From its beginning in 1920, the ERS has been providing benefits to its members. Over the years, tiers have been added altering the benefits received and they are presently known as Tiers 1, 2, 3 and 4.There have been many headlines in recent months about various members and the benefits they receive and the credits they obtained. The main focus has been on whether the person was an employee or independent contractor and how full-time verses part-time compensation was classified. For decades, the ERS has recognized the right of private practice professionals, such as attorneys, to work less than full-time for a governmental entity and be enrolled in the ERS. The ERS has recognized and provided full service credit to members of Tier 1 of the ERS that worked part-time for an annual salary for a participating employer while simultaneously maintaining a private practice. The ERS has also recognized and provided prorated service credit to members of Tiers 2, 3 and 4 of the ERS that worked part-time for participating employers while simultaneously maintaining a private practice. As a result of a massive media frenzy, Attorney General Andrew M. Cuomo, and Comptroller Thomas P. DiNapoli and their offices have taken and threaten to take actions against these members on the alleged basis that private practice professionals cannot receive public benefits. Attorney General Cuomo has declared this practice fraudulent. He recently has stated that you cannot be an “employee” unless you have “an office, a desk and a phone.” DiNapoli actions track this thinking by selecting only a few of the 20 IRS employee “tests.” A spokesperson for Comptroller DiNapoli has stated that through the investigation they will be taking action on a number of attorneys in the near future. We believe the actions taken and threatened are contrary to law and are appropriately addressed through the Courts. Further, the ERS is contradictory, convoluted and in need of appropriate jurisprudential redress. |