Labor & Employment Law

Membership in a public retirement system

By Harvey Randall, Esq.

Membership in a public retirement system

Mancuso v Regan 190 AD2d 948

Newspapers are reporting that the State Comptroller has determined that a number of attorneys in "private practice" were improperly given credit for membership in the New York State Employees? Retirement System [NYSERS] in connection with services that were provided by the law firm with which they were associated to the Hamilton-Fulton-Montgomery BOCES. See, for example, an article appearing in the Albany Time Union dated April 18, 2008 and posted on the Internet at:

http://www.timesunion.com/AspStories/story.asp?storyID=681830

In Mancuso v Regan, the Appellate Division addressed a similar issue.

Mancuso, an attorney, represented the Syracuse Housing Authority in eviction cases. He applied for, but was denied, member service credit in the New York State Employees' Retirement System for his service with the Authority. The basic issue to resolve was whether Mancuso was an Authority employee or an independent contractor of the Authority.

According to the decision, Mancuso, an attorney in private practice, did not have an office at the Authority. He received compensation of $13,000 per year, paid in 12 equal installments, from the Authority. However, he was not "on the payroll" and was paid by the Authority's "accounts payable" department. Except for health insurance, Mancuso did not receive any employee fringe benefits as a result of his association with the Authority.

The Appellate Division affirmed the Comptroller's decision that Mancuso was an independent contractor and not an Authority employee. Only employees are eligible for member service credit in NYSERS.

Full post as published by New York Public Personnel Law on April 18, 2008 (boomark / email).