Patrick Lynch v. City of New York

State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.

No. 44
Patrick Lynch, &c. et al.,
Appellants,
v.
City of New York, et al.,
Respondents.

Robert S. Smith, for appellants.
John Moore, for respondents.

FAHEY, J.:

The Appellate Division order should be reversed and Supreme Court’s judgment

declaring that defendants violated the second subdivision (h) of Administrative Code of

the City of New York § 13-218 by excluding police officers in tier 3 of the state retirement

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system from the retirement benefits conferred by that subdivision reinstated. Applying

longstanding, basic rules of statutory interpretation, we conclude that the relevant part of

Administrative Code § 13-218 renders officers of the New York City Police Department

(NYPD) who are members of the tier 3 retirement system eligible for credit for certain

periods of unpaid childcare leave, and that the grant of such benefits for those officers is

consistent with the Retirement and Social Security Law (RSSL).

I.

In July 1976 the legislature adopted, and Governor Carey approved, legislation that

fundamentally reformed the state pension system (see Civil Serv. Empls. Assn., Local 1000,

AFSCSME, AFL-CIO v Regan, 71 NY2d 653, 657 [1988]). Included in those changes was

the rule that any public employee hired on or after July 1, 1976 would be enrolled in the

newly-created tier 3 system (see id.; see also RSSL article 14 [containing RSSL 500-520

and creating the tier 3 retirement system]). We previously characterized that program as

one “designed to ‘provid[e] uniform benefits for all public employees and eliminat[e] the

costly special treatment of selected groups . . . inherent in the previous program’ ” (Lynch

v City of New York, 23 NY3d 757, 765 [2014], quoting Mem from Robert J. Morgado

[Secretary to the Governor] to Judah Gribetz [Governor’s Counsel], Bill Jacket, L 1976,

ch 890).

An exception to that pension reform allowed all police officers and firefighters who

subsequently entered or reentered a public retirement system to continue as tier 2 members

(see RSSL § 440 [c]; Lynch, 23 NY3d at 766; see also RSSL article 11 [containing RSSL

440-451 and embodying the tier 2 retirement system]; L 1973, ch 382, § 47 [creating the

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tier 2 retirement system in 1973]). That exception, maintained by regular two-year

extender bills, eventually was terminated by veto of Governor Paterson in 2009 (see Lynch,

23 NY3d at 767). Thereafter, as relevant here, all NYPD officers appointed between July

1, 2009 and March 31, 2012 were placed in tier 3 of the New York City Police Pension

Fund (PPF)1 (see id. at 765); all officers appointed after April 1, 2012 were placed in

revised but functionally similar tier 3 plans of the same pension fund (see RSSL 501 [26],

[28]).

At issue on this appeal is the policy of defendant City of New York that tier 3

officers are not eligible for certain benefits indisputably available to officers in tier 2 of the

PPF retirement plan, including the “credit for service” mechanism that allows police

officers to obtain credit for certain periods of absence without pay for childcare leave.

Administrative Code § 13-218 contains two subdivisions (h). That mechanism is embodied

in the second of the two subdivisions (h) of section 13-218, which was part of a series of

pension initiatives intended to ensure that members who became parents and temporarily

left service were not pressured to “rush back to the workplace without properly caring for

their children” (Bill Jacket, L 1999, ch 646, at 9; see id. at 3, 8) and later were “not punished

in their retirement for their willingness to play an active role in their child’s growth” (id.

1
“There are five City retirement systems, covering different categories of employees:
PPF, [the New York City Fire Department Pension fund (FDPF)],
the Teachers’ Retirement System (TRS), the Board of Education Retirement System
(BERS) and the New York City Employees’ Retirement System (NYCERS)” (Lynch, 23
NY3d at 761 n 1).
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at 9).2 At its core, that subdivision provides that any PPF member absent without pay for

childcare leave permitted under NYPD regulations shall be eligible for a limited amount

of credit for that leave if certain filing and reimbursement requirements are met (see

Administrative Code § 13-218 [h]).

Plaintiffs commenced this action seeking, among other things, judgment declaring

that all police officers hired by the NYPD, including those hired on or after July 1, 2009,

are eligible for the benefits afforded by the second subdivision (h) of section 13-218. That

is, plaintiffs contended that, even in the absence of the extender bill vetoed by Governor

Paterson, all members of the PPF—regardless of hire date—may purchase pension credit

for time spent on unpaid childcare leave.

Defendants, by contrast, asserted that the relevant provisions of the RSSL conflict

with the Administrative Code and that the pension rights of tier 3 police officers are

exclusively governed by article 14 of the RSSL. Specifically, according to defendants,

RSSL 513 (h) “addresses the issue of service credit for [childcare] leave,” overrides any

2
The bill jacket for L 1999, ch 646, among other things, explains the motivation for
amendments to RSSL 645, which is entitled “Benefits for certain members who reenter
public service.” Those amendments to RSSL 645 allowed certain “current or future
members of New York public retirement systems who previously were members of a New
York public retirement system to be deemed to have become members of their current
systems as of the original date of such previous ceased membership” (Bill Jacket, L 1999,
ch 646 [fiscal notes]). The purpose of those changes, therefore, was restorative: those who
reentered public service following a temporary departure were returned to their prior tier
placement (see id.; see also L 2000, ch 552 [expanding the scope of prior creditable service
in RSSL 446 (b), RSSL 513 (b), and RSSL 609 (b) (1)]). The second subdivision (h) of
Administrative Code § 13-218 had a similar intent: it allows “men and women who . . .
interrupted their careers to raise their children the opportunity to obtain retirement credit
for such leave” (Bill Jacket, L 2000, ch 594, at 12).
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like provision of Administrative Code § 13-218, and “limits the eligibility for such credit

to New York City correction officers hired before April 1, 2012.”

Following motion practice, Supreme Court, in relevant part, awarded plaintiffs

judgment declaring that the affected police officers are entitled to the childcare leave

benefit (56 Misc 3d 433 [Sup Ct, New York County 2017]). That court reasoned that

Administrative Code § 13-218 (h), on its face, renders any member of the PPF eligible for

the childcare leave service credit benefit, and that the RSSL does not conflict with or

preempt that part of the Administrative Code (see 56 Misc 3d at 442-443).

The Appellate Division reversed, denying plaintiffs’ motion for summary judgment

and granting defendants’ cross motion for accelerated relief (162 AD3d 589, 589 [1st Dept

2018]). The Court reasoned that because the RSSL expressly makes the childcare leave

service credit benefit in question available to correction officers, but does not expressly

confer the same benefit upon police officers, the legislature meant to nullify the part of the

Administrative Code allowing the buyback to police members of the retirement system (see

162 AD3d at 591, citing RSSL 513 [h]).

We subsequently granted plaintiffs leave to appeal (32 NY3d 915 [2019]), and we

now reverse the Appellate Division order and reinstate Supreme Court’s judgment.

II.

Our review begins with reference to longstanding, basic rules of statutory

interpretation. In such matters our “primary consideration is to ascertain and give effect to

the intention of the [l]egislature” (Samiento v World Yacht Inc., 10 NY3d 70, 77 [2008]).

“The starting point” in that exercise “is the language of the statute itself” (Yatauro v

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Mangano, 17 NY3d 420, 426-427 [2011]). The rule of statutory interpretation relevant

here is that the literal language of a statute controls “unless the plain intent and purpose of

[the] statute would otherwise be defeated” (Matter of Anonymous v Molik, 32 NY3d 30, 37

[2018] [internal quotation marks omitted]).

The second subdivision (h) of Administrative Code § 13-218 is entitled “Credit for

service” and allows PPF members to obtain credit for certain periods of absence without

pay for childcare leave. It provides, in relevant part, that:

“any member who is absent without pay for child care le[a]ve
of absence pursuant to regulations of the New York city police
department shall be eligible for credit for such period of child
care leave provided such member files a claim for such service
credit with the pension fund by December [31, 2001], or within
[90] days following termination of the child care leave,
whichever is later, and contributes to the pension fund an
amount which such member would have contributed during the
period of such child care leave, together with interest thereon.
Service credit provided pursuant to this subdivision shall not
exceed one year of credit for each period of authorized child-
care leave. In the event there is a conflict between the
provisions of this subdivision and the provisions of any other
law or code to the contrary, the provisions of this subdivision
shall govern” (§ 13-218 [h] [emphases supplied herein], added
by L 2000, ch 594, at 12).

None of the pertinent parts of that statute is ambiguous. “Any member” can mean

only what it says. The reference to “any member” is unbounded and unfixed to employees

of a particular tier, and the absence of an exception applicable to tier 3 employees cannot

reasonably be attributed to carelessness or mistake (cf. Administrative Code §§ 13-234 [i]

[4]; 256.1 [b] [expressly excluding tier 3 members of the PPF]). Although there were no

tier 3 police officers when this part of the Administrative Code was passed, that fact is

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irrelevant. Inasmuch as it 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, the second subdivision of Administrative Code § 13-218 (h)

necessarily opens that benefit to tier 3 officers.

In view of that plain language conclusion, there is no need to consider the legislative

history of Administrative Code § 13-218 (h) (see Matter of Roosevelt Raceway v

Monaghan, 9 NY2d 293, 304-305 [1961]).3 Consequently, our review proceeds directly

to the question whether the RSSL conflicts with that part of the Administrative Code or

otherwise defeats the childcare service credit benefits provided therein.

Defendants direct us to RSSL 513 (h), which was enacted in 2005 (see L 2005, ch

477) and which affords childcare service credit benefits to correction officers through this

text:

“h. . . . any general member in the uniformed correction force
of the New York city department of correction who is absent
without pay for a child care leave of absence pursuant to
regulations of the New York city department of correction shall
be eligible for credit for such period of child care leave
provided such member files a claim for such service credit with
the retirement system by December [31, 2005] or within [90]
days of the termination of the child care leave, whichever is
later, and contributes to the retirement system an amount which
such member would have contributed during the period of such
child care leave, together with interest thereon. Service credit
provided pursuant to this subdivision shall not exceed one year

3
Even if we were to consider the legislative history of Administrative Code § 13-218 (h),
it would not support defendant’s arguments. As the Appellate Division correctly observed,
“[t]he legislative history of section 13-218 (h) does not reflect any intent to distinguish
between the tiers in the pension system” (162 AD3d at 590 n).

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of credit for each period of authorized child-care leave” (RSSL
513 [h] [emphases added]).

That section also contains a supremacy clause providing that,

“[i]n the event of a conflict between the provisions of [RSSL
513 (h)] and the provisions of any other law or code to the
contrary, the provisions of [RSSL 513 (h)] shall govern,
provided, however, that the provisions of this subdivision shall
not apply to a member of the uniformed force of the New York
city department of correction who is a New York city
uniformed correction/sanitation revised plan member” (RSSL
513 [h]).

Significantly, neither the allocative component of RSSL 513 (h) nor its supremacy

clause addresses the part of the Administrative Code at issue. At bottom, the relevant

portion of the Administrative Code allows PPF members to purchase service credit for time

that otherwise would have been lost to childcare leave by contributing an amount equal to

what would have been supplied if the employee had not taken childcare leave. The RSSL,

by contrast, is silent with respect to that point.

Legislative silence, in this context, is acquiescence. The childcare service credit

benefits conferred upon PPF members by the Administrative Code survive (see Engle v

Talarico, 33 NY2d 237, 242 [1973] [“(w)here the practical (view) of a statute is well

known, the (l)egislature is charged with knowledge and its failure to interfere indicates

acquiescence”]). Had the legislative intended otherwise, it easily could have said as much.

Our longstanding rules of statutory interpretation do not allow the relevant parts of the

Administrative Code and the RSSL to be construed to reach a different result.4 Indeed, our

4
To the extent the Appellate Division suggested that the courts should look to the
legislative history of RSSL 513 (h)—despite the clear language of the text—to determine
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own authority requires that “we must, if at all possible, give full effect to both” the

Administrative Code and the RSSL (People v Newman, 32 NY2d 379, 389 [1973], cert

the meaning of Administrative Code § 13-218 (h), we disagree. The Appellate Division
order relied upon, among other things, the Bill Jacket to L 2012, ch 18 (see 162 AD3d at
591) as demonstrating that the legislature understood the unpaid childcare leave service
credit benefit in Administrative Code § 13-218 (h) to be unavailable to tier 3 police officers;
specifically, the legislature made newly hired tier 3 correction officers ineligible for the
benefit in order to equate the benefits of newly-hired correction officers with those of PPF
tier 3 members (see 162 AD3d at 591). In that vein, the Appellate Division specifically
quoted a memorandum in support of that bill in which the Senate Introducer noted that the
measure “would amend RSSL § 513 to make new NYC Tier 3 uniformed correction
members ineligible to obtain service credit for child care leave in order to equate their
benefits with Tier 3 police/fire benefits” (Senate Introducer’s Mem in Support, Bill Jacket,
L 2012, ch 18 at 10; see 162 AD3d at 591).
Defendants largely avoid reliance upon that bill jacket in their brief to this Court,
and with good reason. The legislative amendments in question did not operate upon
Administrative Code § 13-218 (h) (cf. 162 AD3d at 591), which, as noted conferred the
childcare leave service credit benefit upon tier 3 PPF members, and instead recast RSSL
513 (h). Prior to those amendments, RSSL 513 (h) had expressly conferred childcare leave
service credit rights upon correction officers. By the amendments, which included the
addition of the part of the aforementioned “superiority language” in which RSSL 513 (h)
is rendered inapplicable to a newly-hired “member of the uniformed force of the New York
city department of correction who is a New York city uniformed correction/sanitation
revised plan member” (id.; see L 2012, ch 18, § 21), the legislature excepted certain
correction officers from eligibility for such benefits.
That, of course, is a winding way of saying that the 2012 legislative action to which
the Appellate Division pointed did not affect the rights of tier 3 PPF officers under
Administrative Code § 13-218 (h), and that the Senate Introducer’s Memorandum reflects
a fundamental misunderstanding of both the rights afforded tier 3 PPF members pursuant
to the relevant part of the Administrative Code and of the impact of the 2012 amendments
to RSSL 513 (h) upon those rights. In any event, but perhaps most importantly, even if the
legislative changes it covered were related to this case, the part of the 2012 bill jacket on
which the Appellate Division relies would be of little to no value in constructing the
meaning of Administrative Code § 13-218 (h) if we had occasion to engage in such a
review. That part of the Administrative Code was enacted in 2000 (see L 2000, ch 594),
and the views that a member or certain members of the State Senate expressed with respect
to that prior statute are of minimal value.

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denied 414 US 1163 [1974]). We conclude that RSSL 513 (h) does not prohibit the benefit

conferred in Administrative Code § 13-218 (h).

III.

Defendants’ three principal contentions to the contrary are unavailing.

First, according to defendants, the Administrative Code cannot be the source of a

substantive benefit for tier 3 members because RSSL 519 (1) provides that the RSSL is a

“stand-alone retirement structure of benefits and contributions.” Read in its entirety,

however, RSSL 519 (1) creates no such exclusivity. In fact, that statute incorporates by

reference relevant parts of, among other things, the Administrative Code that do not

conflict with the guidelines of the RSSL. 5

Second, contrary to defendants’ further contention, that exclusivity theory lacks

support in our case law. Defendants’ reliance upon Lynch v City of New York (23 NY3d

757 [2014]) is misplaced. There, we addressed the question whether RSSL 480 (b), which

was enacted in 1974 and which extended any program in which an employer in a public

retirement system funded by the state or one of its subdivisions assumed all or part of the

contribution that would otherwise be made by employees toward retirement, applied to tier

5
RSSL 519 is entitled, “Effect of other laws,” and subdivision (1) of that statute
provides that

“[a]ny other provision of this chapter [of the RSSL], of the state
education law, or of the administrative code of the City of New
York, or rules and regulations thereunder, relating to the
reemployment of retired members, transfer of members and
reserves between systems and procedural matters shall apply
to members covered under this article during the duration
thereof unless inconsistent herewith.”
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3 members of the PPF and the FDPF (see Lynch, 23 NY3d at 760). For reasons unrelated

to the interaction of the RSSL and the Administrative Code, we concluded that it did not

(see id. at 772 [relying upon the extensive legislative history of the provision, including the

Governor's Approval Mem (Bill Jacket, L 1973, ch 383 at 2), which stated that the statute

was meant to “ ‘extend[] temporary retirement benefits for present members’ of the

programs to which it referred;” present members included only tier 1 and tier 2]). More

importantly, we did not so much as hint that the RSSL might be the sole instrument for

determining retirement benefits of tier 3 members; rather, we looked to the Administrative

Code to determine whether the program at issue was applicable to tier 3 members, noting

that another Code provision, governing calculation of the benefit, did not apply to all

members but expressly carved out tier 3 members (see id. at 774, citing Administrative

Code § 13-638.2 [g] [3]).

Matter of Kaslow v City of New York (23 NY3d 78 [2014]), on which defendants

also rely in support of their exclusivity point, similarly is unavailing. There, to be sure, we

rejected the contention of the petitioner (a retired New York City Department of Correction

Officer [see id. at 81]) that his pension should have been calculated pursuant to the part of

the Adminsitrative Code that would have embraced his prior service with a prior public

employer (see id. at 86-87). Dissimilar to this matter, however, in that instance the relevant

part of the RSSL (section 504-a [c] [2], which establishes a twenty-year retirement program

for citycorrection members below the rank of captain and which is not implicated in this

case) specified the entire pension benefit for such corrections officers (see id. at 87). This

means that the Administrative Code played no role in the calculation of those benefits. In

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this instance, as explained above, the RSSL does not exclusively govern tier 3 benefits

based on certain periods of unpaid childcare leave, meaning that Kaslow does not control

the result in this dispute.

Third, and finally, contrary to the conclusion of the Appellate Division (see 162

AD3d at 591) and to the suggestion of defendants on this appeal, here there is no distinction

relevant to our analysis between article 11 of the RSSL (which includes RSSL 446) and

article 14 of the RSSL (which includes RSSL 513 [h]).

This point is rooted in Administrative Code § 13-107 (k), which was added in 2004

(see L 2004, ch 581) and in which the legislature rendered

“any correction member who is absent without pay for child
care leave of absence pursuant to regulations of the New York
city department of correction shall be eligible for credit for
such period of child care leave provided such member files a
[timely] claim for such service credit with the retirement
system . . .” (§ 13-107 [k]).

The next year, the legislature amended RSSL 513 to, in the Appellate Division’s

words, “expressly . . . make [that leave] benefit available to tier 3 correction officers” (162

AD3d 591; see L 2005, ch 477). That new statutory language tracked the text of

Administrative Code § 13-107 (k) insofar as it provided that

“any general member in the uniformed correction force of the
New York city department of correction who is absent without
pay for a child care leave of absence pursuant to regulations of
the New York City department of correction shall be eligible
for credit for such period of child care leave provided such
member files a [timely] claim for such service credit with the
retirement system . . .” (RSSL 513 [h]).

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That addition, the Appellate Division believed, was engendered by an oversight in

which the legislature “ ‘accidentally omitted from the [2004] bill [enacting Administrative

Code § 13-107 (k)]’ ” an express grant of a childcare leave service credit benefit for tier 3

correction officers (see 162 AD3d at 591, quoting Senate Introducer’s Mem in Support,

Bill Jacket, L 2005, ch 477, at 3). Necessitating that amendment to the RSSL, the Appellate

Division further believed, was a discrepancy between RSSL article 11 (which, as noted,

governs retirement benefits for tier 2 members [see RSSL 440 (a)]) and RSSL article 14

(which, as also noted, governs retirement benefits for tier 3 members [see RSSL 500 (a)])

(see 162 AD3d at 591). Specifically, that Court said,

“[t]he RSSL had to be amended to accomplish the purpose [of
making the unpaid child care leave service credit benefit
available to tier 3 members] because [RSSL] article 14, which
governs tier 3 employees, contains definitions of the terms
‘credited service’ and ‘creditable service,’ and expressly
defines those terms by reference to RSSL § 513 (“Credit for
Service”) (see RSSL § 501 [3], [4]). Thus, a service credit not
included in RSSL § 513 would not be available to tier 3
members. (In contrast, article 11 contains a corresponding
provision [‘Credit for Service’] for tier 2 members [see RSSL
§ 446 (article 11)], but it defines only a few terms, and none of
them [is] related to service credit.)” (162 AD3d at 591).

That is, at bottom, the Appellate Division believed that conferral of a childcare leave

service credit benefit upon tier 3 correction officers—and, by extension, similarly situated

tier 3 police officers—could not have been accomplished through the Administrative Code

and required a subsequent amendment to RSSL 513 (h) because the RSSL defines

“creditable service”—a phrase that embraces the childcare leave service credit in

question—differently for members of tier 2 (through article 11 of the RSSL) and tier 3

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(through article 14 of the RSSL) (see 162 AD3d at 591). A review of the relevant parts of

the RSSL, however, reveals no material distinction in the description of that term. Article

11’s definition of “creditable service” provides, among other things, that “retirement credit

may be granted for service with an agency located within the state of New York currently

specified in the law as providing retirement credit for service” (RSSL 446 [c]).6 Article

14’s definition of that phrase contains identical language (see RSSL 513 [c] [1]).7

6
The whole of section 446 (c), which is entitled “Creditable service,” reads as
follows:

“A member of a retirement system who is subject to the
provisions of this article shall not be eligible to obtain
retirement credit for service with a public employer other than
the state of New York, a political subdivision thereof, a public
benefit corporation, or a participating employer; provided,
however, military service with the federal government may be
credited pursuant to [Military Law § 243] up to a maximum of
four years; and further provided that retirement credit may be
granted for service with an agency located within the state of
New York currently specified in the law as providing
retirement credit for service” (RSSL 446).
7
Section 513 (c) (1), in language substantively identical to that of RSSL 446 (c),
defines “Creditable service” in this way:

“A member shall not be eligible to obtain credit for service
with a public employer other than the state of New York, a
political subdivision thereof, a public benefit corporation, or a
participating employer; provided, however, military service
with the federal government may be credited pursuant to
[Military Law § 243] up to a maximum of four years; and
further provided that retirement credit may be granted for
service with an agency located within the state of New York
currently specified in law as providing retirement credit for
service.”
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Consequently, the notion that a discrepancy in the characterization of creditable

service for tier 2 and tier 3 members warranted amendment to RSSL 513 (h) to confer the

childcare leave service credit benefit in question upon tier 3 PPF members (see 162 AD3d

at 591) simply is misguided. Moreover, the reference by the Appellate Division to what,

for purposes of this appeal, was the irrelevant amendment of RSSL 513 (h) is similarly

misplaced. Nothing in either definition of creditable service prevents tier 3 PPF members

from purchasing service credit for time spent on temporary childcare leave, and nothing in

either of those definitional sections conflicts with the childcare leave service credit benefit

conferred upon such members in the second subdivision (h) of Administrative Code § 13-

218.

Accordingly, the Appellate Division order should be reversed, with costs, and the

judgment of Supreme Court reinstated.

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RIVERA, J. (dissenting):

New York City police officers are hired under a tiered employment structure that

classifies officers based on their date of entry into service. On this appeal, plaintiffs argue

that, like their peers in tiers 1 and 2, all tier 3 police officers are entitled to credit for time

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spent on a child care leave of absence provided for in the Administrative Code of the City

of New York. However, tier 3 was enacted in Article 14 of the Retirement and Social

Security Law (RSSL) as part of a cost containment legislative reform package. Unlike the

majority, I cannot interpret New York State’s statutory benefit structure as revealing

anything other than a legislative intent to limit this credit benefit to tier 1 and 2 police

officers. The majority’s singular reliance on the phrase “any member” in the Code begs the

question of who is eligible for the benefit, and ignores that the legislature used this phrase

at a time when all City police officers were classified in tiers 1 and 2 and that the RSSL

does not expressly provide these benefits to tier 3 police officers.

I.

The New York City Police Pension Fund (NYCPPF) is one of the public employee

pension systems in New York State. The NYCPPF was created pursuant to title 13, chapter

2, subchapter 2 of the Administrative Code of the City of New York (§§ 13-214-13-267.1).

Police officers who joined the force prior to July 1, 1973 are classified in tier 1, while

officers who joined from July 1, 1973 through July 26, 1976 are tier 2 members (Lynch v

City of NY, 23 NY3d 757, 761 [2014]). Notably, tier 2 was created “[t]o deal with the

‘steeply mounting cost of public employee pensions’” (id. at 762, quoting Governor’s

Approval Mem, Bill Jacket, L 1973, ch 383 at 2, 1973 McKinney’s Session Laws of NY

at 2343), and tier 2 member benefits are subject to both title 13 of the Administrative Code

as well as article 11 of the Retirement and Social Security Law (RSSL) (see RSSL 440

[a]). Tier 1 member benefits are not subject to any provisions of the RSSL (see

Administrative Code of City of NY § 13-214 [27]).

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The legislature created tier 3 on July 27, 1976, through “a comprehensive pension

reform bill” that enacted article 14 of the RSSL (Lynch, 23 NY3d at 765). Tier 3 was

designed to provide uniform benefits for all public employees and to “eliminate the costly

special treatment of selected groups which was inherent in the previous programs” (Mem

from Robert J. Morgado, Bill Jacket, L 1976, ch 890, at 60). Although tier 3 status was

meant to encompass all employees hired after July 1, 1976, police officers joining the force

between 1976 and 2009 joined as tier 2 employees due to legislative extensions of tier 2

status for this category of public employee approximately every two years until June 2,

2009, when the Governor vetoed the two-year extender for 2009-2011 (see Lynch, 23

NY3d at 765-67; RSSL 440[a], [c]). Without the extender in place, new police officers

hired after July 1, 2009 were classified as tier 3 members (see Lynch, 23 NY3d at 767;

RSSL 440[c]).

Under article 14 of the RSSL (§§ 500-520; see § 500 [b] [1]), “[i]n the event that

there is a conflict between the provisions of this article and the provisions of any other law

or code, the provisions of this article shall govern” (RSSL 500 [a]). Also, provisions of

the RSSL and the Administrative Code “relating to the reemployment of retired members,

transfer of members and reserves between systems and procedural matters shall apply to

members covered under this article” unless inconsistent with RSSL article 14 (RSSL 519

[1]).

In this appeal, plaintiff Patrolman’s Benevolent Association of New York and its

president contend that Administrative Code § 13-218 (h), which provides “any member”

with a child care leave of absence credit, applies to all New York City police officers,

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regardless of when they were hired and their tier status and despite language in the RSSL

proscribing such credit for tier 3 officers. The majority agrees, but there is no merit to this

cramped interpretation of the broader public employee benefits scheme.

II.

“The primary consideration of courts in interpreting a statute is to ‘ascertain and

give effect to the intention of the Legislature’” (Riley v County of Broome, 95 NY2d 455,

463 [2000]), quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a], at 177).

Generally, “the plain meaning of the statutory text is the best evidence of legislative intent”

(People v Cahill, 2 NY3d 14, 117 [2003], citing Riley, 95 NY2d at 463).

However, to determine the intent of the legislature, “a statute . . . must be construed

as a whole and . . . its various sections must be considered together and with reference to

each other” (People v Mobil Oil Corp., 48 NY2d 192, 199 [1979] [internal citations

omitted]). It is our “obligation to harmonize the various provisions of related statutes and

to construe them in a way that renders them internally compatible” (Matter of Aaron J., 80

NY2d 402, 407-408 [1992], citing Mobil Oil Corp., 48 NY2d at 199-200; see also Gaden

v Gaden, 29 NY2d 80, 86 [1971]; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97,

98). Put another way, “[a]ll parts of a statute must be harmonized with each other as well

as with the general intent of the whole statute, and effect and meaning must, if possible, be

given to the entire statute and every part and word thereof” (People v Pabon, 28 NY3d

147, 152 [2016], quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 98 [a]).

Moreover, when the statutory text appears plain on its face, we must consider related

provisions that might render such text ambiguous. “If the language is ambiguous, we may

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examine the statute’s legislative history” (Roberts v Tishman Speyer Props., L.P., 13 NY3d

270, 286 [2009], quoting Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 583

[1998]).

This appeal is not the first occasion the Court has interpreted the RSSL to discern

the availability of a benefit, and each time that we have done so, we have been careful not

to truncate the analysis (see e.g. Lynch, 23 NY3d 757; Matter of Sutka v Conners, 73 NY2d

395 [1989]). As the Court explained in Matter of Sutka,

“[T]he court’s objective is, of course, to discern and apply the
will of the Legislature, not the court’s own perception of what
might be equitable. . . . In matters of statutory interpretation
generally, and particularly here, legislative intent is the great
and controlling principle. Legislative intent may be discerned
from the face of a statute, but an apparent lack of ambiguity is
rarely, if ever, conclusive. . . . Generally, inquiry must be made
of the spirit and purpose of the legislation, which requires
examination of the statutory context of the provision as well as
its legislative history”

(73 NY2d at 403 [internal citations and quotation marks omitted]). Further, “[w]here, as

here, the Legislature has spoken to an issue simultaneously in separate laws, sometimes

cross-referencing them, and has repeatedly adopted and amended pertinent provisions

piecemeal throughout decades,” “no one clause isolated from its statutory setting could be

determinative of a lack of ambiguity or of legislative intent as to the issue presented” (id.

at 403-404). With this cautionary guidance in mind, I turn to the question before us:

whether a statutory framework designed to cut costs evinces a legislative intent to extend

the child care leave credit to tier 3 City police officers.

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III.

Three main statutory provisions govern the NYCPFF. Title 13, subchapter 2 of the

Administrative Code fully governs the benefits and obligations of tier 1 police officers who

are members of the NYCPPF (Administrative Code § 13-214 [defining a tier 1 member as

“(a) member whose benefits (other than a supplemental retirement allowance) are

prescribed by this subchapter and who is not subject to the provisions of article eleven,

article fourteen or article fifteen of the retirement and social security law”]). Tier 2 police

officers, defined as officers joining the force between July 1, 1973 and July 1, 2009, are

subject to RSSL article 11 as well as the provisions of the Administrative Code (see RSSL

440[c]; §§ 500-520). Tier 3 police officers, defined as officers joining the force after July

1, 2009, are subject to RSSL article 14 (see RSSL 440 [c]; 550 [a]; §§ 440-451). The parties

dispute the applicability of the Administrative Code to officers in tier 3.

While Administrative Code § 13-218 generally discusses service credits and their

applicability for police officers, RSSL articles 11 and 14 also have general provisions on

service credits. In particular, RSSL 513 discusses when and how service may be credited

for employees and largely parallels RSSL 446 (compare RSSL 513 with RSSL 446).

Additionally, RSSL 501 provides two definitions for “credited” and “creditable” service.

“Credited service” is defined as “service which has been credited to a member pursuant to

section [513] or which was credited to such member in a public retirement system of the

state before such member became subject to this article and which is allowable as previous

service pursuant to section [513]” (RSSL 501 [3]). “Creditable service” is defined as

“service which qualifies to be counted as credited service pursuant to section [513]” (RSSL

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501 [4]). However, whereas article 14 defines credited and creditable service solely by

reference to RSSL 513, RSSL article 11’s “Definitions” section does not provide a

definition for credited and creditable service (see RSSL 450), indicating that the

permissible forms of creditable service for tier 2 members under RSSL article 11 are not

confined to the RSSL. More to the point, RSSL 513, which governs credit for service, does

not provide a child care leave credit for police officers in tier 3.

RSSL 519 (a) provides that,

“[a]ny other provision of this chapter, of the state education
law or of the administrative code of the city of New York, or
rules and regulations thereunder, relating to the reemployment
of retired members, transfer of members and reserves between
systems and procedural matters shall apply to members
covered under this article during the duration thereof unless
inconsistent herewith.”

RSSL 519 (a), then, limits the interaction between article 14 and the Administrative Code

by specifically cabining the applicability of the Code to those enumerated subjects, i.e.,

reemployment of retired members, transfer of members and reserves between systems, and

procedural matters. This Court has “consistently interpreted statutes . . . under the maxim

expressio unius est exclusio alterius such that ‘where a law expressly describes a particular

. . . thing . . . to which it shall apply, an irrefutable inference must be drawn that what is

omitted or not included was intended to be omitted or excluded’” (People v Page, 35 NY3d

199, 206-207 [2020], quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 240). The

fact that RSSL 519 (a) excludes substantive benefits from its list of Administrative Code

provisions that apply to article 14 is therefore an “irrefutable” sign that the legislature did

not intend for the substantive benefits provided under the Code to apply to tier 3 employees.

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Administrative Code § 13-218 (h), enacted in 2000, provides a child care leave

credit to police officers:

“Notwithstanding the provisions of subdivision c of this
section, any member who is absent without pay for child care
leave of absence pursuant to regulations of the New York city
police department shall be eligible for credit for such period of
child care leave provided such member files a claim for such
service credit with the pension fund by December thirty-first,
two thousand one or within ninety days following termination
of the child care leave, whichever is later, and contributes to
the pension fund an amount which such member would have
contributed during the period of such child care leave, together
with interest thereon. Service credit provided pursuant to this
subdivision shall not exceed one year of credit for each period
of authorized child care leave. In the event there is a conflict
between the provisions of this subdivision and the provisions
of any other law or code to the contrary, the provisions of this
subdivision shall govern”

“Membership” of the NYCPPF is defined as, “all persons in city-service, as defined in this

subchapter, in positions in the competitive class of the civil service, who shall serve

probationary periods, or who shall receive permanent appointments in the police force after

the time when this section shall take effect” (Administrative Code § 13-215 [a] [1]; see

also Administrative Code § 13-214 [“‘Member’ shall mean any person included in the

membership of the pension fund as provided in section 13-215 of this subchapter]). “City

service” is defined as “service in the police force in the department” (Administrative Code

§ 13-214 [3]). Section 13-218 (h), which permits out-of-service time spent on child care

leave to be credited, therefore conflicts with RSSL 513 (a) (2), which prohibits members

from receiving “retirement credit for any day that [they are] not on the payroll of the state,

a political subdivision thereof, or a participating employer.” Moreover, and critically, no

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police officers were classified in tier 3 when the legislature enacted Administrative Code

§ 13-218 (h) as a result of more than two decades of legislative action continuing to place

newly hired police officers in tier 2—a practice that continued for nearly a decade after the

enactment of § 13-218 (h). Thus, contrary to the majority’s view, there is ambiguity as to

whether “any member” as used in the Code even applies to tier 3 police officers when

RSSL article 14 prohibits such credit and does not adopt the exception in § 13-218 (h).

Articles 11 and 14 of the RSSL and Administrative Code § 13-218 (h) can be

harmonized, however, by contextualizing these various statutory provisions against the

backdrop of the intended purpose of tier 3: reduction of the ballooning costs associated

with retirement benefits for public employees by eliminating the costly special treatment

of selected groups. The legislature’s intent is clear from the structure of the pension

scheme, wherein section 13-218 (h)’s more generous benefits apply only to tier 1 and 2

employees (whose numbers are only decreasing over time), and not to new hires who join

as tier 3. That interpretation is further supported by legislative enactments of the same child

care credit benefit for correction officers.

In 2004, the legislature enacted Administrative Code § 13-107 (k), which provides:

“Notwithstanding the provisions of subdivision c of this
section, any correction member who is absent without pay for
child care leave of absence pursuant to regulations of the New
York city department of correction shall be eligible for credit
for such period of child care leave provided such member files
a claim for such service credit with the retirement system by
December thirty-first, two thousand four or within ninety days
following termination of the child care leave, whichever is
later, and contributes to the retirement system an amount which
such member would have contributed during the period of such
child care leave, together with interest thereon. Service credit

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provided pursuant to this subdivision shall not exceed one year
of credit for each period of authorized child care leave. In the
event there is a conflict between the provisions of this
subdivision and the provisions of any other law or code to the
contrary, the provisions of this subdivision shall govern.”

By the next session, in 2005, the legislature enacted RSSL 513 (h), which also provides the

same child care credit to tier 3 correction officers with a limitation:

“Notwithstanding any other provision of this section, any
general member in the uniformed correction force of the New
York city department of correction who is absent without pay
for a child care leave of absence pursuant to regulations of the
New York city department of correction shall be eligible for
credit for such period of child care leave provided such
member files a claim for such service credit with the retirement
system by December thirty-first, two thousand five or within
ninety days of the termination of the child care leave,
whichever is later, and contributes to the retirement system an
amount which such member would have contributed during the
period of such child care leave, together with interest thereon.
Service credit provided pursuant to this subdivision shall not
exceed one year of credit for each period of authorized child
care leave. In the event there is a conflict between the
provisions of this subdivision and the provisions of any other
law or code to the contrary, the provisions of this subdivision
shall govern, provided, however, that the provisions of this
subdivision shall not apply to a member of the uniformed force
of the New York city department of correction who is a New
York city uniformed correction/sanitation revised plan
member.”

There would have been no need to amend the RSSL if, as the majority concludes, the Code

sets the benefit for all employees irrespective of tier.

The legislative history is particularly illuminating on this point. According to the

sponsor’s memorandum, the reason for the 2005 addition to RSSL 513 was to expand the

child care credit to tier 3 correction officers whose coverage had been “accidentally omitted

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from the original bill,” which amended only the Administrative Code and therefore only

covered officers in tiers 1 and 2 (Sponsor’s Mem, Bill Jacket, L 2005, ch 477).

In 2012, the legislature created “tier 3 revised,” which applied to police officers as

well as correction officers entering service after April 1, 2012 (L 2012, ch 18, §§ 25, 26).

This bill simultaneously amended subdivision h of RSSL 513 and added the following

language: “the provisions of this subdivision shall not apply to a member of the uniformed

force of the New York city department of correction who is a New York city uniformed

correction/sanitation revised plan member” (RSSL 513 [h]; L 2012, ch 18, § 21). Thus, just

three years after the Governor’s previous veto of the legislative extension of tier 2, the

legislature amended article 14 and eliminated the child care credit benefit for correction

officers “in order to equate their benefits with [t]ier 3 police/fire benefits” (Mem in

Support, Bill Jacket, L 2012, ch 18, at 10). This amendment to the RSSL reflects the

legislature’s understanding that, to alter the benefits afforded to tier 3 correction officers,

they were required to amend the RSSL and not the Administrative Code.1

1
The majority states that “the views that a member or certain members of the State Senate
expressed with respect to [the Child Care Credit Law of 2000] are of minimal value”
(majority op at 9 n 4). Not so. In Caprio v New York State Department of Taxation &
Finance, we stated that “[w]hile ‘[t]he Legislature has no power to declare, retroactively,
that an existing statute shall receive a given construction when such a construction is
contrary to that which the statute would ordinarily have received . . . this Court has long
stated that, ‘when the Legislature does tell us what it meant by a previous act, its subsequent
statement of earlier intent is entitled to very great weight’” (25 NY3d 744, 755 [2015],
quoting Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 304 [1961] and Matter
of Chatlos v McGoldrick, 302 NY 380, 388 [1951]). As in Caprio, “we cannot say that the
Legislature has construed the statute in a manner that is contrary to the construction it
would ordinarily receive” and, therefore, “due consideration” is owed to the “underlying
intent of the” legislature in enacting the prior statute (25 NY3d at 755).
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IV.

The majority adopts a restrictive interpretation of the language in section 13-218,

without consideration of the statutory context or the legislative history relevant to the

State’s integrated public pension system. That approach contravenes Matter of Sutka’s

interpretive methodology and ignores that “[t]ier 3 was a comprehensive retirement

program designed to ‘provid[e] uniform benefits for all public employees and eliminat[e]

the costly special treatment of selected groups . . . inherent in the previous program’”

(Lynch, 23 NY3d at 765 quoting Mem from Robert J. Morgado [Secretary to the Governor]

to Judah Gribetz [Governor’s Counsel], Bill Jacket, L 1976, ch 890). Tier 3 was intended

to rein in costs, not to extend benefits. But as a result of the majority’s holding, the credit

allowance is available to tier 3 police officers, even though the legislature expressly

adopted a system intended to reduce benefits for those entering service in this tier.

As is oft the case, the legislative scheme represents difficult political and fiscal

choices, choices left to the members of our State’s legislature, not the courts. I dissent.

Order reversed, with costs, and judgment of Supreme Court, New York County, reinstated.
Opinion by Judge Fahey. Judges Stein, Garcia, Wilson and Feinman concur. Judge Rivera
dissents and votes to affirm in an opinion in which Chief Judge DiFiore concurs.

Decided October 20, 2020

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