Brown v. New York State Teachers' Retirement System

• Decision Date: 28 February 1985
• Citation: 107 A.D.2d 103,485 N.Y.S.2d 871
• Parties: , 23 Ed. Law Rep. 644 William P. BROWN, Appellant, v. NEW YORK STATE TEACHERS' RETIREMENT SYSTEM et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 871

485 N.Y.S.2d 871

107 A.D.2d 103, 23 Ed. Law Rep. 644

William P. BROWN, Appellant, v. NEW YORK STATE TEACHERS' RETIREMENT SYSTEM et al., Respondents.

Supreme Court, Appellate Division Third Department.

Feb. 28, 1985.

Rowley, Forrest & O'Donnell, P.C., Albany (Mark T. Walsh, Jr., Albany, of counsel), for appellant.

Robert Abrams, Atty. Gen., Albany (Clifford A. Royael, Albany, of counsel), for New York State Teachers' Retirement System, et al., respondents.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Karen Hutson and Ronald E. Sternberg, New York City, of counsel), for New York City Police Pension Fund, Article II, respondent.

Before CASEY, J.P., and WEISS, MIKOLL, LEVINE and HARVEY, JJ.

CASEY, Justice Presiding.

Plaintiff, who retired from the New York City Police Department in July 1962, was not entitled to pension benefits he received from the New York City Police Pension Fund (Police Pension Fund) during the period that he was employed as a faculty member of the State University of New York's Graduate School of Public Affairs (SUNY). We reject plaintiff's claim to the contrary, including his arguments based upon current and former statutes, the State and Federal Constitutions, and estoppel.

Shortly after his retirement from the New York City Police Department in July 1962, plaintiff accepted a position with SUNY and, effective August 23, 1962, he became a member of the New York State Teachers' Retirement System (Teachers' Retirement System). Plaintiff's employment with SUNY continued at least until December 20, 1982, when this action was commenced. As a result of plaintiff's inquiry, addressed to the Teachers' Retirement System in April 1982, concerning his rights upon retirement from his position with SUNY, the Police Pension Fund advised plaintiff that he had not been entitled to receive benefits from the fund during the period that he was employed by SUNY. By letter dated August 19, 1982, a representative of the Police Pension Fund notified plaintiff that his pension benefits would be suspended effective August 31, 1982 and that the $135,160.38 in pension benefits received by plaintiff since 1962 would have to be repaid. Plaintiff was advised that he had "10 days to challenge the calculation and to submit arrangement for repayment". Plaintiff thereafter commenced this declaratory judgment action seeking to establish,inter alia, his entitlement to the pension benefits paid to him by the Police Pension Fund since 1962 and his right to continued membership in the Teachers' Retirement System. Special Term granted defendants' motions for summary judgment and this appeal ensued.

The basic issues concerning plaintiff's rights in this case are complicated by a change in the law which occurred in 1964, some two years after plaintiff began receiving benefits from the Police Pension Fund. Pursuant to the law in effect when plaintiff retired from the New York City Police Department and commenced his employment with SUNY, the payment of pension benefits to a retiree by a public retirement system, such as the Police Pension Fund, was required to be suspended during any period that the retiree was receiving a salary from subsequent employment with a public employer, such as SUNY (former Civil Service Law § 150). Plaintiff points to former Civil Service Law § 151, which authorized employment "as a substitute teacher in any publicly supported school and college or as a lecturer on a per hour, per diem or monthly salary basis in the publicly supported colleges within the state of New York" without any suspension of pension benefits as long as the compensation for such employment in one year did not exceed $7,000. In our view, however, this latter statute was not intended to aid a retiree in plaintiff's position who was employed as a full-time faculty member of SUNY for over 20 years at an annual salary (based upon the academic year) well in excess of the $7,000 limit. Accordingly, if plaintiff's rights were governed solely by reference to the law in effect in 1962, when plaintiff began to receive benefits from the Police Pension Fund, he would not be entitled to those benefits during the entire period of his employment with SUNY.

As noted above, however, a change in the law occurred in 1964, when article 7, entitled "Re-employment in Public Service of Retired Public Employees", was added to the Retirement and Social Security Law (L.1964, ch. 803, eff. July 1, 1964). ¹ Plaintiff seeks to exploit that change, claiming that he must be accorded the advantages provided by article 7, but cannot be subject to any of its limitations. We refuse to construe article 7 as applicable in such a fragmented manner, particularly since it would yield a result not authorized under either the former law or article 7 when applied as a whole.

Article 7 was enacted "replace with uniform provisions in a single statute six diverse statutes extending to public pensioners the privilege to undertake limited public employment without affecting their retirement allowance" (Memorandum of the Civil Service Department, McKinney's Session Laws of N.Y., 1964, p. 1898). Contained within article 7 are two substantive provisions which arguably affect plaintiff's rights. Retirement and Social Security Law § 211 authorizes a public pensioner's return to public employment without suspension of his retirement allowance if certain conditions are met, including approval by the Chancellor of SUNY if the retiree is to be employed in the unclassified service of SUNY. ² Plaintiff claims entitlement to the benefit of this section on the theory that he should be granted retroactive approval by the Chancellor for his employment as a faculty member of SUNY. Retirement and Social Security Law § 213 (as amended by L.1965, ch. 48) prohibits a public retiree who is reemployed pursuant to article 7 from becoming a member of a public retirement system. Plaintiff maintains that he cannot be subject to this prohibition since he became a member of the Teachers' Retirement System when he first commenced his employment with SUNY in 1962, prior to the enactment of Retirement and Social Security Law § 213. Thus, plaintiff concludes, his membership in that system became "a contractual relationship, the benefits of which shall not be diminished or impaired" (N.Y. Const., art. V, § 7). A third provision of article 7, also relevant to this case, is the so-called "grandfather clause", which provides that

Notwithstanding any provision of this article, a retired person employed prior to July first, nineteen hundred sixty-four, under the provisions of * * * subdivision two of section one hundred fifty of the civil service law, or section one hundred fifty-one of the civil service law * * * may be similarly employed during the effective period of this article subject to the same conditions and limitations as were applicable to his employment under the respective provisions under which he was employed prior to July first, nineteen hundred sixty-four (Retirement and Social Security Law § 214).

Turning to the question of which provisions govern plaintiff's rights, "is a well-settled principle of statutory construction that a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other" (People v. Mobil Oil Corp., 48 N.Y.2d 192, 199, 422 N.Y.S.2d 33, 397 N.E.2d 724). "To this end, all parts thereof, if possible, are to be harmonized to achieve the legislative purpose * * * " (Sanders v. Winship, 57 N.Y.2d 391, 395-396, 456 N.Y.S.2d 720, 442 N.E.2d 1231). As noted above, the purpose of article 7 was to establish uniform provisions extending to public pensioners the privilege to undertake limited public employment without affecting their retirement allowances; but this privilege, contained in Retirement and Social Security Law § 211, is conditioned upon the prohibition against membership in a public retirement system, contained in § 213, which prevents the practice of "double dipping". In our view, the two sections cannot be considered separate and apart from one another (see People v. Mobil Oil Corp., supra, 48 N.Y.2d p. 199, 422 N.Y.S.2d 33, 397 N.E.2d 724). We agree, however, with plaintiff's claim that his membership in the Teachers' Retirement System, which predated the enactment of article 7, is protected by the State Constitution (art. 5, § 7) and cannot be impaired by the application of Retirement and Social Security Law § 213 (see Birnbaum v. New York State Teachers Retirement System, 5 N.Y.2d 1, 9, 176 N.Y.S.2d 984, 152 N.E.2d 241). Since §§ 211 and 213 of article 7 cannot be considered separate and apart from one another, and since § 213 cannot be applied to deprive plaintiff of his membership in the Teachers' Retirement System, it follows that § 211 is not applicable and that plaintiff may not take advantage of the privilege established by § 211. ³

Since the substantive provisions of article 7 are not applicable to plaintiff, we must look to the "grandfather clause" (Retirement and Social Security Law § 214), pursuant to which plaintiff, who was employed prior to the effective date of article 7, "may be similarly employed during the effective period of subject to the same conditions and limitations as were applicable to his employment" pursuant to the statutes under which he was originally employed. As determined above, plaintiff's employment by SUNY in 1962...