Patrick Lynch,, et al., Respondents,v.The City of New York, et al., Appellants.

Brief

N.Y.May 8, 2014

APL-2013-00257 New York County Clerk’s Index No. 650822/10 Court of Appeals of the State of New York 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. BRIEF FOR AMICUS CURIAE UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK, IAFF, LOCAL 94, AFL-CIO CERTILMAN BALIN ADLER & HYMAN, LLP Attorneys for Amicus Curiae Uniformed Firefighters Association of Greater New York, IAFF, Local 94, AFL-CIO 90 Merrick Avenue, 9th Floor East Meadow, New York 11554 Tel.: (516) 296-7000 Fax: (516) 296-7111 Date Completed: January 21, 2014 TABLE OF CONTENTS STATEMENT OF INTEREST .................................................................................. 1 PRELIMINARY STATEMENT ................................................................................ 3 ARGUMENT ............................................................................................................ 5 POINT I THE CLEAR AND UNMISTAKABLE LANGUAGE OF RSSL § 480(b)(i) and (ii) MANDATES THAT THE CITY MUST APPLY THE ITHP BENEFIT TO ALL UNIFORMED FIRE AND POLICE MEMBERS, REGARDLESS OF THE PENSION TIER TO WHICH THEY BELONG ............ 5 POINT II LEGISLATIVE ACTION TAKEN SUBSEQUENT TO THE CODIFICATION OF ITHP FURTHER DEMONSTRATES THE TRUE INTENT TO CONTINUE THIS BENEFIT WITHOUT RESTRICTION ............... 9 POINT III THE APPELLANTS' ARGUMENTS THAT ITHP DOES NOT APPLY TO TIER III MEMBERS BECAUSE ITHP DOES NOT HAVE AN ANNUITY COMPONENT, OR THAT TIER III WOULD BE RENDERED NON- CONTRIBUTORY, ARE ENTIRELY WITHOUT MERIT ................................... 13 CONCLUSION ....................................................................................................... 16 i TABLE OF AUTHORITIES Page(s) FEDERAL CASES Caminietti v. U. S., 242 U.S. 470 (1917) ................................................................................................................... 8 STATE CASES Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367 (2007) .......................................................................................................... 13, 14 Doctors Council v. New York City Employees' Ret. Sys., 71 N.Y.2d 669 (1988) .............................................................................................................. 11 Parochial Bus. Sys. V. Bd. OfEduc. a/City of NY, 60 N.Y.2d 539 (1983) ................................................................................................................ 6 Theroux v. Reilly, 1 N.Y.3d 232 (2003) .......................................................................................................... 1 0, 11 STATUTES Administrative Code § 13-226 ...................................................... " ......................................... 10, 11 N. Y. Retire. & Soc. Sec. Law § 480(b ) .................................. " .... 00 ........................................ passim N.Y. Retire. & Soc. Sec. Law § 500 et seq ...................................................................................... 9 ii STATE OF NEW YORK COURT OF APPEALS 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., 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. CORPORATE DISCLOSURE STATEMENT Court of Appeals No. APL-20l3-00257 New York County Index No. 650822/10 Pursuant to Rule 500.l(t) of the Court's Rules of Practice, proposed Amicus Curiae Uniformed Firefighters Association of Greater New York, Local 94, IAFF, AFL-CIO is an affiliate of the International Association of Firefighters, AFL-CIO. It has no subsidiaries or affiliates. 2782453.1 STATEMENT OF INTEREST The Uniformed Firefighters Association of Greater New York, IAFF, AFL-CIO ("UF A") is the collective bargaining representative for nearly 8000 members, including firefighters, fire marshals, marine wipers, pilots and marine engineers. Based on the fact that the UFA's current and future members possess the identical rights to "Increased Take Home Pay" as the Plaintiffs-Respondents have in the instant matter, the UF A has a paramount interest in ensuring that the contractual and statutory rights of its members are protected in this case. Retirement and Social Security Law ("RSSL") § 480 (b )(i) and (ii), the codification of Pensions for Increased Take Home Pay, provides that the City assume a portion of Uniformed Fire and Police Members' required employee pension contributions. Notwithstanding the plain language of this statutory provision, this appeal addresses the City's refusal to make ITHP contributions for all police officers and firefighters who were placed into Tier III of the retirement system. Since the filing of the instant appeal, a class of new firefighters was appointed by the Fire Department of the City 1 of New York ("FDNY"), and some of the new firefighters have been placed into Tier III of the retirement system. On behalf of these affected members, as well as any UF A members who will be affected in the future, the UF A seeks Amicus Curiae status, and submits this Amicus Curiae brief in support of the Plaintiffs-Respondents in this matter, and to urge this Court to affirm the decision and order of the Appellate Division, First Department. 2 PRELIMINARY STATEMENT Over 45 years ago, the City of New York reached an agreement with various municipal unions, including the Plaintiffs-Respondents and proposed Amicus Curiae UF A, to provide Police Officers and Firefighters (hereinafter "Uniformed Fire Members and Police Members") with an increase in their take home pay. This agreement was statutorily codified as Pensions for Increased Take Home Pay, or "ITHP", and provided that the City would assume a portion of Uniformed Fire and Police Members' required employee pension contributions, thus resulting in Members recei ving an increase in their take home pay. From 1963 to 2009, the bargained-for ITHP benefit was provided to every Uniformed Fire and Police Member, regardless of their pension Tier. In fact, the City still applies the ITHP benefit to employees who were hired prior to July 1, 2009, and are either in pension Tiers I or II. However, the City clearly violated the Retirement and Social Security Law by failing to apply the ITHP benefit to Uniformed Fire and Police Members who were hired on or after July 1, 2009, and placed into Tier III of the retirement system. Based upon a plain reading of the statute, as well as the actions by the Legislature subsequent to the codification of same, the New York State 3 Supreme Court and the Appellate Division, First Department both found that § 480(b )(ii) mandates that all Uniformed Fire and Police Members be afforded the ITHP benefit, regardless of an employee's Pension Tier. Accordingly, proposed Amicus Curiae UF A submits that the decision of the Appellate Division must be affirmed. The facts of this case are set forth in great detail in the Plaintiffs- Respondents' briefs, and are therefore omitted in this brief. 4 ARGUMENT POINT I THE CLEAR AND UNMISTAKABLE LANGUAGE OF RSSL § 480(b) (i) AND (ii) MANDATES THAT THE CITY MUST APPLY THE ITHP BENEFIT TO ALL UNIFORMED FIRE AND POLICE MEMBERS, REGARDLESS OF THE PENSION TIER TO WHICH THEY BELONG The plain meaning of Section 480(b )(ii) is clear and unmistakable and requires the City to assume up to 5% of each and every Uniformed Police and Fire Member's pension contribution. Indeed, the City continues to assume the pension contribution of employees who are Tier I or Tier II members, and admits that it decided to not assume the same contribution for Tier III members. Specifically, in pertinent part RSSL § 480(b )(i) and (ii) state: (i) Any program under which an employer in a public 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 5 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. A plain reading of RSSL § 480(b) leads to the inevitable conclusion that the employer, the City of New York, is required to contribute a percentage of the pension contributions of the Uniformed Fire and Police Members who commenced City employment on or after July 1, 2009, and were placed into Tier III of the retirement system. As aptly 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. of Educ. 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]. 6 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 ... RSSL § 480(b) places no limitation whatsoever on the City's obligation to "assume all or part of the contribution which would otherwise be made by its employees toward retirement. .. " In addition, the statute contains no mention of a lirrIitation based on the Tier that an employee was placed in, and it is impermissible to read a limitation into a statute 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 those persons who are members of Tiers One and Two." (City Br. at 17). Justice Friedman's dissent, which Appellants rely on, bases this 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). 7 The Appellate Division majority reviewed the arguments raised in the dissenting opinion, and disagreed, because Appellants requested that the Court look beyond the plain language of RSSL § 480(b). However, this language 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. This Court needs only to review "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). 8 POINT II LEGISLATIVE ACTION TAKEN SUBSEQUENT TO THE CODIFICATION OF ITHP FURTHER DEMONSTRATES THE TRUE INTENT TO CONTINUE THIS BENEFIT WITHOUT RESTRICTION In 1974, the Legislature codified the ITHP benefit into State law. See RSSL § 480(a). In 1976, with support from the municipal unions, the Legislature decreased the amount of the City's ITHP contribution by one- half. RSSL § 480(b )(i). Subsequently, also In 1976, Tier III was enacted in VIew of the various benefits and obligations then existing in the pubiic sector pension system. (RSSL § 500 et seq.). The Tier III legislation implemented many modifications to the pension benefits of public sector employees, leaving few unaffected. 1 RSSL § 500 et seq. Insofar as the statute enacting Tier III did not exclude the ITHP benefit that had inured to Uniformed Fire and Police Members for well over ten years, despite the unrelated statute 1 Tier III, with or without ITHP, has several significant benefit modifications, including, but not limited to, normal service retirement after 22 years and incentivized retirement at 25 years (in contrast to Tier II's 20 year retirement), a reduction in the amount of line of duty disability pension (1/2 pay for Tier III in contrast to 3/4 pay for Tier II), social security offset (Tier III Uniformed Fire Members' pension is offset by social security benefits; Tier II Uniformed Fire Members' pensions are not), and final average salary calculation (based on three years for Tier ill, in contrast to one year for Tier II). RSSL § 500 et seq. Given these benefit modifications found in Tier III, it does not undercut the Legislature's intent not to eliminate the ITHP benefit as well. 9 amending the City's ITHP contribution amount being enacted just months earlier (RSSL § 480(b)(i)), the Legislature's intent that ITHP would continue to apply to all Uniformed Fire Members is clear and unmistakable. This Court has held that "[T]he Legislature is presumed to be aware of the law in existence at the time of enactment." Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367, 373 (2007). In Amorosi, this Court held that the three-year limitations period generally applicable to employment discrimination actions did not apply in cases brought against school districts and their Members. Id. at 373. In reaching its conclusion, the Court properly attached significance to the enactment dates of the Human Rights Law, which governs employment discrimination claims in New York, and the Education Law. Id. The Court noted that the Human Rights Law was enacted in 1968, more than ten years earlier than the Education Law. Id. The Education Law, enacted in 1981, provides for a one-year statute of limitations, and the Court reasoned that if the Legislature wanted the three-year statute of limitations of discrimination claims to apply to claims against school districts, it would have excepted those claims from the language of the Education Law. Id. However, it did not do so, and therefore the Court held that a one-year limitations period applied. Id. 10 Likewise, at the time Tier III was enacted, ITHP was not only in existence, but it had recently been the subject of a legislative action that reduced the City's required ITHP contributions by half. See RSSL § 4S0(b )(i). It is clear that the Legislature, in creating Tier III, modified many benefits available to public sector employees placed in that Tier, but chose not to exclude ITHP from the statute or otherwise diminish ITHP. To the contrary, Tier III expressly references ITHP in RSSL § 50S-a, a section dealing with death benefits. See RSSL § 50S-a(a). Insofar as the Legislature expressly mentioned ITHP in Tier III, but did not state that ITHP was inapplicable to Tier III members, leads to the conclusion that the Legislature never intended to exclude ITHP from Tier III. Accordingly, an "irrefutable inference" exists that the Legislature purposefully omitted any exclusion of ITHP in Tier III. See, Doctors Council v. New York City Employees' Ret. Sys., 71 N.Y.2d at 676. Moreover, § 4S0(b )(ii) was enacted in 2000, and as stated, Tier III was enacted in 1976. Analogous to this Court's holding in Amorosi, had the Legislature wanted a Tier limitation placed on § 4S0(b )(ii), it could have taken the opportunity to exempt Tier III Uniformed Fire and Police Members from the language of § 4S0(b )(ii), but it did not. Instead, § 11 480(b )(ii) specifically applies the 50/0 ITHP provision to "an employer in the New York City police pension fund and New York City fire department pension fund," without regard to pension Tier or any other criteria. Another fact indicative of the Legislature's intent to not limit ITHP's application based on an employee's pension Tier is the 2009 legislative amendment made to RSSL § 480(b)(ii), which made the ITHP contribution rate permanent. Importantly, this amendment took place six months after the Governor's veto of the extension of Tier II benefits, which caused the City to place all police and fire members hired after July 1,2009 into Tier III, which is the first time public sector employees had ever been in Tier III. Yet, the amendment to § 480(b)(ii) did not in any way limit § 480(b)(ii)'s application to any pension Tier of Uniformed Fire and Police Members. Accordingly, due to the fact that the Legislature chose not to narrow the statutory language of § 480(b )(ii) by Tier, while unquestionably being fully aware that the City's public sector employees were being placed in Tier III, overwhelmingly evinces an intent to apply the statute as written, without any limitations or restrictions. 12 POINT III THE APPELLANTS' ARGUMENTS THAT ITHP DOES NOT APPLY TO TIER III MEMBERS BECAUSE ITHP DOES NOT HAVE AN ANNUITY COMPONENT, OR THAT TIER III WOULD BE RENDERED NON-CONTRIBUTORY, ARE ENTIRELY WITHOUT MERIT Appellants also incorrectly rely on the premise that the contribution scheme of Tier III does not have an annuity component, so ITHP cannot apply to Tier III police officers and firefighters. The purpose of the ITHP program is to Increase the amount of Uniformed Fire and Police officers' take home pay by relieving them of all or part of their required pension contribution. Based upon an actuarial table, Tier I and II police officers and firefighters contribute 4.30% to 8.65% of their salary to their retirement allowance, depending upon the police officer's age at the time he or she joins the pension system. CR. 560). Tier III police officers and firefighters contribute 3% of their salary to their retirement allowance. Tier III police officers and firefighters also have less favorable benefits than Tier I and Tier II police officers and firefighters CR. 583), which would only serve to further illuminate the legislative intent to maintain ITHP. The Appellants' arguments fail, because all Tier I, II, and III police officers and firefighters are asked to contribute varied certain percentages of 13 their salary toward a retirement allowance. By the plain words of RSSL § 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). Therefore, whether such a retirement contribution is stored in an annuity or other type of fund is irrelevant, and the fact that the Legislature did not include such a requirement in RSSL § 480(b) definitively shows that ITHP was not restricted to Tiers I, II, or annuity contributions. Similarly, the Appellants' argument that the application of ITHP to Tier III members would result in an inequitable consequence of the contribution rate becoming zero is equally unavailing given the Legislative scheme of the various pension Tiers. The majority dispels the validity of this argument, in 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 Tier One and Two and virtually every 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 officers by 14 continuing to extend them the benefit of ITHP contributions. For all of the above reasons, it is abundantly clear that RSSL § 480(b) requires the City to assume 5% of all Uniformed Fire and Police Members' pension contributions, regardless of the pension Tier to which a City employee belongs. 15 CONCLUSION For all of the above reasons, the UFA submits that the Decision of the Appellate Division, First Department be affirmed. Dated: East Meadow, New York January 21, 2014 Respectfully submitted, CERTILMAN BALIN ADLER & HYMAN, LLP By: ____ ~ Paul S. Linzer, q. Attorneys for the proposed Amicus Curiae Uniformed Firefighters Association o/Greater New York, Local 94, IAFF, AFL-CIO 90 Merrick Avenue, 9th Floor East Meadow, New York 11554 (516) 296-7182 16