters and police officers. (R 560). Therefore, the City has violated RSSL § 480(b) through its denial to make a pension contribution for Tier III firefighters and police officers. The City's actions are in violation of the plain meaning of RSSL § 480(b), and are even more egregious when looking at the fact that on June 6, 2000, the City and the unions entered into an MLC agreement, wherein both parties affirmed their long-standing joint commitment to ITHP. (R 561-562). The City attempts to read limitations into RSSL § 480(b), when the Legislature never included these limitations in the statute itself. The Appellate Division's majority opinion correctly notes that ITHP was recodified as RSSL § 480(b). (R 581). Justice Acosta, who wrote the majority opinion, stated that (R 582-583): 3 By its own language, § 480 is not restricted to Tier I or II, or to annuity contributions. Rather, it applies to "[a]ny program" under which a government employer makes a "contribution which would be made by its employees toward retirement" (emphasis added). Contrary to the dissent's position, the plain language indicates a legislative policy to apply ITHP to any government employee, regardless of pension tier (see Eaton v New York City Conciliation & Appeals. Bd., 56 NY2d 340, 345 [1982] ["where statutory language is clear and unambiguous, the court should construe the statute to give effect to the plain meaning of the words used"] .... * * * In any event, § 480 "must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise" (Parochial Bus Sys. v. Board of Educ. of City ofN.Y., 60 NY2d 539,548-49 [1983] [internal quotation marks omitted]). Again, the plain language of § 480 and its placement in its own free standing article are indicative of a legislative intent that ITHP contributions continue to apply to police officers, regardless of their tier.... Unable to point to any real ambiguity in the language of RSSL § 480(b), the City attempts to label RSSL § 480(b) an extender ofNew York City Administrative Code ("Code") § 13-226, the statute that preceded RSSL § 480(b). The City asserts that Code § 13-226 contributes to the annuity component of Tiers I and II firefighters and police officers and that Tier III police officers and firefighters do not have an annuity component in their pension scheme, so ITHP does not apply to them. However, this argument fails because Code § 13-226 was codified and superseded by RSSL § 480(b), and as stated previously, RSSL § 480(b) is plain on its face and does not limit ITHP contributions based on pension 4 tier. Regardless, even if we assume that Code § 13-226 has applicability, the City faces the same issues as with RSSL § 480(b) because there is nothing in the language of Code § 13-226 that creates a limitation ofITHP to members of Tiers I and Tiers II. The City'S reliance on Code § 13-226's annuity component is an attempt to mask the true intent of ITHP, which is to increase the take home pay of firefighters and police officers by relieving them of all or part of their required pension contribution. STATEMENT OF FACTS Almost half a century ago, New York City Police Unions and the City reached an agreement to provide their members with an increase in their take home pay. (R 559). This agreement was statutorily codified as Pensions for Increased Take Home Pay and provided that the City would assume a portion of firefighters' and police officers' employee pension contributions. This resulted in firefighters and police officers receiving a retirement allowance consisting of contributions made by both themselves and the City. (R 560-561). Throughout the years, the City's contribution rate ranged from 2.5% to 5%. (R. 560-561). From 1963 to 2009, this pension benefit was made available to all firefighters and police officers, regardless of whether they were in Tier I or Tier II. This pension benefit is still enjoyed by Tier I and Tier II firefighters and police officers. (R 559-560). 5 A. The Pension Tier System The New York State Legislature has created categories of pension schemes providing for certain benefits to the public sector workforce in New York City and New York State, categorizing employees primarily based on their occupational titles and the date in which they are hired. Currently, six tiers of this pension system exist. The first scheme of pension benefits has been called Tier I, and the most recent pension scheme is called Tier VI. Firefighters who joined the New York City Fire Department prior to July 1, 1973 were placed into Tier I. Firefighters who joined the Department between the periods of July 1, 1973, and June 30, 1976, were placed into Tier II. (R 558; see generally RSSL art. 11, §§ 440-451). On July 1, 1976, Tier III was established and intended to apply to all newly hired public employees. RSSL § 500. However, pursuant to RSSL § 500(c), Tier III was deemed inapplicable to firefighters and police officers. Therefore, newly-hired firefighters and police officers were continually placed in Tier II until June 3, 2009. (R 558). On or about June 3, 2009, Governor Paterson vetoed the bill that had been allowing placement of firefighters and police officers in the Tier II pension scheme. (R 558). After the Governor's veto, it remained unknown which tier would apply to firefighters and police officers hired on or after July 1, 2009, until Appellants unilaterally started to place these newly-hired firefighters and police officers into the newly-categorized Tier III. (R 558). 6 Tier III had been enacted in 1976 to cope with the severe fiscal crisis that New York was enduring at that time. The intention was to craft a new, reformed pension tier. Despite this, the codification of the City's contribution to employees' pension systems under ITHP remained largely unchanged. The only true change made by the Legislature, even in this time of fiscal crisis, was a reduction in the City's contributions from 5% to 2.5%. (R 560). Notably, during this fiscal crisis, firefighters and police officers were still entitled to a City contribution to their pension system through ITHP. After it was clear that New York had survived the fiscal crisis, the City's contribution rate was once again increased to 5% in 2000. (R. 560). In a June 6, 2000 "Agreement on Jointly Supported Pension Enhancements" between the City and the Municipal Labor Committee ("MLC") ("MLC Agreement"), the unions agreed to support "the recommendations of the City Actuary for various actuarial assumptions and methods," which would generate considerable savings for the City. (R 387). The parties agreed that the "[s]avings from these changes shall be used as a funding source for pension improvements reflected in the legislative bills recited... each of which shall be jointly supported by the City ofNew York and the Municipal Labor Committee." (R 387). One of the legislative bills recited in the MLC agreement fell under the "Police and Fire Pension Systems" heading, and indicated that the ITHP rate would increase from 2.5% to 5%. (R 388). As we now 7 know, this bill was codified as RSSL § 480(b)(ii). Nowhere in the MLC agreement was it ever mentioned that the parties intended to limit the application of ITHP to firefighters and police officers in a certain tier. Accordingly, the City's failure to make the ITHP contribution for Tier III firefighters and police officers is not only in violation ofRSSL § 480(b), but it is also in violation of the MLC agreement. B. Firefighters' Pension Contributions Firefighters are required to contribute a percentage of annual salary toward their retirement benefits. This amount varies depending on the firefighter's tier. Tier II members' contribution rates are based on age and actuarial assumptions, varying from 4.30% to 8.65%, depending upon the firefighter's age at the time he or she joins the Department. (R 560). Tier III members have a fixed rate of contribution calculated at 3%. RSSL § 517(a). This discrepancy in contribution calculations is the only known difference between Tier II and Tier III pension contribution rates. Additionally, there are firefighters and police officers in Tier II that have a contribution rate below 5%, which means they do not have to pay anything towards their retirement. (R 583). C. Increased-Take-Home-Pay In 1963, as a result of contract negotiation between the City and the police unions, the New York State Legislature codified the benefit of increased-take- home-pay. Code § 13-226(a)(1). During the period from January 1, 1963 to 8 December 31, 1966, the City's ITHP contribution amounted to 2.5%. (R 559; Code § 13-226(a)(1)). In 1967, pursuant to an agreement between the City and several unions, the Legislature amended the Code so that the City's ITHP contribution was increased to 5%. (R 559; Code § 13-226(a)(5), 13-226(a)(6)(a)(1)-(2)). In 1974, the Legislature shifted its codification of ITHP from the Administrative Code to the New York State Retirement and Social Security Law. RSSL § 480(a). During the fiscal crisis in 1976, the Legislature amended RSSL § 480(b) to decrease the City's ITHP assumption to 2.5%, where the City's ITHP contribution to firefighters and police officers remained until 2000, when it was increased back to 5%. (R 560; RSSL § 480(b)(i)). RSSL § 480(b)(ii) specifically addresses the application ofITHP to firefighters and police officers, stating that, "the rate of such contribution assumed by an employer in the New York city police pension fund and in the New York city fire department pension fund shall be equal to the rate of such contributions assumed by such employer for the payroll period preceding [January 1, 1976]." RSSL § 480(b)(ii). However, after July 1, 2009, the City has not made any ITHP contribution to the pension system for police members placed in Tier III. It is important to note that on December 10,2009, the Legislature amended RSSL § 480(b)(ii) to make the ITHP contribution permanent, striking out the language that would make the City's ITHP contribution continue through July 1, 2012. Laws of 9 2009, ch. 504, Part A, § 5. This amendment, which was made months after newly- hired firefighters and police officers were being placed in Tier III, made RSSL § 480(b)(ii) permanent. However, the Legislature, fully aware of this placement of police officers and firefighters in Tier III, never included language to limit the ITHP benefit to Tiers I and II firefighters and police officers. PROCEDURAL HISTORY AND DECISION BELOW On July 6, 2010, Plaintiff-Respondent Patrick Lynch, as President of the Patrolmen's Benevolent Association of the City ofNew York, Inc., on behalf of the aggrieved police officers, commenced an action against Appellants seeking declaratory judgment that Appellants have violated the plain language of RSSL § 480(b)(i) and (ii) by failing to contribute to Tier III member's pension systems. On December 3, 2010, Plaintiff-Respondent Richter successfully intervened and joined in this action against Appellants. On April 1, 2011, Justice Kornreich converted this action to an Article 78 proceeding and transferred the case for random assignment to a non-commercial part. (R 461). Accordingly, the parties agreed to hold discovery and further briefing in abeyance. On July 6, 2011, the matter was assigned to Justice Carol R. Edmead. On September 6, 2011, Justice Edmead so-ordered a stipulation among the parties granting the Uniformed Fire Officers Association ("UFOA") intervenor status and directing that the UFOA be added as a "party plaintiff." (R 463-465). 10 Thereafter, in an Order dated January 20, 2012, Justice Edmead found in Plaintiffs' -Respondents' favor, declaring that Appellants had violated RSSL § 480(b)(i) and (ii). (R 6-15). On March 10,2012, Appellants then moved for and were granted leave to appeal to the Appellate Division, First Department. (R 4). On May 16, 2013, after fully briefing the Appellate Division, First Department, the holding of Justice Edmead was affirmed as to the Appellants' violation ofRSSL § 480(b) and was modified to deny Appellants' motion for summary judgment and grant Plaintiff-Respondents' motion for summary judgment on the issue of the City's liability for conversion. (R 573-594). On August 27, 2013, the Appellate Division, First Department granted Appellants' motion for leave to appeal to the Court of Appeals. (R 571). A. The Supreme Court, New York County In an Order dated January 20, 2012, Justice Edmead ruled that Appellants' failure to make any contribution to Tier III members was in direct violation of RSSL § 480(b)(i) and (ii). (R 6-15). In coming to her decision, Justice Edmead explained the importance ofRSSL § 480(b) and its extension of those pension systems that had previously expired in 1974. Specifically, RSSL § 480(b), by its terms, mandates that the City's contributions apply to all members, regardless of tier. In short, Justice Edmead explained (R 10): [T]he relevant sections of the Administrative Code, which provided for the programs that expired in 1974, do not refer to pension tiers. 11 Rather, they make the benefits that they provide available to each "member." (Admin Code §§ 13-226, 13-326). "Member" is defined as, respectively, a member of the police pension fund (Admin Code §§ 13-214, 13-215) and a member of the fire department pension fund (citations omitted). Indisputably, the Administrative Code provisions were written to include future, as well as then-employed officers and firefighters, and needless to say, police officers and fire fighters, who are in Tier III, are members of their respective pension funds. Justice Edmead also noted that at the time RSSL § 480(b) was amended to make these provisions applicable to City employees appointed after January 1, 2010, there were still no changes made in the application of ITHP to Tier III members, despite the legislature's awareness of multiple pension tiers. In particular, Justice Edmead noted (R 10-11): [A]t the time RSSL § 480(b) was amended, in 2009, to make the provisions of that statute applicable to City employees joining the retirement system on or after January 1, 2010 (L 2009, ch. 504, approved Dec. 10, 2009), there had been police officers and fire fighters who had been in Tier III of their respective pension funds for more than five months, because on June 3, 2009, Governor Paterson had vetoed a bill (S. 1409) that would have extended placement in Tier II for uniformed members of the police department who became members on or after July 1, 2009 but prior to July 1, 2011. "[T]he legislature is presumed to be aware of the law in existence at the time of an enactment." [citations omitted]. That general principle is all the more applicable here, where the enactment of Chapter 504 followed Governor Paterson's veto by approximately six months, and where Chapter 504 retained the RSSL § 480 requirement that the City contribute a portion of the sums that police officers and fire fighters pay toward their retirement benefits .... 12 Lastly, the Court concluded that there is no inconsistency in the ITHP contributions of members in Tier III versus those in Tiers I and II. Justice Edmead began by explaining ITHP in practice (R 11-12): [T]he sums that members of Tiers I and II are required to contribute towards their pensions are based upon age at entry and actuarial calculations...the contribution rate for police officers and fire fighters hired prior to July 1, 2009 varies from 8.65% for an individual hired at age 16 to 4.30% for an individual hired at age 43. Pursuant to RSSL § 480(b)(ii), the City currently assumes 5% of such member's contribution rate. Accordingly, an officer or fire fighter with a contribution rate above 5% contributes the percentage of his or her salary by which his or her contribution rate exceeds 5%, and a member with a contribution rate of 5% or less, contributes nothing. With this application in mind, Justice Edmead concluded that there was no discemable difference between those members in Tiers I, II or III who do not contribute anything to their pension. This was due to the fact that both the City's contribution mandate and the sums that members are required to contribute to their pension are clearly independent statutory requirements (R. 12): While the actuarial table is not applicable to members in Tier III, because Tier III members are statutorily required to contribute a set 3% of salary toward their retirement, there is no inconsistency in those members paying nothing, just as Tier I and Tier II members whose contribution rates are 5% or less of their salaries also pay nothing, although they are required to pay at the rate set by the actuary of the City. [citations omitted]. The provisions requiring the City to offset all, or a portion of the sums that officers and fire fighters are statutorily required to contribute to their pensions are independent of those statutory requirements. 13 B. The Appellate Division, First Department In an order dated May 16, 2013, the Appellate Division, First Department modified Justice Edmead's decision, affirming her holding that the City violated, and continues to violate, RSSL § 480(b) by failing to contribute to the pensions of police officers and firefighters in Tier III, and denying Appellants' motion for summary judgment and granting Plaintiffs' -Respondents' motion for summary judgment on the issue of the City's liability for conversion. (R. 585-586). The majority of the Appellate Division reasoned, much like Justice Edmead, that the plain language of RSSL § 480(b) does not make any distinction between pension tiers. (R 582). The majority analyzed each argument put forth by the Appellants, starting with the Appellants' argument that RSSL § 480(b) is restricted to Tier I and Tier II police officers and firefighters. (R. 582). The majority opinion, written by Justice Acosta, points to the plain language of the statute and indicates that it is meant to apply "to 'any program' under which a government employer makes a 'contribution which would otherwise be made by its employees toward retirement. '" (emphasis in original). (R. 582). The majority strengthens their argument that ITHP was not meant to apply to only Tiers I and II firefighters and police officers by indicating (R 582): [T]he conclusion that the § 480 recodification was intended to extend ITHP to any current pension tier is buttressed by the fact that, rather 14 than being included in RSSL article 11, governing Tier II, the statute was enacted as the sole occupant of its own free standing article 13. The majority also rejected the argument that Tier III members would be placed in a better position than Tier I and Tier II members. (R 583). They reasoned that (R 583): The city's argument that application of the 5% ITHP contribution rate to Tier III members, who pay a fixed 3% of their salaries towards their pension, would place Tier III members "in a better position than members of Tiers One and Two and virtually every other member of a City retirement system" is unavailing. Such a situation is not unprecedented. As noted ITHP contributions also result in some member of Tiers I and II having to pay nothing towards their retirement. Moreover, Tier Ill's provisions are generally less favorable for members than Tiers I and II. Hence, it is not unthinkable that the Legislature might wish to soften the blow for Tier III police officers by continuing to extend them the benefit of ITHP. Lastly, the majority reasoned that ITHP was specifically mentioned when Tier III was created, but the Legislature chose not to exclude or diminish ITHP. (R. 584; RSSL § 508-a(a)). They indicated that "[c]ontrary to the dissent's position, the fact that the Legislature expressly mentioned ITHP in Tier III but did not state that ITHP was inapplicable to that tier shows that it never intended to exclude ITHP from Tier III, that it purposefully omitted any exclusion of ITHP in Tier III." (R 584). The majority summed up their holding that the City was in violation of RSSL § 480(b) by indicating (R 583): 15 In any event, § 480 "must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise" [citations omitted]. Again, the plain language of § 480 and its placement in its own free standing article are indicative of a legislative intent that ITHP contributions continue to apply to police officers, regardless of their tier. Justice Friedman, in his dissenting opinion, adopts the argument put forth by Appellants that ITHP cannot apply to Tier III firefighters and police officers because they do not have an annuity component in their retirement scheme. Despite the language ofRSSL § 480(b) making no mention of an annuity component, he reasons (R 593): To be clear, it is my view that ITHP does not apply to Tier III employees because the benefit provided by ITHP (reduction of the employee's annuity contributions) cannot be applied (absent judicial rewriting) to an employee who makes no annuity contributions. Thus, there is little force to the majority's objection to my position that ITHP applies "to any government employee, regardless of pension tier." The fact is that Tier III officers do not make annuity contributions to which ITHP would apply, and I decline to join the majority in rewriting ITHP from the bench to make it apply to pension contributions that the program, as written, simply does not cover. 16 ARGUMENT THE PLAIN LANGUAGE OF RSSL § 480(b) REQUIRES THE CITY TO CONTRIBUTE UP TO 5% TOWARD ALL FIREFIGHTERS' AND POLICE OFFICERS' PENSIONS, REGARDLESS OF TIER. THE LEGISLATURE'S INTENT AND THE HISTORY OF AMENDMENTS TO RSSL § 480(b) DEMONSTRATE THAT ITHP APPLIES TO ALL FIREFIGHTERS AND POLICE OFFICERS. As stated by the majority at the Appellate Division, the meaning of a statute "'must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complication which may arise.'" (R. 583 citing Parochial Bus Sys. v. Bd. ofEduc. of City of N.Y., 60 N.Y.2d 539,548-549 (1983). In Caminietti v. U.S., 242 U.S. 470, 485 (1917), the United States Supreme Court stated: It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms. [citations omitted]. Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion.... The plain meaning of Section 480(b)(ii) is unambiguous and requires the City to assume up to 5% of each and every firefighter's and police officer's pension contribution. Specifically, RSSL § 480(b)(i) and (ii) state: (i) Any program under which an employer in a public 17 retirement system funded by the state ... assumes all or part of the contribution which would otherwise be made by its employees toward retirement ... [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 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. RSSL § 480(b) mandates that the employer, the City, shall assume a portion of each firefighters' and police officers' pension contribution. The rate of contribution reflects the rate that was in effect preceding January 1, 1976, or 5%. (R 560). It is not in dispute that RSSL § 480(b)(ii) is a current, valid law. (R. 560). The City also admits that it does not make a 5% contribution to Tier III firefighters' and police officers' pensions. (R. 560). RSSL § 480(b) places no limitation on the City's obligation to "assume all or part of the contribution which would otherwise be made by its employees toward retirement...." There is no mention of a limitation based on what tier an employee is in; and one cannot read into the statute a limitation that the Legislature did not include. Theroux v. Reilly, 1 N.Y.3d 232, 240 (2003). Appellants state that it is "beyond dispute that the ITHP provisions of the Administrative Code applicable to police officers and firefighters are limited to 18 those persons who are members of Tiers One and Two." (City Br. at 17). Justice Friedman's dissent, which Appellants rely on, bases its interpretation on the fact that RSSL § 480(b) refers to a program that was in existence, and which must be reviewed in determining whether Tier III police officers and firefighters are entitled to an ITHP contribution. In looking at Code § 13-226, Justice Friedman concludes that it could not apply to Tier III members because they do not make annuity contributions, and that the fact that RSSL § 480(b) makes no mention of annuity contributions is irrelevant. (R 591). As indicated by the majority, it is not "irrelevant that [RSSL § 480(b)] itself does not limit its reach to annuity contributions." (R 582). The majority reviewed Justice Friedman's arguments on dissent and disagreed with it because it asks the Court to look past the plain language of RSSL § 480(b), which indicates that ITHP is meant to apply "to 'any program' under which a government employer makes a 'contribution which would otherwise be made by its employees toward retirement. '" (emphasis in original) (R 582). The court should not read a limitation into RSSL § 480(b), when the legislature did not create one. Theroux, 1 N.Y.3d at 240. Here, there is no need to review the terms of Code § 13-226. The only thing the Court needs to review is "the plain language of § 480 ... [which is] indicative of a legislative intent that ITHP contributions continue to apply to police officers, regardless of their tier." (R 583). 19 Appellants try to overcome this by asserting, for the first time, that RSSL § 480(b) is an extender of Code § 13-226, and that the majority based their decision on the erroneous belief that RSSL § 480(b) was a recodification of Code § 13-226. However, looking at the Legislature's timeline in making amendments to the relevant provisions of RSSL § 480 demonstrates the Legislature's clear intent that ITHP applies to all firefighters and police officers, regardless of tier, and that it was not meant to be an extender, but was a recodification of Code § 13-226 . RSSL § 480(a) codified ITHP from the New York City Administrative Code into a New York State statute in 1974. In 1976, the New York State Legislature decreased the amount of the City's ITHP contribution by one-half. (R 560; RSSL § 480(b)(i)). Just months later, during the fiscal crisis, Tier III was enacted and included many modifications to the pension benefits of public sector employees due to this economic downturn, but notably, it did not exclude the ITHP benefit. The Legislature had amended ITHP just months earlier. The Legislature was clearly cognizant of the ITHP provision when creating Tier III, further pointing to the Legislature's intent that ITHP would continue to apply to all New York City firefighters and police officers.2 2 Since 1973, when firefighters and police officers were placed in Tier II, the City has read Code § 13-226 together with RSSL § 440 and has always, without objection, made ITHP contributions to Tier II firefighters and police officers. The same rules of statutory construction that have led the City to read RSSL § 440 et seq. with Code § 13-226 demand that it also read RSSL § 500 et seq. with Code § 13-226. Thus the City's reliance on RSSL § 500(a), which states that if '"there 20 As Supreme Court Justice Edmead concluded, "'the Legislature is presumed to be aware of the law in existence at the time of enactment. '" (R 5 citing Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367, 373 (2007). At the time Tier III was enacted, ITHP was not only in existence, but was very recently amended due to the fiscal crisis. (R 560). The ITHP contribution was at the forefront of the Legislature's priorities in amending pension statutes. ITHP had just been reduced by half; however, despite the grave financial situation facing the City, the Legislature chose not to exclude the ITHP provision from Tier III members. It is important to note here, as the majority did at the Appellate Division, that in creating Tier III the Legislature expressly referenced ITHP in RSSL § 508-a, a section dealing with death benefits. While Appellants argue that mentioning ITHP in RSSL § 508-a is irrelevant, it does indicate that the Legislature was aware of ITHP and deliberately chose not to exclude it to Tier III members. The Appellate Division majority indicated that this was relevant because (R 584): the RSSL expressly mentions ITHP in § 508-a(a) death benefits. Contrary to the dissent's position, the fact that the legislature expressly mentioned ITHP in Tier III but did not state that ITHP was inapplicable to that tier shows that it never intended to exclude ITHP from Tier III, that it purposefully omitted any exclusion of ITHP in Tier III. is a conflict between the provisions of this article and the provisions of any other law or code, the provisions of this article govern," has no merit because RSSL § 440(a) has the exact same language. 21 In 2000, RSSL § 480(b)(ii) of the RSSL was enacted, providing the Legislature with another opportunity to exclude the ITHP benefit from Tier III members, but it once again did not. Instead, Section 480(b)(ii) applies the 5% ITHP provision to "an employer in the New York city police pension fund and in the New York city fire department pension fund," referencing the New York pension funds generally, with absolutely no differentiation between tiers. The Legislature was provided with yet another opportunity to limit ITHP when it amended RSSL § 480(b)(ii) in 2009. This amendment made the provisions of § 480(b)(ii) permanent, and notably, took place six months after the Governor's veto which caused the City to place all police members hired after July 1, 2009 into Tier III. What is most telling is that this amendment did not in any way limit RSSL § 480(b)(ii)' s application. That the Legislature chose not to narrow the statutory language ofRSSL § 480(b)(ii) to differentiate between pension tiers, while undoubtedly being on notice of the Governor's veto, shows a clear intent to apply the statute as written, i.e., without any limitations, restrictions or any other discrepancies between tiers. Brady v. Vili. ofMalveme, 76 A.D.3d 691, 693 (2d Dep't 2010) ("where the General Municipal Law was enacted before the Volunteer Firefighters' Benefit Law (VFBL), and the VFBL explicitly stated that it was an exclusive remedy, the Court refused to read into the VFBL an exception for remedies available under the General Municipal Law, because the Legislature was 22 deemed to be aware of all previously enacted statutes, and would have included such a carve-out in the VFBL had it intended there to be one") (R 584). Again, Supreme Court Justice Edmead sums up this position by stating that (R 11): [A]t the time RSSL § 480(b) was amended, in 2009, to make the provisions of that statute applicable to City employees joining the retirement system on or after January 1,2010 (L 2009, ch. 504, approved Dec. 10, 2009), there had been police officers and fire fighters who had been in Tier III of their respective pension funds for more than five months, because on June 3,2009, Governor Paterson had vetoed a bill (S. 1409) that would have extended placement in Tier II for uniformed members of the police department who became members on or after July 1, 2009 but prior to July 1, 2011. "[T]he legislature is presumed to be aware of the law in existence at the time of an enactment." [citations omitted]. That general principle is all the more applicable here, where the enactment of Chapter 504 followed Governor Paterson's veto by approximately six months, and where Chapter 504 retained the RSSL § 480 requirement that the City contribute a portion of the sums that police officers and fire fighters pay toward their retirement benefits .... The Appellants attempt to label RSSL § 480(b) as an extender of Code § 13- 226 fails. The history ofRSSL § 480(b) shows that since it recodified Code § 13- 226 in 1974, it was amended numerous times, with the most recent amendment by the Legislature being made fully aware that firefighters and police officers were being placed in Tier III. The Appellants indicated that prior to RSSL § 480(b), the Mayor biannually authorized the ITHP program under Code § 13-226, and that after RSSL § 480(b) was enacted in 1974, ITHP was extended annually or biannually through RSSL 480(b). (City Br., at 18-19). Accordingly, the only way to view RSSL § 480(b) is as a statute that recodified and superseded Code § 13- 23 226, and which requires the City to assume 5% of every firefighters' and police officers' pension contribution, regardless of tier. To view the statute in any other way would be to read the statute not "as it is written by the legislature ... [but] as the court may think it should have been written if the legislature had envisaged all the problems and complications which might arise." (R 583; Parochial, 60 N.Y.2d at 548-549). Appellants, and Justice Friedman's dissent, also rely on the premise that the contribution scheme of Tier III does not have an annuity component, so ITHP cannot apply to Tier III firefighters and police officers. The purpose of the ITHP program is to increase the amount of firefighters' and police officers' take home pay by relieving them of all or part of their required pension contribution. Tier I and II firefighters and police officers contribute 4.30% to 8.65% of their salary to their retirement allowance, depending upon the firefighter's or police officer's age at the time he or she joins the pension system. (R 560). Tier III firefighters and police officers contribute 3% of their salary to their retirement allowance. Tier III firefighters and police officers also have less favorable benefits than Tiers I and II firefighters and police officers (R 583). The Appellants' arguments amount to a subtle difference, as opposed to a practical difference, because all Tiers I, II, and III firefighters and police officers are asked to contribute a certain percentage of their salary toward a retirement 24 allowance, the difference being a blended rate of contribution for Tier III members and an individual rate of contribution in Tiers I and II based upon the age of the member at the date ofjoining the pension system. By the plain words ofRSSL § 480(b), ITHP works to increase salaries by "assum[ing] all or part of the contribution which would be made by its employees toward retirement." RSSL § 480(b)(i). Whether such a retirement contribution is stored in an annuity or other type of fund is merely a semantical nuance, and the fact that the Legislature did not include such a requirement in RSSL § 480(b) demonstrates that ITHP was not restricted to Tiers I, II, or annuity contributions. Lastly, the Appellants argue that if ITHP is applied to Tier III firefighters and police officers, who contribute 3% of their salary, then they would be relieved of the responsibility to make any contributions towards their retirement. (City Br., at 23). They indicate that ITHP does not relieve Tiers I and II members from making some contribution towards their retirement and conclude that it could not have been Governor Patterson's intent to put Tier III firefighters and police officers in a better position than Tiers I and II firefighters and police officers. As indicated previously, the language ofRSSL § 480(b) is unambiguous and there is no need to look beyond the plain meaning of its text. See Theroux, 1 N.Y.3d at 240. Accordingly, the City's arguments regarding the Legislature's or Governor Patterson's intent should be disregarded. The majority also addressed this 25 argument by the Appellants, and disagreed with this position stating that (R 583): The City's argument that application of the 50/0 ITHP contribution rate to Tier III members, who pay a fixed 3% of their salaries towards their pension, would place Tier III members "in a better position than members of Tiers One and Two and virtually ever other member of a city retirement system" is unavailing. As noted, ITHP contributions also result in some members of Tiers I and II having to pay nothing towards their retirement. Moreover, Tier Ill's provisions are generally less favorable for members than Tiers I and II. Hence, it is not unthinkable that the Legislature might wish to soften the blow for Tier III police officer by continuing to extend them the benefit ofITHP contributions. CONCLUSION Appellants, through their failure to apply ITHP contributions to Tier III firefighters and police officers have violated RSSL § 480(b)(i) and (ii). Appellants' decision to deny these contributions to Tier III firefighters and police officers is contrary to law and for the reasons set forth above, we submit that the Order appealed from should be affirmed. Dated: New York, New York December 31, 2013 Respectfully submitted, Seelig Law Offices, LLC.Ba Phi~i~elig, Esq. Attorney for Plaintiff-Respondent Alexander Hagan, As President ofthe UFOA, on behalf of the Aggrieved Medical Officer and its future adversely affected members 299 Broadway - Suite 1600 New York, N.Y 10007; (212) 766-0600 26 PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2003, 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)(1)(i) contain 6,944 words. 27