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Proof of mandatory membership required to effect a "tier" change

Proof of mandatory membership required to effect a "tier" change
Matter of Giordano v New York State Teachers' Retirement Sys., 2009 NY Slip Op 51910(U), Decided on September 2, 2009, Supreme Court, Albany County, Judge Harold F. Zwack [Not included in the official reported]

Matthew Giordano filed a petition pursuant to CPLR Article 78 in an effort to have a vacate the New York State Teachers? Retirement System?s decision not to change his ?tier status with in the retirement system? from Tier II to Tier I.

The parties agree that Giordano was employed as a full-time teaching assistant in the South Manor Union Free School District from January 1, 1971 through June 30, 1971and effective September 1, 1971, began working as a full-time teacher in the Hauppauge Union Free School District. The retirement system, however, required Giordano to submit ?proof of [his] mandatory membership in the retirement system as January 1, 1971.?

After additional correspondence, respondent issued a determination on March 2, 2009 that denied Giordano 's request to backdate his retirement system membership to January of 1971.

Although Giordano argued that he held a full-time teaching assistant position from January 1 to June 30, 1971 and that his full-time employment has been clearly established, presenting, among other documents payroll records indicate he was "employed as a full-time Teaching Assistant for 120 days in 1971 and earned a total salary of $4320, with an assigned New York State Teachers' Retirement System number of 474636.

In addition, Giordano pointed out that his present number in the retirement system is 474636 and that the relevant preliminary budget page stated "Assistant Teacher Jan - June" with an apparent reference to salary in the amount of $4320 and included the following additional references: "+ ret. 864.00; + S.S. 211.68".*

The system argued that despite Giordano 's full-time employment during the time period in question, there is no proof that the position in which he worked was one in which membership in the retirement system was mandatory. Absent such proof, the system contended that Giordano was required to prove that he joined the retirement system.

The Court agreed with the system, commenting ?it does not appear that this position was ever intended to be a permanent or per annum position? and despite the reference in a 2006 letter by the Superintendent of Schools that Giordano was assigned his retirement system number in conjunction with his teaching assistant employment in early 1971, there is no proof to support this conclusion.?

Judge Zwack dismissed Giordano?s petition.

* Presumably the item identified as ?S.S. 211.68? refers to the amount required for employer contributions for Social Security on behalf of the appointee. If so, there is a possible ambiguity as to Giordano?s effective date of membership in the Retirement System in that employees required to join a public retirement system of this state were [and are] required to participate in Social Security while those whose membership was not mandatory could participate in Social Security only upon their becoming a member of a public retirement system of this State. [Employee ineligible to join a retirement system of this State and [and were] required to have Social Security.]

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_51910.htm

Full post as published by New York Public Personnel Law on September 18, 2009 (boomark / email).