|
490
Wheeler Road – Suite 280
Hauppauge,
NY 11788
(631) 761-5451
On the brief:
Robert Saperstein, Esq.
Michael A. Starvaggi, Esq.
SUPREME COURT STATE
OF NEW YORK
COUNTY
OF ALBANY
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John F. Sullivan, as President of the Empire
State Supervisors and Administrators Association;
Larraine Gegerson,
Individually and as President
of the Baldwin
Supervisors Association,
Plaintiffs,
against –
DAVID PATERSON, in his official capacity as
Governor of the State of New York; THOMAS P.
DiNAPOLI,
in his official capacity as the New
York
State
Comptroller and Sole Trustee of the New
York State and Local Retirement System and
the NEW
YORK STATE TEACHERS’
RETIREMENT SYSTEM
Defendants.
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PLAINTIFFS’ MEMORANDUM OF LAW
PRELIMINARY STATEMENT
This is an action seeking injunctive relief and
declaratory judgment that a recently enacted statute that provides a
significant lifestyle and financial benefit to certain public employees
in the form of an early retirement incentive is unconstitutional
because it premises eligibility for said benefit not on any rational
basis, but rather on being a member of a bargaining unit affiliated
with one particular union, the New York State United Teachers
(“NYSUT”). As a result: (a)
individuals performing identical functions who happen to be represented
by any other union, or no union, do not receive the benefit; and (b)
members of the state retirement systems are treated differently solely
based upon the bargaining unit to which they belong.
It will be shown that this same issue has already
been litigated in the context of a different state-provided financial
benefit and found unconstitutional.
Plaintiffs will also demonstrate that the statute in
question violates the First Amendment guarantees of Freedom of
Association by creating a governmentally favored union that employees
are financially encouraged to join through the granting or withholding
of financially valuable benefits.
Finally, it will be demonstrated that the law in
question has a severability clause that anticipated a challenge such as
the instant one and the legislature unequivocally stated its intent
that a court merely strike out the invalid section because the
legislature declared “that this act would have been enacted even if such
invalid provision had not been included herein.” This unambiguous declaration of
legislative intent requires the court to make the early retirement
incentive equally available to all employees who meet the statutory
qualifications, but for the illegal bargaining unit membership
criteria, which must be stricken.
PARTIES
Plaintiff, Empire State
School Administrators Association (“ESSAA”) is a labor organization
that represents approximately 3000 professional school employees,
including principals, assistant principals, directors, tenured
teachers, school psychologists, and guidance counselors, as well as
various civil service titles.
Its members are required by law to belong to the defendant
retirement systems.
Plaintiff Larraine Gegerson (“Gegerson”) is
a tenured teacher, who is employed by the Baldwin Union
Free School
District.
Gegerson is also President of the
Baldwin Supervisors Association (“BSA”), a bargaining unit comprised
primarily of chairpersons who are tenured teachers who spend a majority
of their time in the classroom and a minority performing supervisory
duties. Gegerson
and a number of the members of her unit would be eligible for the early
retirement incentive that is the subject matter of this litigation, if
BSA were affiliated with NYSUT rather than ESSAA.
Defendant David A. Paterson,
sued in his official capacity, is the Governor of the State of New York and has authority over the executive
agencies of the State of New
York.
Defendant Thomas P. DiNapoli, is sued in
his official capacity as the New York State Comptroller and Sole
Trustee of the New York
State and Local
Retirement System (“ERS”). The
ERS, inter alia, provides
retirement benefits to most eligible government workers who are not
educators.
Defendant New York State
Teachers’ Retirement System (“TRS”), inter alia, provides retirement benefits to “teachers” as
that term is defined in statute.
FACTS
On
or about April 14 2010, the Governor signed into law the challenged
statute which provided an early retirement incentive for those members
of the New York State Teachers’ Retirement System and New York State and Local Retirement System. The statute allows certain public
employees who are at least 55 years of age and have at least 25 years
of retirement system credit to retire without suffering the significant
financial penalties that would otherwise apply to those members with 25
years of service who retire before age 62.
The
statute premises eligibility for this benefit on one single
criteria:
"Eligible
employee" means a person who is a member of a retirement system,
who is an employee of a participating employer and who holds a position
represented by the recognized collective bargaining units affiliated
with the New York state
united teachers employee organization [sic] as certified by his
or her employer, who makes an election under section five of this act.
[Emphasis
added.]
The challenged statute
allows those employees represented by NYSUT, regardless of title or
duties, to retire up to seven years earlier than all other employees
who do not belong to NYSUT. As demonstrated in paragraphs numbered 7
and 8 of the affidavit of John F. Sullivan, and the NYSUT documents
annexed thereto, NYSUT represents not merely teachers, but aides,
monitors, secretaries, clerks, custodians, bus drivers, bus monitors,
food service employees, and security employees. Employees in each of these titles
also receive the retirement incentive, but only if they belong to a
NYSUT bargaining unit.
Also as demonstrated in paragraphs numbered 10-11 of
the Sullivan affidavit, using the TRS online pension calculator, the
value of the benefits in question are significant and in the
illustration therein were worth $336,625
to an eligible, i.e., NYSUT represented, employee. Concomitantly, a non-NYSUT member
would be damaged by the same amount.
Argument
Point I
The
Statute Violates Equal Protection
and
is Unconstitutional
Given
the severability clause, the question becomes is the designation of NYSUT
as the precondition of eligibility for the ability to retire years
early and receive enhanced financial benefits, subject to invalidation?
The oft cited quote of George
Santayana that, “Those who cannot learn from history are doomed to
repeat it”, is applicable to this litigation. Essentially this identical issue was
litigated in Schneider v. Ambach, 135 A.D.2d 284, 526 N.Y.S.2d 857 (3rd Dept. 1988).
That case involved the
eligibility for receipt of the then newly created “Excellence In
Teaching” [“EIT”] monies. In
that litigation, brought by some of the same plaintiffs as herein,
regulations adopted by the Commissioner of Education were declared
unconstitutional because, as in the instant litigation, they discriminated
between classes of educators performing the same duties, on the basis
of the bargaining unit to which they belonged. In Schneider, supra, the favored class being the class represented by
teacher organization bargaining units [i.e., NYSUT]. The court held:
The uncontradicted facts alleged in the complaint and
plaintiffs’ affidavits establish that a significant number of
plaintiffs and the members of the educators’ organizations they
represent are certified and tenured as teachers and actually teach
several classes daily in addition to their supervisory duties as, e.g.,
departmental chairpersons and administrative assistants. Again,
according to the uncontested averments in plaintiffs’ papers, the
duties performed by plaintiffs and their members are substantially
identical to those performed by supervisory and administrative
personnel in other nearby, if not adjoining, school districts in the
same counties, who are eligible for EIT salary benefits solely because
of membership in the same bargaining units as full-time classroom teachers
in those districts. Plaintiffs’ submissions also support the inference,
equally uncontroverted, that whether in any given school district
supervisory and full-time classroom instructional staff
belong to the same bargaining unit does not follow any consistent
pattern, and is largely attributable to historical accident as to how
the school professionals in the district first organized for collective
bargaining purposes.
Based
upon the foregoing facts, plaintiffs have prima facie established a
denial of equal protection. The record is devoid of any functional,
economic or geographic basis for discriminating between plaintiffs and
other supervisory and administrative professionals who are similarly
situated in all material respects, except for the latters’
inclusion in teachers’ organization bargaining units, nor has defendant
demonstrated that this distinction bears any rational connection to the
primary objectives of the EIT legislation to relieve the economic
hardship of underpaid educators without increasing the financial burden
of school districts (see,
Matter of
Burrows v. Board of Assessors, 98 AD2d 250, 255, mod 64 NY2d 33, see
also, Weissman v. Evans, 56 NY2d 458,
464-466) The regulation is facially invalid in dictating a
discriminatory distribution of finite, predetermined apportionments
based upon a criterion irrelevant to any plausible statutory purpose.
Thus, it cannot be justified as a response to budgetary constraints
through the process of objective, necessarily imperfect line-drawing
which only produces inequities in some individual cases (cf., United States R.
R. Retirement Bd. V. Fritz, 449 US 166; Matter of Tolub v. Evans, 58 NY2d 1, 8-9, appeal dismissed 460 US 1076). Moreover, historical differences among
school districts in the organization of supervisory professionals for
collective bargaining purposes is insufficient as a matter of law to
establish a rational basis for the distinction in eligibility for EIT
salary benefits made by the regulation (see, Weissman v. Evans,
supra., at 464).
This case law is controlling
in the instant matter and requires the invalidation of the NYSUT
eligibility requirement. A
condition precedent to eligibility for a governmental benefit to
similarly situated individuals cannot be inclusion in a particular
bargaining unit. This equally
applies to a particular union.
The fact that NYSUT donates millions of dollars annually to
legislators only makes the legislature’s actions more appalling.
In Matter of Abrams
v Bronstein, 33 NY2d 488, 492 (1974), the Court of Appeals
stated that “[a]n agency of the State denies equal protection when it
treats persons similarly situated differently under the law”. It
formulated the following test for the constitutional assessment of any
such disparate treatment: “[T]he traditional
test for a denial of equal protection under State law is ‘whether the
challenged classification rests on grounds wholly irrelevant to the
achievement of a valid state objective.’ … To apply this test we must,
as an initial step, ascertain both the basis of the classification
involved and the governmental objective purportedly advanced by the
classification. The classification must then be compared to the
objective to determine whether the classification rests ‘upon some
ground of difference having a fair and substantial relation’ to the
object for which it is proposed.” (Matter of Abrams v Bronstein , 33 NY2d, at 492-493.)
Although the instant
legislation does not specifically identify the state’s objective, one
can assume the state’s purpose is to encourage public employees to
retire. There is no rational
purpose furthered by a classification which provides a publicly funded
benefit solely to public employees who are members of a state sponsored
union, NYSUT. This is reinforced
by the fact that individuals performing identical jobs to NYSUT members
are excluded from the retirement benefit.
The courts have repeatedly
ruled such irrational treatment as violative
of Equal Protection. Weissman v. Bellacosa,
129 A.D.2d 189, 517 N.Y.S.2d 734 (2d Dep’t 1987); Kendall v. Evans,
126 A.D.2d 703, 510 N.Y.S.2d 910 (2d Dep’t 1987), aff’d, 72 N.Y.2d 963, 531 N.E.2d 294, 534 N.Y.S.2d 662 (1988),
Schneider v. Ambach, supra, 135 A.D.2d 284, 526
N.Y.S.2d 857 (3rd Dep’t. 1988), Margolis v. New
York City Transit Authority, 157 A.D.2d 238, 555 N.Y.S.2d 711 (1st
Dep’t, 1990).
In conclusion, as the
identical issue has already been invalidated on equal protection
grounds in Schneider v. Ambach, supra, 135
A.D.2d 284, this legislation also must be declared
unconstitutional. This in turn
triggers the severability clause, as will be discussed in more detail
in Point V hereinbelow.
Point II
Failure
to Include All TRS/ERS Members in the
Retirement
Incentive Violates Equal Protection
A plaintiff who is not a
member of a protected class may proceed with an equal protection claim
on a theory of selective treatment or selective enforcement by
demonstrating that defendants intentionally treated him or her
differently from others similarly situated without any rational basis. See
Giordano v. City of N.Y., 274 F.3d 740, 751
(2nd Cir. 2001). [1]
In Subway-Surface Supervisors Association v. New
York City Transit Authority, 56 A.D.2d 53, 392 N.Y.S.2d 460 (2nd
Dept. 1977),
the Court recognized that the case law contains a “strict
acknowledgment of the constitutional protection of pensions” and that
“[a]ll employees similarly situated should be
treated without discrimination.”
Id.
at 61. The instant law
discriminates between similarly situated employees for pension purposes
and violates equal protection.
The concept of equal treatment of similarly situated
employees is embedded in Education Law §501(4) which broadly defines
“teacher” for purposes of the TRS inclusively, as follows:
“Teacher” shall mean any regular teacher, special
teacher, including any school librarian or physical training teacher,
principal, vice-principal, supervisor, supervisory principal, director,
superintendent…
Every person who fits the definition of “teacher” is
required to join the retirement system.
The only differentiation has to do with Tier status,
which is based upon date of entry to the system.
Additionally, 21 NYCRR 5000.1(b), states: “All
regularly employed (on a per annum basis) full-time teachers, as
provided in subdivision 4 of Section 501 of the Education Law, shall
be required to become members of the system” (emphasis added). All members when they retire receive
benefits on the same basis, i.e. date of entry which determines Tier
status, years of service, salary earned, etc.
Likewise, the ERS defines members equally
expansively in Retirement and Social Security Law § 40(b)(1):
b. Membership in the retirement system
shall be mandatory for the following:
1. All
persons who enter or re-enter the service of the state or of a
participating employer on and after July first, nineteen hundred
forty-eight, except…[enumerating those not included]
The TRS is funded through members’ contributions
(Education Law §§517(a), 613(a)), school district contributions
(Education Law §§ 517(2), 519(2), 512(2) and investment income
(Education Law § 508(2)). The
ERS is also funded through members and employer contributions
(Retirement and Social Security Law §§ 17, 21-24, 517(a) 613(a) and
investment income (§ 13(b), (c)).
These funds are co-mingled to fund the pensions of those who
retire under the respective systems.
As every member is required to join the respective
retirement systems, and contributions are made on the same basis for
members, what basis is there in the instant case to allow one group of
members to retire earlier than others without suffering a pension
reduction?
As the United States Supreme Court held in Rinaldi v. Yeager, 384 U.S. 305, 307, 86 S.Ct. 1497 (1966):
The
Equal Protection Clause requires more of a state law than
nondiscriminatory application
within the class it establishes. It also imposes a requirement of some
rationality in the nature of the class singled out.
It is submitted
that there is no rationality for discriminating within Tiers (classes)
of individuals who contribute to the same retirement system and whose
financial interests in that system are identical. All members in a given Tier must be
treated the same. Thus, whether
a member is a teacher as defined in Education Law §501(4) in a NYSUT
bargaining unit, or a teacher as defined in Education Law §501(4) in a
non-NYSUT bargaining unit, or “all persons” under the ERS, there is no
constitutionally permissible basis for treating them differently for
purposes of the instant early retirement incentive.
In Police Benevolent Ass'n
of The N.Y. State Troopers, Inc. v. Bennett, 477 F.Supp.2d 534
(N.D.N.Y. 2007), several members of the New York State Police, along
with their bargaining unit, brought an action against defendants
including the New York State and Local Retirement System. The plaintiffs were of mandatory
retirement age under Retirement and Social Security Law § 381-b. However, that section had been
suspended pursuant to an executive order allowing state police to
remain employed beyond mandatory retirement age.
The action alleged that, while plaintiffs were forced
to retire pursuant to the terms of § 381-b, other members of the retirement
system were allowed to continue their employment under the executive
order, thus the executive order was being selectively enforced among
similarly-situated parties. The
Court agreed, finding that plaintiffs’ action for violation of equal
protection under the Fourteenth Amendment would be allowed to stand. The Court stated that
plaintiffs, as individual
members of a retirement system, were “similarly situated” to other
members of the retirement system for constitutional purposes, and that
the plaintiffs had “sufficiently stated their claims because they have
alleged that defendants intentionally and irrationally treated them
differently from others similarly situated.” 477
F.Supp.2d 543. See
also, Gruen v. County of Suffolk, 187
A.D.2d 560, 590 N.Y.S.2d 217 (2nd Dept. 1992) (non-union
managerial employees who had traditionally been granted benefits
similar to unionized employees had valid equal protection claim when
county resolution reduced their death/retirement benefits while the
same benefits for the other employees were unaffected).
Based on the foregoing, it is submitted that the
Plaintiffs are similarly situated to the recipients of the retirement
incentive, there is no rational basis for this distinction and,
therefore, the statute cannot survive equal protection scrutiny.
Point III
Failure
to Include Plaintiffs in the
Retirement
Incentive Violates Due Process
Guaranteed
under the State Constitution
Pension rights are constitutionally-protected
property interests. The New York
Constitution explicitly protects these rights, stating “[M]embership in any pension or retirement system of
the state or of a civil division thereof shall be a contractual
relationship, the benefits of which shall not be diminished or
impaired.” N.Y. Const. Art. 5, Sect. 7; see, Weaver v. New
York City Employees' Retirement System, 717 F.Supp. 1039, 1043
(S.D.N.Y. 1989)
In Morris v. New York City Employees' Retirement
System, 129 F.Supp.2d 599 (S.D.N.Y. 2001), the Court stated that
the right thus established is “strenuously protected because, `when an
employee retires from public service it is the money payments he
receives from either a pension or retirement system that is the
principal if not the sole benefit the system affords him . . . That
reward or benefit is part of the compensation which he accepts in lieu
of the greater rewards of private employment.’” (quoting
Birnbaum v. Teachers' Retirement
System, 5 N.Y.2d 1, 9, 176 N.Y.S.2d 984, 152 N.E.2d 241
(1958)).
The Morris Court went on to state that “[c]ity and state pension and retirement benefits are,
therefore, understood as `deferred compensation aimed at promoting long
and faithful service.’” 129 F.Supp.2d at 606, quoting Winston v.
City of New York, 759 F.2d 242, 249 (2nd Cir.1985). The constitutionally-protected
pension benefit rights of the Plaintiffs call for full due process
protection.[3] See Ortiz v. Regan, 749 F.Supp. 1254 (S.D.N.Y.
1990).
In this matter, the irrational exclusion of the
Plaintiffs from the benefit of the retirement incentive effected a
deprivation of vital rights without due process of law and cannot be
allowed to stand.
POINT IV
Freedom
from Compulsory Association is a
Fundamental
Right and Governmental Infringements
on this Right are Subject to Strict
Scrutiny which
Requires
the Invalidation of the NYSUT eligibility requirement
Freedom of association is a
fundamental right guaranteed by the First and Fourteenth Amendments.
Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338 (1972); Piscottano
v. Murphy, 511 F.3d 247, 268 (2nd Cir, 2007). Inherent in this right of free
association is the freedom to refrain from association with a
particular group. See, Abood
v. Detroit Bd. of Ed., 431 U.S.
209, 97 S.Ct. 1782 (1977). Put another way, “[f]reedom of association . . . plainly presupposes a
freedom not to associate.” Roberts v. United
States Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984). Thus, Plaintiffs’ right to affiliate
or not affiliate with an association such as NYSUT, without
governmental influence or coercion, is a fundamental right protected
under the First and Fourteenth Amendments.
Furthermore, the Taylor Law
explicitly gives public employees in New York State
“the right to form, join and participate in, or to refrain from
forming, joining, or participating in, any employee organization of
their own choosing.” Civil Service Law §202 (emphasis added). Courts
have consistently held that the right thus conferred by the Taylor Law
invokes constitutional prohibitions on interference with the First Amendment
right of freedom of speech and association. Board of Ed.,
Central School Dist. No. 1 of Town of Grand Island, Erie County
v. Helsby, 37 A.D.2d
493, 326 N.Y.S.2d 452. (4th Dept 1971) (public
education employment may not be adversely affected based on the
exercise of the right of free association).
The standard of review for
significant statutory infringements on this fundamental freedom is one
of strict scrutiny. In Rutan v. Republican Party of Illinois,
497 U.S. 62, 110 S.Ct. 2729 (1990), the Court
addressed an executive order by the Governor implementing a hiring
freeze, the terms of which dictated that state officials could not hire
any employee without the Governor's “express permission.” Id. at 62. The Petitioners deemed this measure
to be a “political patronage system” which interfered with their
freedom of association by creating discrimination against those who did
not support the Republican Party.
Id. The Court agreed.
Writing for the majority, Justice Brennan stated that
the very perception of favoritism based on support for a political
party was enough to have a significant chilling effect on the
Petitioner’s First Amendment rights of association. The Court stated, “[e]mployees who find themselves in dead-end positions
due to their political backgrounds are adversely affected. They will
feel a significant obligation to support political positions held by
their superiors, and to refrain from acting on the political views they
actually hold, in order to progress up the career ladder.” Id. at 73.
Justice Brennan then set forth the relevant standard
for scrutiny of the executive order as follows: “[u]nless
these patronage practices are narrowly tailored to further vital
government interests, we must conclude that
they impermissibly encroach on First Amendment freedoms.” Id. at 74. See
also, Price v. New York State Bd. of Elections, 540 F.3d 101, 109 (2nd
Cir 2008) (statutory measures which severely burden the right of free
association are subject to strict scrutiny); Roberts v. U.S. Jaycees,
468 U.S. 623 (encroachments on freedom of association “may be justified
by regulations adopted to serve compelling state interests, unrelated
to the suppression of ideas, that cannot be achieved through means
significantly less restrictive of associational freedoms”).
The Statute in question is
an even more flagrant example of political patronage than the executive
order involved in Rutan.
In Rutan,
the Petitioners needed to demonstrate that the implementation of the
executive created favoritism based on membership in the Republican
Party. In the instant case,
the Plaintiffs face no such obstacle, as the Statute on its face
applies only to NYSUT affiliates.
This audacious prerequisite significantly infringes upon the
Plaintiffs’ fundamental right of free association. Such favoritism for a particular
group (which group, as in the case of Rutan,
wields enormous political influence) must be closely scrutinized under
the standard expressed in Rutan.
Thus, in order to defend the Statute, the Defendant
would need to show that inclusion of only NYSUT-affiliated employees
serves a compelling state interest that cannot be achieved through less
restrictive means. It is
submitted that there can be no compelling state interest in excluding
individuals who otherwise meet the requirements for the incentive on
the basis of their affiliation with an association other than NYSUT,
any more than there would be if the criteria was membership in a
particular political party.
Indeed, this law is no different than had legislature stated
only employees affiliated with the Democratic Party can receive an
early retirement incentive.
The legislature has created
a State sponsored Union and told public employees that in order to be
able to retire early and receive financial benefits worth potentially
several hundred thousand dollars
[See Sullivan affidavit ¶ 10-11], the public employees must join
the State sponsored union. Could
the government’s message be any clearer or more constitutionally
offensive?
As stated in Roth v.
United States, “[c]easeless vigilance is
the watchword to prevent . . . erosion” of First Amendment rights. 354 U.S.
476, 488, 77 S.Ct. 1304, 1311 (1957). It is incumbent upon this Court to
apply the strictest scrutiny to the blatant show of political and
ideological favoritism embodied in the Statute.
Employing the aforestated criteria, the statute must be declared
unconstitutional.
Point V
In the Event of Successful
Constitutional Challenge,
The Legislature Intended the Remedy to
be
Inclusion of All TRS and ERS 55/25
Employees
In the Early Retirement Incentive
Section
7 of the law, the Severability clause states:
Severability
clause. If any clause, sentence, paragraph, subdivision, section or
part of this act shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence,
paragraph, subdivision, section or part thereof directly involved in the controversy in which such judgment
shall have been rendered. It is
hereby declared to be the intent of the legislature that this act would
have been enacted even if such invalid provisions had not been included
herein.
[emphasis
added]
“It
is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” Patrolmen's
Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208,
391 N.Y.S.2d 544; see also, Riley v. County
of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623; Longines-Wittnauer v. Barnes & Reinecke,
15 N.Y.2d 443, 453, 261 N.Y.S.2d 8. “As the clearest indicator of
legislative intent is the statutory text, the starting point in any
case of interpretation must always be the language itself, giving
effect to the plain meaning thereof.” Majewski v. Broadalbin-Perth Cent. School
Dist., 91 N.Y.2d 577, 583, 673
N.Y.S.2d 966, 968. “[I]f the
language of a statute is plain and unambiguous, there is neither need
nor warrant to look elsewhere for its meaning. See, e.g., Meltzer v. Koenigsberg, 302 N.Y. 523, 525; Town of Putnam
Valley v. Slutzky, 283 N.Y.
334, 343; McCluskey v. Cromwell, 11 N.Y.
593, 601-602”. “In
construing statutes, it is a well-established rule that resort must be
had to the natural signification of the words employed, and if they
have a definite meaning, which involves no absurdity or contradiction,
there is no room for construction and courts have no right to add to or
take away from that meaning” Tompkins v.
Hunter, 149 N.Y. 117, 122-123, 43 N.E. 532; see
also, Matter of
Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 667 N.Y.S.2d
327.
It
has been demonstrated in the earlier sections of this brief that for
myriad reasons conditioning eligibility for an early retirement
incentive upon inclusion in a NYSUT bargaining unit cannot withstand
constitutional scrutiny.
Therefore, in determining how to treat the balance of the
statute, the legislature gave the court unequivocal guidance as to its
intent: “It is hereby
declared to be the intent of the legislature that this act would have
been enacted even if such invalid provisions had not been included
herein.”
Therefore, the court must
strike only the NYSUT bargaining unit clause involved in the
controversy and allow the early retirement incentive to continue for
all employees who meet the 55/25 criteria, as if such invalid NYSUT
provision had not been included in the law.
CONCLUSION
The court must declare that
the inclusion of representation by a NYSUT bargaining unit as a
condition precedent to the ability of 55/25 public employees to retire
early without penalty, is unconstitutional. In accordance with the express intent
of the legislature, the bill must be construed without that restrictive
clause, and all members of the TRS and ERS who are at least 55 years of
age and have 25 years in a retirement system must be deemed eligible
for the benefits provided by the law.
Dated: April 15, 2010
Robert
Saperstein, Esq.
Attorney
for Plaintiffs
490
Wheeler Road – Suite 280
Hauppauge,
NY 11788
(631) 761-5451
On the brief:
Robert Saperstein, Esq.
Michael A. Starvaggi, Esq.
SUPREME COURT STATE
OF NEW YORK
COUNTY OF ALBANY
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John F. Sullivan, as President of the
Empire
State Supervisors and Administrators
Association;
Larraine Gegerson,
Individually and as President
of the Baldwin
Supervisors Association,
Plaintiffs,
- against –
DAVID PATTERSON, in his official
capacity as
Governor of the State of New York, and THOMAS
P.
DiNAPOLI, in his official capacity as the New
York State Comptroller and Sole Trustee of the
New York State and Local Retirement System
and the NEW YORK STATE TEACHERS’
RETIREMENT SYSTEM,
Defendants
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STATE OF NEW YORK )
COUNTY OF WESTCHESTER)
ss.:
JOHN F SULLIVAN, being duly sworn, under penalty
of perjury, deposes and says:
1. I am
the President of the Empire State Supervisors and Administrators
Association [“ESSAA”] a plaintiff in the above-captioned matter. ESSAA is a labor organization that
represents approximately 3000 professional school employees in over 170
bargaining units across New York
State from Niagara
Falls to the Hamptons.
2. While
the majority of our members are employed in administrative and supervisory
tenure areas, we have many members who are employed in teacher tenure
areas including not only academic teaching areas, but such special
subject teacher tenure areas as school psychologists, guidance
counselors, school social workers and the like. These individuals are members of the
New York State Teachers’ Retirement System (“TRS”).
3. ESSAA
also has members who are in civil service positions related to
facilities, technology, food services and transportation who are
members of the New York State and Local Retirement System (“ERS”).
4. I am
a retired educator who served for almost forty years as a teacher and
administrator in a number of school districts in New York State. I have been active in the labor
movement for approximately twenty-five years as an officer of ESSAA and
its predecessor organization. I
have personally met with representatives of many bargaining units
across New York
State.
5. Upon
information and belief, acquired in my years as both a labor leader and
school administrator, and also based upon discussions with union
attorneys in my capacity as a labor leader, and discussions with school
district attorneys in my capacity as a school administrator, it my
understanding that neither the Taylor Law nor any other law or
regulation specifies the composition of bargaining units in school
districts. In fact whether in
any given school district administrative tenure track positions,
teacher tenure track positions or civil service positions belong to the
same bargaining unit or a different ones, does not follow any
consistent pattern, and is largely attributable to historical accident
as to how the school employees in each district first organized for
collective bargaining purposes.
6. Thus,
within ESSAA are bargaining units consisting of:
A. Administrative tenure areas positions such as
principals and assistant principals.
B.
Teacher tenure area positions which spend a
majority of their time teaching and also perform ancillary supervisory
responsibilities. These teacher
tenure area positions [8 NYCRR § 30] may be labeled chairpersons,
supervisors or similar titles.
In many other school districts in New York State
persons holding these same positions and performing the same duties are
in NYSUT bargaining units, or bargaining units represented by other
employee organizations.
C.
Administrative/Supervisory tenure area
positions also labeled as chairpersons, supervisors or similar titles
who are tenured as administrators or supervisors and who do not spend a
majority of their time performing teaching duties.
D.
Special subject area teacher tenure positions
such school psychologists, school social workers and guidance
counselors. [8 NYCRR §
30-1(b)] In many other school
districts in New York
State persons
holding these same positions and performing the same duties are in
NYSUT bargaining units, or bargaining units represented by other
employee organizations.
E.
Mixed composition units consisting of both
administrative and teaching tenure area [8 NYCRR § 30] positions, e.g.
principals, assistant principals, teacher chairpersons and/or
psychologists, social workers etc as well as various civil service
titles.
F.
Units consisting primarily of civil service
titles which may also have teacher tenure positions and/or
administrative tenure positions within the unit.
7. Upon
information and belief, based upon my almost forty years working both
as an employee in school districts, as well as my experience as a labor
leader, and from reviewing the NYSUT web site at www.nysut.org,
NYSUT represents teachers,
teaching assistants, teacher aides, teacher monitors,
secretaries, clerks, custodians, bus drivers, bus monitors, food
service employees, security employees.
The majority of these titles are civil service positions as opposed
to educationally certified titles.
Likewise, the majority of these NYSUT represented titles do not,
and legally cannot, teach students in our schools. Unlike teachers who would be members
of the New York State Teachers’ Retirement System, these other titles
would be part of the New York State and Local Retirement System. A copy of a page from the NYSUT web
site entitled School Related Professionals, which lists most of the
non-teacher NYSUT member titles is annexed
hereto as Exhibit A.
8. NYSUT
is but one of many organizations in New York State
representing teachers and civil service titles. Beside NYSUT and ESSAA many other
organizations represent New York’s public employees who belong to the
TRS or ERS, including: the Civil Service Employees Association
(“CSEA”), the New York State Public Employees Federation (“PEF”), the Service Employees
International Union (“SEIU”), the Teamsters, the School
Administrators Association of New York State (“SAANYS”) and numerous
other unions as well as independent unaffiliated locals. Upon information and belief, these
non-NYSUT labor organizations represent several hundred thousand public
employees in New York
State.
9. The challenged statute provides a valuable
opportunity for certain employees who are at least 55 years of age and
have 25 years of service credit (“55/25”) to retire years earlier than
they otherwise would be entitled to retire without suffering the
financial penalties required of the retirement statute. There are 55/25 ESSAA members who
would avail themselves of this benefit.
10. Currently
Tier III and IV members who wish to retire at age 55 [or any age less than
62] with 25 years of service credit have their pensions reduced by a
percentage for each year they retire prior to age 62. To illustrate the impact of this law
on those who will receive the benefit this affiant went to the New York
State Teachers’ Retirement System online Pension Calculator [the cite
may be found at: https://secure.nystrs.org/estimates/pensioncalc/PensionCalc.aspx]
and ran two different scenarios.
Both scenarios involved Tier IV members who would retire June
30, 2010, with 25 years of service and a $100,000 final average
salary. The difference between
the two was that the first illustration was for a person was age 55 and
the second was for a person 62.
Again, both had the same service credit and final average
salary, but the age 55 person suffered the statutory reduction. The results, which are appended
hereto as Exhibits B and C are startling. The 55 year old educator with 25
years of service received a pension of $37,100; the 62 year old person
with 25 years of service received a pension of $50,000. Thus, the penalty the new statute
eliminates is worth $12,900
a year.
11. Based
upon the Social Security Online actuarial life table [found at: http://www.ssa.gov/OACT/STATS/table4c6.html],
the life expectancy for a 55 year old male is 24.37 years and the life
expectancy for a 55 year old female is 27.82 years. Taking the average of those life
expectancies is 26.09 years. An
individual receiving this legislative benefit will receive an extra $336,625 over his/her lifetime!
12. What
criteria did the legislature select to determine eligibility for a
public employee to receive of this gigantic financial incentive? Was it 55 years of age and 25 years
of service? Incredibly, this
benefit only goes to persons who are members of a
bargaining unit represented by one
legislatively sanctioned union, the New York State United Teachers
[NYSUT]!
13. The
statute defines eligible employee not by any functionality test, or job
duty test, but by membership in a governmentally selected union! This is quite frightening, are we to
become the Democratic Peoples Republic of New York? The legislature did not even attempt
to obfuscate their true intention, but brazenly spelled it out:
"Eligible
employee" means a person who is a member of a retirement system,
who is an employee of a participating employer and who holds a position
represented by the recognized collective bargaining units affiliated with the New York state
united teachers employee organization as
certified by his or her employer, who makes an election under section
five of this act.
[emphasis
added]
14. In my view this represents one of the most politically
corrupt and disgraceful purchase of benefits by a powerful union in the
history of New York
State. I note that as set forth in the data
below which comes from New York State Commission on Public Integrity,
NYSUT is far and away the largest lobbying spender in Albany and spent
$4,394,588 [four times what Goldman Sachs spends lobbying], which
apparently is enough for NYSUT to buy their own private retirement
incentive law.
Appendix G
Clients and Public Corporations
Ranked by Total Lobbying Expenses for 2008*
|
1. United Teachers (NYS)
|
$4,394,588
|
|
2.
Verizon
|
$2,571,224
|
|
3.
Medical Society of the State of NY
|
$1,660,525
|
|
4.
Healthcare Association of NYS
|
$1,646,931
|
|
5.
Greater NY Hospital Association
|
$1,565,796
|
|
6. United
University Professions
|
$1,108,421
|
|
7.
Goldman Sachs Group, Inc. & Its Affiliates and Subsidiaries
|
$1,013,447
|
|
8.
Working Families Organization
|
$1,006,516
|
|
9.
Public Employees Federation
|
$924,275
|
|
10. Trustees
of Columbia
University in
the City of NY (The)
|
$919,429
|
* Based on figures reported in 2008
Client Semi Annual and Public Corporation Bi-monthly Reports as of
February 27, 2009.
15. If this law is allowed to stand as is, we will have moved
to the point where New
York State
will have a state sponsored union, akin to the state sponsored
religions the founding fathers forbid in the constitution.
16. The
message to public employees in New York State
is unmistakable: the government rewards membership in NYSUT over all
other employee organizations, and if you join NYSUT the government will
provide you with benefits it won’t provide to members of other employee
organizations. Does the court
doubt that public employees will fail to understand the $336,625
message and move their membership to the state sponsored union, NYSUT?
17. As ESSAA represents individuals who are tenured
teachers, psychologists, socials workers, guidance counselors and
others who but for the bargaining unit to which they belong perform
identical work to individuals holding the same titles in bargaining
units represented by NYSUT, the legislative classification is also
irrational.
18. The TRS and ERS were set up by the legislature to
provide equal entitlement to benefits, based upon meeting age, service
and salary criteria, to each of its classes of members [which are based
upon date of entry into the TRS].
These benefits are protected by the State Constitution.
19. This equal treatment of all members regardless of job within
a class, i.e. Tier, is found in
Education Law §501(4) which defines “teacher” for purposes of
the TRS inclusively, as follows:
“Teacher” shall mean any regular teacher, special
teacher, including any school librarian or physical training teacher, principal,
vice-principal, supervisor, supervisory principal, director,
superintendent…
20. The
ERS defines members equally expansively in Retirement and Social
Security Law § 40(b)(1):
b. Membership in the retirement system
shall be mandatory for the following:
1. All
persons who enter or re-enter the service of the state or of a
participating employer on and after July first, nineteen hundred
forty-eight, except…[enumerating those not included]
21. Thus, benefits provided to TRS members who fit the
definition of “teacher” or ERS members who are “all persons” must be
the same, and early retirement benefits, if the legislature opts to
provide them, must be provided equally to all members, differentiated
only by Tier status, years of service or age.
22. If the implementation of this facially
unconstitutional law isn’t enjoined ESSAA members and the organization
itself will be irreparably harmed.
Those ESSAA “55/25” members who perform the same job functions,
under the same or similar titles to NYSUT members will have lost the
opportunity to retire up to seven years earlier without penalty. Those “55/25” ESSAA members who are
members of the TRS or ERS will have their constitutionally protected
and statutory rights violated by creating favored classes within the
already existing Tiers of the TRS or ERS, who will be able to retire
years earlier than non-NYSUT TRS/ERS members. As demonstrated above, this will
damage them in amounts that reach in the hundreds of thousands of dollars. The organization and its locals will
lose members who will join NYSUT to enjoy significant government
provided benefits that only go to NYSUT members, such as the 55/25
early retirement incentive.
WHEREFORE, it is respectfully submitted that the relief
request in the complaint be granted.
_________________________
JOHN
F. SULLIVAN
Sworn to before me this
___
day of April 2010
_______________
Notary Public
SUPREME COURT STATE
OF NEW YORK
COUNTY
OF ALBANY
- - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - X
JOHN F. SULLIVAN, as President of the Empire
State Supervisors and Administrators Association;
LARAINE GEGERSON, Individually and as President
of the Baldwin
Supervisors Association,
Plaintiffs,
- against –
DAVID PATTERSON, in his official capacity as
Governor of the State of New York; THOMAS P.
DiNAPOLI,
in his official capacity as the New
York
State
Comptroller and Sole Trustee of the New
York State and Local Retirement System and
the NEW
YORK STATE TEACHERS’
RETIREMENT SYSTEM
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - X
LARRAINE GEGERSON, being duly sworn deposes and
says:
1. I am the President of the Baldwin Supervisors
Association [“BSA”] and am employed as the Middle School Science
Chairperson in the Baldwin Union Free
School District [“Baldwin”].
2. I am tenured as a General Science and Biology 7-12 teacher,
not as an administrator. I teach three classes a day which means I
spend a majority of my time as a teacher and perform ancillary
administrative duties the balance of the time. I am compensated based upon the
teacher salary schedule plus a stipend.
3. I have been a Science Chairperson for over 13
years. The science chairpersons
in Nassau
County regularly
meet to discuss issues of concern and I have attended those meetings
for many years. As such, I am
familiar with the employment status of many of my colleagues.
4. Some chairpersons are tenured as
administrators. However, other
of my chairperson colleagues are tenured as
teachers, as I am. Some
chairpersons, including both those tenured as teachers and those
tenured as administrators, are in administrative bargaining units with
positions like principals and assistant principals; others are in
separate units of chairpersons who are tenured teachers; and some
chairpersons are in the same units as the classroom teachers.
5. The reason for this arrangement is historical
happenstance. Thirty plus years
ago the chairpersons in Baldwin opted
to form a separate bargaining unit from the other teachers. It is my understanding there is no
legal requirement as to the bargaining unit to which chairpersons
belong, which is why they have ended up in the various unit described
above.
6. The majority of the teachers in Baldwin
belong to the Baldwin Teachers Association [“BTA”]. The BTA is affiliated with the New
York State United Teachers (“NYSUT”) organization.
7. The BSA is not affiliated with NYSUT. Instead we have chosen to affiliate
with the Council of Administrators and Supervisors [“CAS”] which is a
local of the Empire State Supervisors and Administrators Association [“ESSAA”].
8. It is my understanding that the challenged Statute
provides an enhanced early retirement benefit to teachers only if they
are represented by NYSUT. The
teachers represented by the BSA or any other organization representing
teachers, other than NYSUT, cannot receive this significant financial
incentive from New York
State.
9. I personally would be eligible to retire without
penalty under the new law, but for the fact that I am not in a
bargaining unit affiliated with NYSUT.
Approximately three other chairpersons who are tenured teachers
in the BSA would be eligible to retire early if the law applied to all
teachers or all members of the New York State Teachers’ Retirement
System.
10. I understand that I have a First Amendment Right of
Freedom of Association. When the
government offers financial incentives to me and my members to choose
to associate with whom the government believes we should, it undermines
that precious freedom.
11. I understand that the concept of Equal Protection
means that government has to treat all similarly situated citizens the
same when it comes to providing financial benefits. Denying a benefit to me and my
members, who are tenured teachers, because we have not affiliated with
the most powerful union that represents teachers serves no legitimate
governmental purpose, is irrational and denies me and my members Equal
Protection of Law.
12. I also understand that under Section 209-a(1)(c) of
the Taylor Law it is a violation of law for a public employer, such as New York State:
to
discriminate against any employee for the purpose of encouraging or
discouraging membership in, or participation in the activities of, any
employee organization;
13. I can state unequivocally that if the teachers
represented by the BSA do not receive significant pension enhancements
such as the 55/25 ERI, while the other teachers in Baldwin who are
represented by NYSUT receive such benefits, my members whether they
agree with the ideological and political positions pursued by NYSUT,
will find that such economic enhancements make it advantageous for them
to belong to NYSUT and leave their affiliation with CAS and ESSAA. I do not believe this serves any
legitimate interest of the State of New York and is violative
of the both the First Amendment and the Fourteenth Amendment of the
United States Constitution.
WHEREFORE, it is
respectfully requested the relief sought in the complaint be granted.
LARAINE GEGERSON
Sworn to before me this
__
day of
April 2010
|
