NY Ret & SS L § 101 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 2 - New York State Employees' Retirement System Title 11 - Provisions Relating to Retired Members 101 - Reduction or Suspension of Benefits.

§  101.  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 section two hundred eleven or  two  hundred  twelve  of  this chapter,  and  is  eligible  for membership in the retirement system, he thereupon shall become a  member  and  his  retirement  allowance  shall cease. In such event, he shall contribute to the retirement system as if he were a new member. Upon his subsequent retirement he shall:   1.  Be  credited  with  all member service earned by him since he last became a member of the retirement system, and   2. Receive a retirement allowance which shall consist of:  (a)  An  annuity  which  is  the  actuarial  equivalent  of  all   his accumulated contributions, and  (b)            The           pension           including           the pension-providing-for-increased-take-home-pay  which  he  was  receiving immediately  prior to his 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 since he last became a member. Such latter pensions shall be computed as if he were a new  member  when he 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 was entitled at the time of his earlier retirement may, at his option, again be credited to him  and  upon  his  subsequent retirement  he  shall  be  credited  in addition with all member service earned by him subsequent to his last  restoration  to  membership.  Such total service credit to which he was entitled at the time of his earlier retirement  shall  be  so  credited  only  in the event that such member returns to the retirement system with  regular  interest  the  actuarial equivalent  of the amount of the retirement allowance he received, or in the event that such amount is not so  repaid  the  actuarial  equivalent thereof shall be deducted from his 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 retirement system until he has rendered one year of service following his return to public service.  In such  event his 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 service in such year shall be deemed to be service  while  a  member for  purposes  of subdivision b of section sixty of this chapter. He 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  retirement  system, his 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 of 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 d of this section where the retired member continues as a beneficiary of the retirement system, or  (c) For service pursuant to subdivision e of this  section  where  the retired  member  has  not  elected  to  again  become  a  member  of the 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-increased-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, except that in the case of a  retired  judge  or justice  who serves as an official referee he shall receive that portion of his  annuity  computed  without  option,  which  when  added  to  the compensation  he is receiving from the state shall not exceed such final salary paid by the state. 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 event 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, except in the case of an official  referee  shall  mean  his final average salary had he retired at age seventy. 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.   c. Retired judges or justices certified for service as justices of the supreme court.   1. In the event that a judge or justice shall:  (a)  Have  retired  and  is receiving a retirement allowance from this retirement system, or another  retirement  system  of  which  he  was  a member, and  (b)  Be  certified  for  service  as  a  justice  of the supreme court pursuant to section one hundred fourteen or one hundred fifteen  of  the judiciary  law, his retirement allowance shall cease. He thereupon again shall become a member of the retirement system of which he formerly  was a member. In such event he shall contribute, as if he were a new member, to  the  annuity  savings  fund  of  this  retirement  system  or to the equivalent fund of such other retirement system.   2. Upon his subsequent retirement he shall:  (a) Be credited by the appropriate retirement system with  all  member service earned by him since he last became a member thereof, and  (b)  Receive  a  retirement  allowance  from  such  system which shall consist of:  (1) An annuity which  is  the  actuarial  equivalent  of  all  of  the member's accumulated contributions, and  (2)           The           pension,           including           the pension-providing-for-increased-take-home-pay, which  he  was  receiving immediately prior to his 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 since he last became  a  member. Such  latter  pensions shall be computed as if he were a new member when he last became a member.   3.  The  provisions  of  this  subdivision  c  shall  be   controlling notwithstanding any other provision of this chapter.   d.  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, or  (c) Appointment as an official referee.   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 retirement system the then present value of the annuity  earned  by  his accumulated  contributions,  and  upon  receipt  thereof  cease  to be a beneficiary of the retirement system, or  (b) Continue as a beneficiary  of  the  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  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 section one hundred fifty of the civil service law shall govern  with  respect  to  state  and  local  elective  public officers.   e. Legislative officers and employees.   In  the  case of any person who shall have retired after having served as an officer or employee of the legislature for a period in  excess  of  fifteen  years and whose return to active service shall be requested, in a written certificate of and filed with the comptroller by:   1.  The  president  pro  tem  of  the senate, if the service be in the senate, or   2. The speaker of the assembly, if the service be in the assembly, or   3. Both such officers, if the service be under the jurisdiction of the senate and assembly jointly, except that the president of the senate and the speaker of the assembly shall be authorized to make such request  in a case where they are empowered to make such an appointment, the  provisions of subdivision a of this section shall not be applicable unless the officer or employee so returned to active service shall  file with  the  comptroller,  within thirty days thereafter, a written notice that he elects to be subject to the provisions thereof. In the event  he does not so elect, the provisions of subdivision b of this section shall be applicable to him.