Amounts paid to an individual “as compensation” required by contract to be returned to the employer ignored in determining a final average salary upon retirement

Amounts paid to an individual “as compensation” required by contract to be returned to the employer ignored in determining a final average salary upon retirement
Licopoli v New York State Teachers' Retirement System, 2012 NY Slip Op 08400, Appellate Division, Third Department

This CPLR Article 78 action challenged the calculation of a retiree’s [R] retirement benefit by the New York State Teachers’ Retirement System [TRS].

R served as superintendent of the School District from 2001 until his retirement in 2009.

In 2006 R and the district entered into an employment contract covering the period of July 1, 2006 through June 30, 2009 that provided for basic annual salary increases of four percent. The agreement, however, required R to make a gift of one percent of his annual salary to the school district each year.

Additionally, the agreement provided that in the event R was to "resign" from his position for any reason other than for "retirement,” he was required to make a gift of $15,000 to the school district.*

When R retired in 2009 TRS determined that the sums he was contractually obligated to refund to the school district annually were to be excluded in determining his final average salary for the purposes of retirement.  

R filed a petition pursuant to CPLR Article 78 challenging TRS’s decision. Supreme Court dismissed R's petition and R appealed.

The Appellate Division said that TRS must determine R’s retirement benefits by first determining his final average salary, noting that a TRS member's final average salary is based on the individual’s “actual compensation earned during either the last three or five years of his or her employment, whichever is higher.” 

Further, said the court, in order to prevent any “artificial inflation of this figure,” any form of extra payment made in anticipation of retirement must be excluded, citing Palandra v New York State Teachers’ Retirement System, 84 AD3d 1689.

R argued that those monies that were paid to him that were to be ”gifted back to the school district” in accordance with the contract between the parties constituted regular compensation “because they did not reflect unusual or extraordinary increases in his annual salary and he would have made the gifts whether or not required to pursuant to the agreement.”

The court disagreed, commenting that although a four percent annual salary increase would not, in and of itself, appear extraordinary, there is no dispute that R was required to return a portion of that amount to the school district to satisfy his contractual obligation to the district.

Accordingly, the Appellate Division concluded that, in effect, R did not actually receive the monies he was contractually obligated to return to the district as employment compensation.

Thus, opined the court, TRS’s determination that the portions of R annual salary that were required to be gifted back to the district must be excluded from the calculation of his retirement benefit was not irrational and dismissed R’s appeal.

* The agreement was subsequently amended at R's request to permit him to make the $15,000 gift to the school district's parent-teacher associations in the event this provision in the agreement was triggered by P's resigning for other than reasons of retirement.  

The decision is posted on the Internet at: