2023 New York Laws › RSS - Retirement and Social Security › Article 3 - Federal Old-Age and Survivors Insurance Coverage for Certain Public Employees › 138-A - Referenda Among Public Employees; Extension of Old-Age and Survivors Insurance.

§  138-a.  Referenda  among public employees; extension of old-age and
  survivors insurance.  1. As soon as practicable after the effective date
  hereof, the governor or the state agency or officer  designated  by  him
  shall,  in  accordance  with  the  applicable  provisions of the federal
  social security act and subdivision thirteen of this section,  authorize
  the  separate  referenda described below (and thereafter, such similarly
  separated referenda as may be deemed appropriate and be consistent  with
  this article and such federal act):
a. One referendum among all eligible employees of the state (exclusive
  of  those in police officer or firefighter positions) who are members of
  the New York state employees' retirement  system,  a  second  referendum
  among  all  eligible  employees  of  political subdivisions of the state
  (exclusive of those in police officer or firefighter positions) who  are
  members of such retirement system, which subdivisions elected to provide
  seven  calendar  quarters  of  retroactive  coverage  for such employees
  pursuant to subdivision seven of this section, a third referendum  among
  all eligible employees of political subdivisions of the state (exclusive
  of  those in police officer or firefighter positions) who are members of
  such retirement  system,  which  subdivisions  elected  to  provide  six
  calendar quarters of retroactive coverage for such employees pursuant to
  subdivision  seven  of  this  section,  a  fourth  referendum  among all
  eligible employees of political subdivisions of the state (exclusive  of
  those  in  police  officer  or firefighter positions) who are members of
  such retirement system,  which  subdivisions  elected  to  provide  four
  calendar quarters of retroactive coverage for such employees pursuant to
  subdivision  seven  of  this  section,  and a fifth referendum among all
  eligible employees of the remaining political subdivisions of the  state
  (exclusive  of those in police officer or firefighter positions) who are
  members of such retirement system, on the question of whether service in
  positions (exclusive of police officer or firefighter positions) in  the
  employ  of  the state or of such political subdivisions, as the case may
  be, and covered by such system also shall  be  covered  by  old-age  and
  survivors insurance.
b. Separate referenda among eligible employees of the state (exclusive
  of those in police officer or firefighter positions) whose positions are
  covered by a separate retirement system or plan maintained by the state,
  other  than the New York state and local employees' retirement system or
  the New York state teachers' retirement system, and who are  members  of
  such  system  or  plan,  on the question of whether service in positions
  (exclusive of police officer or firefighter positions) covered  by  such
  system or plan also shall be covered by old-age and survivors insurance.
c.  One  referendum  among all eligible employees of the state who are
  members of the New York state  teachers'  retirement  system,  a  second
  referendum among all eligible employees of political subdivisions of the
  state  who  are  members  of  such retirement system, which subdivisions
  elected to provide seven calendar quarters of retroactive  coverage  for
  such  employees  pursuant  to subdivision seven of this section, a third
  referendum among all eligible employees of political subdivisions of the
  state who are members of  such  retirement  system,  which  subdivisions
  elected  to  provide  six  calendar quarters of retroactive coverage for
  such employees pursuant to subdivision seven of this section,  a  fourth
  referendum among all eligible employees of political subdivisions of the
  state  who  are  members  of  such retirement system, which subdivisions
  elected to provide four calendar quarters of  retroactive  coverage  for
  such  employees  pursuant  to  subdivision  seven of this section, and a
  fifth referendum among all eligible employees of the remaining political
  subdivisions of the state who are members of such retirement system,  on

  the question of whether service in positions covered by such system also
  shall be covered by old-age and survivors insurance.
d.  Separate  referenda  among  eligible  employees  of each political
  subdivision  (exclusive  of  those  in  police  officer  or  firefighter
  positions)  who are members of a retirement system or plan maintained by
  such political subdivision other than a retirement  system  relating  to
  retirement  benefits  under  the Canada pension plan, on the question of
  whether service in positions in the employ of such political subdivision
  and covered by such system or plan also shall be covered by old-age  and
  survivors  insurance.  The  modification providing old-age and survivors
  insurance  coverage  pursuant  to  such  referenda  shall  provide  such
  retroactive  coverage,  if  any,  and  shall  exclude  from  old-age and
  survivors insurance coverage such classes of employment as authorized by
  paragraph b of subdivision two of section one hundred thirty-six of this
  article, if any, as the governing body  of  such  political  subdivision
  shall  determine,  consistent with the federal social security act. Such
  determination shall be made within a reasonable period of time fixed  by
  the director and indicated in a certificate filed with the director.
2.  In  the  event  the  federal  social  security  act  is amended to
  authorize the extension of old-age and survivors insurance  coverage  to
  service  performed  in  this  state  in  police  officer  or firefighter
  positions, the governor or the state agency or officer designated by him
  or her shall, as  soon  as  practicable  after  the  enactment  of  such
  amendment  and  in  accordance  with  the  applicable provisions of such
  federal act and subdivision thirteen of this section, to the extent then
  applicable, shall take such action as may be necessary to extend old-age
  and survivors insurance coverage to such positions,  including,  to  the
  extent applicable, referenda as follows:
a. One referendum among all eligible employees of the state serving in
  police  officer or firefighter positions who are members of the New York
  state and local employees' retirement system.
b. A separate referendum among all eligible  employees  of  the  state
  serving  in  police officer or firefighter positions whose positions are
  covered by a retirement system or plan maintained  by  the  state  other
  than  the New York state and local employees' retirement system, and who
  are members of such system or plan.
c.  One  referendum  among  all  eligible   employees   of   political
  subdivisions  of  the  state  serving  in  police officer or firefighter
  positions who are members of the New York  state  and  local  employees'
  retirement  system,  which  political  subdivisions  elected  to provide
  retroactive coverage to  or  about  March  sixteenth,  nineteen  hundred
  fifty-six,  to  such  employees  pursuant  to  subdivision seven of this
  section, a second referendum among all eligible employees  of  political
  subdivisions  of  the  state  serving  in  police officer or firefighter
  positions who are members of such retirement system, which  subdivisions
  elected  to  provide  retroactive  coverage  to or about June sixteenth,
  nineteen hundred fifty-six, to such employees  pursuant  to  subdivision
  seven  of  this section, a third referendum among all eligible employees
  of political subdivisions of the state  serving  in  police  officer  or
  firefighter  positions  who are members of such retirement system, which
  political subdivisions elected to provide  retroactive  coverage  to  or
  about  December sixteenth, nineteen hundred fifty-six, to such employees
  pursuant to subdivision seven of this section, and a  fourth  referendum
  among  all eligible employees of the remaining political subdivisions of
  the state serving in police officer or  firefighter  positions  who  are
  members  of such system, which eligible employees shall have retroactive
  coverage to or about December sixteenth, nineteen hundred fifty-seven.
d. Separate referenda  among  eligible  employees  of  each  political
  subdivision  serving  in  police  officer or firefighter positions whose
  positions are covered by a separate retirement system or plan maintained
  by such political subdivision and who are  members  of  such  system  or
  plan.  Each  such referendum shall be on the question of whether service
  in the police officer or firefighter  positions  affected  thereby  also
  shall be covered by old-age and survivors insurance.
2-a. Notwithstanding any inconsistent provision of this article:
a.  The alternative referendum and certification procedure provided by
  paragraph seven of subdivision (d) of section two  hundred  eighteen  of
  the  federal social security act, as added by public law eighty-five-two
  hundred twenty-nine, may be followed  in  lieu  of  any  referendum  and
  certification  of  the  result  thereof as required by this section. All
  actions heretofore duly taken which comply or anticipate compliance with
  any procedure authorized or contemplated by  such  paragraph  seven  are
  hereby  ratified and confirmed and shall be deemed to have been taken in
  full compliance with this section.
b. Any  action  duly  taken  which  extended  or  extends  retroactive
  coverage  to  a  date  on  or  about  March  sixteenth, nineteen hundred
  fifty-six, or thereafter, for any public employees, including those  not
  provided  with  such  coverage  prior to January first, nineteen hundred
  fifty-eight, is hereby  ratified  and  confirmed  and  such  retroactive
  coverage  shall  be deemed to have been provided in full compliance with
  this section as hereby amended.
3. Each notice of referendum required by the federal  social  security
  act  to be given to employees shall contain or shall be accompanied by a
  statement, in such form and with such detail as  the  governor,  or  the
  state agency or officer designated by him, shall determine is sufficient
  to  inform such employees of the rights which will accrue to them, their
  dependents and survivors, and of the liabilities to which they  will  be
  subject  in  the  event  that  service  in their positions is covered by
  old-age and survivors insurance. Such information  also  shall  be  made
  available  to employees for a reasonable period before they are required
  to indicate, pursuant to subdivision thirteen of this  section,  whether
  they desire old-age and survivors insurance coverage.
4. The governor or the state agency or officer designated by him shall
  have  power  to  require  the  filing by public agencies and officers of
  information and data necessary for the conduct of referenda provided for
  herein and the determination of the results thereof.
5. Where in any such referendum a majority of the  eligible  employees
  vote  in  favor of covering service in positions covered by a retirement
  system or plan under old-age and  survivors  insurance,  and  the  other
  applicable  conditions of the federal social security act have been met,
  the governor  shall  make  the  necessary  certificate  to  the  federal
  secretary in accordance with such act.
6.  Whenever  any such certification is made to the federal secretary,
  the director shall take the necessary action to effectuate the result of
  such referendum and  modify  the  state's  agreement  with  the  federal
  secretary  accordingly,  except  that  with  respect  to  the  referenda
  provided by paragraph  c  of  subdivision  one  of  this  section  among
  eligible  employees of political subdivisions who are members of the New
  York state teachers' retirement system, no such  modification  shall  be
  made  with  respect  to  employees  of  political  subdivisions unless a
  majority of all the members of the system (counted without reference  to
  any  division  theretofore made pursuant to subdivision thirteen hereof)
  employed by political subdivisions voted in favor of  coverage  in  such
  referenda.
7.  In  the  event  a referendum which includes employees of the state
  favors the extension of old-age  and  survivors  insurance  coverage  to
  positions  in  the  employ  of  the  state,  the director shall, in such
  modification, provide  for  retroactive  coverage  to  March  sixteenth,
  nineteen  hundred  fifty-six. The director shall fix a reasonable period
  of time during which the governing body of each  political  subdivision,
  having  employees  who  are  members  of  the  New York state employees'
  retirement system, the New York state teachers' retirement system, or  a
  pension or retirement system maintained by the political subdivision may
  determine  to  provide retroactive coverage to or about March sixteenth,
  nineteen hundred fifty-six, June sixteenth, nineteen hundred  fifty-six,
  December  sixteenth,  nineteen hundred fifty-six, or December sixteenth,
  nineteen hundred fifty-seven to its employees who are members of any  of
  such  systems.  The  director  shall  have  power  to  fix  the  precise
  retroactive date in each such case.
7-a. Notwithstanding any action previously taken by the governing body
  of any political subdivision with respect to whether or not  retroactive
  coverage  should  be  extended  to any of its employees or the amount of
  retroactive coverage which it  has  provided,  and  notwithstanding  any
  inconsistent  provision  of  this  section or of any general, special or
  local law, city or village charter,  ordinance  or  resolution,  in  the
  event  the  federal  social  security  act  authorizes  or is amended to
  authorize it to do  so  such  governing  body  may,  during  the  period
  authorized by and in the manner provided by such act, extend retroactive
  coverage  to  employees  of  such  political  subdivision  to a date not
  earlier than one in the  first  calendar  quarter  of  nineteen  hundred
  fifty-six  so  that  only one payroll date or such other minimum period,
  determined by the director, shall be included in such retroactive period
  to accomplish the result  of  providing  retroactive  coverage  for  the
  earliest  calendar  quarter to be included in such retroactive coverage.
  The director shall have power to fix the  precise  retroactive  date  in
  each such case.
8.  a. Notwithstanding any other provision of law, any individual who,
  on or after August first, nineteen hundred fifty-six, had an  option  to
  join  a  retirement  system  or  plan applicable to his position and who
  could have joined such retirement system or plan prior to the  execution
  date  of a modification extending old-age and survivors insurance to any
  position covered by such retirement system or  plan,  but  who  had  not
  joined  such retirement system or plan prior thereto, is hereby declared
  personally ineligible for membership in such retirement system or  plan,
  effective as of August first, nineteen hundred fifty-six, or if he first
  occupies such position later, such later date.
b.  The director shall modify the federal agreement under this article
  to provide old-age and survivors insurance coverage  to  individuals  in
  the  employ  of  the  state  who  are  ineligible to become members of a
  retirement system applicable to their positions,  including  individuals
  to whom paragraph a of this subdivision is applicable, and provide, with
  respect  to  such  individuals,  the  retroactive  coverage specified in
  subdivision seven of this section.
c. The director shall modify the federal agreement under this  article
  to  provide  old-age  and survivors insurance coverage to individuals in
  the employ of any political subdivision of the state who are  ineligible
  to  become members of a retirement system applicable to their positions,
  including individuals  to  whom  paragraph  a  of  this  subdivision  is
  applicable,   and   provide,  with  respect  to  such  individuals,  the
  retroactive coverage, if any, and the excludable classes  of  employment
  as  authorized  by paragraph b of subdivision two of section one hundred
  thirty-six of this article, if any, determined by the governing body  of

  the  political  subdivision  by  which  such  individuals  are employed,
  consistent with the federal social security act.
d. Eligibility for membership in a retirement system or plan is hereby
  restored  to  every  employee  who was made ineligible for membership in
  such a system or plan by operation of any provision of paragraph a, b or
  c of this subdivision eight  as  originally  enacted  by  chapter  seven
  hundred seventy-six of the laws of nineteen hundred fifty-seven.
9.  In  the  event  that  a referendum among eligible employees of the
  state or of one or more political subdivisions favors the  extension  of
  old-age  and  survivors  insurance  coverage  to  positions covered by a
  retirement system or plan of which they are  members,  persons  who  are
  members  of such system or plan as of the referendum date shall be given
  such coverage only if they indicated their desire therefor, prior to the
  applicable referendum, in such manner and on or before such date as  the
  director shall specify by rule or regulation consistent with the federal
  social security act.
10.  a.  In  the  event that the referenda among eligible employees of
  political subdivisions of  the  state  (exclusive  of  those  in  police
  officer  or firefighter positions) who are members of the New York state
  and local employees' retirement system favor the  extension  of  old-age
  and  survivors  insurance  coverage to their positions, all positions in
  the employ of each political subdivision  of  the  state,  except  those
  covered  by  a  retirement  system or plan of the state or the political
  subdivision and subject to  separate  referenda  hereunder,  and  except
  those  excluded from coverage pursuant to paragraph b of subdivision two
  of section one hundred thirty-six of this article, also shall be covered
  by old-age and survivors insurance at or about the same  time  that  the
  director modifies the agreement with the federal secretary to effectuate
  the  result  of such referenda as to the political subdivisions affected
  thereby. Each political  subdivision  to  which  old-age  and  survivors
  insurance  is  extended  pursuant  to  this  subdivision  shall have the
  option, within a reasonable period of time fixed  by  the  director,  to
  file  a  certificate  with the director fixing the effective date of its
  coverage (which may include retroactive coverage for such period as  its
  governing  body  shall  determine subject to the federal social security
  act and which effective date shall be not later than  its  last  payroll
  date  in  December  nineteen  hundred  fifty-seven)  and  excluding from
  coverage  classes  of  employment  as  authorized  by  paragraph  b   of
  subdivision two of section one hundred thirty-six of this article.
b.  In  the  event  that  the  referenda  among  eligible employees of
  political subdivisions of the state who are  members  of  the  New  York
  state  employees'  retirement  system favor the extension of old-age and
  survivors insurance coverage to their positions, all  positions  in  the
  employ  of  a  political  subdivision  of  the  state  which  is created
  subsequent to the date of the modification of  the  agreement  with  the
  federal secretary, to effectuate the result of such referenda also shall
  be  covered  by  old-age and survivors insurance, effective the date the
  political subdivision first has employees on  the  payroll,  or  becomes
  eligible, or as soon thereafter as is consistent with the federal social
  security  act. Each political subdivision to which old-age and survivors
  insurance is extended pursuant to this paragraph shall have the  option,
  within  a  reasonable  period of time fixed by the director and prior to
  participation by such political subdivision in New York state employees'
  retirement system, to file a certificate  with  the  director  excluding
  from  coverage  classes  of  employment  as authorized by paragraph b of
  subdivision two of section one hundred thirty-six of this article.
11. Where the agreement with the federal secretary is  modified,  each
  political  subdivision  affected  thereby  shall be obligated under this

  article as if the modification  had  been  made  on  the  basis  of  its
  application to and agreement with the director that it be so modified.
12.  Where  the  director  modifies  the  agreement  with  the federal
  secretary to provide for old-age and  survivors  insurance  coverage  to
  employees  of  the  state  or  of a political subdivision in addition to
  their coverage by a retirement system or plan, such action shall, as  of
  the effective date of coverage, be deemed to restore the eligibility for
  membership  in  such  system  or  plan  of employees in positions in the
  employ of the state or the political subdivision, as the  case  may  be,
  who   theretofore  were  eligible  for  membership  therein,  but  whose
  positions were excluded from eligibility therein in order  that  old-age
  and survivors insurance coverage could be extended to them.
13.  A  retirement  system  or plan, for the purposes of this article,
  shall be deemed to constitute a separate retirement system with  respect
  to  the  positions  covered  thereby  for which a separate referendum is
  authorized herein. Each retirement system or plan shall be divided  into
  two  parts,  one  of  which shall be composed of positions of members of
  such system who desire old-age and survivors insurance coverage  on  the
  basis of their service in such positions and the other to be composed of
  positions of the members who do not desire such coverage. Each such part
  shall  be  deemed  a  separate retirement system for the purposes of the
  referenda provided for in this article. Positions of persons who  become
  members  of  a  retirement  system  or  plan after old-age and survivors
  insurance shall have  been  extended  shall  be  included  in  the  part
  composed of members desiring such coverage.
14.  Notwithstanding the provisions of section one hundred forty-three
  of this article, the costs of each referendum conducted hereunder  shall
  be  paid  as  an administrative expense by the retirement system or plan
  among whose members the referendum is conducted. The governor  or  state
  officer  or  agency  designated  by him shall have power to require each
  such system or plan to pay the costs so incurred.
15. Where the compensation of any person whose position is covered  by
  old-age  and survivors insurance pursuant to this article is paid from a
  special or administrative fund provided for by law other than an  income
  fund  of  the  state university or the mental hygiene services fund, the
  contributions required to be paid by his  employer  for  such  coverage,
  including  a  proportionate share of the costs of administration charged
  to such employer pursuant to section one  hundred  thirty-nine  of  this
  article, shall be paid from such special or administrative fund.
16.  Notwithstanding anything to the contrary contained in subdivision
  nine of this section, the director is hereby authorized,  on  behalf  of
  the state, consistent with the provisions of the federal social security
  act,  to modify the agreement with the federal secretary for the purpose
  of extending old age and survivors insurance coverage  to  positions  of
  members  of  the  division  or  part  of a retirement system composed of
  members who do not desire coverage, if in the manner and before the date
  specified by the director, the  individuals  occupying  such  positions,
  file with him a written request therefor.