Bookhout v. Levitt

• Decision Date: 16 February 1978
• Citation: 43 N.Y.2d 612,403 N.Y.S.2d 200,374 N.E.2d 111
• Parties: , 374 N.E.2d 111 In the Matter of Richard J. BOOKHOUT et al., Respondents, v. Arthur LEVITT, as Comptroller of the State of New York and Administrative Head of the New York State Employees' Retirement System, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 200

403 N.Y.S.2d 200

43 N.Y.2d 612, 374 N.E.2d 111

In the Matter of Richard J. BOOKHOUT et al., Respondents, v. Arthur LEVITT, as Comptroller of the State of New York and Administrative Head of the New York State Employees' Retirement System, Appellant.

Court of Appeals of New York.

Feb. 16, 1978.

Louis J. Lefkowitz, Atty. Gen. (Winifred C. Stanley and Ruth Kessler Toch, Albany, of counsel), for appellant.

Robert E. Biggerstaff and Earl H. Gallup, Jr., Albany, for respondents.

OPINION OF THE COURT

COOKE, Judge.

At stake here is the right of petitioners, retired elected public officials of Otsego County who headed their divers offices, to receive additional service credit for accumulated unused sick leave at the time of retirement included in the calculation of their respective retirement allowances.

Petitioner Bookhout served as Surrogate from 1958 until his retirement on December 31, 1974; petitioner Jones, as County Treasurer from 1951 until retirement on December 31, 1974; petitioner Loomis, as County Judge and Family Court Judge ¹ from 1952 until retirement on November 1, 1970; and petitioner Atwell, as County Clerk from 1941 until retirement on December 31, 1974. Upon retirement, each became entitled to pension benefits payable by the New York State Employees' Retirement System. Upon notification that their respective pensions would be computed to the exclusion of unused sick leave and sums paid for unused vacation time, ² petitioners, pursuant to section 74 of the Retirement and Social Security Law, demanded hearings and redeterminations of their respective retirement allowances. Following a consolidated hearing, a final determination, including findings of fact and conclusions of law, was made on behalf of the Comptroller denying petitioners' applications for recomputation. This article 78 proceeding was then instituted for recomputations of petitioners' retirement allowances, applied retroactively from their respective dates of retirement and so as to credit each petitioner with earned and unused sick leave and with lump-sum payments for unused vacation time. On reaching the Appellate Division, that court modified the Comptroller's determination to the extent of annulling that portion denying to petitioners additional service credit for accumulated unused sick leave at the time of retirement. It was held, however, that petitioners were not entitled to retirement credit for lump-sum payments for accumulated unused vacation time. The only appeal taken from the Appellate Division judgment was by the Comptroller from that part thereof which modified his determination in respect to sick leave credit and, since petitioners have taken no appeal and seek affirmance, the issue in respect to credit for payments for vacation time is not before this court.

Factors employed in calculating retirement allowances include final average salary and length of service (see Retirement and Social Security Law, § 75-g), the issue here being centered on the service credit component of the mathematical process. Petitioners rely on section 33 and subdivision j of section 41 of the Retirement and Social Security Law. Section 33, as originally added by chapter 467 of the Laws of 1970 and as amended by chapters 382 and 1046 of the Laws of 1973, provides, inter alia, that, upon proper adoption, filing and approval, where required, of a resolution, a participating employer may elect to provide for its own employees the benefit provided for persons in the employ of the State listed in subdivision j of section 41. In turn, said subdivision j, as added by chapter 457 of the Laws of 1970 and which became effective on May 5, 1970, provided:

"j. Allowance for unused sick leave for members in the employ of the state.

"1. In addition to any other service credit to which he is entitled, a member who meets the requirements set forth in paragraphs two and three of this subdivision shall be granted one day of additional service credit for each day of accumulated unused sick leave which he has at time of retirement for service, but such credit shall not (a) exceed one hundred sixty-five days, (b) be considered in meeting any service or age requirements prescribed in this chapter, and (c) be considered in computing final average salary.

"2. Such service retirement credit shall be granted only to members in the employ of the state who, prior to retirement, were subject to a plan established by law, rule, regulation, written order or written policy which provided for the regular earning and accumulation of sick leave.

"3. The provisions of this subdivision shall apply to members retiring from service of the state on or after April first, nineteen hundred seventy and prior to April first, nineteen hundred seventy-two" (emphasis added).

By virtue of two amendments made in 1973 (L.1973, ch. 382, § 20, eff. May 31, 1973, and L.1973, ch. 1046, § 3, eff. July 31, 1973), paragraph 3 of subdivision j was changed to read: "3. In the case of persons who last became members on or after July first, nineteen hundred seventy-three, the provisions of this subdivision shall apply only to those retiring from service prior to July first, nineteen hundred seventy-four."

It is undisputed that on July 1, 1970 the Board of Representatives of Otsego County, the local legislative body of that municipal corporation (see General Municipal Law, § 119-n), adopted a resolution by which it elected "to provide the benefits of Section 41, subdivision-j of the Retirement and Social Security Law as presently or hereafter amended, granting allowance for unused sick leave for eligible employees". Thus, since petitioner Loomis retired on November 1, 1970, he was a member who met the requirement of paragraph "3", as in force at that time. However, as to petitioners Bookhout, Jones and Atwell who retired on December 1, 1974, they did not qualify under the condition of the paragraph; either as originally enacted or as subsequently amended.

The first and third paragraphs of the subdivision must be read together not only because their terms so dictate but so as to conform to the elementary canon of statutory construction that all parts of a statute be read and construed together to determine the legislative intent (Gaden v. Gaden,29 N.Y.2d 80, 86, 323 N.Y.S.2d 955, 960, 272 N.E.2d 471, 474; McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 97). That intent, to make paragraph "3" clearly applicable to retirees whose participating employer had elected to provide its employees with the benefits enjoyed by State employees under subdivision j of section 41, is also evident from the second 1973 amendment (L.1973, ch. 1046, § 3, eff. July 31, 1973) which deleted the words "of the state" following the words "retiring from service", as the paragraph read after an earlier amendment (L.1973, ch. 382, § 20, eff. May 31, 1973). It is also significant as evincing a general plan that the predicate period for retirement under paragraph 3, authorizing the grant to a member of additional service credit for accumulated unused sick leave, as originally enacted, was from on or after April 1, 1970 and prior to April 1, 1972 (L.1970, ch. 457), the latter date of April 1, 1972 being the cutoff point for the inclusion in the salary base for the computation of retirement benefits of lump-sum payments for sick leave, under section 431 of the Retirement and Social Security Law.

Although section 431 prohibits the inclusion in the salary base for computation of retirement benefits of lump-sum payments earned or received on or after April 1, 1972 for items such as sick leave and accumulated unused vacation credits, the latter being the subject of this court's determination in Kranker v. Levitt, 30 N.Y.2d 574, 330 N.Y.S.2d 791, 281 N.E.2d 840, no solace would be acquired by petitioners in employing reasoning analogous to that enunciated in Kranker. This is so because of the undisputed proof here that the retirement system has followed a consistent policy of disallowing the accumulated unused sick leave of all elected officials in the calculation of their retirement benefits. Hence, there is no administrative practice which might be found to have given rise here to a vested or contractual right to additional service credits for such unused sick leave (see, also, Matter of Weber v. Levitt, 34 N.Y.2d 797, 800, 359 N.Y.S.2d 39, 316 N.E.2d 327).

The offices of County Judge, Surrogate, Judge of the Family Court, County Clerk and County Treasurer are elective (County Law, § 400, subd. 1). The incumbent of each of these offices...