Update on Nespoli Case - Attack on Sanitation Workers Pension Rights - 2019

December 16, 2019: still no action from the trial court, three years later.

Update: On July 1, 2019 after a year and half delay the court scheduled a settlement conference for August 7, 2019. On August 2, 2019, Corp Counsel submitted a written request for a delay until after September 3, 2019 due to his vacation schedule. This case is almost three years old having started in November 2016. The court has yet to schedule a new date.

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.

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 number = 159601-2016 for NY County.

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 number = 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.

You Can't Trust NYCERS.

Denial of a Request to Correct an Error

I just received a copy of a letter Karen Mazza sent to a lawyer trying to help a former Transit Authority worker who qualified for a NYCERS disability retirement in 1990. Mazza is the director of the Legal Division at NYCERS and is paid $175,000 per year.

This letter is a response to a request by the lawyer asking NYCERS to correct an error that NYCERS had made in 1990 in processing the member’s disability applications. (as per S.13-182 of the NYC Admin. Code). NYCERS had failed to process his Tier-3 S.507 disability application. The agency only processed his Tier-3 S.506 application and granted him this smaller disability benefit.

This processing error had come to light in 2013 in conjunction with NYCERS’s recent discovery of its errors, over a 30 year period, in processing Workers Compensation offsets for certain disability benefits and its harsh campaign to correct those errors. This member is one of the effected retirees. See Note #1 below.

While this letter appears to be innocuous and straight forward on its face, it is not. In the third paragraph of her letter Mazza states in connection with the member’s Tier-4 S.605 disability application:

“Since the Medical Board had already determined that his incident was not an accident he was not eligible to be considered under S.507 of the RSSL for accident disability”

This is a false statement.

The Medical Board in response to the member’s S.605 application determined only that the member was not disabled. Mazza provided no evidence to support her statement. The wording from the final medical report dated June 5, 1990 is as follows:

“The Medical Board, after reviewing all the documentation in the incident involved, the findings by Mr. XXX’s own physicians and the diagnostic tests performed , found insufficient objective medical evidence to substantiate Mr. XXX’s claim of disability and recommendation was made that he was referred to Dr. XXX, neurologist for neurological exam.

Dr. XXX examined Mr. XXX on 4/12/90 and reviewed the history and noted the complaints of the applicant. As a result of his neurologic examination, Dr. XXX came to the conclusion that there was no objective evidence of neurologic disorder in Mr. XXX at that time.

The Medical Board, after careful consideration of all the facets of this case and the report of Dr. XXX, reaffirm its previous decision and recommends denial of the application for accident disability retirement.”

When the Medical Board finds that an applicant is not disabled, its job is done. Procedurally and logically, it does not address the issues of whether the "on the job" incident caused the disability or whether the incident is an accident. An “accident” has a legal definition created by a court decision.

In addition, while the Medical Board’s finding on disability is definitive, the Medical Board’s findings on causation and accident, when necessary, are only advisory. The NYCERS Board of Trustees is, by statute, the final arbiter of these two issues. See also Note #2 below.

In contrast to the S.605 benefit, the disability decision for the S.506 & S.507 disability benefits is determined by the member’s eligibility for primary social security disability benefits. This member was so eligible.

Like S.605, the S.507 benefit requires that the NYCERS Board of Trustees determine that an on the job incident caused the disability and that the incident was an accident. The trustees refer to a Medical Board recommendation when making their decision but are not bound by it. The member may or may not be able to clear that hurdle but he is entitled to try.

The S.506 benefit only requires 5 years of service in addition to the social security disability benefit. The member had 8 years of service. This is the benefit he was given by NYCERS and it began in 1986 when the social security award began.

After NYCERS denied his S.605 application, the member requested that his application be processed under Article 14 (Tier 3). NYCERS processed his S.506 application but not his S.507 application. Needless to say the S.507 benefit is significantly greater than the S.506 benefit.

I suspect that the medical division incorrectly assumed that the member’s S.605 denial was based on either the causation or the accident issues. The agency was under very tight budgetary constraints in 1990.

Benefit Difference Between S.506 and S.507

The benefit under S.506 is 33% times a three year average compensation minus two offsets, 50% of the social security benefit and 100% of any workers compensation award, plus the Tier-3 annual cost of living adjustment.

The S.507 benefit is the same as S.506 benefit except that the percentage is 60%, much higher than the 33% in S.506.

In 1991 NYCERS using a $35,426 three year average compensation computed the member’s S.506 benefit to be equal to $11,808. It was then reduced by $2,790 (50% of his social security benefit). The reduced benefit was $9,018/year. At the time NYCERS did not apply any workers compensation offset. This was a mistake. The benefit after the offset for the workers compensation award ($7,800/year) was $1,218/year, a very small amount.

If NYCERS had processed the member’s S.507 application and the trustees had found that the member had been disabled by an on the job accident, his annual benefit would have been $21,255. With the two offsets it would then have been $10,665. If he had been granted the S.507, then he actually has been underpaid since 1986.

Conclusion

Now NYCERS refuses to correct this error using lies to justify its denial. The retiree does not have the resources to mount a legal challenge. He has no recourse but wait for over 15 years while NYCERS extracts its money. What ever happened to the union representatives on the Board of Trustees. They had no trouble getting a disability benefit for the son of a DC-37 union official, Mark Shaplo who plead guilty to fixing a 1996 contract ratification vote.

What is the lesson learned here? You can not trust NYCERS. The senior management has a record of incompetence and corruption and it is the members and retirees who suffer.  

Note #1: Workers Compensation Offset

In December, 2012 NYCERS notified the member that the agency had discovered that it had failed to apply the workers compensation offset to his benefit in 1991. The WC award was $150/week, $7,800 a year starting in 1989.

As a result NYCERS claimed that the retiree was overpaid by $186,199 from March, 1989 to December, 2012. NYCERS provided no detailed spreadsheet outlining the overpayments. NYCERS also did not detail the repayment amounts or the repayment schedule. A quick calculation of the WC payment of $7,800/year for the period is equal to only $108,000.

NYCERS suspended the retiree’s pension as of January, 2013. It did not state specifically when the agency would restore his pension. The agency stated only that at some undetermined date in the future he would be reinstated when the debt was paid off.

There are also significant COLA payments attached to this benefit which impact the overpayment - repayment schedule.

While it is obvious NYCERS needs to take action to recoup an overpayment, this situation was caused by a NYCERS error and NYCERS should show some consideration to effected retirees.

Note #2: More Deception

While admitting in paragraph two of her letter that the Medical Board found the member not disabled, Mazza strangely adds the following sentence possibly hoping to confuse the reader into thinking that The Medical Board had decided that the incident had not caused the disability:

“They went on to find that he was on restricted duty at the time and the incident did not aggravate the non-line of duty injury”

This is not a finding that the incident did not cause the disability because there was no disability as far as the Medical Board was concerned. According to procedure there was also no mention about whether the incident was an accident in the Medical Board report. For the record restricted duty is no different than full duty with respect to being on the job.

There is also a bogus reference to the fact that the member was represented by counsel throughout the entire process. NYCERS did nor deny the member's S.507 application. They failed to process it. This is an issue about NYCERS making a mistake and fixing it as required by Section 13-182 of the NYC Admin. Code. Ask any disabled retiree with a workers compensation offset.

It always amazes me that I hired Mazza and gave her a second chance when she falsified her time sheets. I guess we all make mistakes. Too bad I can’t fix this one.

Denial of Legal Benefits: Incompetence and Arrogance

It is difficult to see NYCERS treat disabled retirees with contempt when the agency has statutory backing for its heartless and sloppy actions. It is absolutely despicable when NYCERS does this without legal backing.

In 2009, I wrote about about errors in the newly issued NYCERS Tier 4 summary plan description (SPD), in particular filing for retirement under Tier 4. At the time the issue was hypothetical. I now have come across a real live person who NYCERS is denying his legitimate right to retire under Tier 4.

This person is currently disabled and receiving a Social Security disability benefit. After working for the city for 16 years he left the city in 2000. He is now 55.

NYCERS has refused to accept his Tier 4 retirement application and is forcing him to apply for retirement under Tier 3. The benefit for this person at age 55 under Tier 3 & 4 will be the same, however, under Tier 3 this person's benefit will be reduced at age 62 by 50% of his Social Security retirement benefit.

The Tier 4 & 3 benefit for this person is only 19.4% of his three year average earnings with a 27% reduction for early retirement at age 55. Assuming this person's three year average salary was $50,000, his annual benefit would be $9,700 at age 55. At age 62, however, the Social Security offset could easily be $8,000 per year. This drops the person's benefit and NYCERS liability to $1,700 a year when this person turns 62. It is also possible that the offset could obliterate the Tier 3 benefit and in turn, put the pensioner's health insurance coverage at risk.

The Tier 4 benefit is not what you would call a gold mine. In fact, it is typical of a NYCERS pension for average city worker. NYCERS, however, is flaunting the law and depriving this man of his legal benefit. Over the years I have seen NYCERS and the city try to save money by denying legal rights to both part-time and female workers but let a former police commissioner get pension service credit for double dip Section 211 service.

To obtain his rightful benefit, this member will have to sue NYCERS. Along with the resulting legal expense, it is not certain that he will win. At least, I would testify that as of 2005 this member was eligible for a Tier 4 early retirement benefit and that, in my opinion as the executive director at the time the law was passed, the current executive director is illegally denying this person his statutory Tier 4 retirement benefit.

Tier 6 - Disability Picture for NYC Police, Fire, Corrections, Sanitation, and Detective Investigators Members

Background

As of July 1, 2009 all new NYC police officers and fire fighters were covered by the Tier-3 pension benefit structure.

As of April 1, 2012 all new NYC police officers, fire fighters, correction officers, sanitation workers, and DA detective investigators are covered by the new Tier-6 pension benefit structure.

Tier 6 is an effort at pension benefit reform within New York State. It definitely cuts benefits. It is very expansive but I want to focus on one particular area, disability benefits for these Tier-6 workers.

With respect to these Tier 6 members, the new disability benefits are the old Tier 3 benefits put in place back in 1976, 37 years ago. The one difference is that these benefits are now based on compensation base equal to a five year average earnings as opposed to the old three year average.

The relevant sections of law in Tier 6/Tier 3 with respect to disability benefits are Sections 506 (Ordinary Disability) and 507 (Accident Disability) of the N.Y.S. Retirement &Social Security Law (RSSL).

As of 2009, only the NY Police Pension Fund (NYPPF) and the FDNY Pension Fund (FDNYPF) were involved with the Tier 3 throwback.

As of 2012, Tier 6/Tier 3 involves three pension systems, NYPPF, FDNYPF, and NYCERS. These three systems will have to resurrect the old Tier-3 procedures from the 1976 to 1983 time period. Of the three systems, only NYCERS administered Tier-3 benefits during that time. In 1976, the benefit structure for both NYPPF and FDNYPF remained in Tier 2.

In 1983, Tier 4 superseded Tier 3 state wide. One of the big reasons for the change over to Tier 4 was the administrative problems inherent in Tier 3, especially the Social Security coordination and its tie-in to disability determinations.

These lower Tier 6 disability benefit levels will reduce the number of members retiring for disability. The VSF benefit, for police, fire, and corrections, is only available to service retirees. This benefit along with the long term earnings limitations will push many members to continue working until their 22nd year even when they may qualify for a disability benefit. Members who are profoundly disabled, however, will have no choice but apply for whatever disability benefit they qualify for.

The FDNY will have a special management problem supervising two groups of employees, one with an accident disability benefit = 45% (new fire fighters) and another with a line of duty disability benefit = 75% for all EMS workers, even Tier 6 ones. This makes one think that there will definitely be future changes to this part of Tier 6.

Ordinary Disability Benefits (S.506)

The new Tier 6 ordinary disability benefit is equal to

1. The greater of 33&1/3% of the five year average FAS or 2% times years of service up to 30 years
2. Minus 50% of the primary SS disability benefit or at age 62, 50% of the primary SS retirement benefit (if ineligible for SS disability)
3. Minus 100% of any Workers Compensation (WC) payable
4. Plus full immediate escalation.

To be eligible the member must in active service and have at least 5 years of credited service. Continuous employment in active public service immediately prior to the date of membership in the appropriate retirement system shall also count towards the 5 year requirement. There is no age requirement for the ordinary disability benefit.

The member must be determined to by disabled by the Social Security Administration. If you are older than 65 or do not have a enough quarters to be eligible for SS disability, then the approppriate retirement system Medical Board will make the disability determination. The cause of the disability is not pertinent to granting the benefit.

Retirees receiving ordinary disability benefits are subject to post retirement income limitations. These limitations are the same as apply to the accident disability benefit. See below.

Note: Workers Compensation

NYC police officers, fire fighters, and sanitation workers are not covered by Workers Compensation. Therefore, there is no WC offset for their disability benefits.

Correction officers and DA detective investigations are, however, covered by the city's WC structure. This means there will be WC offsets to their disability benefits, if the member receives any WC payments.

It may be prudent for these members not to claim WC payments since the NYCERS benefit might be reduced to zero by the offset. This would put their city health insurance as retirees at risk. However the WC payments might be greater than the NYCERS benefit with or without the SS offset. The member needs to do some arithmetic to properly balance their benefit structure. I'm sure the relevant unions will provide advice.

A WC offset for an ordinary disability benefit is unusual and raises the issue of whether this benefit is exempt from federal income tax in the same way that accident disability benefits are. The NYC Law Department will have to resolve this issue.

Accident Disability Benefits (S.507)

The Tier-6 benefit is equal to

1. 50% of the five year average FAS
2. Minus 50% of the primary SS disability benefit or at age 62, 50% of the primary SS retirement benefit (if ineligible for SS disability)
3. Minus 100% of any Workers Compensation payable.
4. Plus immediate full escalation. See the escalation section below.

To be eligible the member must in active service. There is no two year filing limitation that existed in Tier-2. There is no service or age requirement for the accident disability benefit. It appears to me that police officers and fire fighters with 22 or more years of service are not eligible while NYCERS members are free of that limitation. This issue will not arise for many years and probably will be changed sometime in the future.

The member must be determined to by disabled either by the Social Security Administration or the appropriate pension Medical Board. In either case, the Medical Board must make a recommendation on whether the associated incident on the job caused the disability and the incident was an accident as per retirement system's legal definition of an accident. These causation and accident determinations are the same as in Tier-2.

The appropriate Board of Trustees makes the final determination on causation and accident. The final disability decision, however, rests with the Social Security Administration or the retirement system's Medical Board.

Members must waive any right to any statutory presumption (i.e. heart bill or lung bill) relating to the cause of the disability or eligibility for disability benefits. This does not apply to World Trade Center presumptions.

Retirees receiving accident disability benefits are subject to post retirement income limitations. See below.

Limitations on Income after Disability Retirement (S.507.d)

There are significant long term income limitations for disability retirees, both for accident and ordinary disability. I have included the exact wording from the statute (S.507.d) below because of the harshness of the restriction. If the retiree loses his/her SS disability benefit or engages in employment or business activity that would make him/her ineligible for SS disability benefits, then his/her retirement system disability benefits cease. This is not just a suspension. The only reprieve is being placed on a preferred eligible list.

S.507.d.

If a member shall cease to be eligible for primary social security benefits before attaining age sixty-five, or, if receipt of social security benefits is not a condition for disability benefits hereunder, shall engage in such employment or business activity as would render such member ineligible for social security disability benefits (had he or she otherwise been eligible), benefits hereunder shall cease.

Provided, however, if such member is otherwise eligible, the state civil service department or appropriate municipal commission shall place the name of such person, as a preferred eligible, on the appropriate eligible lists prepared by it for positions for which such person is stated to be qualified in a salary grade not exceeding that from which such person retired.

In such event, disability benefits shall be continued for such member until such member first shall be offered a position in public service at such salary grade.

Escalation (S.510)

Escalation is designed to provide some protection from the negative effects of inflation over time. A Tier-6 member who retires for either disability benefit is eligible every April 1 for a percentage increase in his/her benefit based on the lesser of 3% or the consumer price index (all items- US city averages as per US Bureau of Labor Statistics) as of the previous December 31.

In the event of a decrease in the CPI, the benefit is decreased by the lesser of 3% or the CPI. The benefit will not decrease below the original benefit.

The CPI changes are cumulative and are brought forward each year. So in effect, there are two running escalation indexes, the all 3% index and the all CPI index.

Escalation becomes payable: 1) For eligible service or vested benefits on April 1 following the 25th anniversary date. The first year is prorated on monthly basis. 2) For accident and ordinary disability and death benefits on April 1st following the date the benefits start. Again the first year is prorated.

Social Security Offset (S.511)

Calculating this offset can get very complicated. But roughly speaking the amount is computed at the time that the member retires from the appropriate retirement system and not at the member’s 62nd birthdate. It does not include any private sector income in computing the Social Security benefit. Only wages from employers who participate in NYS public pension plans are used. All other wages are set to zero. The offset will not include any increases to the Social Security benefit which occur after the member's retirement date. The complexity of this offset is one of the prime reasons that New York State moved to Tier 4 (the SS offset was dropped completely along with automatic escalation) in 1983.