Labor & Employment Law

Engaging in governmental service distinguished from public employment

Engaging in governmental service distinguished from public employment
Matter of Paul Siepierski v New York State & Local Retirement System, 46 A.D.3d 1316, Appellate Division, Third Department

Paul Siepierski, a member of the New York State Employees? Retirement System, asked that the System to credit him with member service for the period December 18, 1984 through February 11, 1994.

Retirement and Social Security Law § 41 (c) (1), ?[a] member who has not previously been a member [of the Retirement System] may purchase credit . . . for all allowable member service.? Siepierski claimed that he was entitled to purchase such credit because he had worked for the Niagara Frontier Transportation Authority (NFTA), a ?participating employer? in the System, during this time period.

An administrative hearing was held to determine the validity of Siepierski?s claim. The Hearing Officer concluded that Siepierski was not employed by NFTA during this time period and, therefore, he was not entitled to purchase service credit. The Comptroller adopted the Hearing Officer?s findings of fact and conclusions of law. Siepierski then filed a petition seeking a court order directing the System to permit him to purchase such member service credit.

Although it was conceded that from December 1984 through February 1994 Siepierski had worked on NFTA?s premises, was given a NFTA employee identification card and was supervised by NFTA employees, he was not on NFTA?s payroll. Indeed, his wage and tax statements demonstrated that he had been employed by EGW, an employment agency, or Superior Design, another employment agency, during the period for which he sought this ?additional? member service credit.

While Siepierski argued that he was engaged in paid ?governmental service? as defined in Retirement and Social Security Law §2(11) while on EGW?s or Superior?s payrolls, the Appellate Division said that ?the Comptroller has the ?exclusive authority to determine all applications for any form of retirement or benefit,? and those determinations must be upheld if supported by substantial evidence.?

In the words of the court:

Where, as here, an individual seeks credit for ?government service,? Retirement and Social Security Law §2(11) requires the petitioner to show that he or she provided ?paid service? as an employee of a participating employer in one of the state?s retirement systems (see Retirement and Social Security Law §2[8]).

Thus, the outcome of the instant proceeding hinges entirely upon review of the Comptroller?s finding that petitioner did not provide paid service within the meaning of Retirement and Social Security Law §2(11).

Holding that ?it was entirely rational for the Comptroller to consider, as a major determinative factor, whether petitioner was on the payroll of a participating public employer,? the Appellate Division rejected Siepierski theory that he was actually paid with NFTA funds, which payments were ?simply processed through the employment agency,? and thus he should be deemed to be in the paid service of NFTA, a participating employer.

Full post as published by New York Public Personnel Law on May 27, 2008 (boomark / email).