NY Ret & SS L § 40 (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 40 - Membership of Retirement System.

§  40.  Membership  of retirement system. a. Each person who becomes a member of the retirement system shall file a duly  executed  application with the comptroller. Such application shall contain:   1. A detailed statement of all such person's service, and   2.  A  statement  that he consents and agrees to membership and to the contributions prescribed by this article.   b. Membership in the retirement system  shall  be  mandatory  for  the following:   1.  All persons who enter or re-enter the service of the state or of a participating  employer  on  and  after  July  first,  nineteen  hundred forty-eight, except those:  (a) In the exempt class of the classified service.  (b) In the labor class.  (c)  Who  are  laborers and who are not covered by article nine of the military law.  (d) In the unclassified service.  (e) Who are teachers or instructors and who are eligible to membership in another retirement system.  (f) Sixty years of age and over, whose positions in the exempt  class, labor class or unclassified service have by reason of a reclassification of   positions   on   or  after  December  fifteenth,  nineteen  hundred forty-eight, been placed in the competitive or non-competitive class  of the classified service.  (g)  Whose  positions  are excluded from eligibility for membership in the retirement system and are covered  only  by  old-age  and  survivors insurance.  (h)  Whose  positions  pay compensation at a rate of less than fifteen hundred dollars a year.  (i) Otherwise specifically provided for by law. Persons employed in state or local institutions reporting to or  subject to  the  supervision  of the state departments of correction, education, social welfare, health or mental hygiene need not become  members  until the completion of six months of service.   2.  (a)  Those  persons  who  enter  or  re-enter service in the state colleges  of  agriculture,  home  economics,  veterinary  medicine,   or industrial  and  labor  relations,  the  state  agricultural  experiment station at  Geneva,  or  any  other  institution  or  agency  under  the management  and  control  of Cornell university as representative of the state university trustees, or who enter or re-enter service in the state college  of  ceramics  under  the  management  and  control  of   Alfred university  as  the representative of the state university trustees, and who do not elect the optional retirement program established by  article eight-B  of  the  education  law,  except  employees  who  hold  federal cooperative  appointments  with  the   United   States   department   of agriculture  as  designated  by  the  director  of  the  New  York state cooperative extension service and who are eligible for participation  in the  federal  retirement  system  as provided in subparagraph (b) below. Each such member shall be covered by the provisions of this  article  to the  full  amount  of  the  salary  paid  to him from direct or indirect federal or state taxes. Any person who is  in  such  service  when  this paragraph  takes effect and who has not made contribution to the annuity savings fund of the New York state employees' retirement system  may  on or  before  July  first, nineteen hundred fifty-seven become a member of the New York state employees' retirement system and receive  credit  for allowable  service  rendered  prior  to  January first, nineteen hundred twenty-one, by filing with the comptroller a statement duly executed and acknowledged,  consenting  and  agreeing  to  membership  and   to   the deductions  for annuity purposes prescribed in this article, provided he  or she shall pay to the proper fund in installments as he or  she  shall elect,  except  that  such  payments  shall  be  made within a period no greater than the number of months of his or her service elapsed  between January  first,  nineteen  hundred  twenty-one  and  his  or her date of membership, an amount equal to the amount that would have  been  in  the fund  had  he  or  she  been  a member during such elapsed service. Such persons shall receive member service credit for the time for which  such payments are made.  (b) (1) Any employee of a county extension service association and any employee  of Cornell university appointed for the first time on or after August  first,  nineteen  hundred  seventy-seven  who  holds  a  federal cooperative appointment with the United States department of agriculture as  designated  by  the  director  of  the  New  York  state cooperative extension service and who is eligible for participation in  the  federal retirement  system  shall  be  excluded  from  membership  in  the state employees' retirement system;  (2) any person who on or before July  thirty-first,  nineteen  hundred seventy-seven holds a state cooperative appointment as designated by the director  of the New York state cooperative extension service, may elect to receive federal cooperative appointment in the manner provided for by the relevant federal laws, rules and regulations and to  participate  in the federal retirement system and discontinue participation in the state retirement  system  by  filing  a  written  notice of termination, on or before December thirty-first, nineteen hundred  seventy-eight  with  the comptroller.  Any  employee  who  is  a  member  of  the  New York state employees' retirement system at the time he or she  elects  coverage  in the  federal  retirement  program  shall  be  deemed  to be a person who discontinues service on the effective date of  such  election,  for  the purpose of determining his or her eligibility for rights and benefits in such state system; provided however, that if he or she does not withdraw accumulated   contributions,  (i)  continued  service  with  the  county extension service association or  Cornell  university  while  under  the federal  retirement  program shall be deemed to be member service in the state employees'  retirement  system  for  the  purpose  of  determining eligibility for any vested retirement allowance, retirement allowance or ordinary  death  benefit  under  such  system dependent upon a specified period of total service or upon attainment of a specified age  while  in service  or upon death while in service; and (ii) the amount of any such benefit to which the person or his or her estate or person designated by him or her may  become  entitled  under  either  such  system  shall  be computed only on the basis of service otherwise creditable to him or her therein  and  his  or  her  compensation  during  such service. Electing employees and their beneficiaries shall not be entitled to any right  or benefit under the New York state employees' retirement system other than a  vested  retirement  allowance, retirement allowance or ordinary death benefit to the extent provided for in this chapter.   3. Every police officer and firefighter, appointed to and employed  by a  city, county, town, village or police or fire district, in a position in the classified civil service, other than in a position in the  exempt class,  and  who  is  not eligible to become a member of a local pension system. Notwithstanding any other provision of this article, so  far  as such  police  officers  and  firefighters are concerned, their employers shall  be  treated  in  all  respects  as  if  they  were  participating employers.  Such  employers shall pay into the pension accumulation fund the amount required to pay the accrued  liability  on  account  of  such police  officers  and  firefighters,  as  computed  by the actuary. Such payment shall be made in such  installments  as  the  comptroller  shall require.    c. The following may become members of the retirement system:   1.  An  officer  or  employee who is in the service of a participating employer on the date it becomes a  participating  employer,  unless  his office  or position has been excluded from eligibility for membership in the retirement system pursuant to sections thirty or thirty-one of  this article.   2.  An  officer  or  employee  in  the  service  of  the state or of a participating employer who would be  excluded  from  membership  by  the provisions of subdivision e of this section except for the fact that he, nevertheless,  may  become  a member pursuant to a specific provision of law.   3. Any other person in the service of the  state  or  a  participating employer,  except  as provided in subdivision b or subdivision e of this section.   4. Officers or employees of the federal government who have  at  least five  years  of  member  service  credit at the time they become federal officers or employees may continue as contributing members.   The provisions of this paragraph four  as  hereby  amended  shall  not affect the membership of officers or employees of the federal government heretofore commenced or continued hereunder, provided, however, that all memberships  hereunder  shall  be  conditioned  upon  the receipt by the retirement system of the payments required by section forty-two of  this article.   5. A person who:  (a)  Is  a  teacher  within the meaning of subdivision four of section five hundred one of the education law,  (b) Is not a member of the New York state teachers' retirement  system and  has  not elected the optional retirement program established either by article eight-b or by article three, part V of the education law,  (c) On or after April first, nineteen hundred fifty, enters  upon  his employment  as  such  a  teacher  in  a  state-operated  institution  or community college under the jurisdiction of the board of trustees of the state university, and  (d) Elects to become a member of this retirement system upon his entry into such employment and at no other time.   6. An officer or employee who is in the service of an institution  for the  instruction  of  the  deaf, mute or the blind, which receives state pupils whose instruction and support are paid for  by  the  state  or  a participating employer.   7.  All  war veterans in state service on March twenty-first, nineteen hundred thirty, entitled to  benefit  under  the  provisions  of  former section  twenty-one-a  of  the  civil  service law or former subdivision eight of section three of  the  public  buildings  law  or  section  two hundred  fourteen  or two hundred fifteen of the military law shall have the right to elect to become members of the New  York  state  employees' retirement  system,  and  to  be  covered  by  all the provisions of law relative thereto. Upon exercising such right, such war veteran shall  be deemed to have waived his rights to any benefits under such sections.   8.  Any  person  who  is  regularly  employed under the control of the division of military and naval affairs whose duties in  such  employment require  substantially  all  normal  working  hours  and  whose  regular compensation is paid by the United States from funds  allocated  to  the New  York  army  national guard, or the New York air national guard. For purposes of eligibility for membership in the  retirement  system,  such employees  shall  be deemed to be employees of the state. The provisions of this paragraph eight shall be effective only if and during  the  time that  the  United  States  shall  undertake  to  and  does  provide  the  employers' contributions which the state  is  required  to  pay  to  the retirement system on account of the memberships of such employees.   9. Notwithstanding any inconsistent provision of subdivision e of this section,  or of this chapter or of any other law, an officer or employee in the service of the state or of a participating employer who,  at  the time  of  entering  such  service, was or is entitled to benefits by any other pension  or  retirement  system  maintained  by  the  state  or  a political  subdivision thereof, provided such benefits, exclusive of any annuity based solely on his own contributions and interest thereon,  are suspended  during  his  active  membership  in the retirement system. He shall contribute to the retirement system as a new member.   d. A member, discontinued from  the  government  service  because  the office in which he was employed was transferred to:   1. The federal government, or   2.  Any  public  authority or public corporation organized pursuant to the laws of this state and which is not a participating employer, may file a written election with the comptroller stating that he  elects to  continue as a member. Such election shall be subject to the approval of the comptroller and such continuance shall be  conditioned  upon  the receipt  by  the  retirement  system of the payments required by section forty-two of this article.   e. Any person who is or may be entitled to benefits by any  other  law providing for pensions and annuities for civil service employees, wholly or  partly  at  the  expense  of the state or of a political subdivision thereof, shall not be a member. This provision, however, shall not:   1. Affect the membership of any person who legally is a member of  the retirement system on July first, nineteen hundred forty-eight.   2.  Exclude  from  membership any person who is or may become a member pursuant to paragraph two of subdivision c of this section.   3. Exclude from membership any person paid a salary from two  or  more sources,  each  of  which  entitles  him  to  membership in a retirement system.   4. Exclude from membership  any  person  holding  office  pursuant  to appointment  by  the  governor by and with the advice and consent of the senate, who at the time of such appointment would otherwise be  entitled to  a  retirement allowance wholly or partly at the expense of the state or of a political subdivision thereof.   5. Exclude from membership any person who is or  may  become  eligible for  old-age and survivors insurance benefits pursuant to the provisions of this article except where  his  position  was  or  is  excluded  from eligibility  for membership in this retirement system in order to extend old-age and survivors insurance coverage  to  it  and  such  eligibility shall not have been restored.   f.  Termination  of  membership.  Membership  in the retirement system shall cease upon the occurrence of any one of the following conditions:   1. When  seven  years  have  elapsed  since  a  member  has  performed government  service  provided,  however, that no part of such seven year period shall run during such time as a member, with at least five  years of  member  service credit, shall serve as an officer or employee of the federal  government  or  the  United  Nations  or  other   international organizations of which the United States of America is a member.   2. When a member shall die.   3. When a member shall retire.   4.  When  a member shall have withdrawn all or part of his accumulated contributions.  Acceptance  by  a  member  of   a   refund   of   excess contributions   pursuant   to   subdivision  g  of  section  twenty-one, subdivision c of section seventy-two, subdivision  c  or  d  of  section seventy-one,  subdivision c or d of section seventy-one-a or subdivision  c of section  eighty-four,  subdivision  i  of  section  eighty-five  or subdivision  h  of  section eighty-six of this article or borrowing from his fund in the retirement system pursuant  to  section  fifty  of  this article  shall not terminate his membership. Acceptance of such a refund of excess contributions by a member  entitled  to  a  vested  retirement allowance  pursuant  to  section  seventy-six  of this chapter shall not terminate his right  to  such  vested  retirement  allowance  nor  shall acceptance  by  him  of  a refund of the amount of his contributions and regular interest thereon which  is  in  excess  of  the  amount  of  the accumulated  contributions which he would then have to his credit had he been contributing on the  basis  of  his  rate  of  normal  contribution terminate his right to such vested retirement allowance.   5.  When  a  member  who has not attained eligibility for a retirement allowance or a vested retirement allowance has discontinued service with the state or a participating employer for a period of  at  least  thirty consecutive  days  and has requested termination of membership on a form prepared by the comptroller for such purpose by filing  such  form  with the  comptroller.  If  such  person  subsequently rejoins the retirement system within five years from the date he discontinued service with  the state  or  a  participating  employer,  such person shall be entitled to every retirement right, benefit and  privilege  which  would  have  been available  to  him  had  he  reentered  employment  on  the date of such discontinuance from service.   g. As to any class of persons whose compensation is only  partly  paid by  the  state  or  a  participating  employer  or  who are serving on a temporary or other  than  per  annum  basis,  the  comptroller,  in  his discretion, may:   1. Deny the right to become members, or   2.  Make  optional  the  individual entrance of those whose membership otherwise would be mandatory.