2023 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.