NY Ret & SS L § 41 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 2 - New York State Employees' Retirement System Title 5 - Right to Membership, Service Credit and Transfers Between Retirement Systems 41 - Allowances for Service.

§  41. Allowances for service. a. Generally. Subject to all provisions of law appertaining thereto and to such reasonable rules and regulations as the comptroller shall adopt or amend in pursuance thereof,  he  shall determine  and  may  modify allowances for service and shall issue prior service certificates and certificates for service in war after world war I. The comptroller, however, shall not  allow  more  than  one  year  of credit for all service rendered in any calendar year.   b.  Allowable  service.  Only  the following types of service shall be allowable in computing service credits:   1. Government service.   2. Prior city and county service rendered in a city of the state or in a county within the boundaries of such city, if such city has a  pension system allowing credit for prior state and county service.   3.  Prior  service  rendered to an employer before the latter became a participating employer. Such credit shall be allowable immediately  upon such employer's becoming a participating employer. The employer for whom the  member is working at the time such prior service credit is allowed, shall pay the contribution required to be made by an employer on account of such credit.   4. Civil service in any capacity as an  officer  or  employee  of  the federal  government, or military duty in the armed forces of the federal government and not otherwise creditable,  rendered  or  performed  by  a member  prior  to  the  time  he  last became a member. The allowance of credit for such service shall be conditioned upon  the  receipt  by  the retirement  system  of  all  the payments required to be made on account thereof by section forty-two of this article.   5. Civil service rendered as an officer or  employee  of  the  federal government as provided in subdivision d or paragraph four of subdivision c  of  section  forty  of this article. The allowance of credit for such service shall be conditioned upon the receipt by the  retirement  system of  all  the  payments required to be made on account thereof by section forty-two of this article. Except as  so  provided,  employment  by  the federal  government  shall  not  entitle  a  person to contribute to the retirement system during the period of such employment.   6. Any member may obtain credit for any allowable service:  (a) For which  he  made  contributions,  regardless  of  whether  such contributions were returned to him when he left such service, or  (b)  Rendered  by him while not a member of any retirement system that is actuarially sound and of which the state or municipality thereof is a contributor, provided  he  makes  the  contributions  required  by  this article for such credit and renders at least two years of member service after he last became a member. No  credit shall be allowed for service if, but for the member's failure to avail himself of the privilege of transfer within the time and in the manner provided in section forty-three of this article, credit for  such service  could  have been obtained upon transfer from another retirement system pursuant to such section.   c. Purchase of previous member service credit.   1. A member who has not previously been a member may  purchase  credit at  any time for all allowable member service; provided, however, that a member joining the system pursuant to paragraph nine of subdivision c of section forty of this article shall not be permitted to purchase  credit for,  or otherwise be allowed credit for the previous service upon which his retirement or pension from another pension or retirement  system  is or  would  be based. In order to purchase credit, which may be purchased pursuant to this paragraph,  the  member  shall  pay  into  the  annuity savings  fund,  either  in a lump sum or in installments, a sum equal to the amount which would have been in such  fund  to  his  credit  had  he  actually  been a member contributing thereto during the entire period of such previous member service. If such payment be made  in  installments, the  same  shall  be  paid within a period no greater than the number of months of such member service.   2.  A member who, after a previous membership, withdrew all or part of his accumulated contributions  shall  be  credited  with  all  allowable service rendered prior to such withdrawal, provided he:  (a)  Renders  at  least  two  years  of  member service after his last withdrawal, and  (b) Redeposits such withdrawn amount  in  the  annuity  savings  fund, either  in  a  lump  sum  or  in installments; provided, however, that a member joining the system pursuant to paragraph nine of subdivision c of section forty of this article shall not be permitted to purchase  credit for,  or otherwise be allowed credit for the previous service upon which his retirement or pension from another pension or retirement  system  is or  would  be  based.  If such payment be made in installments, the same shall be paid within a period no greater than the number  of  months  of member service lost by such withdrawal.   d.  Credit  allowable  only  if  paid  for. In the event that a member retires or that any benefit becomes payable because of his membership in the retirement system prior to the completion of  all  of  the  payments required  to  be  made  by him as a condition precedent to his obtaining credit for member service, the amount of  his  retirement  allowance  or such other benefits shall be based only on:   1.  The  service  rendered by him since he last became a member of the retirement system and for which contributions have been paid by him, and   2. Any  additional  service,  all  the  conditions  precedent  to  the crediting  of  which  have been completely fulfilled by him. However, if the full amount of the payments required to be made by the member is not paid to the retirement system, the amount of  service  credit  shall  be proportional to the total amount of the payments made.   e. Waiver of membership requirement in certain cases. In the case of a person  in  the  employ of a participating employer, the requirements in sections sixty and seventy-five of this article that a member must  have credit for one or more years of service as a member shall not apply if:   1.  Such  person  became  a  member within one year after his employer became a participating employer, and   2. He was in the service of such participating employer for the entire year previous to his retirement or death.   f. Restoration of credit in certain cases.   1. A member who has been discontinued from service through no fault of his own and who has withdrawn his accumulated contributions  shall  have his total service credit restored in full if:  (a)  He had less than twenty years of total service credit when he was so discontinued, and  (b) He returns to service within ten years after such  discontinuance, and  (c) He redeposits the total amount so withdrawn by him and  (d)  His  employer  elects to and does pay to the pension accumulation fund an amount equal to the reserve required to cover  such  restoration of credit.   2.  Upon  such  return to service, such member shall contribute to the retirement system as a new member.   3. In the event such a member retires before his employer  makes  such payment,  he  may  elect  to  receive his benefit immediately as if full service credit were allowable. He thereupon shall be entitled to receive the full amount of such benefit for such period as the same can be  paid from  the  combined  reserve  available  on  his  account in the annuity  reserve fund and pension reserve fund.  When  his  employer  makes  such payment,  his  benefit thereafter shall be continued from the reserve so paid.   4.   The  provisions  of  this  subdivision  f  shall  be  controlling notwithstanding any provision in this article to the contrary.   g. Prior service credit and credit for service in war after world  war I  in certain cases. Allowable prior service credit and allowable credit for service in war after world war I shall be granted immediately to:   1. Any member who shall have rendered at least two  years  of  service since he last became a member.   2. Any person who is in the service of a participating employer on the date  it approves participation and who becomes a member within one year after such date. The employer for whom the member is  working  at  the  time  such  prior service  credit  or  credit  for  service  in  war  after world war I is allowed, shall pay the contribution required to be made by  an  employer on account of such credit.   h.  Prior  service  certificates  and  certificates for service in war after world war I.   1. The comptroller shall issue a certificate, to be known as  a  prior service  certificate,  to  each member entitled to prior service credit. Such certificate shall certify the amount of such credit which shall  be allowed in computing any pension provided for by this article.   2.  The  comptroller,  upon application, shall issue a certificate for service in war after world war I to each member entitled  thereto.  Such certificate  shall certify to service in war after world war I allowable to such member.   3. The comptroller, upon application of a member at any time, or  upon his  own initiative within one year from the date of issuance of a prior service certificate or a certificate for service in war after world  war I  may  modify any such certificate in accordance with the allowance for prior service or service in war after world war I credit  to  which  the member is shown to be entitled.   4.  A  member's  prior service certificate, certificate for service in war after world war I, or any such certificate as modified, shall become void upon the termination of his membership in  the  retirement  system. Except  as  provided by subdivision d of section one hundred two of this article, resumption  of  membership  after  such  termination  shall  be without credit for prior service or service in war after world war I.   i. Allowances during leaves of absence without pay.   1. Time during which a member is absent on leave without pay:  (a) Shall not be included in computing prior service.  (b)  May  be  included  in  computing member service and final average salary only if the head of  the  department  in  which  such  member  is employed  and the comptroller allow such time for retirement purposes at the time such leave of absence is granted.  (c) Shall be included in computing member service  and  final  average salary  in  case  such a leave of absence was granted, during the period from March first, nineteen hundred forty, until  six  months  after  the termination  of  world war II, to enable the member to enter the service of the federal government or its associated powers, or to engage in  war work or defense industries only if:  (1)  The  fact  that  such  service was rendered is established to the satisfaction of the comptroller, and  (2) Such member shall have notified the comptroller in writing, on  or before  July  first,  nineteen  hundred  forty-seven, or within one year after such leave of absence was granted, that he claims  member  service credit pursuant to the provisions of this subparagraph (c), and  (3) Such member, within a period not greater than the number of months during which he was on leave of absence, shall pay into:  (aa)  The annuity savings fund such amounts as would have been in such fund to his credit had he remained in the  performance  of  his  regular duties  as  a member at the same salary he was receiving when such leave of absence was granted, and  (bb) The pension accumulation fund such amounts as would have been  in such fund had he remained in the performance of his regular duties. Such amounts  shall  be  determined by the actuary and shall be sufficient to pay the contribution that the state or a  participating  employer  would have  paid  for  an  ordinary  death benefit and for that portion of the pension provided for in paragraph two of subdivision a or paragraph  two of  subdivision  b  of  section seventy-five of this article for service during such period.  (d) Shall be included in computing member service  and  final  average salary  in case such a leave of absence commenced during the period from April first, nineteen hundred sixty-six through June thirtieth, nineteen hundred seventy-four, and was granted for a period of not more than  two years  to enable the member to perform services as a civilian officer or employee of  the  Federal  government  or  one  of  its  agencies  or  a contractor  of  the  United  States Agency for International Development engaged to perform the work of such  agency,  the  United  Nations,  any other  international  organization of which the United States of America is a member, or a foreign government only if:  (1) The comptroller allows  inclusion  of  such  time  for  retirement purposes at the time such leave of absence is granted, and  (2)  Payment during such leave of absence or within one year after the end of such leave of absence is made by the employee into:  (aa)  The  annuity  savings  fund  of  contributions  equal   to   the contributions which the member would have made during the period of such leave of absence had he been performing his regular duties, and  (bb)  The pension accumulation fund of a further contribution equal to the contribution which his employer would have made on his behalf during the period of such leave of absence had he been performing  his  regular duties.  The  payments  required  by  this  item (bb) may be made on the member's behalf by the organization employing him during such  leave  of absence.   2.  In  the  event that, during a leave of absence granted pursuant to subparagraph (c) of paragraph one of this subdivision i  (a) The position of such  member  is  abolished  or  made  unnecessary through  no delinquency or misconduct on his part, such leave of absence shall be deemed to continue until six months after  the  termination  of world  war II and such member may continue his contributions and receive credit therefor during such period.  (b) A disability or injury of such member occurs, he shall be entitled only to the return of his contributions.  (c)  The  death  of  such  member   occurs,   his   beneficiaries   or representatives  shall be entitled only to the return of his accumulated contributions and the ordinary death  benefit,  if  such  benefit  would otherwise be payable.   3. In the event that a member, who made contributions pursuant to such subparagraph  (c),  is separated from service before he becomes eligible for a retirement allowance or a death benefit,  all  such  contributions and  his  accumulated  contributions  shall be returned to him or to his beneficiaries or representatives.   j. Allowance for unused sick leave for members in the  employ  of  the state.    1.  In  addition  to  any  other  service credit to which he or she is entitled, a member who meets the requirements set  forth  in  paragraphs two and three of this subdivision shall be granted one day of additional service credit for each day of accumulated unused sick leave which he or she has at time of retirement for service, but such credit shall not (a) exceed  one  hundred  sixty-five  days, (b) be considered in meeting any service or age requirements prescribed  in  this  chapter,  and  (c)  be considered  in computing final average salary. However, for an executive branch member designated managerial or confidential pursuant to  article fourteen of the civil service law or in the collective negotiating units established  by article fourteen of the civil service law designated the professional,  scientific  and  technical  services   unit,   the   rent regulation  services negotiating unit, the security services negotiating unit, the security supervisors negotiating unit,  the  state  university professional  services  negotiating  unit,  the  administrative services negotiating unit,  the  institutional  services  negotiating  unit,  the operational  services  negotiating unit and the division of military and naval affairs negotiating unit such service credit  limitation  provided in subparagraph (a) of this paragraph shall not exceed two hundred days. For a nonjudicial officer or employee of the unified court system not in a  collective  negotiating  unit  or  in  a  collective negotiating unit specified in section one of chapter two hundred three of the laws of two thousand four, for employees of the New York state dormitory  authority, for  employees  of  the  New  York state thruway authority, the New York state canal corporation and the state university construction  fund  and for  employees  of  the  New York liquidation bureau such service credit limitation provided in subparagraph (a)  of  this  paragraph  shall  not exceed  two  hundred  days.  For  members  who first become members of a public retirement system of the state  on  or  after  April  first,  two thousand twelve, such credit shall not exceed one hundred days.   2.  Such service retirement credit shall be granted only to members in the employ of the state who, prior to retirement, were subject to a plan established by law, rule, regulation, written order  or  written  policy which provided for the regular earning and accumulation of sick leave.   3.  In  the  case  of persons who last became members on or after July first,  nineteen  hundred  seventy-three,   the   provisions   of   this subdivision  shall  apply  only  to those retiring from service prior to July first, nineteen hundred seventy-four.   k. Credit for certain world war II service. 1. In addition  to  credit for  military  service  as  defined  in  paragraph  one  of  subdivision thirty-one of section two of this chapter, a member in the employ of the state as of March thirty-first, nineteen  hundred  seventy,  may  obtain credit  for  military service as defined in paragraph two of subdivision thirty-one of section  two  of  this  chapter  in  accordance  with  the provisions of this subdivision.   2.  To  obtain  such credit a member shall: (a) deposit in the annuity savings fund  a  sum  equal  to  the  product  of  his  normal  rate  of contribution  at  time  of  entry into state service, his annual rate of compensation at that time, and the  period  of  military  service  being claimed,   with  regular  interest,  and  (b)  deposit  in  the  pension accumulation fund a sum equal to  the  product  of  the  state's  normal contribution  rate  at the time of the member's entry into such service, his annual rate of compensation at that time, and the period of military service being claimed, with regular interest. Such deposit must be  made on or before March thirty-first, nineteen hundred seventy-two, provided, however,  such  member may elect to deposit such amount over a period of time no greater than the period for which credit is  being  claimed,  in which case such payments must commence no later than March thirty-first,  nineteen hundred seventy-two. If the full amount of such payments is not paid  to  the retirement system, the amount of service credited shall be proportional to the total amount of the payments made.   3.  (a)  A member who enters the employ of the state on or after April first, nineteen hundred seventy  and  prior  to  April  first,  nineteen hundred  seventy-two  shall have one year from his date of entry to make application and payment for such service in the manner specified  above. The  salary  base  for  such  an  employee  shall  be his annual rate of compensation at the time of his entry into state service.  (b) A member who reenters the employ of the state on  or  after  April first,  nineteen  hundred  seventy  and  prior  to April first, nineteen hundred seventy-two shall have one year from his date of reentry to make application and payment for such service in the manner specified  above. The  salary  base  for  such payments shall be either the employee's (i) annual rate of compensation at the time  of  original  entry  into  such service  or  (ii) his annual rate of compensation upon reentry into such service, whichever would result in the greater contributions.   4. Such credit for military service shall not be used  to  increase  a service  retirement benefit if at the time of retirement such member (a) is retiring from service with less  than  ten  years  of  total  service credit,  or (b) is retiring with less than three years of member service rendered subsequent to the date of last entry into state  service;  upon retirement  as  specified in (a) or (b), there shall be refunded to such member the amount of such deposit plus accrued interest exclusive of the amount deposited to the pension accumulation fund attributable to  death and disability benefits.   5.  For  the  purposes of this subdivision the member's normal rate of contribution in the case of an employee of  the  state  who  (a)  enters service  on  or  after the date that employee contributions were reduced pursuant to section seventy-a or when  no  employee  contributions  were required  shall  be  based on the latest schedule of normal contribution rates in effect for employees of the state, and shall be set as if  such schedule had been in effect at the time of his entry into state service, or  (b)  transfers into the retirement system shall not be less than the rate the member would have had if all his  service,  exclusive  of  that being  claimed  pursuant  to  this  subdivision,  had been rendered as a member of the retirement system.   6. In no event shall credit be granted pursuant to this subdivision if credit is granted  for  the  same  period  of  time  pursuant  to  other provisions of law.   7. Subject to the provisions of paragraph three of this subdivision no application  for  credit  pursuant to the provisions of this subdivision shall be honored if made on  or  after  April  first,  nineteen  hundred seventy-two.   8.  A member may direct, upon a form prepared by the comptroller, that his excess contributions be applied toward the payments required by this subdivision.  The  term  excess  contributions  shall  mean  accumulated contributions  in  excess  of  the  amount thereof required to provide a pension or retirement allowance. Appropriate transfers  and  credits  to the  annuity savings fund and the pension accumulation fund will be made in the manner set  forth  in  an  official  regulation  adopted  by  the comptroller for such purpose.   * l.  Employer pick-up of contributions in respect of previous service or military service. Notwithstanding any other  provision  of  law,  any member  eligible  to  purchase credit for previous service with a public employer pursuant to this section or section forty-two of this title  or to  purchase  credit  for military service pursuant to article twenty of this chapter, may elect to purchase  any  or  all  of  such  service  by  executing a periodic payroll deduction agreement where and to the extent such  elections  are  permitted  by  the  retirement  system  by rule or regulation.   Such agreement shall set  forth  the  amount  of  previous service or military service being purchased, the estimated total cost of such  service  credit,  and  the number of payroll periods in which such periodic payments shall be made. Such agreement  shall  be  irrevocable, shall  not  be  subject  to amendment or modification in any manner, and shall  expire  only  upon  completion  of  payroll  deductions  required therein.  Notwithstanding the foregoing, any member who has entered into such  a  payroll deduction agreement and who terminates employment prior to the completion of the payments required  therein  shall  be  credited with   any  service  as  to  which  such  member  shall  have  paid  the contributions required under the terms of the agreement.   * NB Takes effect upon notice of ruling by Internal Revenue Service -- expires per ch. 627/2007 §22