Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer

Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing. Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006. In 2007, Cohen, then a member of the New York State Employees' Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS. An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer's findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller's decision. The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state." Accordingly, said the court, Cohen's entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service." "City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[3][a]). Noting that the State's Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York. However, the court vacated the Comptroller's determination and remit the matter for further findings of fact "because the Hearing Officer failed to address [Cohen's] claim that he was eligible for prior service credits as an 'officer.'" Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.* The Appellate Division said that "the failure to address [Cohen's] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller's denial of Cohen's application was rational. NYPPL has summarized other cases involving the denial of claims based on a finding that the individual "was not an employee of a public entity" or was "an employee of a non-public entity" at: http://publicpersonnellaw.blogspot.com/2011/01/individuals-performing-services-for_27.html and http://publicpersonnellaw.blogspot.com/2011/02/compensation-paid-to-member-of-public.html * Unless otherwise provided by law, while not all employees of a public entity are "officers," "officers" of a public entity are "employees" of that entity. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01109.htm .

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