Preview
FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023
Office of the New York State Comptroller
Thomas P. DiNapoli
New York State and Local Retirement System Phone: 518-474-2600
110 State Street, Albany, New York 12244-0001 Fax: 518-486-3117
Email: cgardner@osc.ny.gov
Colleen Gardner, Executive Deputy Comptroller Web: www.osc.ny.gov/retire
May 12, 2023
Mr. Lawrence Edenholm
120 Denise Drive
East Amherst, NY 14227
RE: Applicant: LAWRENCE EDENHOLM
Reg. No.: 35594746
EMPLID: R10877915
H.C. No.: 49484912
Dear Mr. Edenholm;
Enclosed is a copy of my Final Determination and Decision of the Hearing Officer in the above matter.
If you are dissatisfied with the result, you have the right to judicial review in a proceeding pursuant to
Article 78 of the Civil Practice Law and Rules (CPLR).
A proceeding pursuant to CPLR Article 78 to review the Comptroller's determination is commenced by
service of a Notice of Petition (orOrder to Show Cause) and Petition upon the Comptroller and the
Attorney General. A Notice of Petition (or Order to Show Cause) and Petition must be filed with the Clerk
of the Supreme Court of the State of New York, County of Albany. Service must be made upon the
Comptroller and the Attorney General within four months of the date of your receipt of this letter.
The Agency has no further jurisdiction in this matter and cannot assist you in obtaining judicial review.
Since there is a very short statute of limitations involved, you may wish to consult an attorney for advice
on seeking judicial review.
Sincerely,
Colleen C. Gardner
Executive Deputy Comptroller
Enc.
cc: Peter Schwan, Esq.
FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023
Office of the New York State Comptroller
Thomas P. DiNapoli
3NYSLRS
New York State and Local Retirement System Phone: 518-474-2600
110 State Street, Albany, New York 12244-0001 Fax: 518-486-3117
Email: cgardner@osc.ny.gov
Colleen Gardner, Executive Deputy Comptroller Web: www.osc.ny.gov/retire
May 12, 2023
Kathleen Lukomski
Payroll Unit
Williamsville CSD
105 Casey Road
East Amherst, NY 14051
RE: Applicant: LAWRENCE EDENHOLM
Reg. No.: 35594746
EMPLID: R10877915
H.C. No.: 49484912
Dear Ms. Lukomski;
Enclosed is a copy of my Final Determination and Decision of the Hearing Officer in the above matter.
Sincerely,
Colleen C. Gardner
Executive Deputy Comptroller
Enc.
cc: Mr. Lawrence Edenhholm
FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023
NEW YORK STATE AND LOCAL RETIREMENT SYSTEM
In the Matter of the Application of
Member: LAWRENCE EDENHOLM
Reg. No.: 35594746
EMPLID: R10877915
H.C. No.: 49484912
Pursuant to Section 74 of the Retirement and Social Security Law
for a Hearing and Redetermination
This document constitutes the final determination of the Executive Deputy
Comptroller pursuant to designation by the State Comptroller.
Hearings were held on June 27, 2022, and on October 28, 2022, in Albany, New
York, with the HONORABLE WILLIAM E. STORRS, presiding as Hearing Officer, with
LAWRENCE EDENHOLM, having appeared in person and by the SCHWAN LAW
OFFICE, by PETER SCHWAN, ESQ., of Counsel, and with the NEW YORK STATE &
LOCAL RETIREMENT SYSTEM, having appeared by TANYA TERSAGO, ESQ., its
Counsel, and SCOTT LUKOWSKI, ESQ., of Counsel, and all the evidence taken and
introduced having been read and considered;
NOW, after due deliberation, the Executive Deputy Comptroller of the New York
State & Local Retirement System accepts the attached Findings of Fact and Conclusions
of Law of the Hearing Officer.
IT IS DETERMINED AND DIRECTED that the application of LAWRENCE
EDENHOLM for RETIREMENT EFFECTIVE APRIL 29, 2019 pursuant to RETIREMENT
AND SOCIAL SECURITY LAW [RSSL] § 70 is DENIED.
Dated at Albany, New this 12 of 2023
York, day May
By:
Colleen Gardner
Executive Deputy Comptroller
FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023
NEW YORK STATE AND LOCAL RETIREMENT SYSTEM
In the Matter of the Application of
Lawrence Edenholm
Reg. No.: 35594746
EMPLID: R10877915
H.C. No.: 49484912
Pursuant to Section 74 or 374 of the Retirement and Social Security Law
for a Hearing and Redetermination
JURISDICTION:
Applicant was employed as a correction officer by the New York State Department of
Corrections and Community Supervision (DOCCS) (where he was covered by retirement plans
under Articles 14 and 14CO of the Retirement and Social Security Law) and, first as a substitute
cleaner, later a part-time cleaner, by the Williamsville Central School District (the School
District) (where he was covered by a retirement plan under Article 15 of the R.S.S.L). On or
about February 27, 2019, he applied for service retirement benefits under Article 15, relying on
service credit from both of the aforementioned participating employers, indicating an intended
1).1
retirement date of April 29, 2019 (System Exh. 5, p. By determination dated January 26,
2022, the State Comptroller denied his application, finding that, although applicant was a bona
fide employee of the School District, he was not eligible to retire under Article 15 as of the date
indicated on his application because he did not have a bona fide termination of employment prior
to retirement, and the Retirement System was adjusting his effective retirement date to
November 10, 2020, the day immediately following the last day he worked for the School
I "1T" "2T"
Citations are to hearing exhibits. Citations beginning with and are to pages in the June 27, 2022, and
October 28, 2022, hearing transcripts, respectively.
1
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023
District (System Exh. 1, p. 1). Applicant made a timely request for a de novo hearing and
redetermination of the January 26, 2022, determination (System Exh. 4).
I presided over virtual hearings in this matter on June 27, 2022, and October 28, 2022.
ISSUE:
Whether the Retirement System correctly changed applicant's effective retirement date
from April 29, 2019, to November 10, 2020.
DOCUMENTARY EVIDENCE
The record contains applicant's application for service retirement benefits, showing an
date"
"effective retirement of April 29, 2019 (System Exh. 5, p. 1). The application contains the
EMPLOYMENT."
following paragraph under the heading "POST RETIREMENT "Your paid
public employment must cease at the time of your retirement. There are laws governing
employment after retirement, and if you plan to be employed by or contract with a public
employer, it is important for you to know about them. Failure to comply with these laws could
result in the suspension or diminishment of your retirement allowance or termination of your
member"
retirement and reinstatement in the Retirement System as a new (System Exh. 5, p. 2).
The March 1, 2019, letter to applicant from the Retirement System acknowledging his
application for retirement benefits contains language similar to that noted in the retirement
application (System Exh. 7, p. 2). The March 1, 2019, letter to the School District also advised
the School District the last day that applicant could appear on the payroll was the day before his
retirement date (System Exh. 6).
2
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The record contains materials relating to the hiring of applicant by the School District in
2018 with his continued employment as a substitute cleaner, including a notification he had been
promoted to the position of permanent part-time cleaner dated October 17, 2019 (System Exh. 3,
p. 22).
TESTIMONY:
Applicant
Applicant represented himself at the first hearing, at which time he indicated he
understood he had the right to retain counsel at any point during the hearing (1T5-6). Prior to the
second hearing, he retained counsel. He was permitted to reopen his case to offer additional
proof (2T8-10).
Applicant worked for DOCCS from October 17, 1988, through April 25, 2019, although
his last day actually working at DOCCS was April 23, 2019 (1T25). He started working for the
School District on April 3, 2018, as a substitute cleaner then he started working in a part-time
permanent position in February 2019 (1T26). As a part-time permanent cleaner, he worked 3 pm
to 8 pm, Monday through Friday (1T26-27). Applicant continued to work that schedule until he
resigned on November 4, 2020 (1T28).
Applicant did not work on April 29, 2019, the date he had selected as his effective
retirement date from the School District (1T18). He noted the individual from the Retirement
System with whom he had discussed the retirement process had indicated he could continue to
work at the School District after retirement, and who had told him the procedure for retiring from
the School District under Article 15 (1T17, 2T13-14, 18-20). He further noted the School District
3
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payroll supervisor had indicated she was familiar.with the Article 15 retirement as well as the
continued employment process (1T16-17, 2T13).
Applicant stated he resigned from the School District on November 4, 2020, because he
was concerned about COVID (1T20). He read his letter of resignation, which he had delivered to
the head custodian at the School District, into the record (1T31).
Mr. Pope
Mr. Pope was the head custodian at the School District and applicant's supervisor (1T17).
He testified the applicant did not work on April 29, 2019; stating he was not aware of any issue
regarding applicant returning to work for the School District after retirement (1T36). He also
confirmed it had been his understanding the applicant would return to work after April 29, 2019.
It was his recollection the applicant worked the next day, April 30, 2019 (1T37).
Mr. Fuller
Mr. Fuller is an Auditor 3 with the Retirement System's Pension Integrity Bureau (2T28).
His responsibilities in that position include overseeing staff to make sure there is appropriate and
sufficient evidence for the decisions of the Bureau (2T28). The Bureau itself looks to ensure the
accuracy of salary and service data received by the Retirement System while responding to
complaints received in the Comptroller's Office which might affect the Retirement System
(2T29).
On or about May 2019, the Pension Integrity Bureau began investigating Article 15
retirements by former correction officers (2T29). When members whose work history was
predominantly as correction officers file for retirement under Article 15, their applications are
forwarded to the Pension Integrity Bureau for review or are brought to the attention of the bureau
through data analytics (2T29-30). The bureau reviews the facts of the individual application to
4
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make sure the member was a bona fide employee of the participating employer from which he
retired, that he had a bona fide termination of employment, and he had not worked on the date
of his retirement (2T29-32). The Bureau then presents its preliminary determination to a panel
within the Retirement System for review (2T32). The Bureau then issues the agency
determination, such as, in this case (2T32).
Mr. Fuller stated the applicant's file came to his bureau through the regular process. The
Bureau's concern with respect to applicant was whether he had an separation from service at the
time of his retirement from the School District (2T33). After obtaining and reviewing data from
the School District, the bureau concluded, because applicant had continued to work after his
retirement date and who had never been removed from the payroll by the School District, the
applicant did not have a bona fide break in service at the time of his chosen retirement date
(2T35-36). Mr. Fuller conceded the applicant had been a bona fide employee of the School
District and who was otherwise eligible for Article 15 retirement (2T33-34, 44-45).
Mr. Fuller noted the School District had been advised the applicant had to be removed
from the payroll at the time of retirement, with the applicant having been advised all of his public
employment had to cease as of the retirement date (2T36-37). Mr. Fuller stated November 10,
2020, was considered to be applicant's actual retirement date because it was the date after the
last day he worked for the School District (2T39). Mr. Fuller stated he had reviewed the
transcript of the testimony from the first hearing date and had listened to the applicant's
testimony prior to his. He concluded none of the applicant's testimony altered his opinion
regarding the initial determination (2T38-39).
Mr. Fuller stated the panel reviewing the Pension Integrity Bureau's decisions on whether
former correction officers were entitled to Article 15 retirement benefits was composed of
5
FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23
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"BCDS"
individuals from legal services and the operational group with the acronym who
processed retirement applications (2T41-42). Mr. Fuller did not know if there was a legal
service"
definition of the phrase "separation from (2T42). He did not know whether the phrase
or the requirement the applicant must have submitted a letter of resignation was contained in
either of the statutes or regulations cited in the final determination (2T51-54). He stated in his
testimony there needed to be evidence of an intent to retire when gauging whether there had been
adequate separation from service was guidance provided by legal counsel (2T43-44).
Mr. Fuller stated he was not familiar with the provisions of Treasury Regulation section
1.409A-1(h)(1)(ii) or R.S.S.L. § 70. He stated those provisions were provided for the initial
determination letter by Counsel's Office (2T45-46). Mr. Fuller continued saying he had not
spoken with any Retirement System staff in the field offices about the advice they were giving
to correction officers with respect to seeking Article 15 retirement benefits because they worked
in different bureaus (2T46-47).
Mr. Fuller agreed, although the investigation into correction officers retiring under
Article 15 was initiated as a result of information that these officers were working for
municipalities for a short time before retiring. The applicant had worked for the School District
for more than a year before seeking to retire (2T47-48). He agreed the applicant was not alleged
to have paid the School District to have himself put on the payroll (2T49-50). He indicated he
had not reviewed the retirement applications of correction officers who had retired prior to 2019,
consequently, he could not comment on whether the circumstances in their retirements had been
different from the applicant's (2T56-57).
6
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FINDINGS OF FACT:
Applicant worked for DOCCS from October 17, 1988, through April 25, 2019 (System
Exh. 5, p. 1; 1T25). Applicant entered the employ of the School District in April 2018 as a
substitute cleaner (System Exh. 5, p. 1; 1T26). He became a permanent part-time cleaner in
February 2019 (1T26).
Applicant filed his application for Article 15 service retirement benefits from the School
District on February 27, 2019, indicating a retirement date of April 29, 2019 (System Exh. 5, p.
1). The application and other communications from the Retirement System to the applicant
warned, without specifics, about the possible consequences of post-retirement employment with
a participating provider advising him to be familiar with the law in that regard (System Exh. 5,
p. 2; System Exh. 7, p. 2). The communication from the Retirement System to the School
District advised the School District the applicant had to be removed from the payroll prior to his
retirement date (System Exh, 6).
Applicant did not work on his designated retirement date but returned to work in the
same position for the School District, beginning on the day after his retirement and continuing,
on a regular basis, until November 4, 2019, when he submitted a letter of resignation over fears
regarding COVID (1T21, 26; System Exh. 8). His last day worked was November 9, 2019
(System Exh. 8). Applicant had not submitted a letter of resignation to the School District when
he retired or told them tilat he would not be available for work after retirement in February 2019
(1T29-30, 33). His supervisor testified he had been aware the applicant intended to continue to
work after retirement (1T37).
"instructions"
While applicant received from a Retirement System employee in the
Buffalo office, who helped him to prepare his retirement papers, that employee's advice did not
7
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advise the applicant to establish a break in service other than not working on his retirement date,
however, it appears the employee affirmatively advised the applicant he could return to work for
the School District in the same position after retiring (1T17, 2T13-14, 18-20).
CONCLUSIONS OF LAW:
Section 74 of the R.S.S.L. vests the Comptroller with exclusive authority to determine
applications for retirement allowances and benefits. Matter of Mancuso v. Regan, 190 A.D.2d
948 (3d Dep't, 1993). In such an administrative proceeding, the applicant bears the burden of
proving all the elements of his claim. State Administrative Procedure Act section 306(1); Matter
of Wilson v. DiNapoli, 52 A.D.2d 931 (3d Dep't, 2008).
The hearing officer is appointed to perform the duties of the Comptroller as specified in
R.S.S.L. section 74. Questions as to the weight and credibility of the evidence rest with the
hearing officer. Matter of Kastner v. Regan, 75 A.D.2d 977 (3d Dep't), ly. denied, 51 N.Y.2d
703 (1980).
A member, such as applicant, who retires as a correction officer, is entitled to retirement
benefits under Article 14 or Article 14CO of the R.S.S.L. Furthermore, a corrections officer
employed by a participating employer, such as, the School District, on the other hand, is entitled
to retirement benefits under Article 15 of the R.S.S.L., a more financially advantageous plan. It
is also apparent from the record, when a correction officer who has accumulated many years of
service under Article 14 or Article 14 CO retires after a few days of service with an Article 15
participating.employer, all of the years of service credit accumulated under those plans are
considered for the Article 15 retirement benefit calculation.
8
FILED: ALBANY COUNTY CLERK 09/11
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FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 Office of the New York State Comptroller Thomas P. DiNapoli New York State and Local Retirement System Phone: 518-474-2600 110 State Street, Albany, New York 12244-0001 Fax: 518-486-3117 Email: cgardner@osc.ny.gov Colleen Gardner, Executive Deputy Comptroller Web: www.osc.ny.gov/retire May 12, 2023 Mr. Lawrence Edenholm 120 Denise Drive East Amherst, NY 14227 RE: Applicant: LAWRENCE EDENHOLM Reg. No.: 35594746 EMPLID: R10877915 H.C. No.: 49484912 Dear Mr. Edenholm; Enclosed is a copy of my Final Determination and Decision of the Hearing Officer in the above matter. If you are dissatisfied with the result, you have the right to judicial review in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules (CPLR). A proceeding pursuant to CPLR Article 78 to review the Comptroller's determination is commenced by service of a Notice of Petition (orOrder to Show Cause) and Petition upon the Comptroller and the Attorney General. A Notice of Petition (or Order to Show Cause) and Petition must be filed with the Clerk of the Supreme Court of the State of New York, County of Albany. Service must be made upon the Comptroller and the Attorney General within four months of the date of your receipt of this letter. The Agency has no further jurisdiction in this matter and cannot assist you in obtaining judicial review. Since there is a very short statute of limitations involved, you may wish to consult an attorney for advice on seeking judicial review. Sincerely, Colleen C. Gardner Executive Deputy Comptroller Enc. cc: Peter Schwan, Esq. FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 Office of the New York State Comptroller Thomas P. DiNapoli 3NYSLRS New York State and Local Retirement System Phone: 518-474-2600 110 State Street, Albany, New York 12244-0001 Fax: 518-486-3117 Email: cgardner@osc.ny.gov Colleen Gardner, Executive Deputy Comptroller Web: www.osc.ny.gov/retire May 12, 2023 Kathleen Lukomski Payroll Unit Williamsville CSD 105 Casey Road East Amherst, NY 14051 RE: Applicant: LAWRENCE EDENHOLM Reg. No.: 35594746 EMPLID: R10877915 H.C. No.: 49484912 Dear Ms. Lukomski; Enclosed is a copy of my Final Determination and Decision of the Hearing Officer in the above matter. Sincerely, Colleen C. Gardner Executive Deputy Comptroller Enc. cc: Mr. Lawrence Edenhholm FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 NEW YORK STATE AND LOCAL RETIREMENT SYSTEM In the Matter of the Application of Member: LAWRENCE EDENHOLM Reg. No.: 35594746 EMPLID: R10877915 H.C. No.: 49484912 Pursuant to Section 74 of the Retirement and Social Security Law for a Hearing and Redetermination This document constitutes the final determination of the Executive Deputy Comptroller pursuant to designation by the State Comptroller. Hearings were held on June 27, 2022, and on October 28, 2022, in Albany, New York, with the HONORABLE WILLIAM E. STORRS, presiding as Hearing Officer, with LAWRENCE EDENHOLM, having appeared in person and by the SCHWAN LAW OFFICE, by PETER SCHWAN, ESQ., of Counsel, and with the NEW YORK STATE & LOCAL RETIREMENT SYSTEM, having appeared by TANYA TERSAGO, ESQ., its Counsel, and SCOTT LUKOWSKI, ESQ., of Counsel, and all the evidence taken and introduced having been read and considered; NOW, after due deliberation, the Executive Deputy Comptroller of the New York State & Local Retirement System accepts the attached Findings of Fact and Conclusions of Law of the Hearing Officer. IT IS DETERMINED AND DIRECTED that the application of LAWRENCE EDENHOLM for RETIREMENT EFFECTIVE APRIL 29, 2019 pursuant to RETIREMENT AND SOCIAL SECURITY LAW [RSSL] § 70 is DENIED. Dated at Albany, New this 12 of 2023 York, day May By: Colleen Gardner Executive Deputy Comptroller FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 NEW YORK STATE AND LOCAL RETIREMENT SYSTEM In the Matter of the Application of Lawrence Edenholm Reg. No.: 35594746 EMPLID: R10877915 H.C. No.: 49484912 Pursuant to Section 74 or 374 of the Retirement and Social Security Law for a Hearing and Redetermination JURISDICTION: Applicant was employed as a correction officer by the New York State Department of Corrections and Community Supervision (DOCCS) (where he was covered by retirement plans under Articles 14 and 14CO of the Retirement and Social Security Law) and, first as a substitute cleaner, later a part-time cleaner, by the Williamsville Central School District (the School District) (where he was covered by a retirement plan under Article 15 of the R.S.S.L). On or about February 27, 2019, he applied for service retirement benefits under Article 15, relying on service credit from both of the aforementioned participating employers, indicating an intended 1).1 retirement date of April 29, 2019 (System Exh. 5, p. By determination dated January 26, 2022, the State Comptroller denied his application, finding that, although applicant was a bona fide employee of the School District, he was not eligible to retire under Article 15 as of the date indicated on his application because he did not have a bona fide termination of employment prior to retirement, and the Retirement System was adjusting his effective retirement date to November 10, 2020, the day immediately following the last day he worked for the School I "1T" "2T" Citations are to hearing exhibits. Citations beginning with and are to pages in the June 27, 2022, and October 28, 2022, hearing transcripts, respectively. 1 FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 District (System Exh. 1, p. 1). Applicant made a timely request for a de novo hearing and redetermination of the January 26, 2022, determination (System Exh. 4). I presided over virtual hearings in this matter on June 27, 2022, and October 28, 2022. ISSUE: Whether the Retirement System correctly changed applicant's effective retirement date from April 29, 2019, to November 10, 2020. DOCUMENTARY EVIDENCE The record contains applicant's application for service retirement benefits, showing an date" "effective retirement of April 29, 2019 (System Exh. 5, p. 1). The application contains the EMPLOYMENT." following paragraph under the heading "POST RETIREMENT "Your paid public employment must cease at the time of your retirement. There are laws governing employment after retirement, and if you plan to be employed by or contract with a public employer, it is important for you to know about them. Failure to comply with these laws could result in the suspension or diminishment of your retirement allowance or termination of your member" retirement and reinstatement in the Retirement System as a new (System Exh. 5, p. 2). The March 1, 2019, letter to applicant from the Retirement System acknowledging his application for retirement benefits contains language similar to that noted in the retirement application (System Exh. 7, p. 2). The March 1, 2019, letter to the School District also advised the School District the last day that applicant could appear on the payroll was the day before his retirement date (System Exh. 6). 2 FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 The record contains materials relating to the hiring of applicant by the School District in 2018 with his continued employment as a substitute cleaner, including a notification he had been promoted to the position of permanent part-time cleaner dated October 17, 2019 (System Exh. 3, p. 22). TESTIMONY: Applicant Applicant represented himself at the first hearing, at which time he indicated he understood he had the right to retain counsel at any point during the hearing (1T5-6). Prior to the second hearing, he retained counsel. He was permitted to reopen his case to offer additional proof (2T8-10). Applicant worked for DOCCS from October 17, 1988, through April 25, 2019, although his last day actually working at DOCCS was April 23, 2019 (1T25). He started working for the School District on April 3, 2018, as a substitute cleaner then he started working in a part-time permanent position in February 2019 (1T26). As a part-time permanent cleaner, he worked 3 pm to 8 pm, Monday through Friday (1T26-27). Applicant continued to work that schedule until he resigned on November 4, 2020 (1T28). Applicant did not work on April 29, 2019, the date he had selected as his effective retirement date from the School District (1T18). He noted the individual from the Retirement System with whom he had discussed the retirement process had indicated he could continue to work at the School District after retirement, and who had told him the procedure for retiring from the School District under Article 15 (1T17, 2T13-14, 18-20). He further noted the School District 3 FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 payroll supervisor had indicated she was familiar.with the Article 15 retirement as well as the continued employment process (1T16-17, 2T13). Applicant stated he resigned from the School District on November 4, 2020, because he was concerned about COVID (1T20). He read his letter of resignation, which he had delivered to the head custodian at the School District, into the record (1T31). Mr. Pope Mr. Pope was the head custodian at the School District and applicant's supervisor (1T17). He testified the applicant did not work on April 29, 2019; stating he was not aware of any issue regarding applicant returning to work for the School District after retirement (1T36). He also confirmed it had been his understanding the applicant would return to work after April 29, 2019. It was his recollection the applicant worked the next day, April 30, 2019 (1T37). Mr. Fuller Mr. Fuller is an Auditor 3 with the Retirement System's Pension Integrity Bureau (2T28). His responsibilities in that position include overseeing staff to make sure there is appropriate and sufficient evidence for the decisions of the Bureau (2T28). The Bureau itself looks to ensure the accuracy of salary and service data received by the Retirement System while responding to complaints received in the Comptroller's Office which might affect the Retirement System (2T29). On or about May 2019, the Pension Integrity Bureau began investigating Article 15 retirements by former correction officers (2T29). When members whose work history was predominantly as correction officers file for retirement under Article 15, their applications are forwarded to the Pension Integrity Bureau for review or are brought to the attention of the bureau through data analytics (2T29-30). The bureau reviews the facts of the individual application to 4 FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 make sure the member was a bona fide employee of the participating employer from which he retired, that he had a bona fide termination of employment, and he had not worked on the date of his retirement (2T29-32). The Bureau then presents its preliminary determination to a panel within the Retirement System for review (2T32). The Bureau then issues the agency determination, such as, in this case (2T32). Mr. Fuller stated the applicant's file came to his bureau through the regular process. The Bureau's concern with respect to applicant was whether he had an separation from service at the time of his retirement from the School District (2T33). After obtaining and reviewing data from the School District, the bureau concluded, because applicant had continued to work after his retirement date and who had never been removed from the payroll by the School District, the applicant did not have a bona fide break in service at the time of his chosen retirement date (2T35-36). Mr. Fuller conceded the applicant had been a bona fide employee of the School District and who was otherwise eligible for Article 15 retirement (2T33-34, 44-45). Mr. Fuller noted the School District had been advised the applicant had to be removed from the payroll at the time of retirement, with the applicant having been advised all of his public employment had to cease as of the retirement date (2T36-37). Mr. Fuller stated November 10, 2020, was considered to be applicant's actual retirement date because it was the date after the last day he worked for the School District (2T39). Mr. Fuller stated he had reviewed the transcript of the testimony from the first hearing date and had listened to the applicant's testimony prior to his. He concluded none of the applicant's testimony altered his opinion regarding the initial determination (2T38-39). Mr. Fuller stated the panel reviewing the Pension Integrity Bureau's decisions on whether former correction officers were entitled to Article 15 retirement benefits was composed of 5 FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 "BCDS" individuals from legal services and the operational group with the acronym who processed retirement applications (2T41-42). Mr. Fuller did not know if there was a legal service" definition of the phrase "separation from (2T42). He did not know whether the phrase or the requirement the applicant must have submitted a letter of resignation was contained in either of the statutes or regulations cited in the final determination (2T51-54). He stated in his testimony there needed to be evidence of an intent to retire when gauging whether there had been adequate separation from service was guidance provided by legal counsel (2T43-44). Mr. Fuller stated he was not familiar with the provisions of Treasury Regulation section 1.409A-1(h)(1)(ii) or R.S.S.L. § 70. He stated those provisions were provided for the initial determination letter by Counsel's Office (2T45-46). Mr. Fuller continued saying he had not spoken with any Retirement System staff in the field offices about the advice they were giving to correction officers with respect to seeking Article 15 retirement benefits because they worked in different bureaus (2T46-47). Mr. Fuller agreed, although the investigation into correction officers retiring under Article 15 was initiated as a result of information that these officers were working for municipalities for a short time before retiring. The applicant had worked for the School District for more than a year before seeking to retire (2T47-48). He agreed the applicant was not alleged to have paid the School District to have himself put on the payroll (2T49-50). He indicated he had not reviewed the retirement applications of correction officers who had retired prior to 2019, consequently, he could not comment on whether the circumstances in their retirements had been different from the applicant's (2T56-57). 6 FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 FINDINGS OF FACT: Applicant worked for DOCCS from October 17, 1988, through April 25, 2019 (System Exh. 5, p. 1; 1T25). Applicant entered the employ of the School District in April 2018 as a substitute cleaner (System Exh. 5, p. 1; 1T26). He became a permanent part-time cleaner in February 2019 (1T26). Applicant filed his application for Article 15 service retirement benefits from the School District on February 27, 2019, indicating a retirement date of April 29, 2019 (System Exh. 5, p. 1). The application and other communications from the Retirement System to the applicant warned, without specifics, about the possible consequences of post-retirement employment with a participating provider advising him to be familiar with the law in that regard (System Exh. 5, p. 2; System Exh. 7, p. 2). The communication from the Retirement System to the School District advised the School District the applicant had to be removed from the payroll prior to his retirement date (System Exh, 6). Applicant did not work on his designated retirement date but returned to work in the same position for the School District, beginning on the day after his retirement and continuing, on a regular basis, until November 4, 2019, when he submitted a letter of resignation over fears regarding COVID (1T21, 26; System Exh. 8). His last day worked was November 9, 2019 (System Exh. 8). Applicant had not submitted a letter of resignation to the School District when he retired or told them tilat he would not be available for work after retirement in February 2019 (1T29-30, 33). His supervisor testified he had been aware the applicant intended to continue to work after retirement (1T37). "instructions" While applicant received from a Retirement System employee in the Buffalo office, who helped him to prepare his retirement papers, that employee's advice did not 7 FILED: ALBANY COUNTY CLERK 09/11/2023 01:53 PM INDEX NO. 908523-23 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/11/2023 advise the applicant to establish a break in service other than not working on his retirement date, however, it appears the employee affirmatively advised the applicant he could return to work for the School District in the same position after retiring (1T17, 2T13-14, 18-20). CONCLUSIONS OF LAW: Section 74 of the R.S.S.L. vests the Comptroller with exclusive authority to determine applications for retirement allowances and benefits. Matter of Mancuso v. Regan, 190 A.D.2d 948 (3d Dep't, 1993). In such an administrative proceeding, the applicant bears the burden of proving all the elements of his claim. State Administrative Procedure Act section 306(1); Matter of Wilson v. DiNapoli, 52 A.D.2d 931 (3d Dep't, 2008). The hearing officer is appointed to perform the duties of the Comptroller as specified in R.S.S.L. section 74. Questions as to the weight and credibility of the evidence rest with the hearing officer. Matter of Kastner v. Regan, 75 A.D.2d 977 (3d Dep't), ly. denied, 51 N.Y.2d 703 (1980). A member, such as applicant, who retires as a correction officer, is entitled to retirement benefits under Article 14 or Article 14CO of the R.S.S.L. Furthermore, a corrections officer employed by a participating employer, such as, the School District, on the other hand, is entitled to retirement benefits under Article 15 of the R.S.S.L., a more financially advantageous plan. It is also apparent from the record, when a correction officer who has accumulated many years of service under Article 14 or Article 14 CO retires after a few days of service with an Article 15 participating.employer, all of the years of service credit accumulated under those plans are considered for the Article 15 retirement benefit calculation. 8 FILED: ALBANY COUNTY CLERK 09/11