Does the Transit Authority Know About the $66M Charge from NYCERS?

Introduction

On April 12, 2018 the NYCERS Board of Trustees adopted the agency’s FY-2019 administrative budget with an increase in the total PS(personnel services) & OTPS(other than personnel services) budget from $53,534,128 to $75,940,621. That is a $22,406,493 increase, a 42% jump from FY-2018. What was also embedded in the budget document was a five year projected increase in the OTPS budget of $289M to pay for the “Legacy” project.

On April 13, 2018, I made a FOIL request for the budget document and the associated Q&A between the NYCERS staff and OMB/Trustees. On May 25, 2018, I received part of the budget document. NYCERS, however, refused to send me copies of the written Q&A’s quoting the usual nonsense excuses that government agencies use to hide information from the public.

On May 30, I sent a text to John Adler. I told him that, in addition to the $22M increase in the FY-2019 budget, he had just committed the agency to a total additional $290M OTPS expenses over the next five years. I asked him if he was crazy. He didn’t write back.

This is the new executive director’s first administrative budget.

Unfortunately, in her executive statement she only provided an update on the schedule for the “Legacy” project. That project now includes the

1. legacy replacement project,
2. the customer relationship management program,
3. the contact center modernization project, and
4. an increase in the agency’s training program.

She made no mention of the three year delay in the “Legacy” project or the massive increase in its five year price tag from $132M to $289M. This was her opportunity to critically analyze the project and hopefully impose some corrections on this fiasco. She chose not to.

Bump in the Road

In a bizarre twist, at the June 14, 2018 NYCERS Board meeting, the executive director, out of the blue, notified the trustees that she was trashing the current RFP for the legacy replacement project.

NYCERS had released that RFP on December 28, 2017.

She said that there were cost issues and insufficient responses to the current RFP. She provided no other substantive details. The chair thanked her for her courage for taking the action. She provided the trustees with no financial details about the impact of her decision on the upcoming budget. The trustees asked no questions about her decision. They asked no questions about its impact on the five year $289M cost.

Since 2015, I have posted multiple warnings about the fatal flaws in this project. It is not like this mess sneaked up on anyone. $289M is serious fraud risk.

On the dark side, the executive director is still going forward with the customer relationship management program, the contract center modernization program and the training increase.

These projects should also be held up until basic agency wide IT decisions are settled. The legacy replacement project is the primary building block of the “Legacy” project and should be settled first. I am quite sure NYCERS is still going to still spend the added $22.1M in FY-2019.

Budget Background

Outlined below are the budget items which were significantly increased in the FY-2019 budget.

PS Items

The PS budget was increased by $700,000 with 12 new hires. This brings the regular full time staff to 427 and part-time staff to 35. The Loan program has another 14 full time staff.

Last year, despite the Chair’s objection, the Board approved an increase of 10 new hires in the FY-2018 budget. Four more full time staff were approved in mid-year. This year the Chair had no objection to the 12 added staff.

Two of these staff will to support the effort to improve the WTC disability delays. The remaining ten will support the never ending delays with the computing retirement benefits because of the labor contract settlements which started in 2014.

On a side issue: I suspect these staff increases are going to create workspace problems for the Long Island City business recovery site.

OTPS Items

The remaining increase in the FY-2019 budget, $21.7M, was in the OTPS portion of the budget, primarily to support the “Legacy” project. In FY-2015, NYCERS started cooking up the “Legacy” replacement project spending $800,000 on a contract with Gartner. Over the 2016-2018 period NYCERS has averaged about $1.5M a year on this project, mostly paid to Gartner.

Now after three years NYCERS is ready to open the fire hose on this project. The original completion date was June 2020. The target date is now at least June 2023 and maybe even later. The original five year cost was projected to be $132M. It is now $289M. There never was a public cost/benefit analysis for this massive IT upgrade project.

Note: Part of the OTPS increase is a $500,000 allocation for a new NYS Dept. Financial Services audit. Oh yeah, NYCERS is still waiting the last audit to be published.

Five Year Overview – Actually Eight

Cost Details

Listed below are the OTPS budgets for FY-2015 to FY-2023:

1. 2105 $18.2M
2. 2016 $19.4M
3. 2017 $20.9M
4. 2018 $21.8M
5. 2019 $43.5M
6. 2020 $87.5M(projected by NYCERS)
7. 2021 $89.4M(projected by NYCERS)
8. 2022 $91.3M(projected by NYCERS)
9. 2023 $93.2M(projected by NYCERS)

These figures are taken directly from the NYCERS budget document.

The sum of the OTPS amounts for the five years from 2019 to 2023 is $404.9.

Compare this amount to a normal expected OTPS cost for the same period. The 2018 OTPS amount is $21.8M. If you assume a rational 2% increase each year from 2019 to 2023, the sum of the five year would be $115.7M. See below:

1. 2019: $22.2
2. 2020: $22.7
3. 2021: $23.1
4. 2022: $23.6
5. 2023: $24.1

It appears that NYCERS is going to spend $289.2M on the “Legacy” project over the next five years. This is without the inevitable cost overruns.

Who Pays

Over the next five years the pension costs for the City and the participating employers will increase for this dubious and discretionary project as follows. The numbers below are based on the FY-2017 NYCERS CAFR –Appendix A, Page 7d.

The City

The City will pay $155.0M - 53.6% of $289.2M

The Public Authorities

1. The Transit Authority will pay $65.9M - 22.8% of $289.2M
2. The Health & Hospitals Corp will pay $42.8M - 14.8% of $289.2
3. The Housing Authority will pay $13.6M - 04.7% of $289.2

Budget Details

Listed below are some of the questionable items in this massive budget increase

23rd Floor

What may be the most bizarre item in the budget is a line item for a $2.5M expense recurring over the next five years. The item is labeled as the renovation of the 23rd floor at Adams Street for “Legacy” preparation space. The budget document that NYCERS sent me included no written description/justification for any line items in the budget.

Gartner

Gartner continues their NYCERS contract with an increase from $975,000 in FY-2018 to $2,520,000 for FY-2019. NYCERS has paid Gartner over $3.9M between 2015 and 2017. Gartner’s main business product is IT advice.

When I left NYCERS in FY-2005, NYCERS had 65 IT employees. My guess is that there are currently 80 IT employees on staff at NYCERS out a total of 406. Given this huge dependence on Gartner, either NYCERS’s IT management staff is incompetent or they are just plain lazy.

Training

The training budget was increased from $382,300 to $837,550, a 219% increase. The increase is projected through 2023. Training is generally a positive effort for an organization but there should be some strong justifications for such significant increase in spending in this area. I mean something like putting a dollar value or service measure on both the current expenses and the new added expenses. The obvious saving grace of this item is that it is less than $2.5M for the five years.

Equipment

• Mainframe equipment from $148K to $555K thru FY-2023
• PC/LAN equipment from $215k to $510K thru FY-2023

Contract Services

Mainframe

There is a line item increasing contract services from $115K to $560K in FY-2019 thru FY-2023

PC/LAN

This budget code contains the bulk of the “Legacy” expense for the next five years. There are two separate line items increasing contract services. One, which increases the 2018 charge from $1.297M to

1. 2019: $2.167M
2. 2020: $3.189M
3. 2021: $4.221M
4. 2022: $5.263M
5. 2023: $6.316M

And a second, that increases the 2018 charge from $2.470M to

1. 2019: $17.710M
2. 2020: $59.553M
3. 2021: $60.149M
4. 2022: $60.750M
5. 2023: $61.358M

Note: This is where the Gartner expenses are assigned ($850K in 2018 and $2.4M in 2019).

There are four new items being added in 2019. First, there is a charge of $1.8M for the implementation of Contact Center modernization. I think the contact center is another phrase for customer service center. Second, there is a charge of $9.35M for the CRM (customer relations management) implementation. Third, there is a charge of $250,000 for a CRM post implementation consultant. Fourth, there is a charge of $900,000 for COBOL programmers.

Also in this budget code there are currently 12 independent consultants being paid $1.620M in 2018 and at least 10 additional consultants for a total of $3.0M being paid 2019.

I wonder how many of these consultants are on H-1B visas? I also wonder why DC-37 isn’t pushing to have regular city workers, DC-37 members, do this work.

Software Licenses (recurring for five years)

1. New item in 2019 of $950,000 for CRM software maintenance support
2. A continuation of a $800,000 charge for contact center implementation
3. A reduction from $8500,000 to $230,000 for the CRM software and implementation.

Conclusion

I have used the word lunacy before about the “Legacy” project. So now I am scrambling to find another word. Maybe just stupid will do.

For the record I am the person along with a lot of talented IT professionals who created the original “Legacy” systems at NYCERS. I realize the systems need to be modernized. But don’t you think that $10M would do the job?

The enormity of outlined costs of this projected should require an equivalent benefit justification. Modernization does not by itself justify the huge projected expenses. The risks embedded in this project remind me of the CityTime project. Some of the NYCERS trustees sit on the boards of the other four city pension funds. Is this process being replicated in those systems?

I am also stating with almost absolute certainty that this effort will fail. It will fail so badly that NYCERS will not know how to get out from under its collapse.

Update on the Nespoli Case

Perviously I have written about the Nespoli case dealing with NYCERS's attempt to force Tier 4 NYCERS members into the Tier 6 Sanitation Plan when they were appointed as Sanitiation workers. This legal action started on November 15, 2016.

Finally on Jan 22, 2018, NYCERS provided a written argument attempting to justify its position. On February 23, 2018 Nespoli was able to rebut NYCERS's flawed logic. I consider NYCERS's arguments particularly dishonest and lame.

You can read both arguments on the NYS Court Scroll web site referring to the folllowing Index# 159601-2016 for NY County.

The RFP for the Legacy Replacement Project

On December 28, 2017, NYCERS released the main RFP for the Legacy Replacement Project (LRP). This is three years after the NYCERS IT director proposed this project. The RFP itself is 88 pages long. With its 12 appendices and 13 templates it is at least 600 pages in total. We now know what Gartner was paid over $4M to do since the 2014.

Responses are due on March 12, 2018 and NYCERS plans to award the contract in December, 2018. That is another full year. You can guess what Gartner will be doing in 2018.

I have previously stated that NYCERS needs to implement a standard database platform for all agency applications and decide what hardware structure/s the agency will utilize going forward. The mainframe provides heavy duty processing power and can handle sophisticated database software but most modern software is being written for network structures including mobile access. Existing commercial software supporting the public retirement market is most probably running in a network environment.

On a personnel level NYCERS needs to review the IT management at NYCERS. Based on the major failures with database modernization, imaging/workflow systems, and the disaster recovery site, plus the squandering of staff resources over the last 12 years, the new executive director needs to make some hard decisions. She has already made some moves in that direction but she will have to do more.

What has the current IT division been doing the last 12 years to upgrade the legacy systems? What are the current personnel/fringe costs for the IT staff and what is currently being spent on consultants, equipment, software, and other services?

General Scope

On page 21 of the main RFP is the following paragraph

The proposed solution must support all of NYCERS' pension administration core business process areas and use cases, which are provided in Appendix 2 by leveraging robust business process and workflow management.

Appendix 2 is 240 pages long. I love words like "leveraging" and "robust". You can smell them a mile away.

But seriously, NYCERS is asking the vendor to redo the agency's entire IT applications structure, a massive undertaking. The existing legacy system was built over a 30 year period (1974-2005). Any replacement project will be a long process. A successful process will be made up of many clear short term tasks that build on each other and adapt to inevitable changes. It will be driven by competent in-house staff with the help of equally competent outside partners.

Workflow Software

The following is a quote from page 27 of the RFP under the section labeled "Required Applications" to be used in all proposed application architectures:

NYCEwork (IBM FileNet):

While NYCERS is looking to replace the BPM component of Filenet with the propose solution, the new solution is required to integrate with the content and document images stored in FileNet for the purpose of maintaing a single content storgae.

The selected Respondent will be responsible for identifying, testing and implementing all changes to NYCEwork (IBM FileNet software) required to support the proposed solution. This includes any required upgrades to NYCEwork (IBM FileNet) software necessary to support the proposed solution (must be explained in the proposal if needed)

In 2016 I wrote about the problems with NYCEwork. NYCERS only put NYCEwork into production in 2014 and now they want replace all the developed workflows. From 2008 to 2011, NYCERS paid the project vendor at least $2.2M to install this system. At that point NYCERS cancelled the contract but continued with the project. It is not clear what the costs were from 2011 to 2014. After suing the inital vendor NYCERS was only able to recover $301,000 in FY-2017.

So now the selected legacy vendor will have to redo at least all the workflows that NYCEwork is currently supporting. The vendor will, however, also have to utilize the existing FileNet document repository along with its database access structure. Trust me, this is huge job all by itself.

Customer Realationship Sofware

Just in case you thought this job was not hard enough, there is another little clip on page 27:

CRM:

The NYCERS CRM solution (under procurement) must be used as the CRM (customer service) platform for the pension administration solution, including all functionality required to be delivered by the CRM as described in Section D.1.

The selected Respondent will be responsible for providing all interfaces necessary to enable the CRM to act as a robust pension administration portal (see Section D.2.4) and closely collaborating with the CRM project team to help ensure clients receive the optimal self-service experience.

NYCERS is currently evaluating the CRM RFP that it issued in October, 2017. NYCERS expects to award this contract on February 1, 2018. Initially, the CRM vendor will have to interface with the current Legacy systems. In turn, the Legacy vendor will have to interface with the new CRM systems. It is very likely that the Legacy vendor will not fully know what the CRM interfaces look like when the Legacy vendor starts doing its work and may not know for quite awhile exactly what that they are.

Why wasn't the main legacy project structure put in place first and then have the CRM project aimed at the new replacement system?

Time To Stop

Of course, the huge time delay for the LRP project is a definite red flag for this entire effort. If NYCERS does not stop and restructure this project, five years from now we will be looking at $100M down a rat hole and no end in sight.

It is ironic that in 2016 I completed a conversion project of a membership system that was running on a mainframe system using flat files. It now runs on a network platform using a commercial software package with a relational database system. It also provides a web interface. The system was analyzed over 10 month period. The vendor was chosen over a six month period. The vendor installed a live replacement system in 14 months for a cost less than 1/10th of what NYCERS has paid Gartner.

New Oversight for the Legacy Replacement Project

On December 14, 2017 the Trustees approved the new executive director’s request for four new executive level positions. The first position requested was a chief operations officer (COO) who will be responsible for the following major divisions:

1. Operations
2. Service and Disbursements
3. Client Services.

These positions previously reported to the deputy executive director. That leaves only the following divisions still reporting to the deputy executive director:

1. Finance
2. Communications
3. Administration
4. Training
5. Special Projects

It is obvious that the new executive director did not feel that the current deputy executive director, Karen Mazza, was capable of continuing to handle these three operational divisions.

The other three requested positions are all targeted at the Legacy Replacement Project (LRP). They are

1. Deputy Director - Administration/LRP
2. Deputy Director - Internal Audit/LRP
3. Deputy Director – Project Director for the LRP

The deputy director for administration will be responsible for procurement, contract management, and budgeting for the LRP project. The deputy director for internal audit will be responsible for quality control for the LRP project and audit oversight of all IT operations, in particular IT security. The deputy director for the LRP project will be responsible for the LRP project and will report to the executive director and the IT director.

Based on the request for and the approval of these positions, the executive director has determined that there are significant oversight issues with the LRP project. Since the winter of FY-2015 when the former executive director and the IT director introduced this project, it has stumbled along without significant improvements. The consulting firm Gartner Inc., however, has managed to collect almost $4M over the last three years, FY-2015-2017, working on this project.

NYCERS Executive Organization Chart - History

The NYCERS org chart has gotten more complicated since 2004, when I last signed off on the NYCERS org chart, more complicated but not more effective.

As of June 30, 2004:

The direct reports to the executive director were as follows:

1. Deputy Executive Director
2. Legal
3. Human Resources
4. Internal Audit.

The direct reports to the deputy executive director were as follows:

1. Finance
2. Operations
3. Membership
4. Benefit Disbursements
5. Communications & Customer Service
6. Administrative Services
7. Information Resource Management
8. Security

As of June 30, 2017:

The direct reports to the executive director were:

1. Deputy Executive Director
2. Legal
3. Human Resources
4. Internal Audit
5. Information Technology (shifted in FY-2007 when Liz Reyes became IT director)
6. Compliance
7. Security & Facilities Operations
8. Business Rules & Data
9. EEO Officers

The director reports to the deputy executive director were:

1. Finance
2. Operations
3. Service & Disbursements
4. Communications
5. Client Services
6. Administration
7. Training
8. Special Projects

Ongoing Costs for the Legacy Replacement Project

Since the winter of 2014-2015 NYCERS has been kicking around the Legacy Replacement Project. Listed below are some of the costs that NYCERS has incurred with this project.

Payments made to Gartner, Inc.

• FY-2015 -- $ 804,949
• FY-2016 -- $1,993,492
• FY-2017 -- $1,120,000

Payments made to CWI Coaching and Consulting (Ellen Carton's old firm)

• FY-2015 -- $ 99,965
• FY-2016 -- $139,946
• FY-2017 -- $157,055

Note: all these costs were incurred before the new executive director came on board in September, 2017.

Nespoli v. NYCERS: Unlawful Denial of Tier 4 Rights for Correction Officers, Sanitation Workers, and DA Investigators

Last January 2, 2017 I wrote a posting about how NYCERS was forcing current Tier 4 members into Tier 6 at the point when they started working as a Sanitation Workers after leaving another city job covered by NYCERS. NYCERS has not given any legal justification for this action. Tier 6 went into effect for NEW NYCERS members as of April 1, 2012. It has no impact on members who joined before that date.

This action by NYCERS is clearly an illegal. In New York State the pension rights of state and local government employees are protected from being reduced by the N.Y.S. Constitution, Article V, Section 7. (Klienfeldt v NYCERS, 36 NY.2d 95 (1975) and CSEA v Regan, 71 NY2d 653 (1988))

Klienfeldt:

The Supreme Court declared the statute unconstitutional as applied to plaintiff and all others similarly situated who became members of a public retirement system prior to April 1, 1972, the "effective date" of the statute. The court held that plaintiff is entitled to receive a retirement allowance based upon his full final salary for the 12-month period immediately preceding his retirement, without consideration of the statutory limitation. The Appellate Division unanimously affirmed.

There should be a modification. Subdivision 4 of section 431 of the Retirement and Social Security Law, as applied to any civil service employee who became a member of a public retirement system prior to its effective, independent of its operative, date, prescribes a diminution and impairment of the benefits of membership in the retirement system, in violation of the Constitution. However, the effective date of subdivision 4 of section 431 is June 17, 1971, the date of its enactment, and not April 1, 1972, the operative date from which excess compensation, as defined in the statute, would no longer be included in final average salary. Thus, the statutory limitation may not be applied to those who became members before June 17, 1971.

Regan:

New York Constitution, article V, § 7 was adopted in 1938 in response to Roddy v Valentine ( 268 N.Y. 228). This court there held that retirement benefits were not contractual and could be legislatively altered until the member actually retired (see, Public Employees Fedn. v Cuomo, 62 N.Y.2d 450, 459; Birnbaum v New York State Teachers Retirement Sys., 5 N.Y.2d 1, 8). In response to Roddy, article V, § 7 provides in pertinent part that "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" (NY Const, art V, § 7 [emphasis supplied]).

The rights of public employees are thus fixed as of the time the employee becomes a member of the system.

On November 15, 2016 Harry Nespoli and the Sanitation Workers' local, U.S.A. Local 831, I.B.T. filed an action against NYCERS over this issue (Index# 159601-2016, NY County). Usually you can track the progress of this litigation using the NYS Court on-line system, the SCROLL web site.

The action has been dragging on since then over procedural issues. Based on a November 13, 2017 procedural court decision, Nespoli has until December 8, 2017 to file his Article 78 action. These filings are now on the SCROLL web site, happy reading. NYCERS and the city has until January 5th to respond and Nespoli has until January 19 to reply.

I suspect that some idiot at NYCERS initiated this misguided action in the same way some idiot attacked the Correction Officers military service rights in McGarrigle v City of New York back in 2004. Once the Law Department gets the bit in their teeth, however, they won't ever let go. Even if they know they are wrong. I found this out the hard way when I was NYCERS executive director. When I told the Law Department that the NYCERS legal division had made a serious mistake with the Correction Officers military service rights, I was told that once they start an action, they can't back off. Our tax dollars at work!

In addition, this unsupported action by NYCERS denying Tier 4 rights raises serious questions about how to process Tier 4 members transferring in from other NYS retirement systems like the new NYCERS executive director. She was a Tier 4 member with NYSLERS before moving to NYCERS. It also raises issues with how NYC Police Pension Fund and FDNY Pension Fund are processing new members who have pre-2009 and pre-2012 Tier 4 memberships in other NYS pension systems.

COVSF: $252M vs. $285M

The NYCERS actuary submitted a proposed resolution at the NYCERS Board Meeting last Thursday, November 9, 2017. It was for the transfer of $252M from NYCERS to the COVSF (Correction Officers Variable Supplements Fund) for FY-2017. The trustees adopted the resolution.

The NYC Financial statement for FY-2017 stated that $285M was transferred from NYCERS to the COVSF as of June 30, 2017.

Why the difference? Maybe the $285M was an accrual number and subsequently the actuary came up with a more accurate number. But we sure would love to see the actuary's final calculation. Even today, $33M is a significant amount of money.