NY Ret & SS L § 138-A (2021)
2021 New York Laws RSS - Retirement and Social Security Article 3 - Federal Old-Age and Survivors Insurance Coverage for Certain Public Employees 138-A - Referenda Among Public Employees; Extension of Old-Age and Survivors Insurance.

§  138-a.  Referenda  among public employees; extension of old-age and   survivors insurance.  1. As soon as practicable after the effective date   hereof, the governor or the state agency or officer  designated  by  him   shall,  in  accordance  with  the  applicable  provisions of the federal   social security act and subdivision thirteen of this section,  authorize   the  separate  referenda described below (and thereafter, such similarly   separated referenda as may be deemed appropriate and be consistent  with   this article and such federal act):a. One referendum among all eligible employees of the state (exclusive   of  those in police officer or firefighter positions) who are members of   the New York state employees' retirement  system,  a  second  referendum   among  all  eligible  employees  of  political subdivisions of the state   (exclusive of those in police officer or firefighter positions) who  are   members of such retirement system, which subdivisions elected to provide   seven  calendar  quarters  of  retroactive  coverage  for such employees   pursuant to subdivision seven of this section, a third referendum  among   all eligible employees of political subdivisions of the state (exclusive   of  those in police officer or firefighter positions) who are members of   such retirement  system,  which  subdivisions  elected  to  provide  six   calendar quarters of retroactive coverage for such employees pursuant to   subdivision  seven  of  this  section,  a  fourth  referendum  among all   eligible employees of political subdivisions of the state (exclusive  of   those  in  police  officer  or firefighter positions) who are members of   such retirement system,  which  subdivisions  elected  to  provide  four   calendar quarters of retroactive coverage for such employees pursuant to   subdivision  seven  of  this  section,  and a fifth referendum among all   eligible employees of the remaining political subdivisions of the  state   (exclusive  of those in police officer or firefighter positions) who are   members of such retirement system, on the question of whether service in   positions (exclusive of police officer or firefighter positions) in  the   employ  of  the state or of such political subdivisions, as the case may   be, and covered by such system also shall  be  covered  by  old-age  and   survivors insurance.b. Separate referenda among eligible employees of the state (exclusive   of those in police officer or firefighter positions) whose positions are   covered by a separate retirement system or plan maintained by the state,   other  than the New York state and local employees' retirement system or   the New York state teachers' retirement system, and who are  members  of   such  system  or  plan,  on the question of whether service in positions   (exclusive of police officer or firefighter positions) covered  by  such   system or plan also shall be covered by old-age and survivors insurance.c.  One  referendum  among all eligible employees of the state who are   members of the New York state  teachers'  retirement  system,  a  second   referendum among all eligible employees of political subdivisions of the   state  who  are  members  of  such retirement system, which subdivisions   elected to provide seven calendar quarters of retroactive  coverage  for   such  employees  pursuant  to subdivision seven of this section, a third   referendum among all eligible employees of political subdivisions of the   state who are members of  such  retirement  system,  which  subdivisions   elected  to  provide  six  calendar quarters of retroactive coverage for   such employees pursuant to subdivision seven of this section,  a  fourth   referendum among all eligible employees of political subdivisions of the   state  who  are  members  of  such retirement system, which subdivisions   elected to provide four calendar quarters of  retroactive  coverage  for   such  employees  pursuant  to  subdivision  seven of this section, and a   fifth referendum among all eligible employees of the remaining political   subdivisions of the state who are members of such retirement system,  on    the question of whether service in positions covered by such system also   shall be covered by old-age and survivors insurance.d.  Separate  referenda  among  eligible  employees  of each political   subdivision  (exclusive  of  those  in  police  officer  or  firefighter   positions)  who are members of a retirement system or plan maintained by   such political subdivision other than a retirement  system  relating  to   retirement  benefits  under  the Canada pension plan, on the question of   whether service in positions in the employ of such political subdivision   and covered by such system or plan also shall be covered by old-age  and   survivors  insurance.  The  modification providing old-age and survivors   insurance  coverage  pursuant  to  such  referenda  shall  provide  such   retroactive  coverage,  if  any,  and  shall  exclude  from  old-age and   survivors insurance coverage such classes of employment as authorized by   paragraph b of subdivision two of section one hundred thirty-six of this   article, if any, as the governing body  of  such  political  subdivision   shall  determine,  consistent with the federal social security act. Such   determination shall be made within a reasonable period of time fixed  by   the director and indicated in a certificate filed with the director.2.  In  the  event  the  federal  social  security  act  is amended to   authorize the extension of old-age and survivors insurance  coverage  to   service  performed  in  this  state  in  police  officer  or firefighter   positions, the governor or the state agency or officer designated by him   or her shall, as  soon  as  practicable  after  the  enactment  of  such   amendment  and  in  accordance  with  the  applicable provisions of such   federal act and subdivision thirteen of this section, to the extent then   applicable, shall take such action as may be necessary to extend old-age   and survivors insurance coverage to such positions,  including,  to  the   extent applicable, referenda as follows:a. One referendum among all eligible employees of the state serving in   police  officer or firefighter positions who are members of the New York   state and local employees' retirement system.b. A separate referendum among all eligible  employees  of  the  state   serving  in  police officer or firefighter positions whose positions are   covered by a retirement system or plan maintained  by  the  state  other   than  the New York state and local employees' retirement system, and who   are members of such system or plan.c.  One  referendum  among  all  eligible   employees   of   political   subdivisions  of  the  state  serving  in  police officer or firefighter   positions who are members of the New York  state  and  local  employees'   retirement  system,  which  political  subdivisions  elected  to provide   retroactive coverage to  or  about  March  sixteenth,  nineteen  hundred   fifty-six,  to  such  employees  pursuant  to  subdivision seven of this   section, a second referendum among all eligible employees  of  political   subdivisions  of  the  state  serving  in  police officer or firefighter   positions who are members of such retirement system, which  subdivisions   elected  to  provide  retroactive  coverage  to or about June sixteenth,   nineteen hundred fifty-six, to such employees  pursuant  to  subdivision   seven  of  this section, a third referendum among all eligible employees   of political subdivisions of the state  serving  in  police  officer  or   firefighter  positions  who are members of such retirement system, which   political subdivisions elected to provide  retroactive  coverage  to  or   about  December sixteenth, nineteen hundred fifty-six, to such employees   pursuant to subdivision seven of this section, and a  fourth  referendum   among  all eligible employees of the remaining political subdivisions of   the state serving in police officer or  firefighter  positions  who  are   members  of such system, which eligible employees shall have retroactive   coverage to or about December sixteenth, nineteen hundred fifty-seven. d. Separate referenda  among  eligible  employees  of  each  political   subdivision  serving  in  police  officer or firefighter positions whose   positions are covered by a separate retirement system or plan maintained   by such political subdivision and who are  members  of  such  system  or   plan.  Each  such referendum shall be on the question of whether service   in the police officer or firefighter  positions  affected  thereby  also   shall be covered by old-age and survivors insurance.2-a. Notwithstanding any inconsistent provision of this article:a.  The alternative referendum and certification procedure provided by   paragraph seven of subdivision (d) of section two  hundred  eighteen  of   the  federal social security act, as added by public law eighty-five-two   hundred twenty-nine, may be followed  in  lieu  of  any  referendum  and   certification  of  the  result  thereof as required by this section. All   actions heretofore duly taken which comply or anticipate compliance with   any procedure authorized or contemplated by  such  paragraph  seven  are   hereby  ratified and confirmed and shall be deemed to have been taken in   full compliance with this section.b. Any  action  duly  taken  which  extended  or  extends  retroactive   coverage  to  a  date  on  or  about  March  sixteenth, nineteen hundred   fifty-six, or thereafter, for any public employees, including those  not   provided  with  such  coverage  prior to January first, nineteen hundred   fifty-eight, is hereby  ratified  and  confirmed  and  such  retroactive   coverage  shall  be deemed to have been provided in full compliance with   this section as hereby amended.3. Each notice of referendum required by the federal  social  security   act  to be given to employees shall contain or shall be accompanied by a   statement, in such form and with such detail as  the  governor,  or  the   state agency or officer designated by him, shall determine is sufficient   to  inform such employees of the rights which will accrue to them, their   dependents and survivors, and of the liabilities to which they  will  be   subject  in  the  event  that  service  in their positions is covered by   old-age and survivors insurance. Such information  also  shall  be  made   available  to employees for a reasonable period before they are required   to indicate, pursuant to subdivision thirteen of this  section,  whether   they desire old-age and survivors insurance coverage.4. The governor or the state agency or officer designated by him shall   have  power  to  require  the  filing by public agencies and officers of   information and data necessary for the conduct of referenda provided for   herein and the determination of the results thereof.5. Where in any such referendum a majority of the  eligible  employees   vote  in  favor of covering service in positions covered by a retirement   system or plan under old-age and  survivors  insurance,  and  the  other   applicable  conditions of the federal social security act have been met,   the governor  shall  make  the  necessary  certificate  to  the  federal   secretary in accordance with such act.6.  Whenever  any such certification is made to the federal secretary,   the director shall take the necessary action to effectuate the result of   such referendum and  modify  the  state's  agreement  with  the  federal   secretary  accordingly,  except  that  with  respect  to  the  referenda   provided by paragraph  c  of  subdivision  one  of  this  section  among   eligible  employees of political subdivisions who are members of the New   York state teachers' retirement system, no such  modification  shall  be   made  with  respect  to  employees  of  political  subdivisions unless a   majority of all the members of the system (counted without reference  to   any  division  theretofore made pursuant to subdivision thirteen hereof)   employed by political subdivisions voted in favor of  coverage  in  such   referenda. 7.  In  the  event  a referendum which includes employees of the state   favors the extension of old-age  and  survivors  insurance  coverage  to   positions  in  the  employ  of  the  state,  the director shall, in such   modification, provide  for  retroactive  coverage  to  March  sixteenth,   nineteen  hundred  fifty-six. The director shall fix a reasonable period   of time during which the governing body of each  political  subdivision,   having  employees  who  are  members  of  the  New York state employees'   retirement system, the New York state teachers' retirement system, or  a   pension or retirement system maintained by the political subdivision may   determine  to  provide retroactive coverage to or about March sixteenth,   nineteen hundred fifty-six, June sixteenth, nineteen hundred  fifty-six,   December  sixteenth,  nineteen hundred fifty-six, or December sixteenth,   nineteen hundred fifty-seven to its employees who are members of any  of   such  systems.  The  director  shall  have  power  to  fix  the  precise   retroactive date in each such case.7-a. Notwithstanding any action previously taken by the governing body   of any political subdivision with respect to whether or not  retroactive   coverage  should  be  extended  to any of its employees or the amount of   retroactive coverage which it  has  provided,  and  notwithstanding  any   inconsistent  provision  of  this  section or of any general, special or   local law, city or village charter,  ordinance  or  resolution,  in  the   event  the  federal  social  security  act  authorizes  or is amended to   authorize it to do  so  such  governing  body  may,  during  the  period   authorized by and in the manner provided by such act, extend retroactive   coverage  to  employees  of  such  political  subdivision  to a date not   earlier than one in the  first  calendar  quarter  of  nineteen  hundred   fifty-six  so  that  only one payroll date or such other minimum period,   determined by the director, shall be included in such retroactive period   to accomplish the result  of  providing  retroactive  coverage  for  the   earliest  calendar  quarter to be included in such retroactive coverage.   The director shall have power to fix the  precise  retroactive  date  in   each such case.8.  a. Notwithstanding any other provision of law, any individual who,   on or after August first, nineteen hundred fifty-six, had an  option  to   join  a  retirement  system  or  plan applicable to his position and who   could have joined such retirement system or plan prior to the  execution   date  of a modification extending old-age and survivors insurance to any   position covered by such retirement system or  plan,  but  who  had  not   joined  such retirement system or plan prior thereto, is hereby declared   personally ineligible for membership in such retirement system or  plan,   effective as of August first, nineteen hundred fifty-six, or if he first   occupies such position later, such later date.b.  The director shall modify the federal agreement under this article   to provide old-age and survivors insurance coverage  to  individuals  in   the  employ  of  the  state  who  are  ineligible to become members of a   retirement system applicable to their positions,  including  individuals   to whom paragraph a of this subdivision is applicable, and provide, with   respect  to  such  individuals,  the  retroactive  coverage specified in   subdivision seven of this section.c. The director shall modify the federal agreement under this  article   to  provide  old-age  and survivors insurance coverage to individuals in   the employ of any political subdivision of the state who are  ineligible   to  become members of a retirement system applicable to their positions,   including individuals  to  whom  paragraph  a  of  this  subdivision  is   applicable,   and   provide,  with  respect  to  such  individuals,  the   retroactive coverage, if any, and the excludable classes  of  employment   as  authorized  by paragraph b of subdivision two of section one hundred   thirty-six of this article, if any, determined by the governing body  of    the  political  subdivision  by  which  such  individuals  are employed,   consistent with the federal social security act.d. Eligibility for membership in a retirement system or plan is hereby   restored  to  every  employee  who was made ineligible for membership in   such a system or plan by operation of any provision of paragraph a, b or   c of this subdivision eight  as  originally  enacted  by  chapter  seven   hundred seventy-six of the laws of nineteen hundred fifty-seven.9.  In  the  event  that  a referendum among eligible employees of the   state or of one or more political subdivisions favors the  extension  of   old-age  and  survivors  insurance  coverage  to  positions covered by a   retirement system or plan of which they are  members,  persons  who  are   members  of such system or plan as of the referendum date shall be given   such coverage only if they indicated their desire therefor, prior to the   applicable referendum, in such manner and on or before such date as  the   director shall specify by rule or regulation consistent with the federal   social security act.10.  a.  In  the  event that the referenda among eligible employees of   political subdivisions of  the  state  (exclusive  of  those  in  police   officer  or firefighter positions) who are members of the New York state   and local employees' retirement system favor the  extension  of  old-age   and  survivors  insurance  coverage to their positions, all positions in   the employ of each political subdivision  of  the  state,  except  those   covered  by  a  retirement  system or plan of the state or the political   subdivision and subject to  separate  referenda  hereunder,  and  except   those  excluded from coverage pursuant to paragraph b of subdivision two   of section one hundred thirty-six of this article, also shall be covered   by old-age and survivors insurance at or about the same  time  that  the   director modifies the agreement with the federal secretary to effectuate   the  result  of such referenda as to the political subdivisions affected   thereby. Each political  subdivision  to  which  old-age  and  survivors   insurance  is  extended  pursuant  to  this  subdivision  shall have the   option, within a reasonable period of time fixed  by  the  director,  to   file  a  certificate  with the director fixing the effective date of its   coverage (which may include retroactive coverage for such period as  its   governing  body  shall  determine subject to the federal social security   act and which effective date shall be not later than  its  last  payroll   date  in  December  nineteen  hundred  fifty-seven)  and  excluding from   coverage  classes  of  employment  as  authorized  by  paragraph  b   of   subdivision two of section one hundred thirty-six of this article.b.  In  the  event  that  the  referenda  among  eligible employees of   political subdivisions of the state who are  members  of  the  New  York   state  employees'  retirement  system favor the extension of old-age and   survivors insurance coverage to their positions, all  positions  in  the   employ  of  a  political  subdivision  of  the  state  which  is created   subsequent to the date of the modification of  the  agreement  with  the   federal secretary, to effectuate the result of such referenda also shall   be  covered  by  old-age and survivors insurance, effective the date the   political subdivision first has employees on  the  payroll,  or  becomes   eligible, or as soon thereafter as is consistent with the federal social   security  act. Each political subdivision to which old-age and survivors   insurance is extended pursuant to this paragraph shall have the  option,   within  a  reasonable  period of time fixed by the director and prior to   participation by such political subdivision in New York state employees'   retirement system, to file a certificate  with  the  director  excluding   from  coverage  classes  of  employment  as authorized by paragraph b of   subdivision two of section one hundred thirty-six of this article.11. Where the agreement with the federal secretary is  modified,  each   political  subdivision  affected  thereby  shall be obligated under this    article as if the modification  had  been  made  on  the  basis  of  its   application to and agreement with the director that it be so modified.12.  Where  the  director  modifies  the  agreement  with  the federal   secretary to provide for old-age and  survivors  insurance  coverage  to   employees  of  the  state  or  of a political subdivision in addition to   their coverage by a retirement system or plan, such action shall, as  of   the effective date of coverage, be deemed to restore the eligibility for   membership  in  such  system  or  plan  of employees in positions in the   employ of the state or the political subdivision, as the  case  may  be,   who   theretofore  were  eligible  for  membership  therein,  but  whose   positions were excluded from eligibility therein in order  that  old-age   and survivors insurance coverage could be extended to them.13.  A  retirement  system  or plan, for the purposes of this article,   shall be deemed to constitute a separate retirement system with  respect   to  the  positions  covered  thereby  for which a separate referendum is   authorized herein. Each retirement system or plan shall be divided  into   two  parts,  one  of  which shall be composed of positions of members of   such system who desire old-age and survivors insurance coverage  on  the   basis of their service in such positions and the other to be composed of   positions of the members who do not desire such coverage. Each such part   shall  be  deemed  a  separate retirement system for the purposes of the   referenda provided for in this article. Positions of persons who  become   members  of  a  retirement  system  or  plan after old-age and survivors   insurance shall have  been  extended  shall  be  included  in  the  part   composed of members desiring such coverage.14.  Notwithstanding the provisions of section one hundred forty-three   of this article, the costs of each referendum conducted hereunder  shall   be  paid  as  an administrative expense by the retirement system or plan   among whose members the referendum is conducted. The governor  or  state   officer  or  agency  designated  by him shall have power to require each   such system or plan to pay the costs so incurred.15. Where the compensation of any person whose position is covered  by   old-age  and survivors insurance pursuant to this article is paid from a   special or administrative fund provided for by law other than an  income   fund  of  the  state university or the mental hygiene services fund, the   contributions required to be paid by his  employer  for  such  coverage,   including  a  proportionate share of the costs of administration charged   to such employer pursuant to section one  hundred  thirty-nine  of  this   article, shall be paid from such special or administrative fund.16.  Notwithstanding anything to the contrary contained in subdivision   nine of this section, the director is hereby authorized,  on  behalf  of   the state, consistent with the provisions of the federal social security   act,  to modify the agreement with the federal secretary for the purpose   of extending old age and survivors insurance coverage  to  positions  of   members  of  the  division  or  part  of a retirement system composed of   members who do not desire coverage, if in the manner and before the date   specified by the director, the  individuals  occupying  such  positions,   file with him a written request therefor.