Matter of Wartko v NYS Teacher's Retirement Sys.

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Matter of Wartko v NYS Teacher's Retirement Sys. 2012 NY Slip Op 33175(U) March 26, 2012 Sup Ct, Albany County Docket Number: 5182-12 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of the Application of EDWARD WARTKO, Petitioner, For A Judgment Pursuant to ArticIe 78 of the Civil Practice Law and Rules, -against- NEW Y O U STATE TEACHERS RFTIREMENT SYSTEM i d NEW YORK STATE TEACHER S RETIREh4Eb.T SYSTEM BOARD, Respondents. Supreme Court Albany County Article 78 Tern Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-12-ST3970 hdexNo. 5182-12 Appearances: R i c h d E. Casagrande, Esq. Attorney For Petitioner 800 Troy-SchenectadyRoad Latham, New York 121IO (Elizabeth R.Schuster, Esq, of counsel) Eric T. Scheiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York I2224 ( Brian J. O Domell Assistant Attorney General of Counsel) DECXSIONIORDERIJUDGMENT George B. Ceresia, Jr., Justice Petitioner is a retired teacher who commenced this M d e 78 Proceeding challenging the respondents calculation of his highest three years sdary for retirement purposes. Respondents oppose the proceeding contending their calculation is correct pursuant to law and tke petition fails [* 2] to state a came of action. Edward Wartko was a teacher in the Buffalo City Schwl District who retired on June 30, 2007, having joined the New York State Teacher s Retirement System on September 3, 1973. Petitioner s pension benefit was calculated at the time of retirement and he has been receiving pension benefits according to the calculationsmade at that time. Prior to retirementpet~tioner applied for coaching positions. The compensation paid for coaching wodd be added to petitioner s salary as a teacher thereby increasing his highest three years e - for retirement purposes. Petitioner , - was denied a coadGng position for the 2004-2005 school year. Petitioner filed a grievance pursuant to the teacher s union contract. A settlement of the grievance v a s made and petitioner was paid $9,500.00. The $9,500.00 was included in petitioner s salary for retirement purposes. Edward Wartko again applied for coacbizzgpositions for xhool years 2005-2006and 20062007. Petitioner did not receive appointment to a coaching gosition for either year. Petitioner again fled grievancesfor each year. Petitioner retiredafter the 2006-2007 school year, The grievances filed for the 2005-2006 and 2006-2007school years were not settled until June of 2011. Respondent paid petitioner the sum of $5,605.00 for each year; that sum being khe amount petitioner would have earned had he been appointed to a coaching position. After pyment of the settlement petitioner requestedrespondent recalculate his finalthree years salruy to include the settlementmount for each year, Respondent determined that the latest two payments were not to be included in petitioner s frhal h e years salary calculation for retirement purposes, Petitioner contends he was qualified for the coaching positions in school years 2005-2006 and 2006-2007and the settlement he received was for services tfiat he would have rendered i those n school years had he been appointed as a coach.Petitioner argues that it was irrational, arbitrary and capricious for respond& to exclude the two $5,605.00 payments made to him for the 2005-2006 2 [* 3] md 2006-2007school years while including the payment of the $9,500.00settlement he received for the 2004-2005 school year. Respondents contend. the settlements are different in that the 2004-2005 grievance acknowledgedit was for compensationthat petitioner would have earned as a coach. The 2005-2006 and 2006-2007 mounts were paid to settle the district s wrongful action and as such would not be considered regular compensationincludable inthe calculation of petitioner s three year final average salary. Retirement and Social Security Law 443(a) defines the find average salary computation to include the average salary earned but excluding termination pay, lump sum payment for d e f e d compensation, sick leave, accmdated vacation credit, or any other payment for time not worked. There is no dispute that payment for coaching duties is includabIe. Respondents determined that the 2005-2006and 2006-2007 payments were not regular compensation. The respondents argue that their determination based upon the record is not irrational, arbitrary, or capricious. Respondents exhibit B is the settlement agreement ofthe 2004-2005 grievance which mites that Mr. Edward W h o applied for a coaching position, he was not given a position, that Mr. Walk0 did have the proper credentials to coach these sports and then it states that 90 settle this matter without additional. costs of arbitrationproceedings, the District agrees, without precedent or prejudice t the District s position i this or any other matter, to pay M .Wartko the o n r SUM of $9,500.00 in complete satisfaction of this grievance. Respondents Exhibit J is the Memorandum ofUndmtanding in settlementof the 2005-2006 and 2006-2007grievances. The recitationsinclude a denial that the district violated the contract and arecitation that Mr. W&o was unqualified for the coaching position at issue, the District did agree to compensateMr. Wartko in the amount of $ 1 1,220.00 in ful ¬satisfaction of the above mentioned matters, constituting the stipend of $5,605 he would have received for the 2005-2006 school year 3 [* 4] .. and the stipend of $5,605 he would have received for the 2006-2007 school year. The first settlement recites that Edward Wartko was qualified to coach, the second recites his qualifications king i dispute. Neither settlement recites which sports Edward W a r h applied n t coach and which sports he was qualified for or those he was not qualified for. Respondents o Exhibit H is the Level III grievance decision for the 2005-2006school year. That decisionrecites that Mr. Wartko was given a fall sport to coach, It recites that he does not have extensive experience as a coach and he has never coached basketball before. The other teacher had experienct: coachg basketball and was chosen over Mr. Wartko. The grievance was denied at that level. The arbiiration hearing that was settled is apparently the next step i the grievance process. n Respondents Exhibit 0 is the finaldeterminationof the Teacher s Retirement System dated May 15,2012 i which it recites the docmentationupon which it relied in makingits determination. n Sigtliscantlyit states The monies you were paid four years after your retirement on June 30,2007 represent an award to settle the dispute with your former employer, not for services that would have been rendered, and as such are not w b l e i the calculation of your retirement benefit. Mr. Wartko n fomarded additionalinformation to the retirement system and upon review by letter dated June 26, 2012 (exhibit Q)the Teacher s Retirement System confirmed its determination not to include the settlement amounts i M i Wartko s final average salary, The letter confirms petitioner s h l n a . average salary of $87,732.38 including salary BS a summer school teacher, soccer and tennis coach. It i wet1 established that the very limited standard which governs judicial review of s administrative determinations pursuant to Article 78 is whether the determinationwas arbitrary and capricious, and that a reviewing court is therefore restricted to an assessment of whether the action hquestion was taken Withoutsound basis in reasonand...without regard to the facts. Matter ofPeU v. Board of Educaiion, 34 NY2d 222 (1 974)). Moreover, in order to maintain the limited nature of 4 [* 5] this review, it is incumbent upon the court to defer to the agency s construction of the statutes and regulations tkat it administers as long as that construction is u t irrational or unreasonable. Albano v Kirbv, 36 NY2d 526 (1975); Sdvati v Eimicke, 72 NY 2d 784 (1988). The reviewing court i a n proceeding pursuant to CPLR Article 78 will not substitute its judgment for that of the local Board unless it clearly appears t be arbitrary, capricious, or contrary to the law. Hauser v Town of Webb, o 34 AD3d 1353 (2006). In this case the record includes a settlement of a grievance that recites that petitioner was qualifid as a coach but further recites that such qualification is not to be used as a precedent. The settlement of the later grievances recites that thepetitioner s qualificationswere indispute.The court finds the respondents interpretation ofthe differencesin the settlementsto be rational and supported by the record. Respondents determination that the later settlements were not for regular compensation is supported by the record. The determination was not d e in violation of lawful procsdure, is not affected by an error of law, and is not irrational, arbitrary and capricious, or constitute an abuse of discretion. The Court concludes that the petition must be dismissed. Accordingly, it is ORDERED and ADJITDGED, that the petition dated September 17,2012 is hereby dismissed. This shall constitute the decision, order and judgment of the Court. The original decisionlorderljudgment is retuned to the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisiodordedjudgment and delivery of this decisiodorderljudgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicableprovisions of that rule respecting filing, entry and notice of entry. 5 [* 6] ENTER Dated: M a r c h a 2012 Troy, New York Supreme Court Justice Papers Considered: 1. 2. 3. 4. 5. 6. 7. 8. Notice of Petition dated September 17,2012 Verified Petition dated September 17,2012 with exhibits Petitioner s memorandum of law dated October 17,2012 Verified Answer dated November 5,20 12 Aflknation of Yiselle R Ruoso,Esq. dated October 24,2012 with exhibits Respondents memomdm of law dated November 5,2012 Petitioner s reply to Verified Answer dated November 14,2012 Petitioner s reply m e m o m d m of law dated November 14,20 12. 6

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