N.Y. RSS Law § 138-A — New York Code / Act RSS / Article 3 / Section 138-A
Referenda among public employees; extension of old-age and survivors insurance
Status: in_force

§ 138-a. Referenda among public employees; extension of old-age and\nsurvivors insurance.  1. As soon as practicable after the effective date\nhereof, the governor or the state agency or officer designated by him\nshall, in accordance with the applicable provisions of the federal\nsocial security act and subdivision thirteen of this section, authorize\nthe separate referenda described below (and thereafter, such similarly\nseparated referenda as may be deemed appropriate and be consistent with\nthis article and such federal act):\n  a. One referendum among all eligible employees of the state (exclusive\nof those in police officer or firefighter positions) who are members of\nthe New York state employees' retirement system, a second referendum\namong all eligible employees of political subdivisions of the state\n(exclusive of those in police officer or firefighter positions) who are\nmembers of such retirement system, which subdivisions elected to provide\nseven calendar quarters of retroactive coverage for such employees\npursuant to subdivision seven of this section, a third referendum among\nall eligible employees of political subdivisions of the state (exclusive\nof those in police officer or firefighter positions) who are members of\nsuch retirement system, which subdivisions elected to provide six\ncalendar quarters of retroactive coverage for such employees pursuant to\nsubdivision seven of this section, a fourth referendum among all\neligible employees of political subdivisions of the state (exclusive of\nthose in police officer or firefighter positions) who are members of\nsuch retirement system, which subdivisions elected to provide four\ncalendar quarters of retroactive coverage for such employees pursuant to\nsubdivision seven of this section, and a fifth referendum among all\neligible employees of the remaining political subdivisions of the state\n(exclusive of those in police officer or firefighter positions) who are\nmembers of such retirement system, on the question of whether service in\npositions (exclusive of police officer or firefighter positions) in the\nemploy of the state or of such political subdivisions, as the case may\nbe, and covered by such system also shall be covered by old-age and\nsurvivors insurance.\n  b. Separate referenda among eligible employees of the state (exclusive\nof those in police officer or firefighter positions) whose positions are\ncovered by a separate retirement system or plan maintained by the state,\nother than the New York state and local employees' retirement system or\nthe New York state teachers' retirement system, and who are members of\nsuch system or plan, on the question of whether service in positions\n(exclusive of police officer or firefighter positions) covered by such\nsystem or plan also shall be covered by old-age and survivors insurance.\n  c. One referendum among all eligible employees of the state who are\nmembers of the New York state teachers' retirement system, a second\nreferendum among all eligible employees of political subdivisions of the\nstate who are members of such retirement system, which subdivisions\nelected to provide seven calendar quarters of retroactive coverage for\nsuch employees pursuant to subdivision seven of this section, a third\nreferendum among all eligible employees of political subdivisions of the\nstate who are members of such retirement system, which subdivisions\nelected to provide six calendar quarters of retroactive coverage for\nsuch employees pursuant to subdivision seven of this section, a fourth\nreferendum among all eligible employees of political subdivisions of the\nstate who are members of such retirement system, which subdivisions\nelected to provide four calendar quarters of retroactive coverage for\nsuch employees pursuant to subdivision seven of this section, and a\nfifth referendum among all eligible employees of the remaining political\nsubdivisions of the state who are members of such retirement system, on\nthe question of whether service in positions covered by such system also\nshall be covered by old-age and survivors insurance.\n  d. Separate referenda among eligible employees of each political\nsubdivision (exclusive of those in police officer or firefighter\npositions) who are members of a retirement system or plan maintained by\nsuch political subdivision other than a retirement system relating to\nretirement benefits under the Canada pension plan, on the question of\nwhether service in positions in the employ of such political subdivision\nand covered by such system or plan also shall be covered by old-age and\nsurvivors insurance. The modification providing old-age and survivors\ninsurance coverage pursuant to such referenda shall provide such\nretroactive coverage, if any, and shall exclude from old-age and\nsurvivors insurance coverage such classes of employment as authorized by\nparagraph b of subdivision two of section one hundred thirty-six of this\narticle, if any, as the governing body of such political subdivision\nshall determine, consistent with the federal social security act. Such\ndetermination shall be made within a reasonable period of time fixed by\nthe director and indicated in a certificate filed with the director.\n  2. In the event the federal social security act is amended to\nauthorize the extension of old-age and survivors insurance coverage to\nservice performed in this state in police officer or firefighter\npositions, the governor or the state agency or officer designated by him\nor her shall, as soon as practicable after the enactment of such\namendment and in accordance with the applicable provisions of such\nfederal act and subdivision thirteen of this section, to the extent then\napplicable, shall take such action as may be necessary to extend old-age\nand survivors insurance coverage to such positions, including, to the\nextent applicable, referenda as follows:\n  a. One referendum among all eligible employees of the state serving in\npolice officer or firefighter positions who are members of the New York\nstate and local employees' retirement system.\n  b. A separate referendum among all eligible employees of the state\nserving in police officer or firefighter positions whose positions are\ncovered by a retirement system or plan maintained by the state other\nthan the New York state and local employees' retirement system, and who\nare members of such system or plan.\n  c. One referendum among all eligible employees of political\nsubdivisions of the state serving in police officer or firefighter\npositions who are members of the New York state and local employees'\nretirement system, which political subdivisions elected to provide\nretroactive coverage to or about March sixteenth, nineteen hundred\nfifty-six, to such employees pursuant to subdivision seven of this\nsection, a second referendum among all eligible employees of political\nsubdivisions of the state serving in police officer or firefighter\npositions who are members of such retirement system, which subdivisions\nelected to provide retroactive coverage to or about June sixteenth,\nnineteen hundred fifty-six, to such employees pursuant to subdivision\nseven of this section, a third referendum among all eligible employees\nof political subdivisions of the state serving in police officer or\nfirefighter positions who are members of such retirement system, which\npolitical subdivisions elected to provide retroactive coverage to or\nabout December sixteenth, nineteen hundred fifty-six, to such employees\npursuant to subdivision seven of this section, and a fourth referendum\namong all eligible employees of the remaining political subdivisions of\nthe state serving in police officer or firefighter positions who are\nmembers of such system, which eligible employees shall have retroactive\ncoverage to or about December sixteenth, nineteen hundred fifty-seven.\n  d. Separate referenda among eligible employees of each political\nsubdivision serving in police officer or firefighter positions whose\npositions are covered by a separate retirement system or plan maintained\nby such political subdivision and who are members of such system or\nplan. Each such referendum shall be on the question of whether service\nin the police officer or firefighter positions affected thereby also\nshall be covered by old-age and survivors insurance.\n  2-a. Notwithstanding any inconsistent provision of this article:\n  a. The alternative referendum and certification procedure provided by\nparagraph seven of subdivision (d) of section two hundred eighteen of\nthe federal social security act, as added by public law eighty-five-two\nhundred twenty-nine, may be followed in lieu of any referendum and\ncertification of the result thereof as required by this section. All\nactions heretofore duly taken which comply or anticipate compliance with\nany procedure authorized or contemplated by such paragraph seven are\nhereby ratified and confirmed and shall be deemed to have been taken in\nfull compliance with this section.\n  b. Any action duly taken which extended or extends retroactive\ncoverage to a date on or about March sixteenth, nineteen hundred\nfifty-six, or thereafter, for any public employees, including those not\nprovided with such coverage prior to January first, nineteen hundred\nfifty-eight, is hereby ratified and confirmed and such retroactive\ncoverage shall be deemed to have been provided in full compliance with\nthis section as hereby amended.\n  3. Each notice of referendum required by the federal social security\nact to be given to employees shall contain or shall be accompanied by a\nstatement, in such form and with such detail as the governor, or the\nstate agency or officer designated by him, shall determine is sufficient\nto inform such employees of the rights which will accrue to them, their\ndependents and survivors, and of the liabilities to which they will be\nsubject in the event that service in their positions is covered by\nold-age and survivors insurance. Such information also shall be made\navailable to employees for a reasonable period before they are required\nto indicate, pursuant to subdivision thirteen of this section, whether\nthey desire old-age and survivors insurance coverage.\n  4. The governor or the state agency or officer designated by him shall\nhave power to require the filing by public agencies and officers of\ninformation and data necessary for the conduct of referenda provided for\nherein and the determination of the results thereof.\n  5. Where in any such referendum a majority of the eligible employees\nvote in favor of covering service in positions covered by a retirement\nsystem or plan under old-age and survivors insurance, and the other\napplicable conditions of the federal social security act have been met,\nthe governor shall make the necessary certificate to the federal\nsecretary in accordance with such act.\n  6. Whenever any such certification is made to the federal secretary,\nthe director shall take the necessary action to effectuate the result of\nsuch referendum and modify the state's agreement with the federal\nsecretary accordingly, except that with respect to the referenda\nprovided by paragraph c of subdivision one of this section among\neligible employees of political subdivisions who are members of the New\nYork state teachers' retirement system, no such modification shall be\nmade with respect to employees of political subdivisions unless a\nmajority of all the members of the system (counted without reference to\nany division theretofore made pursuant to subdivision thirteen hereof)\nemployed by political subdivisions voted in favor of coverage in such\nreferenda.\n  7. In the event a referendum which includes employees of the state\nfavors the extension of old-age and survivors insurance coverage to\npositions in the employ of the state, the director shall, in such\nmodification, provide for retroactive coverage to March sixteenth,\nnineteen hundred fifty-six. The director shall fix a reasonable period\nof time during which the governing body of each political subdivision,\nhaving employees who are members of the New York state employees'\nretirement system, the New York state teachers' retirement system, or a\npension or retirement system maintained by the political subdivision may\ndetermine to provide retroactive coverage to or about March sixteenth,\nnineteen hundred fifty-six, June sixteenth, nineteen hundred fifty-six,\nDecember sixteenth, nineteen hundred fifty-six, or December sixteenth,\nnineteen hundred fifty-seven to its employees who are members of any of\nsuch systems. The director shall have power to fix the precise\nretroactive date in each such case.\n  7-a. Notwithstanding any action previously taken by the governing body\nof any political subdivision with respect to whether or not retroactive\ncoverage should be extended to any of its employees or the amount of\nretroactive coverage which it has provided, and notwithstanding any\ninconsistent provision of this section or of any general, special or\nlocal law, city or village charter, ordinance or resolution, in the\nevent the federal social security act authorizes or is amended to\nauthorize it to do so such governing body may, during the period\nauthorized by and in the manner provided by such act, extend retroactive\ncoverage to employees of such political subdivision to a date not\nearlier than one in the first calendar quarter of nineteen hundred\nfifty-six so that only one payroll date or such other minimum period,\ndetermined by the director, shall be included in such retroactive period\nto accomplish the result of providing retroactive coverage for the\nearliest calendar quarter to be included in such retroactive coverage.\nThe director shall have power to fix the precise retroactive date in\neach such case.\n  8. a. Notwithstanding any other provision of law, any individual who,\non or after August first, nineteen hundred fifty-six, had an option to\njoin a retirement system or plan applicable to his position and who\ncould have joined such retirement system or plan prior to the execution\ndate of a modification extending old-age and survivors insurance to any\nposition covered by such retirement system or plan, but who had not\njoined such retirement system or plan prior thereto, is hereby declared\npersonally ineligible for membership in such retirement system or plan,\neffective as of August first, nineteen hundred fifty-six, or if he first\noccupies such position later, such later date.\n  b. The director shall modify the federal agreement under this article\nto provide old-age and survivors insurance coverage to individuals in\nthe employ of the state who are ineligible to become members of a\nretirement system applicable to their positions, including individuals\nto whom paragraph a of this subdivision is applicable, and provide, with\nrespect to such individuals, the retroactive coverage specified in\nsubdivision seven of this section.\n  c. The director shall modify the federal agreement under this article\nto provide old-age and survivors insurance coverage to individuals in\nthe employ of any political subdivision of the state who are ineligible\nto become members of a retirement system applicable to their positions,\nincluding individuals to whom paragraph a of this subdivision is\napplicable, and provide, with respect to such individuals, the\nretroactive coverage, if any, and the excludable classes of employment\nas authorized by paragraph b of subdivision two of section one hundred\nthirty-six of this article, if any, determined by the governing body of\nthe political subdivision by which such individuals are employed,\nconsistent with the federal social security act.\n  d. Eligibility for membership in a retirement system or plan is hereby\nrestored to every employee who was made ineligible for membership in\nsuch a system or plan by operation of any provision of paragraph a, b or\nc of this subdivision eight as originally enacted by chapter seven\nhundred seventy-six of the laws of nineteen hundred fifty-seven.\n  9. In the event that a referendum among eligible employees of the\nstate or of one or more political subdivisions favors the extension of\nold-age and survivors insurance coverage to positions covered by a\nretirement system or plan of which they are members, persons who are\nmembers of such system or plan as of the referendum date shall be given\nsuch coverage only if they indicated their desire therefor, prior to the\napplicable referendum, in such manner and on or before such date as the\ndirector shall specify by rule or regulation consistent with the federal\nsocial security act.\n  10. a. In the event that the referenda among eligible employees of\npolitical subdivisions of the state (exclusive of those in police\nofficer or firefighter positions) who are members of the New York state\nand local employees' retirement system favor the extension of old-age\nand survivors insurance coverage to their positions, all positions in\nthe employ of each political subdivision of the state, except those\ncovered by a retirement system or plan of the state or the political\nsubdivision and subject to separate referenda hereunder, and except\nthose excluded from coverage pursuant to paragraph b of subdivision two\nof section one hundred thirty-six of this article, also shall be covered\nby old-age and survivors insurance at or about the same time that the\ndirector modifies the agreement with the federal secretary to effectuate\nthe result of such referenda as to the political subdivisions affected\nthereby. Each political subdivision to which old-age and survivors\ninsurance is extended pursuant to this subdivision shall have the\noption, within a reasonable period of time fixed by the director, to\nfile a certificate with the director fixing the effective date of its\ncoverage (which may include retroactive coverage for such period as its\ngoverning body shall determine subject to the federal social security\nact and which effective date shall be not later than its last payroll\ndate in December nineteen hundred fifty-seven) and excluding from\ncoverage classes of employment as authorized by paragraph b of\nsubdivision two of section one hundred thirty-six of this article.\n  b. In the event that the referenda among eligible employees of\npolitical subdivisions of the state who are members of the New York\nstate employees' retirement system favor the extension of old-age and\nsurvivors insurance coverage to their positions, all positions in the\nemploy of a political subdivision of the state which is created\nsubsequent to the date of the modification of the agreement with the\nfederal secretary, to effectuate the result of such referenda also shall\nbe covered by old-age and survivors insurance, effective the date the\npolitical subdivision first has employees on the payroll, or becomes\neligible, or as soon thereafter as is consistent with the federal social\nsecurity act. Each political subdivision to which old-age and survivors\ninsurance is extended pursuant to this paragraph shall have the option,\nwithin a reasonable period of time fixed by the director and prior to\nparticipation by such political subdivision in New York state employees'\nretirement system, to file a certificate with the director excluding\nfrom coverage classes of employment as authorized by paragraph b of\nsubdivision two of section one hundred thirty-six of this article.\n  11. Where the agreement with the federal secretary is modified, each\npolitical subdivision affected thereby shall be obligated under this\narticle as if the modification had been made on the basis of its\napplication to and agreement with the director that it be so modified.\n  12. Where the director modifies the agreement with the federal\nsecretary to provide for old-age and survivors insurance coverage to\nemployees of the state or of a political subdivision in addition to\ntheir coverage by a retirement system or plan, such action shall, as of\nthe effective date of coverage, be deemed to restore the eligibility for\nmembership in such system or plan of employees in positions in the\nemploy of the state or the political subdivision, as the case may be,\nwho theretofore were eligible for membership therein, but whose\npositions were excluded from eligibility therein in order that old-age\nand survivors insurance coverage could be extended to them.\n  13. A retirement system or plan, for the purposes of this article,\nshall be deemed to constitute a separate retirement system with respect\nto the positions covered thereby for which a separate referendum is\nauthorized herein. Each retirement system or plan shall be divided into\ntwo parts, one of which shall be composed of positions of members of\nsuch system who desire old-age and survivors insurance coverage on the\nbasis of their service in such positions and the other to be composed of\npositions of the members who do not desire such coverage. Each such part\nshall be deemed a separate retirement system for the purposes of the\nreferenda provided for in this article. Positions of persons who become\nmembers of a retirement system or plan after old-age and survivors\ninsurance shall have been extended shall be included in the part\ncomposed of members desiring such coverage.\n  14. Notwithstanding the provisions of section one hundred forty-three\nof this article, the costs of each referendum conducted hereunder shall\nbe paid as an administrative expense by the retirement system or plan\namong whose members the referendum is conducted. The governor or state\nofficer or agency designated by him shall have power to require each\nsuch system or plan to pay the costs so incurred.\n  15. Where the compensation of any person whose position is covered by\nold-age and survivors insurance pursuant to this article is paid from a\nspecial or administrative fund provided for by law other than an income\nfund of the state university or the mental hygiene services fund, the\ncontributions required to be paid by his employer for such coverage,\nincluding a proportionate share of the costs of administration charged\nto such employer pursuant to section one hundred thirty-nine of this\narticle, shall be paid from such special or administrative fund.\n  16. Notwithstanding anything to the contrary contained in subdivision\nnine of this section, the director is hereby authorized, on behalf of\nthe state, consistent with the provisions of the federal social security\nact, to modify the agreement with the federal secretary for the purpose\nof extending old age and survivors insurance coverage to positions of\nmembers of the division or part of a retirement system composed of\nmembers who do not desire coverage, if in the manner and before the date\nspecified by the director, the individuals occupying such positions,\nfile with him a written request therefor.\n