A Letter To New York City Mayor Bill de Blasio

I recently sent a letter to New York City Mayor Bill de Blasio, a missive to which I have yet to receive a reply. It was a response to his memorandum in opposition to my legislation regarding a piece of legislation ( A.8174-A/S.5937) I authored regarding veteran’s pensions. Here is a copy of the letter I sent followed by the Mayor’s memorandum. I await his response and the chance to discuss the matter with him.

Mayor Bill de Blasio

City Hall

New York, NY 10007

September 8, 2015

Dear Mayor de Blasio:

I am writing in response to the Memorandum in Opposition to A.8174-A/S.5937 issued on June 19, 2015. The Memorandum in Opposition (“Memorandum”) not only demonstrates a lack of understanding of the legislation, but a lack of understanding of the military.

First, the Memorandum mischaracterizes the legislation throughout by stating that it would provide the “opportunity to purchase (buy back) up to three pension service credit for military service performed during peacetime.” The legislation creates parity among all veterans, by extending the program to those who have been unfairly excluded, including women veterans and veterans who served in conflicts that are not listed in the law, such as Bosnia and Afghanistan.

The City further argues that it is appropriate to distinguish between veterans who served in a time of war or conflict and those who did not, as the current law does. Had the City completed its due diligence, it would have discovered that this approach has led to arbitrary, inconsistent, and discriminatory results. The legislation would remedy these inequities.

One of the most egregious inequities of the current approach is that women veterans are often precluded from purchasing service credit. Those who received an expeditionary medal for service in the military conflicts in Lebanon (6/1/1983 to 12/1/1987), Grenada (10/23/1983 to 11/21/1983), and Panama (12/20/1989 to 1/31/1990) are eligible to purchase pension credit.

Because the expeditionary medal is awarded for participation in a military conflict, women who served during these conflicts were not awarded the medal since they were not eligible for deployment into the theater of operations at that time.1 Men and women who served in the theater of operations in Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the Persian Gulf, and the Red Sea since August 2, 1990 are eligible to buy back military service credit without receipt of an expeditionary medal, but women who served during these conflicts are still unfairly excluded since they were banned from serving in any combat mission and most non-combat positions located in the theater of operations.2 The women who served during these conflicts are unfairly excluded from buying back military service credit because they were banned from combat positions and essentially prohibited from serving in the theater of operations.

A 1994 Pentagon ruling opened up additional non-combat positions to women, but they were still prohibited from serving in units whose primary mission is direct combat, including infantry and artillery roles.3 In 2013, the Pentagon lifted the ban on women serving in direct combat roles and more positions are now available for women.4 However, since it is still uncommon for women to serve in combat roles, they are disproportionately excluded from buying back military service credit when eligibility for the credit is based on combat service.

As Mayor, you have pledged to work towards ending discrimination, and recently announced the establishment of the Commission on Gender Equality. It is hypocritical to publicly support women’s equality while at the same time opposing legislation which would end discrimination against our women veterans.

In addition to the discriminatory results of limiting service credits to those who served in a time of war or conflict, the logic supporting this distinction is flawed. The justification given for the distinction is that veterans who served in wartime risked their lives. However, military service credit is currently available to anyone who served during World War II (12/7/1941 to 12/31/1946), the Korean War (6/27/1950 to 1/31/1955) and the War in Vietnam (2/28/1961 to 5/7/1975) regardless of whether they were deployed. While all of these periods of conflict did involve massive amounts of troops in combat, 30% of troops during the Vietnam Era served outside of Vietnam and the surrounding Southeast Asian theater.5 It makes little sense that the approximately three million troops that served outside of the Vietnam region during that era are eligible for this pension credit when men and women who performed the same jobs during other time periods are not eligible.

Furthermore, an individual undertakes the risk of injury or death when he or she enlists in the military. At that point in time, it is unknown whether the United States will enter into a conflict, intensify operations in a current conflict, or even face an attack. Our military personnel choose to risk their lives for our country at the time they volunteer to serve. Public policy should acknowledge this fact, and the risk that all veterans have taken should be appreciated.

The tragic shooting in Chattanooga, Tennessee, in which four Marines and a Navy petty officer were killed in a recruiting center, proves that our service members undertake great risk when they enter the military, regardless of where they are eventually assigned. There are also assignments in the military that are extremely risky, whether or not the assignment is performed during a conflict. For example, a bomb removal technician is one of the most dangerous jobs in the Marines. The risk faced in that job occurs regardless of where it is performed, as evidenced by the death of four Marines at Camp Pendelton, California in 2013.6

Second, the City suggests that the legislation should be structured the same way as Ch. 644 of 1998, which required members to pay the full cost of the service. At best, this suggestion is offered without the City adequately researching Ch. 644 of 1998. Had the City investigated further, it would have discovered that this law was completely ineffective. After only two years, Ch. 548 of 2000 was signed into law to make the veterans buyback program workable. Senator Morahan, the sponsor of the 2000 legislation acknowledged this in his letter to the Governor’s counsel, stating that, “The cost of buying back years of service for retirement credit was so costly that too few veterans took advantage of the right to do so.” At worst, this suggestion is offered with the goal of making the service credits so cost-prohibitive that no additional veterans would be able to obtain the benefit. I am not interested in passing legislation to create a benefit that proves illusory for our veterans.

Modeling the legislation after Ch. 644 of 1998 would also discriminate against women veterans.  As previously discussed, many women veterans who served during conflicts have been unfairly excluded from the current buyback program and would only become eligible to buy back service credit under this legislation. If it were modeled after Ch. 644 of 1998, as you suggest, these women would have to pay the full cost of the service credit rather than the 3% that the men who served during those conflicts are required to pay. This is clear discrimination against women veterans.

Lastly, the Memorandum expresses the concern that the increased opportunity to purchase service credit could lead to a rise in retirements. The City cannot argue that it opposes this legislation because it could cause an increase in retirements, which would save money, while at the same time arguing that this legislation is too costly.

I checked with the Office of the Actuary and was disappointed to learn that you did not speak with them regarding this legislation before issuing the Memorandum. Had you done so, you would have learned that if every eligible veteran were to purchase service credit, it would cost New York City approximately $15.7 million annually, which is only two tenths of one percent more than the approximately $9 billion that New York City currently contributes to the NYCRS annually. In fact, the $200,000 of that $15.7 million attributable to the New York City Board of Education Retirement System (BERS) could be characterized as a “rounding error.” The Office of the Actuary has noted that current  law on crediting military service for pension purposes is confusing to pension plan participants, is challenging to administer and results in anomalies due to personal circumstances.

Currently, New York has one of the least comprehensive military service credit programs in the nation, when considering who is eligible and the number of years available for purchase. By comparison, New Jersey7 allows any veteran to buy up to ten years of service credit and California8 allows four. The current structure under our laws is one of the least veteran friendly 6 in the nation. The great State of New York should be a leader in supporting our returning veterans.

According to the most recent U.S. Census data, there are over 200,000 veterans residing in New York City. The fraction of these men and women who are employed by the City are counting on your leadership. I hope that you will reconsider your opposition to this legislation, so that all of our veterans are recognized for their service.

Sincerely,

Amy R. Paulin

Member of Assembly

1 See “Restrictions on Assignments of Military Women: A Brief History,” National Women’s Law Center, April

2016, available at http://www.nwlc.org/resource/restrictions-assignments-military-women-brief-history.

2 Id.

3 See Elisabeth Bumiller and Thom Shanker, “Pentagon Is Set to Lift Combat Ban for Women,” New York Times,

January 3, 2013, available at http://www.nytimes.com/2013/01/24/us/pentagon-says-it-is-lifting-ban-on-women-in-

combat.html?pagewanted=all&_r=0.

4 Id.

5 National Vietnam Veterans Foundation Statistics, http://www.nationalvietnamveteransfoundation.org/statistics.htm

6Associated Press, “Marines killed at California’s Camp Pendleton worked in one of Corps’ most dangerous jobs,”

November 15, 2013, http://www.foxnews.com/us/2013/11/15/marines-killed-at-california-camp-pendleton-worked-

in-one-corps-most-dangerous/.

7 The New Jersey Division of Pension and Benefits,

http://www.state.nj.us/treasury/pensions/pdf/factsheets/fact01.pdf

8 CalPERS, “A Guide to Your CalPERS Service Credit Purchase Options,” available at

http://www.calpers.ca.gov/eip-docs/about/pubs/member/guide-calpers-service-credit-options.pdf.

AND HERE IS THE MAYOR’S MEMORANDUM

LEGISLATIVE         A.8174A – by M. of A. Paulin – Ways and Means Committee

REFERENCE            S.5937 – by Senator Larkin – Passed

TITLE – AN ACT to amend the retirement and social security law, in relation to     providing credit to members of public retirement systems of the state for military service; and making an appropriation therefor.

SUMMARY OF PROVISIONS

This bill amends section 1000 of the retirement and social services law, as added by chapter 548 of the laws of 2000 and subdivision 9 as added by chapter 547 of the laws of 2002, by deleting the specified periods of time in which military service would had to have been rendered in order to receive up to three years of service credit. Such specified periods currently prevent a person who served in military, outside such periods, from obtaining service credit when applying to a public retirement system of the state. This section also deletes other restricting dates.

Section two provides the appropriation necessary for the legislation.

Section three provides the effective date.

REASONS FOR OPPOSITION

This legislation would amend New York State Retirement and Social Security Law (RSSL) Section 1000, as established by Chapter 548 of the Laws of 2000, to provide certain members of the New York City Employees’ Retirement System, the New York City Teachers’ Retirement System, the New York City Board of Education Retirement System, the New York City Police Pension Fund and the New York Fire Department Pension Fund the opportunity to purchase (buy back) up to three years of pension service credit for military service performed during peacetime.

This bill would entirely eliminate the existing requirements specified in the RSSL that all or part of the military service eligible to be purchased for pension service credit must have been rendered during defined periods of war (World War II, Korea, Vietnam), or in any of the specified military conflicts in Lebanon, Grenada, Panama, or the Middle East. Any member of a public retirement system who served in the United States military with an honorable discharge and who has at least five years of credited service would be eligible to purchase up to three of service credit for that prior military service. Tier 6 members would be required to make a payment of six percent of compensation earned in the 12 months prior to the filing of the credit application times the number of years of service being claimed, while members of other Tiers would be required to make a payment of three percent of such compensation. The military service purchased under this proposed legislation would be qualifying for all purposes. For example, a Tier 2 New York City Police Officer with 17 years of service credit could purchase three years of military service credit and qualify for service retirement with 20 years of service.

The City of New York deeply appreciates the service of those who serve in the United States military, including those who serve during peacetime and stand ready to serve in the defense of our nation. However, the City is constrained to oppose this legislation as it presents a new employer cost of $15.7 million per year, as determined by the City Actuary in the fiscal note included in this legislation. Public employee pension costs already comprise a significant part of the non-discretionary portion of the City’s budget and every dollar spent to fund benefit enhancements means one less dollar for the City’s discretionary budget which is used to fund essential services.

Contrary to the original purposes of military buy-back statutes, namely to provide pension credit to retirement system members who risk their lives during periods of war, this legislation makes no distinction between those who served during wartime and those who served during peacetime. The result would be a substantial expansion of the pool of members eligible to purchase military credit which would lead to additional substantial employer costs as the bill does not seek to increase the contribution levels for newly eligible members to fund such expansion.

Rather than impose an unfunded mandate on the City, the sponsors should have explored ways to ensure that the bill was cost-neutral to employers. The sponsors could have followed, for example, the cost-neutral model established with Chapters 644 of the Laws of 1998 which was the predecessor to Chapter 548 of the Laws of 2000. Chapter 644 required that members pay the full cost of the military service rendered during a period of war (employer and employee portion). A review of the legislative history for Chapter 548 shows that its proponents higkighted the sacrifice made by members who served in time of war or military conflict as justification for replacing the contribution requirement in Chapter 644 with a provision that would not require members to fund the employer cost. The City concurs with the general principle embedded in this justification – the nature of one’s military serviceis an entirely appropriate distinguishing factor when contemplating extending generous pension benefits. The proponents of the instant bill, however, have taken a different approach which seeks to expand buy-back benefits to cover members. To avoid placing undue pressure on the City’s budget, the proponents should have resorted to the contribution requirements of Chapter 644 to fund such a significant expansion of the military buy-back statute.

Another concern is the potential impact of this legislation on the retention of the senior employees. A review of the legislative documents submitted for Chapter 548 indicates that certain parties were concerned over the retention of senior employees, particularly those in law enforcement, which includes the majority of men and women who serve on active military duty. It was feared that increased opportunities to purchase additional service credit would lead to a rise in retirements. The instant bill seems to invite similar concerns as the eligible criteria are significantly expanded.

The City of New York provides several benefits to its employees who serve, or have served, on active military duty. For example, the City offers the Extended Military Benefits Program (EMBP), which was created to ease, as much as possible, the burden faced by families due to active military duty. Additionally, New York City provides important resources through the Mayor’s Office of Veteran’s Affairs to inform and connect veterans with appropriate city, state and federal benefits. The office is working closely with the NYC Department of Small Business Services to help veterans receive workforce training. In the City’s “Workforce Centers” in each of the five boroughs, there are veteran specialists – many of them veterans themselves – who match job applicants with available jobs, provide individual counseling sessions and connect veterans to the right training opportunities. In addition, the City has a new entrepreneurship program helping veterans start their own businesses.

In conclusion, while the City continues to recognize and support the service of all who serve in the armed forces, the additional cost and the imperative to consider other urgent needs of all the City’s residents lead to the conclusion that the current law, which distinguishes between wartime and peacetime service, strikes an appropriate balance. Careful consideration must be given before imposing State legislative mandates that effectively require local subsidizing of new pension benefits without providing the means to pay for such benefits.

Accordingly, it is urged that this bill be disapproved.

Respectfully submitted,

SHERIF SOLIMAN

Director

 

SS: 6/19/15

 

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