2023 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.