As we explained in our case summary, the question in this case is police officers hired after 2009 may purchase service credit for time spent on unpaid childcare leave in calculating their retirement benefits. In a divided opinion, the Court (Fahey, J.) held that officers hired after 2009 may purchase service credit for time spent on unpaid childcare leave.
To manage the mounting costs of public employee pensions, the Legislature split the public employees into three tiers governed by different rules. Tier 1 comprises employees hired before 1973; tier 2 comprises employees hired between 1973 and July 1976. The Legislature designed Tier 3 to comprise employees who joined as of July 1976. Through a series of bills, however, the Legislature extended tier 2 status to all employees hired between July 1976 and 2009. In 2009, the extensions ended, and all post-2009 were classified as tier 3. Finally, in 2012, the Legislature revised tier 3. All public employees hired as of April 1, 2012, are considered “tier 3 revised” employees.
This case involves New York City Administrative Code § 13-218(h). Under § 13-218(h), “any member” of the Police Pension Fund (PPF) “who is absent without pay for child care leave” may purchase up to one year of service credit. When New York City refused to apply this provision to tier 3 and tier 3 revised officers, and the officers’ union sued.
The Court held that § 13-218(h) applies to tier 3 and tier 3 revised officers. According to the Court, the statute’s plain text compels that result. It says that it applies to “any member” of the PPF . The Court acknowledged that § 13-218(h) was passed before there were any tier 3 officers. But it found that fact “irrelevant” because the statute “does not distinguish between tiers of officers, and simply provides that ‘any member,’ regardless of retirement tier, is eligible for the childcare leave service credit benefit.” Given what it believed to be clear language, the majority declined to rely on legislative history to interpret the statute.
The Court also rejected the argument that Retirement and Social Security Law (RSSL) § 513(h) preempts § 13-218(h). Section 513(h) grants New York City corrections officers the right to purchase childcare leave service credit, but carves out from that grant tier 3 revised corrections officers. That provision also contains a supremacy clause stating that § 513(h) trumps “any other law or code to the contrary.” In the Court’s view, § 13-128(h) was not “contrary” to § 513(h) because they concerned different subjects: police officers (§ 13-128(h)) and corrections officers (§ 513(h)). Section 513, the Court observed, “is silent” about police officers. And “[l]egislative silence, in this context, is acquiescence.”
Judge Rivera dissented, joined by Chief Judge DiFiore. In her view, Administrative Code § 13-218(h) conflicts with RSSL § 513(a)(2). Section 513(a)(2) provides that tier 3 and tier 3 revised members “shall not receive retirement credit for any day that [they are] not on the payroll.” The two provisions can be harmonized, however, if § 13-218(h) applies only to tier 1 and tier 2 members. While acknowledging that § 218(h) refers to “any member,” Judge Rivera opined that this reference is ambiguous because there were no tier 3 members when the statute was passed. Given that ambiguity, the dissent consulted the legislative history of RSSL § 513(h), the statute excluding tier 3 revised corrections officers from childcare leave service credit. That legislative history suggests that the Legislature believed that excluding tier 3 revised corrections officers would put them on equal footing with “[t]ier 3 police” officers. In other words, even after the passage of § 13-218(h), the Legislature did not believe that tier 3 police officers were eligible to purchase childcare leave service credit.