Rule CO Longevity Pay Pensionable

Didn't Waive Rights

Rule CO Longevity Pay Pensionable 

By REUVEN BLAU

An appellate court panel has ruled that a Correction Officer who qualified for a full pension is entitled to have his longevity payments included in calculating his retirement allowance even though he did not serve the full 20 years specified under his union's contract.

The Chief-Leader/Pat Arnow AN ADDED JOY OF RETIREMENT: Correction Officers' Benevolent Association attorney Mercedes Maldonado (left) and ex-CO David McGarrigle are all smiles after an appellate court panel decision determined that he is entitled to have his longevity included in calculating his retirement allowance even though he did not serve the full 20 years specified under the COBA contract. The unanimous decision upheld a Manhattan Supreme Court Justice's ruling that the contract language was sufficiently ambiguous that it could not be concluded that in agreeing to it, the Correction Officers' Benevolent Association had waived the rights of ex-CO David McGarrigle.

'Huge Ticket Item'

"This decision is a victory for all New York City Correction Officers," said COBA President Norman Seabrook in a statement. "The city has tried unsuccessfully to manipulate the language in our collective-bargaining agreement to reduce our officers' pension benefits."

COBA attorney Mercedes Maldonado said the ruling may have major financial ramifications for the city. "This is going to be a huge-ticket item if NYCERS or the other pension systems have to go back and redo the pension calculations to now incorporate money into final average salary that has previously been excluded for as many people as I suspect."

The dispute arose because the New York City Employees' Retirement System noted that Mr. McGarrigle hadn't actually worked a full 20 years in the jail system. After serving 19 years and three months as a Correction Officer, he "bought back" nine months of pension credit he was entitled to obtain because of prior military service.

City: Contract Limited

At the original trial, NYCERS was joined by other Bloomberg administration officials in arguing that while the buy-back provided him with the right to a full pension, it should not have carried an accompanying right to have the longevity payments - then $4,245, half of which is pensionable - included in his allowance. They cited language in a COBA contract that limited entitlement to use the longevity money for that purpose to those who had actually spent 20 years on the job.

Justice Rosalyn Richter noted, however, that a clause in the State Constitution expressly prohibited the diminishment of pension rights "which are fixed and determined by the laws and conditions in existence at the time membership in the system commences."

NYCERS contended that as a member of COBA bound by its wage contract, Mr. McGarrigle had essentially waived his right to the pensionability of the longevity money in a case where he hadn't actually worked a full 20 years. Where he claimed the contract language applied to "credited service," NYCERS contended it meant time actually worked, a definition it said came from the city's Labor Relations Commissioner.

Side Letters Role

An official from the Mayor's Office of Management and Budget testified that during contract negotiations, COBA had been provided with a spreadsheet of projected pension costs that was based on members actually working 20 years in order to qualify for full pension benefits. Justice Richter ruled that it was not clear that union officials had actually received the spreadsheet, or that they were consulted about the city's costing methodology. She pointed out that when the OMB official was asked where in the spreadsheet it was stated that longevity increases were pensionable only after 20 years of actual service, he responded, "You won't find that in here."

Ms. Maldonado had introduced into evidence side letters to the contract that allowed those who transferred into Correction from other uniformed agencies to supplement their service in the jail system with their prior city service for the purpose of longevity benefits. These letters, the five-person appellate panel ruled, made clear that rights to have longevity calculated toward pensions were not contingent on actual service as a correction officer.

'Flimsy Evidence'

"Given the equivocal meaning of the term 'service' and the express 'no-waiver' provision of the collective-bargaining agreement, respondents' reliance on the side letters is unavailing," the appellate decision stated. "The import of the letters is itself ambiguous, as COBA may have entered into them out of an excess of caution."

On that basis, the court ruled that there was no valid waiver of the pensionability of his longevity payments and ordered that they be calculated in determining Mr. McGarrigle's annual retirement allowance. "It was very flimsy evidence," Ms. Maldonado remarked. "The court saw right through that."