NY Ret & SS L § 401 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 8 - New York State and Local Police and Fire Retirement System Title 12 - Provisions Relating to Retired Members 401 - Reduction or Suspension of Benefits.

§  401.  Reduction  or suspension of benefits. a. If a retired member, receiving a retirement allowance for  other  than  physical  disability, returns  to  active public service, except as otherwise provided in this section or sections two hundred eleven or two  hundred  twelve  of  this chapter,  and  is  eligible  for  membership  in  the  police  and  fire retirement system, he or she thereupon shall become a member and his  or her  retirement  allowance  shall  cease. In such event, he or she shall contribute to the police and fire retirement system as if he or she were a new member. Upon his subsequent retirement he or she shall:   1. Be credited with all member service earned by him or her  since  he or  she  last  became a member of the police and fire retirement system, and   2. Received a retirement allowance which shall consist of:  (a) An annuity which is the actuarial equivalent of  all  his  or  her accumulated contributions, and  (b)            The           pension           including           the pension-providing-for-increased-take-home-pay  which  he  or   she   was receiving   immediately   prior  to  his  or  her  last  restoration  to membership,       plus       a       pension        including        the pension-providing-for-increased-take-home-pay   based  upon  the  member service credit earned by him or her  since  he  or  she  last  became  a member.  Such  latter  pensions shall be computed as if he or she were a new member when he or she last became a member.   Where such member shall have earned  at  least  two  years  of  member service  credit  after  restoration to active service, the total service credit to which he or she was entitled at the time of his or her earlier retirement may, at his or her option, again be credited to  him  or  her and upon his or her subsequent retirement he or she shall be credited in addition  with all member service earned by him or her subsequent to his or her last restoration to membership.  Such  total  service  credit  to which  he  or  she  was  entitled  at  the  time  of  his or her earlier retirement shall be so credited only  in  the  event  that  such  member returns  to  the police and fire retirement system with regular interest the actuarial equivalent of the amount of the retirement allowance he or she received, or in the event that such amount  is  not  so  repaid  the actuarial   equivalent  thereof  shall  be  deducted  from  his  or  her subsequent retirement allowance.   Notwithstanding  the  foregoing  provisions  of  this  subdivision,  a retired  member  who  is receiving a retirement allowance for other than physical disability, and who returns to active public service, may elect not to be restored to membership  in  the  police  and  fire  retirement system until he or she has rendered one year of service following his or her  return  to  public  service.  In  such  event his or her retirement allowance shall be suspended during such year of service as provided  in subdivision  b of this section. Upon restoration to membership following completion of such year of service, his or  her  service  in  such  year shall be deemed to be service while a member for purposes of subdivision b of section three hundred sixty of this chapter. He or she may purchase member service credit for such year, which shall be deemed earned member service  credit.  This paragraph shall not be construed to authorize the return to public service of any person who  is  otherwise  not  eligible therefor on account of having reached age seventy.   If  a  retired  member receiving a retirement allowance for other than physical disability, returns to  active  public  service,  and  is  then ineligible  for membership in the police and fire retirement system, his or her retirement allowance shall be suspended in  the  same  manner  as provided in subdivision b of this section.   b. Temporary service.    1.  The  payment  of  any retirement allowance, or any benefit in lieu thereof, on account of retirement for  other  than  physical  disability shall  be  suspended  as  provided  herein,  during  the  time  that the beneficiary thereof is in receipt of other compensation paid from direct or indirect state or municipal taxes:  (a)  For  temporary  government or temporary public service other than jury duty, or  (b) For service pursuant to subdivision c of this  section  where  the retired  member  continues  as  a  beneficiary  of  the  police and fire retirement system.   2. In the case of a retirement allowance, without option,  the  amount of        the        pension        portion,        including        the pension-providing-for-increased-take-home-pay, suspended for any  period shall  be  equal  to  the amount of such other compensation for the same period.   3. In the case where an optional  benefit  in  lieu  of  a  retirement allowance  without  option shall have been selected, the pension portion thereof,  including  the   pension-providing-for-increase-take-home-pay, shall  be suspended in such manner as the comptroller shall approve. The amount so suspended shall be equal to the actuarial  equivalent  of  the amount  by  which  the  pension  portion  of  the  retirement allowance, including the pension-providing-for-increased-take-home-pay, as it would be without option, would be suspended pursuant to paragraph two of  this subdivision b. The retired member, however, may pay to the fund or funds from  which  the  pension portion of his retirement allowance, including the  pension-providing-for-increased-take-home-pay,   is   payable   the difference  between  the  suspended portion thereof, without option, and the suspended portion of the optional pension portion of the  retirement allowance,  including the pension-providing-for-increased-take-home-pay, granted to him. In such event any payments to his beneficiary  shall  be made as if no suspension occurred.   4.  In  the  case of a member whose compensation for public service is equal to or greater than his final salary as defined herein, the annuity portion of his retirement allowance shall be suspended during the period that he is receiving such compensation. In the case of  a  member  whose compensation for public service is less than his final salary as defined herein  and  who  has  retired  without  option, he shall be entitled to receive that portion of his annuity computed without option which,  when added  to  his  compensation  for  public  service,  does not exceed the aforesaid final salary. Where an optional benefit has been  selected  in lieu of a retirement allowance without option, the amount of the annuity suspended  shall  be  the  actuarial equivalent of the amount that would have been suspended if the retirement allowance had been without option. In such a case the retired member may pay to the  fund  or  funds,  from which  the  annuity  portion of his retirement allowance is payable, the difference between  that  portion  of  the  annuity  which  is  actually suspended,  in accordance with the provisions of this paragraph, and the corresponding portion of the annuity without option.   In such even any payments to his beneficiary shall be made  as  if  no suspension occurred. The term "final salary", as used in this paragraph, shall  mean  the maximum salary or compensation which the retired member currently would be receiving in the position from which he last retired, if he had not so retired. If the position from which he was  so  retired has  been  abolished  the  comptroller,  upon  the  basis  of  salary or compensation currently paid in similar or  comparable  positions,  shall determine the maximum amount of salary or compensation which the retired member currently would be receiving in the abolished position.    The   provisions   of   this   subdivision   c  shall  be  controlling notwithstanding any other provision of this chapter.   c.  Election  or  appointment  of  retired  members  to certain public offices.   1. A retired member, unless otherwise disqualified, shall be  eligible to:  (a) Election to a state office, or  (b) Appointment to fill a vacancy in an elective state office.   2.  In  the  event  a  retired  member is so elected, except a retired member so elected and who is receiving less than ten thousand dollars in retirement allowance or benefit payments in any one year,  or  appointed or so qualifies, he may:  (a)  Upon  written  notice to the comptroller, receive from the police and fire retirement system the then present value of the annuity  earned by  his or her accumulated contributions, and upon receipt thereof cease to be a beneficiary of the police and fire retirement system, or  (b) Continue as a  beneficiary  of  the  police  and  fire  retirement system,  but with payments of any retirement allowance or any benefit in lieu  thereof,  on  account  of  retirement  for  other  than   physical disability,  suspended  during  the  time  he  or  she  is in receipt of compensation for state or  public  service.  Such  suspension  shall  be governed  by  the  provisions  of  paragraphs  two,  three  and  four of subdivision b of this section.   3. The provisions of subdivision one of section one hundred  fifty  of the  civil  service  law  shall  govern  with respect to state and local elective public officers.   d. Privilege of  certain  retired  members,  retired  for  other  than physical disability, to undertake public employment.   1.  Notwithstanding  any inconsistent provisions of this section or of section one hundred fifty of the civil service  law  the  provisions  of this  section  shall  be  suspended  to the extent necessary to permit a retired member to continue as such and to earn not  to  exceed  eighteen hundred  dollars  per calendar year as compensation in any position of a temporary, seasonal or occasional nature in government service or public service, provided he duly executes and  files  with  the  comptroller  a statement  that  he  elects to have the provisions of this subdivision f apply to him, and:  (a) His retirement allowance, computed without optional  modification, does not exceed thirty-five hundred dollars per year, or  (b)  His retirement allowance, computed without optional modification, exceeds thirty-five hundred dollars per year and he annually waives that portion which is in  excess  of  thirty-five  hundred  dollars  by  duly executing  and  filing  with  the  comptroller a waiver of the aforesaid excess portion. The waiver shall be irrevocable during the calendar year in which it is filed. A statement of election executed and filed pursuant to this  subdivision f  may  be  withdrawn  by  a  retired  member at any time by a statement similarly executed and filed.   2. The privilege granted by this subdivision f, to retired members  to continue  as  such and to earn compensation in positions of a temporary, seasonal or occasional nature in government service  or  public  service shall remain in full force and effect until July first, nineteen hundred sixty-five.