Tier 6 Corrections and Sanitation Enhanced Disability Benefits - Update

Tracking the Tier 6 Enhanced Disability Benefits

In 2017, I posted comments on the enhanced disability benefits for Tier 6 Correction and Sanitation workers. Using Article 25 of the NYS RSSL these benefits are not documented in law but are agreed upon by the NYC mayor and each of the associated unions. The cost of the added benefits is required to be paid by additional member contributions (AMC) from the covered Corrections and Sanitation NYCERS members.

I recently requested copies of these agreements from NYCERS, and the records officer quickly provided me with copies of the mayor’s orders and the petitions from the associated unions outlining the enhanced benefit improvements. The orders for Sanitation members were signed by Mayor de Blasio on August 30, 2016, and the orders for Corrections were signed on November 29, 2016. The actual documents give a clearer picture of the new benefits than were given by PR releases.

There is an interesting phrase in each of the mayor’s order “all determinations concerning the interpretation of the benefit enhancements provide herein shall be made by the Mayor or his authorized designee”.

This gives the sitting mayor unilateral control over the benefits and creates strange issues if there is litigation concerning these benefits and, in another way, who is the administrator of these benefits?

Benefit Analysis

The first thing that struck me was that the benefit enhancements are different for the two groups.

Tier 3

In 1976, Tier 3 was passed into law with two disability benefits, Sections 506 (ordinary) and 507 (accident). Right away there were problems with these two sections along with other items in Tier 3. These problems motivated the passage of Tier 4 in 1983.

The main problem with Section 506 and 507 was that the determination of whether a member was disabled or not was made by the Social Security Administration. That determination is based on the capability of gainful employment. It was not based on the member’s ability to perform his/her specific civil service job function. It was also a problem that it was controlled by an outside agent and not the retirement system.

Tier 4

In 1983, Tier 4 removed everyone from Tier 3 except state and city Correction officers but
added S.507-a (ordinary and accident diability benefit) to Tier 3
in order to remove the SSA determination of disability and
replace it with a determination by the retirement system of whether the member was able to perform his/her job.

Tier 3

In 1997, Section 507-c was passed into law which granted state and city Correction officers a 75% benefit if they were disabled because of an accident on the job. The retirement system made the disability determination, not SSA.
There were also certain accident presumptions added to this benefit.
This benefit was not eleigible for Tier 3 escalation.

In 2009 new NYC police and fire members were forced into Tier 3 and they subsequently had S.507 modified to allow their disability determinations to be made by their retiremet systems rather than SSA.

Tier 6

In 2012, Tier 6 mandated new state and city Corrections memebers and city Sanitation members into Tier 3 with Tier 6 restrictions.

Tier 6 adopted the two basic Tier 3 disability benefits in Section 506 (ordinary) and Section 507 (accident),
and it shut down the two other Tier 3 disability benefits, Sections 507-a (ordinary/accident) and 507-c (accident)
for city correction officers.

Tier 6, however, allowed NYCERS members in Tier 3 applying for S.507 to have their disability to be determined by NYCERS under the job function criteria.
S.506, however, still requires SSA to make the disability determination.

Note: Prior to Tier 6, new Sanitation workers were eligible for Tier 4 benefits.

Actual Enhancements

With the enhancements, Tier 6 Sanitation members only upgraded their S.506 and S.507 benefits. While Tier 6 Corrections not only upgraded their S.506 and S.507 benefits but reinstated their S-507-a and 507-c benefits.

Sanitation

With enhancement, Tier 6 Sanitation members were able to drop their 50% Social Security offset for both S.506 and 507 and increase their accident (S.507) award from 50% to 75% along with a Heart Bill presumption.
S.506 is still under the Social Security Administration disability determination but not S.507.
One other item, that was included in the enhancement, was that Tier 3 escalation was dropped from S.506 and S.507.
It was replaced by a lesser COLA provision paid to all retirees.

Corrections

Tier 6 Corrections Officers members were also able to drop their 50% Social Security offset for S.506 and 507.
The award amount still stayed at 50% for S.507 but with an added Heart Bill presumption.
The S.506 is still has a SSA disability determination but not S.507.
One other item, that was included in the enhancement, was that Tier 3 escalation was dropped from S.506 and S.507.
It was replaced by a lesser COLA provision paid to all retirees.

However, Tier 6 Correction Officer members were also able to reinstate S.507-a and 507-c, ordinary and accident disability benefits.
They also were able to add the Heart Bill presumption to both benefits.
With enhancement, S.507-a lost its escalation benefit but gained the COLA benefit.
S.507-c never had the escalation benefit and only picked up the COLA benefit when it was added in 2000.

Going forward, most disability awards for Tier 6 Enhanced Corrections members will be under S.507-a and S-507-c.

Cost Tracking for the Enhanced Benefits

The initial cost for these benefits was quoted in the union petitions as 1.3% for Sanitation members and 0.8% for Corrections members. There was no actuarial justification given for these percentages. At first blush, the Corrections enhancement should have been more expensive than the Sanitation enhancement. The lack of justification is a serious problem because this benefit structure now has two guarantors, the city, and the members. This is a radical change from all other NYCERS benefits where the city is the sole guarantor.

The actuary did not publicly report his analysis of these initial cost percentages.

My rough estimates of the increased cost for the enhanced benefits are:

1. Sanitation S.506 – 45% (dropping SS offset and switching to COLA)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $19,970 plus Escalation
   • Enhanced $29,870 plus COLA
2. Sanitation S.507 – 86% (dropping SS Offset, switching to COLA, and 50% to 75%)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $35,000 plus Escalation
   • Enhanced $67,500 plus COLA
3. Sanitation S.507 – 86% (Heart Bill - dropping SS Offset, switching to COLA, and 50% to 75%)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $0
   • Enhanced $67,500 plus COLA
4. Corrections S.506 – 45% (dropping SS offset and switching to COLA)
   • With $90,000 FAS, $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $9,970 plus Escalation
   • Enhanced $19,870 plus COLA
5. Corrections S.507 – 24% (dropping SS Offset, switching to COLA)
   • With $90,000 FAS and $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $25,000 plus Escalation
   • Enhanced $35,000 plus COLA
6. Corrections S.507 – 100% (for Heart Bill)
   • With $90,000 FAS and $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $0
   • Enhanced $35,000 plus COLA
7. Corrections S.507-a – 100%/100% (adding benefit and switching to COLA/and adding Heart Bill)
   • With $90,000 FAS
   • Basic Tier-6 $0
   • Enhanced $29,970 plus COLA
8. Corrections S.507-c – 100%/100% (adding just benefit/adding Heart Bill and other special presumptions)
   • With $90,000 FAS and $10,000 100% WC
   • Basic Tier-6 $0
   • Enhanced $57,500 plus COLA

For example, the Sanitation S-507 enhancement benefit would go from $35,000 to $67,500 per year. With an annuity factor of 13, the difference of $32,500 per year would produce an added pension reserve cost at retirement of roughly $422,000 which would have to be withdrawn from the Sanitation AMC fund. This amount would actually be some what smaller because of the ecalation replacement.

As per the unions’ benefit petitions, the actuary is supposed to evaluate the cost distribution every three years and if needed, adjustthe payroll contribution rate. As such, he needs to notify NYCERS of his analysis. There has been no public reporting on this evaluation since 2016.

Neither the NYCERS annual financial statement nor the actuary’s annual valuation report have ever mentioned this tri-annual calculation.

Documents from the Actuary

Following my request to NYCERS, I requested the actuary to send me documentation on how he was tracking the costs for the enhanced benefits and any instructions he had received from the NYC Law Department about the enhanced benefits.

While the actuary sent me some documents, he was evasive about how he produced the numbers he was sending to NYCERS claiming the determination was done by the software package that he uses.

I am not sure he realized I was the former executive director at NYCERS, but he definitely was dodging about how the cost allocations were being done.

He did, however, send me a copy of a May 2, 2025, letter he sent to NYCERS concerning the payroll rates for the 2025-2028 time period.
The letter stated that the new Sanitation rate is 1.4% and the Corrections rate is 1.3%.
The letter also stated that NYCERS had reported 23 Sanitation members, and 114 Corrections members had retired with enhanced disability benefits as of June 30, 2024.
This appears to be consistent with the fact that Corrections enhanced benefits are better than Sanitation enhanced benefits.

The letter reported that 5,035 Sanitation members and 2,771 Correction members were part of the enhanced benefit program as of June 30, 2024. These figures are not consistent with data in the paragraph below.

As per the NYCERS 2024 financial statement, on June 30, 2024, there were 7,572 active Sanitation members and 6,738 Corrections members of which 4,438 Sanitation members and 4,526 Corrections members had less than 14 years of service. Tier 6 has been in force for over 13 years.

Strangely, NYCERS states in its annual financial report that the Tier 6 Corrections and Sanitation enhanced disability AMC’s are capped at 3%. Section 1323 of the RSSL, however, provides no limiting provision for the amount of AMC payment required for enhanced benefits.

In contrast, Tier 6 Police and Fire members have statutory enhanced disability benefits for which that they have to pay AMC’s but the payroll contributions are capped at 3% by law.

The AMC Fund

In a separate spreadsheet the actuary sent to me, he indicated that as of June 30, 2024 the AMC amounts collected were:

• $38,879,205 for Sanitation members and
• $27,003,007 for Corrections members.

There does not appear, however, to be any accounting for the AMC funds in the NYCERS financial statement in a manner similar to the VSF funds. Such accounting would include income statements, earnings, deposits, withdrawals, tax deferrals, and how the fund is being invested. Who is the trustee of this fund? What interest rate does NYCERS credit to the individual member accounts?

Renegotiating the Benefits

There is a claim in all of the unions benefit petitions that if the AMC cost rate exceeds 3%, the unions have the option to reopen negotiations concerning the enhanced benefits with the possibility of modifying or terminating the benefits. This is only an option and the mayor is not bound to any action. If the mayor were to take any action, it would create administrative problems.

Coverup of the Problems with the NYCERS’s Legacy Replacement Project

NYCERS posts videos of its regular monthly board meetings on its website. There are two videos for each meeting .

The first video, Part 1, is a every short clip of only an opening roll call and a motion to go into executive session to hear disability cases and litigation issues. The second video, Part 2, starts with a return to public session and all the items which need to be addressed in public session. The second video usually runs for about 45 minutes but can be shorter.

One of the items that is currently being addressed in public session is the status of the Legacy Replacement Project (LRP). This project is extremely expensive and seriously behind schedule.

Long story short, the LRP contract with Accenture is now projected to be four years late, 2030 rather than 2026 and a detailed resource plan supporting the new 2030 date has already missed its June, 2025 delivery date. NYCERS has paid Accenture approximately $85 million since 2021 and $65 million in secondary costs.

The May 9, 2025, Board Meeting

At the end of the regular LRP status presentation by the NYCERS LRP project manager, a Board member directed a question at the project manager:

“We heard in a prior presentation that, I guess how I would describe it, that there was a lack of wholehearted commitment on at least part of the Accenture team and maybe at the higher levels in terms of the things we would like to see in terms of… therefore…How does that translate down to the NYCERS staff working with the Accenture people. Are they pulling their punches and are they giving it their all?”

(interruption by the Chairperson):

“and so, thanks for the question, I ask you (the project manager) to be mindful in your response that we are in in public session.
“It may be the case that we should have this as an offline conversation.”

After the following silence and subdued laughter, the trustees moved on to the next topic.

Based on the Chairperson’s comments and the silence of all the other trustees, it is clear that the Board is aware of the fiasco surrounding the LRP project and are intent on keeping the problem under wraps.

Time for the Department of Investigation

I recently posted about the incompetence surrounding the LRP project. There now is evidence of a coverup surrounding the LRP project. It is definitely time for Department of Investigation to look into this project.

PR Nonsense from the NYCERS FY-2026 Budget Report on the LRP project

MAJOR TECHNOLOGY PROJECTS/DIGITALIZATION

Legacy Replacement Project (LRP)

The Legacy Replacement Project (LRP) is a transformative, five-phase project to build a new pension administration system. As part of NYCERS’ overall strategic vision, LRP will streamline and automate operational processes and enhance the client experience. In Phase 0, NYCERS and its system integrator completed an overall project assessment, followed by Phase 1, the implementation of foundational changes, in January 2023.

During Phase 2 execution, the team encountered challenges including design delays, complex configuration needs, unforeseen technology compatibility issues, and difficulties in decommissioning the legacy system. As a result, the team decided to deploy the completed Phase 2 functionality as a separate, smaller phase (Phase 2.0). Phase 2.0 successfully deployed on January 21, 2025 as planned, delivering improvements to document management, security, and agency tools. NYCERS and its system integrator are currently replanning the remaining program scope to mitigate risks and ensure a high-quality outcome. The replanning is expected to be completed by June 30, 2025, with the combined Phases 2 and 3 beginning immediately thereafter. The program is now anticipated to be completed by December 2030.

Recap of the NYCERS Administrative Budget for FY-2026

By the Numbers

On June 12, 2025, the NYCERS trustess adopted the FY-2026 admin budget.

• The budget dropped from $166.0M to $165.8M.
  • Salaries increased from $53.7M to $55.9M.
  • Friinge increased from $16.5M to $17.7M.
  • OTPS decreased from $95.96M to $92.3M

NYCERS has officially stated that the Legacy Replacement Project (LRP) is "anticpated" to be completed by December 2030. That is a four and half year delay on a project that started in 2015. In addition there is yet no detail plan how this project will be completed by this date.

Highlights of the Other Than Personnel Services (OTPS) Expenses

****

Category	FY-2025	FY-2026
General expense	$15.64M	$18.15M
Security	$915K	$915K
Busines Recovery	$3.10M	$3.65M
Mainframe	$1.51M	$1.76M
Non-Maineframe	$19.91M	$24.71M
LRP and Upgrades	$54.82M	$43.12M

Highlights of the OTPS Budget

In light of the fiasco with LRP project I want to point that the Accenture line item was reduced this year from $18.7M (2025) to $10.8M (2026). As background for this contract which began in FY-2021, the following amounts have been budgeted to Accenture for the LRP contract:

• FY-2021: $826K
• FY-2022: $19.32 million
• FY-2023: $23.06 million
• FY-2024: $23.19 million
• FY-2025: $18.7 million
• FY-2026: $10.8 million

In addition to the amounts paid to Accenture, NYCERS (in conjunction with the Accenture's work) contracted with Penfax for an off the shelf piece of software that Accenture is customizinge for NYCERS. The amounts budgeted for Penfax are:

• FY-2021: $3.06 million
• FY-2022: $3.18 million
• FY-2023: $3.59 million
• FY-2024: $3.99 million
• FY-2025: $4.19 million + $200,000 dev. licenses
• FY-2026: $3.99 million + $200,000 dev. licenses

Just for laughs NYCERS increased its budget for

• contract COBOL programmers from $2.0 million to $3.26 million.
• the Garnter contract from $1.76 million to $2.64 million

NYCERS has maintained or decreased its budget for the following major LRP items:

• QA Vendor from $1.37 million to $1.37 million
• QA Testers from $2.90 million to $2.90 million
• Data Analysts from $2.09 million to $2.09 million
• Project Managers from $3.26 million to $2.44 million
• Business Analysts from $2.76 million to $1.74 million
• Risk Consultant from $700,000 to $700,000

There was also a significant reduction in the contingency item in the LRP project:

• from $9.14 million to $5.50 million

This is a strange item to have in the budget since the Board has the authority to modify the budget during the year if needed. Because of this item, the OTPS did not really decrease by $3.6B in 2026 but is almost the same as in 2025.

The Salesforce/Accenture Application

Prior to the LRP contract Accenture installed a customized Salesforce CRM application at NYCERS.
The current budgeted cost for that application was $5.78 million in FY-2025 and is $7.38 million in FY-2026.

I can not get my mind around this total insanity. Just paying the bills for all this garbage would kill you.

History from FY-1996 to FY-2026

History of NYCERS Admin Budget 1996-2026

Fiscal Year	F/T Count	P/T Count	College Aides / Hourly	PS Budget	OTPS Budget	Fringe	Total	% Increase
2026	501	30	16	$55,860520	$92,309,697	$17,663,655	$165,833,872	-00.0013%
2025	501	30	16	$53,679,194	$95,900,865	$16,461,953	$166,042,012	00.05%
2024	501	30	16	$54,290,508	$98,040,138	$13,633,903	$165,964,549	13.37%
2023	485	30	16	$43,016,089	$90,436,500	$12,942,144	$146,394,733	7.92%
2022	483	30	16	$38,397,943	$85,531,063	$11,719,465	$135,648,471	37.94%
2021	474	27	16	$36,842,549	$50,210,145	$11,283,945	$98,336,639	7.10%
2020	438	27	16	$35,262,139	$45,862,557	$10,689,350	$91,814,046	4.97%
2019	428	5	30	$33,592,612	$43,532,302	$10,344,565	$87,469,479	39.44%
2018	415	5	30	$31,704,410	$21,832,718	$9,194,015	$62,731,143	3.55%
2017	401	5	30	$31,056,080	$20,916,796	$8,605,288	$60,578,164	4.81%
2016	392	5	30	$30,233,989	$19,407,619	$8,155,517	$57,797,125	4.70%
2015	392	5	30	$29,131,972	$18,154,572	$7,915,476	$55,202,020	3.68%
2014	383	5	30	$26,813,635	$18,761,240	$7,669,819	$53,244,694	2.18%
2013	380	5	20	$26,623,635	$17,951,822	$7,532,499	$52,107,956	1.93%
2012	372	12	0	$25,756,827	$18,781,428	$6,603,649	$51,122,139	1.14%
2011	372	12	0	$26,046,827	$18,492,228	$6,006,573	$50,545,628	2.76%
2010	372	12	0	$26,046,827	$17,777,228	$5,362,640	$49,186,695	1.88%
2009	371	13	0	$25,189,842	$18,208,861	$4,879,903	$48,278,606	6.22%
2008	371	13	0	$23,597,857	$17,259,313	$4,799,066	$45,656,236	10.80%
2007	364	13	0	$22,616,783	$14,258,471	$4,375,788	$41,251,042	5.73%
2006	342	13	0	$20,255,911	$14,683,855	$4,076,823	$39,016,589	1.01%
2005	342	13	0	$19,737,687	$14,851,355	$3,887,624	$38,476,666	***
2004	334	13	0					***
***								***
1996	154	0	30	$6,199,709	$2,573,715	na	$8,773,424	***

$5 Billion Fire Sale for the New York City Pension Funds

On Tuesday, May 27, the Comptroller issued the followowing release:

New York, NY — New York City Comptroller Brad Lander and trustees of the five public pension systems announced the successful completion of a landmark $5 billion private equity secondary sale across the City’s systems today. This transaction, initiated in December 2024 and finalized this month, represents one of the nation’s largest ever pension-led secondary sales.

The following news clip provides a little more detail:

Blackstone’s Strategic Partners has acquired a $5bn private equity portfolio from the New York City Retirement Systems, marking one of the largest secondary transactions ever completed by a US public pension, according to Bloomberg. The transaction includes approximately 450 limited partnership interests across 125 funds managed by 75 general partners. According to a statement from the NYC Comptroller’s Office, the sale forms part of a strategic portfolio realignment rather than a liquidity-driven divestment.

The formal auction, which launched in December 2024, attracted over 80 secondary market participants. Evercore acted as financial advisor, with Morgan Lewis providing legal counsel. While financial terms were not disclosed, secondary transactions of this scale are typically completed at a discount to NAV, reflecting the complexity and illiquidity of mature fund stakes.

The deal comes amid a surge in secondary market activity as institutional investors seek to rebalance private equity allocations amid slower M&A and IPO exits, higher interest rates, and limited distributions. The NYC Retirement Systems’ private equity returns have underperformed national peers, with fiscal year 2024 gains of 4–5%, compared to 10.9% at CalPERS and 8.6% at CalSTRS.

With over $270bn in AUM across five pension funds serving teachers, civil employees, firefighters, police, and education workers, the NYC Retirement Systems’ sale signals a potential re-evaluation of long-term private market exposure.

Blackstone’s Strategic Partners, which has raised over $67bn across asset classes, continues to cement its position as one of the largest players in the secondaries market.

According to the June 30, 2024 NYC annual financial statement, the five city pension funds allegedly had $67.2 billion in alternative investments.

The big question is how much of loss did the pension funds absorb because of the sale. The Comptroller has not given any accounting details.

From Bad To Worse

On April 30, 2024, the NYC Comptroller announced new asset allocations for the five NYC pension funds. This announcement boils down to a statement that four of the five pension systems are going to reduce their % of stock holdings and increase their % of garbage assets, otherwise known as "alternative assets". Why would anyone invest in garbage? That is a key question.

The pension trustees, which included the Comptroller, would have you believe their current asset allocations are doing well and that they are going to make them better.

Of course, there is no analysis of the investment performance of the current asset allocations, whether it is better than a basic 60/40 stock and bond asset allocation and whether the new asset allocation will make things better.

That is because that the current asset allocation is doing worse than the basic asset allocation and that an expansion of the current asset allocation will only make the deficit worse.

I won't even get into issue of runaway investment fees for the garbage asset class.

How to Do Investment Fees the Right Way - TRS and Its TDA Fund

TRS is one one the five NYC pension funds, the one that covers NYC teachers. Actually TRS is two funds, a defined benefit fund (DB) and a defined contribution fund (DC). TRS calls its DC fund the TDA Program. The TDA program is funded by payroll deductions (approximately $1.0B/year) from the teachers. This fund is teachers' money, not tax payers' money. Well not really. The DB fund guareantees a 8.25% and 7% rate of return on fixed income assests in the TDA fund. But that is another story for another day.

The following list is the closing balances of the two funds as of June 30th of following years:

• Year - DB Fund - TDA Fund
• 2020 -- $59.3B -- $37.0B
• 2021 -- $78.3B -- $43.0B
• 2022 -- $64.0B -- $42.2B
• 2023 -- $67.9B -- $45.4B

You can see from the numbers that the TDA fund runs a tighter ship than the DB fund. The TDA fund grew by 22.7% over the three years while the DB fund only grew by 14.5%. Eeven though the TDA rate of return is is impressive compared to the DC fund, what rally is superhuman is the investment fees that the TDA fund pays versus the DC fund. See the fees for the two funds over the four years listed below:

• Years - DB Fund - TDA Fund
• 2020 -- $290.8M -- $0.6M
• 2021 -- $405.7M -- $13.7M
• 2022 -- $535.3M -- $24.2M
• 2023 -- $518.9M -- $11.2M

How does the TDA spend so little on fees and does so much better that the DB fund???

Harry Nespoli Fails to File a Final Appeal to Protect the Pension Rights of His Union Members

In January 2017, I wrote a post about how NYCERS was stripping pension rights from Tier 4 members who became sanitation workers after 4/1/2012 based falsely on the new Tier 6 law.

To make this issue simple, Tier 6 does not force Tier 4 members into Tier 6-3 just because the member becomes a sanitation worker and even if it did, it would be unconstitutional.

In November 2016, four and a half years after the passage of Tier 6 NYCERS changed its previous position on this issue and began sending notices to certain Tier 4 sanitation workers that their Tier 4 Sanitation benefits were being revoked and they were being forced into Tier 6-3 Sanitation benefits.

On 11/15/2016 Harry Nespoli filed a complaint in court against the NYCERS Board of Trustees attempting to reverse this blatant attack on his union members' pension rights.

NYCERS Board of Trustees

There are three votes out of seven on the NYCERS Board of Trustees controlled by the three largest city unions. Nespoli was and continues to be head of the MLC, the organization representing all city unions. It is not clear whether Nespoli spoke to the three union reps on the Board of Trustees about this issue. There should have been a full debate about this issue at a board meeting. This would have been the best way of handling this issue and preventing unnecessary litigation.

The Six Other NYS Pension Systems

In addition, there are implications of this issue for the other six NYS pension systems.

For instance, I have a strong suspicion that
a 2008 Tier 4 NYCERS member who joined NYPD in 2013 is covered by Tier 2 police pension benefits and
a 2011 Tier 4 NYCERS member who joined NYPD in 2013 is covered by Tier 3 pre-Tier 6 pension benefits.

This is counter to the NYCERS position.

Trial Court

Four and a half years later, on 6/10/2021, the trial court reached a court decision on this issue. The trail court incorrectly decided that NYCERS was an expert on pension law and confirmed its unfounded actions.

Nespoli appealed the trial decision.

First Department

On 5/5/2022 the First Department Appellate Court upheld (case # 02096-2021) the incorrect trial court decision. It discarded the constitutional pension protection clause with only the following statement which is, on its face, factually incorrect.

Petitioners’ reclassification did not violate the New York State Constitution (NY Const art V, § 7[a]), since “petitioners were never entitled to [SA]-20 benefits to begin with and, thus, did not have a contractual right to those benefits” (Matter of Ly, 189 AD3d at 1413).

In fact, on March 30, 2012, every Tier 4 NYCERS member was eligible to be covered by the SA-20 plan if he or she became part of the Uniform Sanitation Force. The court is saying they did not, in complete denial of reality. What we have here is a blind umpire.

On April 1, 2012, Tier 6 can not take away a pension right that existed on March 30, 2012, the day before. The scary thing about this decision is that there is no rational argument supporting it.

Court of Appeals

There is no record on the court website that Nespoli filed an appeal to the NY Court of Appeals. This is a constitutional issue and there are impacts for the other six NYS pension systems. It is clear that this issue should have been taken to the Court of Appeals.

Of course, this was the same time that the City and the MLC were busy trying to deprive city retirees of their Medicare supplemental health insurance benefits in order funnel the money saved into union welfare funds.

NYS Constitution

The following is the text from the N.Y. Constitution Article V, § 7:

"The rights of public employees are thus fixed as of the time the employee becomes a member of the system. We have consistently held that the constitutional prohibition against diminishing or impairing retirement benefits prohibits official action during a public employment membership in a retirement system which adversely affects the amount of the retirement benefits payable to the members on retirement under laws and conditions existing at the time of entrance into retirement system membership. "

I

Why is the NYCERS Retirement Option Letter Taking 12 Months?

At the July 2023 NYCERS Board meeting NYCERS staff briefed the Trustees that the lead time for retirement option letters (see below) was 12 months. This is a big service problem.

I’ve previously posted about this problem in December 2019 when the lead time was six months as opposed to the target of 3 months. The NYCERS budget was $62.7M in FY-2018. It was $146.4M in FY-2023.

How did this problem become worse?

NYCERS has become devoured by an out-of-control IT project and has lost focus on providing service to members and retirees.

As reference, below is a chart of the NYCERS admin budget since 2018

NYCERS Staff and Budget FY-2018 to FY-2024

Year	Full Timers	Part Timers	Temp-Hourly	PS Expenses	OTPS Expenses	Fringe Expenses	Total Expenses
2018	415	35	0	$31.7	$21.8	$9.1	$62.7
2019	428	35	0	$33.6	$43.5	$10.3	$87.5
2020	438	27	16	$35.3	$45.9	$10.7	$91.8
2021	474	27	16	$36.8	$50.2	$11.3	$98.3
2022	483	30	16	$39.5	$84.5	$11.8	$135.8
2023	485	30	16	$43.0	$90.4	$12.9	$146.4
2024	501	30	16	$54.3	$98.0	$13.8	$165.9

Retirement Option Letter

When a NYCERS member is planning to retire, he/she usually visits the customer service center on Jay Street in downtown Brooklyn around 60 days before his/her retirement date. He/she files a retirement application and sits with NYCERS staff person to be briefed on the procedure.

One of the things the NYCERS agent does is give the member a printed estimate of the member's "maximum" retirement benefit amount along with reduced amounts for option selections for a given beneficiary. The estimate, however, is not adequate to allow a member to make an informed option selection.

Choosing an option rather than a maximum benefit allows a member to leave continuing benefit to a designated beneficiary after the member dies.

With a maximum choice NYCERS stops payment of the full benefit amount when the retiree dies. If the member chooses one of the option amounts, NYCERS will continue to pay a benefit to the beneficiary that the member designated when he/she picked an option choice.

This maximum/option election occurs after the member receives the final option letter. The members have 60 days after the date of the letter to make his/her choice. Currently, NYCERS is informing members that it will take about twelve months for NYCERS to send the member a final option letter on the annual retirement benefit along with the reduced amounts associated with option benefits that member can select in place of the full benefit.

As of 2005, NYCERS was quoting a three-month period for sending a final option letter to members who were retiring.

FY-2021 Update of NYCERS Admin Spending - History

The following is a chart of NYCERS administrative expenses from 2000. The information comes from NYCERS Comprehensive Annual Financial Report. As a point of reference NYCERS had an annual budget of $8.8M in FY-1996, the last year NYCERS was part of the city budget.

NYCERS Admin Expenses

Fiscal Year	Personnel Expenses	Contracts & Consultants	Phone, Mail, & Printing	Rentals	Software, Hardware, Support, Supplies, & Maintenance	Depreciation & Credits	Total
FY-2021	$48,693,043	$14,058,975	$1,290,546	$6,617,040	$16,753,334	$0	$87,412,938
FY-2020	$45,736,806	$11,337,750	$1,173,896	$6,870,614	$12.548,240	$0	$77,667,306
FY-2019	$43,717,712	$15,884,418	$1,114,263	$6,637,959	$14,719,873	$0	$82,073,325
FY-2018	$40,444,145	$4,310,427	$1,072,077	$6,348,888	$7,513,233	$0	$59,688,770
FY-2017	$39,505,894	$3,829,758	$1,561,282	$5,909,352	$8,864,342	$0	$59,670,628
FY-2016	$37,950,289	$4,687,929	$1,360,397	$5,453,383	$7,230,989	$0	$56,682,988
FY-2015	$37,368,409	$3,652,,154	$1,336,002	$5,037,893	$7,239,560	$0	$54,635,018
FY-2014	$33,571,938	$3,773,082	$1,269,387	$4,863,720	$6,952,691	$0	$50,430,818
FY-2013	$33,064,087	$3,102,385	$1,078,411	$4,674,442	$6,797,095	$0	$48,666,420
FY-2012	$32,623,085	$3,088,256	$1,096,186	$4,796,584	$9,780,637	$0	$51,384,748
FY-2011	$31,748,443	$4,108,186	$995,415	$4,741,621	$4,780,811	$0	$46,374,476
FY-2010	$31,527,659	$5,434,495	$1,041,471	$4,278,903	$6,678,071	$715,000	$49,675,599
FY-2009	$30,187,604	$4,043,775	$914,311	$4,047,949	$8,198,354	$1,430,000	$48,821,993
FY-2008	$28,344,427	$6,401,744	$997,316	$4,138,211	$6,687,716	$1,430,000	$46,999,000
FY-2007	$27,123,219	$2,677,793	$1,055,233	$5,203,902	$4,205,095	$1,430,000	$41,695,242
FY-2006	$24,992,543	$3,124,688	$1,497,895	$4,797,895	$4,472,246	$1,406,132	$40,291,469
FY-2005	$24,474,710	$3,039,970	$827,277	$4,454,258	$3,118,356	$1,392,296	$37,306,867
FY-2004	$22,631,504	$3,124,800	$845,391	$4,192,543	$3,375,187	$1,430,000	$35,559,081
FY-2000	$15,990,745	$1,587,290	$718,686	$1,531,536	$2,691,719	$725,000	$23,244,976

FY-2021 Was a Very Good Year for the City Pension Funds -- $57.5B Increase

Short and sweet, read pages numbered 218 and 219 from the NYC FY-2021 CAFR.

Pages 136 to 144 are interesting reading about the cost of non-pension benefits to retirees.

NYCERS Mistake: Wages, Overtime Ceiling, and the MTA

NYCERS appears to be under the impression that its Tier 6 members are subject to an overtime ceiling with respect to both payroll pension contributions and to calculating the member’s final average salary when the member retires.

NYCERS has notified its membership that it is in the process of refunding pension contributions made by members who work for the MTA.

NYCERS does not have a legal opinion on this issue from the Law Department. There are two other city pension funds (TRS and BERS) covered by the Tier 4/6 term "wages". In addition, I guarantee you that the Tier 3/6 NYPD and FDNY pension members are not subject to the overtime ceiling that applies to Tier 5/6 state police and fire pension members.

NYCERS has been notified twice that they are in error and NYCERS appears to be intent on pursuing this incorrect interpretation.

Statutory Background

In 2009 NYS passed a pension modification law (Chapter 504 of the Laws of 2009) for state police and firefighters. This was a response to the fact that in July of 2009 new city and state police and firefighters lost their Tier 2 coverage and were dumped into Tier 3.

The state unions negotiated a compromise law (Tier 5 for state police and fire) which allowed the new state police and firefighters to return to Tier 2 with some benefit reductions. As of today, however, new city police and firefighters are still trapped in Tier 3.

In addition to the Tier 5 component, there were some secondary pension reductions in Chapter 504 which applied to regular state workers and members of the city’s UFT union.

One of those limitations was a modification of the Tier 4 definition of "wages".

Wages impact member contributions (Section 613/ NY RSSL) and a member's final average salary (Section 608/ NYS RSSL) at retirement Members’ pension contributions are a percentage of member’s wages including overtime pay (OT). Member’s final average salary is also based on member’s wages including overtime. The final average salary is the compensation base for calculating a member’s annual pension benefit when he/she retires.

This 2009 modification created two new definitions, "overtime compensation" and "overtime ceiling" which applied to all Artile 15 (Tier 4) members. These terms were used to modify the term "wages" by imposing the "overtime ceiling" on wages for only new members of the NYSLERS and the NYSTRS who join after 1/1/2010. There is also a NYS Constitutional benefit protection for Tier 4 members who have membership dates prior to the effective date of Chapter 504.

The terms "overtime compensation" and "overtime ceiling", however, legally applies to all city and state Tier 4 members as of the effective date of Chapter 504. These terms by themselves have no direct impact on Tier members' benefits. It is only through the the term "wages" that Tier 4 members' benefits are impacted. Therefore only NYSLERS and NYSTRS members are effected. Correctly, there was no attempt in 2009 by NYCERS to impose an overtime ceiling on wages for of new post 1/1/2010 Tier 4 members because the limitation was only authorized for the two state pension systems.

As of today, despite two subsequent laws in 2012 and 2017, the definition of wages with the overtime ceiling limitation still only applies to post January 1, 2010 members of NYSLERS and NYSTRS.

The only place that the term “overtime ceiling” appears in Article 15 is in the definition of wages. This is how it has an impact on a member’s contributions and final average salary.

In 2012, with the passage of the Tier 6 (Chapter 18) law, the definition of "overtime ceiling" was changed. That change entailed adding a second overtime ceiling but restricted to new Article 15 (Tier 4/6) members who join after 4/1/2012. The law, however, did not alter the definition of wages with respect to the overtime ceiling limitation. It still only covered the two state pension syetems and did not add any of the city pension systems.

The legislature did, however, specifically add new limits to the term "wages" for new Article 15 members as of 4/1/2012:

For members who first join a public retirement system of the state on or after April first, two thousand twelve, the following items shall not be included in the definition of wages: 1. wages in excess of the annual salary paid to the governor pursuant to section three of article four of the state constitution, 2. lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked, 3. any form of termi- nation pay, 4. any additional compensation paid in anticipation of retirement, and 5. in the case of employees who receive wages from three or more employers in a twelve month period, the wages paid by the third and each successive employer.

NYCERS incorrectly thinks that since the law restricted the definition of "overtime ceiling" to only new Tier 4/6 members that it then allowed NYCERS to modify the definition of wages to impose an overtime ceiling on Tier 4/6 NYCERS members' wages. Legally all NYCERS Tier 4 members subject to the term "overtime ceiling" since 2009. Making some new part of overtime ceiling applicable to new NYCERS members does not change its impact on wages.

If the legislature wanted to modify the definition of wages it could have easily added NYCERS to the restrictive list in the term "wages" along with NYSLERS and NYSTRS. It did not. Whether or not you think that the legislature meant to do that, administrators have to assume the legislature intentionally did not change the definition of wages and wanted to keep the overtime ceiling limit applicable to only NYSLERS and NYSTRS.

Legislative Track

Pre-2009

Prior to 2009, Article 15 wages were defined as follows:

"Wages" shall mean regular compensation earned by and paid to a member by a public employer.

2009

Chapter 504 (2009) changed the definition to:

"Wages" shall mean regular compensation earned by and paid to a member by a public employer

, except that for members who first join
the New York state and local employees' retirement system or
the New York state teachers' retirement system
on or after January first, two thousand ten,
overtime compensation paid in any year in excess of the overtime ceiling,
as defined by this subdivision,
shall not be included in the definition of wages.

"Overtime compensation" shall mean, for purposes of this section,
compensation paid under any law or policy under which employees are paid at a rate greater
than their standard rate for additional hours worked
beyond those required, including compensation paid under
section one hundred thirty-four of the civil service law and
section ninety of the general municipal law.

The "overtime ceiling" shall mean fifteen thousand dollars
per annum on January first, two thousand ten, and
shall be increased by three per cent each year thereafter

.

2012

In 2012, NYS passed a general modification of Article 15, Chapter 18 of the Laws of 2012, for all city and state workers. Chapter 18 modified the definition of “overtime ceiling” as follows but left the definition of wages was left intact.

There was a modification applying to wages but it was independent of the OT ceiling. Its main feature was capping wages at the governor's paid salary, a truly fascinating idea.

The change is listed below:

"Wages" shall mean regular compensation earned by and paid to a member by a public employer

, except that for members who first join
the New York state and local employees' retirement system or
the New York state teachers' retirement system
on or after January first, two thousand ten,
overtime compensation paid in any year in excess of the overtime ceiling,
as defined by this subdivision,
shall not be included in the definition of wages.

"Overtime compensation" shall mean, for purposes of this section,
compensation paid under any law or policy under which employees are paid at a rate greater
than their standard rate for additional hours worked
beyond those required, including compensation paid under
section one hundred thirty-four of the civil service law and
section ninety of the general municipal law.

The "overtime ceiling" shall mean fifteen thousand dollars per annum on January first, two thousand ten, and shall be increased by three per cent each year thereafter,

provided, however, that for members who first become members
of a public retirement system of the state
on or after April first, two thousand twelve,
"overtime ceiling"
shall mean fifteen thousand dollars per annum on April first, two thousand twelve, and
shall be increased each year thereafter by a percentage to be determined annually
by reference to the consumer price index
(all urban consumers, CPI-U, U.S. city average, all items, 1982-84=100),
published by the United States bureau of labor statistics, for each applicable calendar year.

Said percentage shall equal the annual inflation as determined from the increase in the consumer price index in the one year period ending on the December thirty-first prior to the cost-of-living adjustment effective on the ensuing April first.

For members who first join a public retirement system of the state on or after April first, two thousand twelve, the following items shall not be included in the definition of wages:

• 1. wages in excess of the annual salary paid to the governor pursuant to section three of article four of the state constitution,
• 2. lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked,
• 3. any form of termi- nation pay,
• 4. any additional compensation paid in anticipation of retirement, and
• 5. in the case of employees who receive wages from three or more employers in a twelve month period, the wages paid by the third and each successive employer.

2017

In 2017, NYS again modified (Chapter368) the definition of “overtime ceiling” but left the definition of wages intact.

(c) The "overtime ceiling" shall mean fifteen thousand dollars per three per cent each year thereafter, provided, however, that:

(i) for members who first become members of a public retirement system of the state on or after April first, two thousand twelve, "overtime ceiling" shall mean fifteen thousand dollars per annum on April first, two thousand twelve, and shall be increased each year thereafter by a percentage to be determined annually by reference to the consumer price index (all urban consumers, CPI-U, U.S. city average, all items, 1982-84=100), published by the United States bureau of labor statistics, for each applicable calendar year. Said percentage shall equal the annual inflation as determined from the increase in the consumer price index in the one year period ending on the December thirty-first [prior to] preceding the [cost-of-living] overtime ceiling adjustment effective on the ensuing April first.

(ii) Commencing January first, two thousand eighteen, and each year thereafter, the overtime ceiling percentage shall be increased by an amount equal to the annual inflation as determined from the increase in the consumer price index in the one year period ending on the September thirtieth prior to the overtime ceiling adjustment effective on the ensuing January first.

Specifically, Chapter 368 of the Laws of 2017 modifying the definition of “overtime ceiling” had only two fiscal notes, one from the NYSLERS actuary and one from the NYSTRS actuary. New York State pension legislation requires fiscal notes from all pension systems effected by the legislation.

Tier 4/6 Definition of Wages - Effect on Your Pension Benefit

There is a sharp distinction in the definition of wages between state pension members and city pension members.

See the statute, Section. 601., below.

It appears that the wages for city pension members are not subject to the overtime ceiling. Wages come into play in determining a member's required contributions, final average salary, and in turn your pension benefit.

Of course, the wages for all Tier 6 members, city and state, are limited by the governor's official salary:

• 2012-2018 - $179,000
• 2019 - $200,000
• 2020 - $225,000
• 2021 - $250,000 (maybe $225,000 since Cuomo turned down the increase).

I'll bet Albany didn't focus on the pension cost implications when they passed the pay increases in 2019.

New York State Tier 4/6 pension law

RSSL.601. Definitions a. . . .

l.

(a) "Wages" shall mean regular compensation earned by and paid to a member by a public employer,

except that for members who first join
the New York state and local employees' retirement system or
the New York state teachers' retirement system
on or after January first, two thousand ten,
overtime compensation paid in any year
in excess of the overtime ceiling, as defined by this subdivision,
shall not be included in the definition of wages.

(b) "Overtime compensation" shall mean, for purposes of this section,
compensation paid under any law or policy
under which employees are paid at a rate greater
than their standard rate for additional hours worked beyond those required,
including compensation paid under section one hundred thirty-four
of the civil service law and section ninety of the general municipal law.

(c) The "overtime ceiling" shall mean fifteen thousand dollars per annum
on January first, two thousand ten, and
shall be increased by three per cent each year thereafter,
provided, however, that:

(i) for members who first become members of a public retirement system of the state
on or after April first, two thousand twelve,
"overtime ceiling"
shall mean fifteen thousand dollars per annum
on April first, two thousand twelve,
and shall be increased each year thereafter by a percentage
to be determined annually by reference
to the consumer price index (all urban consumers, CPI-U,
U.S. city average, all items, 1982-84=100),
published by the United States bureau of labor statistics,
for each applicable calendar year.
Said percentage shall equal the annual inflation
as determined from the increase in the consumer price index
in the one year period
ending on the December thirty-first
preceding the overtime ceiling adjustment
effective on the ensuing April first.

(ii) Commencing January first, two thousand eighteen, and each year thereafter,
the overtime ceiling percentage
shall be increased by an amount equal to the annual inflation
as determined from the increase in the consumer price index
in the one year period ending on the September thirtieth
prior to the overtime ceiling adjustment
effective on the ensuing January first.

(d) For members who first join a public retirement system of the state on or after April first, two thousand twelve,
the following items shall not be included in the definition of wages:

• 1. wages in excess of the annual salary paid to the governor pursuant to section three of article four of the state constitution,
• 2. lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked,
• 3. any form of termination pay,
• 4. any additional compensation paid in anticipation of retirement, and
• 5. in the case of employees who receive wages from three or more employers in a twelve month period, the wages paid by the third and each additional employer.

The Strange Budget History at NYCERS 1980 - 2022

In June of 2017, I wrote post about NYCERS's budget history and a recent explosion of spending. Since then the growth of budget has lost all touch with reality. I have added new data both current and historical. Currently I do not have access to the records from 1997 to 2004.

I will let the numbers in the table below speak for themselves.

Prior to FY-1997, the NYCERS admin budget was part of the overall NYC budget adopted by the City Council.

In 1996 the state legislature authorized the NYCERS Borad of Trustees to adopted the annual admin budget for NYCERS and to pay all expenses from the assests of the pension fund. From 1997 to 2005 the NYCERS admin budget increased by 294.25%. Most of that increase was in place by 2001, the year the dot-com bubble hit Wall Street. That, in turn, created pressure to keep the growth in the budget below the inflation rate.

It is reasonable to question the need for such a significant increase in the NYCERS admin budget over this nine year period, if you were not aware of what disparate shape NYCERS was in 1996.

It is, however, absolutely clear that NYCERS was radicallly well equipped to do its work in 2005, probably far better than any other city agency. As an example, in the aftermath of 9/11 attack, a major division of OMB worked out of the NYCERS's office for over 6 months. They thought they had died and went to heaven.

The FY-2006 budget was the last budget I prepared before I left NYCERS. It had a 1.4% increase. You will notice in the following year, FY-2007,a significant increase in staff.

On May 14, 2020 in the midst of the pandemic, the NYCERS's trustees adopted FY-2021 admin budget of $89.7M. Then, on Decemeber 10, 2020, the trustees increased that bduget to $98.3M, an $8.6M increase.

On April 8, 2021 the trustees adopted the FY-2022 admin budget of $135.7M, a $36.4M increase.

As of January 1, 2022 most of the publically elelcted trustees on the NYCERS Board of Trustees will be gone. The Mayor, the Comptroller and four of the five Borough Presidents will all be new people. One current Borough President and the Public Advocate wiil probably be on the ballot in November. Most likely,four years from now all of the public trustees who voted for this qusetionable $135.7M budget will be gone.

History of NYCERS Admin Budget 1987-2022

Fiscal Year	F/T Count	P/T Count	College Aides / Hourly	PS Budget	OTPS Budget	Fringe	Total	% Increase
1980	219	0	0	$3,558,977	$1,079,851	na	$4,638,828	na
1981	222	0	0	$3,507,806	$1,020,374	na	$4,528,180	-2.39%
1982	220	0	0	$3,970,212	$1,177, 748	na	$5,147,960	13.69%
1983	224	0	0	$4,429,362	$1,230,672	na	$5,660,034	9.95%
1984	231	0	0	$5,026,847	$1,194,237	na	$6,221,084	9.91%
1985	239	0	0	$5,446,600	$1,241,976	na	$6,688,576	7.5%
1986	247	0	30	$5,916,793	$1,423,743	na	$7,340,536	9.76%
1987	245	0	30	$6,621,803	$1,881,300	na	$8,167,220	11.26%
1988	265	0	30	$6,621,803	$1,881,300	na	$8,503,103	4.11%
1989	285	0	30	$7,849,731	$1,932,351	na	$9,782,082	15.4%
1990	280	0	30	$8,284,883	$2,578,693	na	$10,863,576	11.06%
1991	229	0	30	$6,826,473	$2,475,205	na	$9,301,678	-14.38%
1992	225	0	30	$6,646,549	$2,216,262	na	$8,862,811	-4.72
1993	223	0	30	$6,858,991	$2,198,882	na	$9,057,873	2.20%
1994	194	0	30	$6,778,541	$2,183,101	na	$8,961,642	-1.06%
1995	167	0	30	$6,202,062	$2,080,504	na	$8,282,566	-7.58%
1996	154	0	30	$6,199,709	$2,573,715	na	$8,773,424	5.93%
1997	200	0	30
1998	230	0	30
1999	270	0	30
2000	290	0	30
2001	320	13	30
2002	320	13	30
2003	334	13	30
2004	334	13	30
2005	342	13	30	$19,737,687	$14,851,355	$3,887,624	$38,476,666	295.25%
2006	342	13	30	$20,255,911	$14,683,855	$ 4,076,823	$39,016,589	1.01%
2007	364	13	0	$22,616,783	$14,258,471	4,375,788	$41,251,042	5.73%
2008	371	13	0	$23,597,857	$17,259,313	$4,799,066	$45,656,236	10.80%
2009	371	13	0	$25,189,842	$18,208,861	$4,879,903	$48,278,606	6.22%
2010	372	12	0	$26,046,827	$17,777,228	$5,362,640	$49,186,695	1.88%
2011	372	12	0	$26,046,827	$18,492,228	$6,006,573	$50,545,628	2.76%
2012	372	12	0	$25,756,827	$18,781,428	$6,603,649	$51,122,139	1.14%
2013	380	5	20	$26,623,635	$17,951,822	$7,532,499	$52,107,956	1.93%
2014	383	5	30	$26,813,635	$18,761,240	$7,669,819	$53,244,694	2.18%
2015	392	5	30	$29,131,972	$18,154,572	$7,915,476	$55,202,020	3.68%
2016	392	35	0	$30,233,989	$19,407,619	$8,155,517	$57,797,125	4.70%
2017	401	35	0	$31,056,080	$20,916,796	$8,605,288	$60,578,164	4.81%
2018	411	35	0	$31,704,410	$21,832,718	$9,194,015	$62,731,143	3.55%
2019	428	35	0	$33,592,612	$43,532,302	$10,344,565	$87,469,479	39.44%
2020	438	27	16	$35,262,139	$45,862,557	$10,689,350	$91,814,046	4.97%
2021	438	27	16	$36,842,549	$50,210,145	$11,283,945	$98,336,639	7.10%
2022	474	27	16	$38,397,943	$85,531,063	$11,719,465	$135,648,471	37.94%

Transit Hint – Tier 4 – Age 62 – Non-Transit Service

In the Tier 4 Transit 25/55 Plan only service (operating force or clerical) with the Transit Authority counts towards the full benefit payable under the Plan.

This creates a problem for a member with other than Transit service. Military service is an exception.

Example 1

In a common scenario, A member starts working for the city at age 25 and switches over to the Transit Authority in an operating force position at age 30.

In the Transit 25/55 Plan that member is eligible to retire at age 55 with a 50% benefit. The 50% is based on his 25 years with Transit.

The member gets no value from his 5 years at the city from age 25 to 30. Once the member has the 25 years of Transit credited service, there is no way to avoid the loss of the five years, but the member is able to retire at 55 without age reduction that applies to 62/5 members.

Example 2

>

Consider the following different scenario - A member starts working for the city at age 35 and switches over to the Transit Authority in an operating force position at age 40.

Under the Transit 25/55 Plan, this member can only to retire at age 65 with a 50% benefit. The 50% is based on his 25 years with Transit. The member gets no value from his 5 years at the city from age 35 to 40.

This member can, however, retire one week before he attains his 25 years at Transit. His benefit will a standard a 62/5 Plan benefit, 60% benefit (based on all NYCERS credited service). The key is not to have 25 years of Transit credited service.

This sounds crazy but it is how the law was written.

Note: Unfortunately, Transit Plan members are not eligible for early retirement under the 62/5 Plan. The enacting law specifically excluded Transit Plan members. So the comment below is not applicable.

Depending on how much non-Transit service the member has, it might even make sense to retire before 62 to avoid the 25-year threshold , absorb the reduction but get all credited service.

NYCERS should be laying out these scenarios for its members. NYCERS’s has a duty to its members to warn them of pitfalls in the law.

The Bleeding Has Started - Legacy Replacement Project - $85.0M - Accenture

Legacy Replacement Project - $85,076,693 – Accenture

On February 26, 2021 NYCERS finally awarded the Legacy Replacement Project (LRP) contract to Accenture. The cost of the contract is $85,076,693. The LRP is supposed to be a five-year project. It was first proposed in the spring of 2015.

I have been writing about the LRP for the last six years. My first post was in 2015. My most recent post was in 2020. This boondoggle started in the spring of 2015 and has been dragging along ever since. Thank god the legacy systems built by civil servants have lasted over 40 years.

On of April 8, 2021, in support of the LRP project , the trustees adopted a massive increase in the NYCERS FY-2022 admin budget. The amount approved was $136.0M. As contrast, the budget in FY-2015 was $55.0M. This is at the same time as the mayor is cutting the medicare benefits of NYC retirees.

I have no hope that this lunacy will stop. After a six year delay in the start of this project, the trustees at the board meeting were thanking Liz Reyes for her great work on the project. What can you expect from people who are brain dead.

Accenture LRP Contract

The initial work, Phase 0, is a ten-week effort by Accenture to analyze its contract plans and possibly propose changes but with no cost increases. This phase may be longer than ten weeks. At the end of this phase either side can opt out of the contract without penalty or cost.

The second part of the contract, Phase 1, is scheduled to start July 1, 2021 and end December 31, 2021. The five-year term of the contract gives us an end date of June 30, 2026. I wonder who will be in the White House then.

Other Contracts Linked to the LRP Project

1. NYCERS has paid Gartner, the consulting firm, $7.1M since FY-2015.
2. Risk advisor to the Board of Trustees. The contract was awarded to Linea Solutions, Inc. on 7/21/2020 at a cost = $4,598,496 with a period of five years.
   • Will need to be place until 6/30/2026.
3. Quality Assurance advisor (projected award date - April 30, 2021) to NYCERS staff for the project. Contract being negotiated. Cost unknown. Period five years.
   • Will need to be in place until 6/30/2026.
4. Mainframe maintenance for five years while the LRP is being implemented. Contract awarded on 2/11/2019 to Blue Hill Data Services. Cost = $3,894,000. Period of five years.
   • Will need to be place until 6/30/2026.
5. FileNet maintenance for five years while LRP is being implemented. Open RFP issued on 11/7/2019. Cost unknown.
   • Will need to be place until 6/30/2026.
   • NYCERS has allowed this system run out of support both from Microsoft and IBM.
6. Roughly 30 computer consultant contracts, each averaging $150,000 per year. Yearly cost of $4.5M
7. Office reconfiguration in FY-2020 that cost $3,448,080.
   • In FY-2000 NYCERS moved into 133,000 sq. feet of totally brand-new class A office space. It was the most modern office space in the NYC government. It rivaled anything in the private sector. God help us what they have done to that office.
8. Customer Relationship Management (CRM) software. Contract was awarded to Accenture, the same firm with the LRP contract, on 8/8/2018
   • at a cost = $14,832,123, with two modifications:
   • $654,000 as of 6/1/2020, and
   • $138,780 as of 12/24/2020.
9. In FY-2019 and FY-2020 NYCERS paid Accenture $11,575,713, and $4,381,360 to a third-party firm for licenses & support as part of the CRM project.
   • Not sure what the value of the CRM is to the NYCERS membership.
10. A replacement IVR system contract was awarded on 12/29/2020 to Genesys Telecommunication Labs. Cost = $712,885.
    • The first phase of this system is promised to be in place by 4/30/2021. It will entail switching over from in-house Avaya interactive voice response (IVR) system to a cloud-based phone system integrated with the CRM system. At this point Genesys will not have an IVR in place.
    • Phase 2 does not yet have a timeline, scope of work, or I suspect a price tag. It is not clear whether Phase 2 is covered by the initial cost figure.
    • Phase 2 is the part where Genesys will create the new IVR system. Sounds like Avaya needs to stay in place until after Phase 2 is completed.
    • I do not see how this will solve the call center chaos that exists at NYCERS. In spite of the obvious, there is no word of increasing the call center staff.
11. At the Dec 10, 2020 board meeting the Trustees adopted a resolution approving the ten-year LRP project at a cost of $279.0M.
    • Not sure what value this has except to warn everyone that a tsunami is coming.

So, With an Unlimited Budget, I Guess Five Months is Good Enough for an Option Letter.

In December 2019, I wrote a complaint about how NYCERS was taking six or more months to produce final benefit letters for newly retired members.

At the March 11, 2021 Board of Trustees meeting, the "Chief Operations Officer" reported to the trustees that NYCERS was now getting the benefit letters out in five months and had met its goal. She also asked if she could stop reporting to the trustees about the benefit letters as long as she was meeting the five-month goal. The trustees agreed to the request.

I am sorely tempted to call the trustees stupid but that is not accurate. The decision they agreed to was stupid just like paying $245M/yr for bad investment advice.

First of all, five months is a poor goal. The traditional goal is three months. Second, they now have no way of knowing whether this goal is being maintained. Third, this is the key monthly production figure for NYCERS along with the number of loans issued each week. It should be the highlight of the executive director's monthly report to the trustees.

Note: There is no civil service title at NYCERS for chief operations officer. In fact the legal civil service title is deputy executive director and there is another person in that position. That person is legally responsible for the functions being assigned to the "COO". I suspect, however, that person is on her way out. Here we have the Dilbert Principle in full bloom.

Final Average Salary and NYSL Employees Retirement System and the NYC Teachers Retirement System

I have been complaining for several years about how NYCERS short changes its retirees when it comes to overtime and part-time earnings. In particular, how it computes the three year period used for determining the compensation base, FAS, used in the benefit calculation.

Someone just recently pointed out to me how the state system, NYSLERS, handles the FAS. Just below are the words for the NYSLRS news website run by the State Comprtoller:

When we calculate your pension, we find the set of consecutive years (one, three or five, depending on your tier and retirement plan) when your earnings were highest. The average of these earnings is your FAE. Usually your FAE is based on the years right before retirement, but they can come anytime in your career. The years used in determining your FAE do not necessarily correspond to a calendar year. For FAE purposes, a “year” is any period when you earned one full-time year of service credit.

The state system has been doing this since 1983, the start of Tier 4, based on Section 608.b (RSSL). In 2010, members of the NYC Teachers Retirement System (NYCTRS) were added to Section 608.b to provide a statutory basis for previous practice.

On May 31, 1988 the NYS Court of Appeals unanomously found that NYCERS had no legal basis to deny membership to part time workers. In 1992, the state legislature passed legislation to correct the mistakes caused by NYCERS improper actions, one of which was to create a new definition of FAS for all Tier 4 members using a new subsection, 608.d (RSSL), which in turn pointed to another newly created subsection, 13-638.e.(14), in the NYC Admin Code. The new definition in S.13.638.e.(14) was identical to S.608.b. The relevant sections are listed below if you want to follow the bread crumbs.

Bottom line, NYSLERS and NYCTRS are treating their members correctly and NYCERS is screwing all over a large part of its membership. I am putting the NYCERS trustees on notice that they are in violation of the law and they better have a substantial memo from the the NYC Law Department to cover their asses.

In addition, since there are two city pension systems doing two different things with the same statute, the Law Department has a problem. The Law Department has a history of quietly letting two systems go different ways but when one system finds out what the other is doing, the show is over. By the way, do not count on in-house staff with law licenses. They are not your statutory counsel.

FAS Statutes - Tier 4 and 6

Section 608.b (RSSL)

b. Notwithstanding the provisions of subdivision a of this section, with respect to members who first became members of the New York state and local employees' retirement system and the New York city teachers' retirement system before April first, two thousand twelve, a member's final average salary shall be equal to

one-third of the highest total wages earned by such member during any continuous period of employment for which the member was credited with three years of service credit;

provided, however, if the wages earned during any year of credited service included in the period used to determine final average salary exceeds the average of the wages of the previous two years of credited service by more than ten percent, the amount in excess of ten percent shall be excluded from the computation of final average salary. With respect to members who first become members of the New York state and local employees' retirement system and the New York city teachers' retirement system on or after April first, two thousand twelve, a member's final average salary shall be equal to one-fifth of the highest total wages earned by such member during any continuous period of employment for which the member was credited with five years of service credit; provided, however, if the wages earned during any year of credited service included in the period used to determine final average salary exceeds the average of the wages of the previous four years of credited service by more than ten percent, the amount in excess of ten percent shall be excluded from the computation of final average salary.

Section 608.d (RSSL)

d. Subject to the provisions of subdivision c of this section, and

notwithstanding the provisions of subdivision a of this section,

with respect to members of the New York city employees' retirement system and the New York city board of education retirement system who are subject to the provisions of this article, a member's final average salary shall be determined pursuant to the provisions of paragraph fourteen of subdivision e of section 13-638.4 of the administrative code of the city of New York, provided, however, that the applicable provisions and limitations of the term "wages", as defined in subdivision l of section six hundred one of this article, shall apply to such determinations of final average salary.

Section 13-638.4.e(14) (NYC Admin Code)

(14) (i) Subject to the provisions of subdivision f of this section and the provisions of subdivision c of section six hundred eight of the RSSL, where those provisions are applicable, and

notwithstanding the provisions of subdivision a of section six hundred eight of the RSSL,

for a tier IV member of NYCERS who is not a New York city revised plan member (as defined in subdivision m of section six hundred one of the RSSL) or for a tier IV member of BERS who is not a New York city revised plan member, the term "final average salary", as used in article fifteen of the RSSL, shall be equal to the greater of:

(A) one-third of the highest total wages earned by such member during any continuous period of employment for which the member was credited with three years of service credit;

provided that if the wages earned during any year of credited service included in the period used to determine final average salary exceeds the average of the wages of the previous two years of credited service by more than ten percent, the amount in excess of ten percent shall be excluded from the computation of final average salary; or (B) the total wages earned during any six consecutive years from service for which the member received service credit divided by the amount of such service credit earned during that six-year period, provided, however, that "wages", as used in this paragraph, shall mean the applicable provisions and limitations of the term "wages", as defined in subdivision 1 of section six hundred one of the RSSL. (ii) Subject to the provisions of subdivision f of this section where those provisions are applicable, and notwithstanding the provisions of subdivisions a and c of section six hundred eight of the RSSL, for a tier IV member of NYCERS who is a New York city revised plan member (as defined in subdivision m of section six hundred one of the RSSL) or a tier IV member of BERS who is a New York city revised plan member, the term "final average salary", as used in article fifteen of the RSSL, shall be equal to one-fifth of the highest total wages earned by such member during any continuous period of employment for which the member was credited with five years of service credit; provided that if the wages earned during any year of credited service included in the period used to determine final average salary exceeds the average of the wages of the previous four years of credited service by more than ten percent, the amount in excess of ten percent shall be excluded from the computation of final average salary, provided further that "wages", as used in this paragraph, shall mean the applicable provisions and limitations of the term "wages", as defined in subdivision l of section six hundred one of the RSSL.

Just For Fun - Who Got the $245M

NYCERS spent $245M in FY-2020 on investment expenses. All together the five city funds spent $879M.

There is a link below where you can view the detailed list of who NYCERS paid the money to. The link is nine pages long. The first page is a summary and the the next eight pages list all the managers, the assets under management, and the fees received for the year. NYCERS has about 350 investment managers.

NYCERS needs to disclose this information in its comprehnsive annual financial report (CAFR). The full CAFR report is almost 200 pages long. I suspect the NYCERS Trustees have never looked at this data.

So here are the details

Look at a page 2 of the link. There are four entries, all for Blackrock. There are three fixed income items (corporate, government, mortgage) and one domestic equity entry (Russell 1000 - Core). That is all you need to run a $67B portfolio. Just scale up the amounts under management. The fees would drop down to $16M and annual rate of return would go up 1 to 2%.

NYCERS Profit from 2016 to 2020

Recap

Every year the Comptroller reports on a quarterly basis the rate of return for the NYCERS portfolio. NYCERS’s fiscal year ends on June 30 each year.

Based on the Comptroller’s figures NYCERS has averaged 6.78 % (net of fess) over the last five years. Part of this figure, 2.96%, is created by an inflow of $8.928B in dividends and interest received during the five years.

The rest of the return is created by an increase in the value of the portfolio. The June 30 value of NYCERS’s assets was $69.910B. The starting value in 2016 was $54.289B. That is a 28% increase over the five years. As reference the S&P 500 Index increased from 2063.11 to 3100.29, a 50% increase. 6.78% may seem like an acceptable figure. But what if you could easily increase that return, safely and at a lower cost. There has, unfortunately, never been any comparative analysis of NYCERS’s investment strategy to determine its relative efficiency.

A Better Way

Out of the 40 sub classes of NYCERS's investment strategies, some combination of classes can consistently produce a better long-term return than 6.78%. The NYCERS Russell 1000 Index (stocks) managers have averaged 9.83% (net of fees) over the last five years. The June 30 value of this class was $19.256B

The NYCERS Structure Fixed Income (bonds) managers have averaged 5.47% (net of fees) over the last five years. The June 30 value of this class was $13.427B.

If you calculate a 60/40 stock/bond return using these figures, you will arrive at an 8.09% average rate of return over the last five years. These two classes generate the bulk of the dividends and interest received by NYCERS during the year.

Another aspect of using only this combined class strategy is that you would save at least $750M in fees over the five years.

Fantasy Island

There are three of NYCERS's sub classes of investment strategies, private equities, real estate, infrastructure, that are highly questionable.

The Comptroller has reported the total value of these classes to be $9.272B as of June 30, 2020. That is 13.45% of the total $68.91B NYCERS portfolio. The $9.272B amount is not verifiable, just a guess.

He quoted the 5-year average rate of return for these classes (gross of fees) as: 9.56% (PE), 11.07% (RE), and 11.93% (IF). These rates of return are also not verifiable, just guesses.

These investments do not pay dividends nor interest and incur most of the $750M in fees that would be saved with the two-class strategy. There is, however, a constant flow with these investments, cash going out and cash coming in. Unfortunately, this flow is not reported in the financial statements. I suspect if this cash flow were reported for the last 23 years, there would be changes in the law governing the allowable investments for the city’s pension investments.