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NYC Correction Officer Prevails in Major Lawsuit Against the City of New York
In Dispute Over Retirement Requirements, New York State Supreme Court Appellate Division's Unanimous Decision May Have Wide Impact on Other Municipal Workers
New York November 10, 2005 - In response to an Article 78 lawsuit filed by The Correction Officers’ Benevolent Association (COBA), on behalf of New York City Correction Officer, David McGarrigle, against the City of New York, the New York State Supreme Court Appellate Division, unanimously upheld a previous ruling that the New York City Employees’ Retirement System (NYCERS), must re-calculate Officer McGarrigle’s pension benefit, prospectively and retroactively, so as to include in the calculation of “final average salary”, the longevity payments earned by him upon his completion of five and ten years of correction service.
“This decision is a victory for all New York City Correction Officers,” said Norman Seabrook, president of the 9,000 member Correction Officers’ Benevolent Association. “The City has tried unsuccessfully to manipulate the language in our collective bargaining agreement to reduce our officers’ pension benefits. This union will continue to protect our members’ financial interests.”
According to Mr. McGarrigle’s attorney, Mercedes Maldonaldo, of Koehler & Isaacs LLP, “The central issue at hand in this case was whether the language in the collective bargaining agreement could diminish a Correction Officer’s right to have military service credit and other types of credited service count toward the years of service required for pensionabilty of longevity earnings. The court confirmed that a Correction Officer can in fact use credited service such as military service without forfeiting the pensionabilty of their longevity earnings. This decision may have widespread implications among other uniformed unions who have similar language in their collective bargaining agreements.”
In 2001, after having served as a Correction Officer for nineteen years and three months, Mr. McGarrigle purchased nine months of prior military service rendered from November 1974 through August 1975. In August of 2001, Mr. McGarrigle retired from the Department of Correction with the requisite twenty years of service, nine months of which constituted “bought back” prior military service. However, in calculating Mr. McGarrigles “wages earned”, for the purpose of determining his “final average salary”, NYCERS did not include the longevity payments earned by Mr. McGarrigle upon reaching his fifth and tenth years of correction service. In the lawsuit, the COBA challenged NYCERS decision to exclude the longevity payments, and contended that NYCERS’ determination violated the provisions under Retirement and Social Security Law as well as the Pension Impairment Clause of the New York State Constitution. NYCERS argued that the non-pensionability of the longevity increments was mandated by the collective bargaining agreement between the Correction Officers’ Benevolent Association, Mr. McGarrigle’s union, and the City of New York.
The court agreed that the language in the collective bargaining agreement, on which the City based its decision to exclude his longevity earnings from his final average salary calculation, was not a clear, unambiguous waiver, since “service” under the collective bargaining agreement could mean “credited service” or “correction service”. The court held “this ambiguity is fatal” to a waiver defense. Additionally, the court gave full effect to a provision in the collective bargaining agreement that stated “this agreement is not intended and shall not be construed as a waiver of any right or benefit to which correction officers are entitled by law.”
If a correction officer retires with twenty years of credited service (this case is not limited to credited service in the form of bought back military time, any credited service counts), the officer is entitled to have his or her five and ten year longevity earnings included in the calculation of his or her final average salary. In other words, those earnings are pensionable and may not lawfully be interpreted to require only twenty years of correction service.
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