§ 101 — Reduction or suspension of benefits

New York § 101

• Jurisdiction: New York
• Law RSS: Retirement & Social Security
• Title 11: Provisions Relating to Retired Members
• Art. 2: New York State Employees' Retirement System

Text

§ 101. Reduction or suspension of benefits. a. If a retired member,\nreceiving a retirement allowance for other than physical disability,\nreturns to active public service, except as otherwise provided in this\nsection or section two hundred eleven or two hundred twelve of this\nchapter, and is eligible for membership in the retirement system, he\nthereupon shall become a member and his retirement allowance shall\ncease. In such event, he shall contribute to the retirement system as if\nhe were a new member. Upon his subsequent retirement he shall:\n 1. Be credited with all member service earned by him since he last\nbecame a member of the retirement system, and\n 2. Receive a retirement allowance which shall consist of:\n (a) An annuity which is the actuarial equivalent of all his\naccumulated contributions, and\n (b) The pension including the\npension-providing-for-increased-take-home-pay which he was receiving\nimmediately prior to his last restoration to membership, plus a pension\nincluding the pension-providing-for-increased-take-home-pay based upon\nthe member service credit earned by him since he last became a member.\nSuch latter pensions shall be computed as if he were a new member when\nhe last became a member.\n Where such member shall have earned at least two years of member\nservice credit after restoration to active service, the total service\ncredit to which he was entitled at the time of his earlier retirement\nmay, at his option, again be credited to him and upon his subsequent\nretirement he shall be credited in addition with all member service\nearned by him subsequent to his last restoration to membership. Such\ntotal service credit to which he was entitled at the time of his earlier\nretirement shall be so credited only in the event that such member\nreturns to the retirement system with regular interest the actuarial\nequivalent of the amount of the retirement allowance he received, or in\nthe event that such amount is not so repaid the actuarial equivalent\nthereof shall be deducted from his subsequent retirement allowance.\n Notwithstanding the foregoing provisions of this subdivision, a\nretired member who is receiving a retirement allowance for other than\nphysical disability, and who returns to active public service, may elect\nnot to be restored to membership in the retirement system until he has\nrendered one year of service following his return to public service. In\nsuch event his retirement allowance shall be suspended during such year\nof service as provided in subdivision b of this section. Upon\nrestoration to membership following completion of such year of service,\nhis service in such year shall be deemed to be service while a member\nfor purposes of subdivision b of section sixty of this chapter. He may\npurchase member service credit for such year, which shall be deemed\nearned member service credit. This paragraph shall not be construed to\nauthorize the return to public service of any person who is otherwise\nnot eligible therefor on account of having reached age seventy.\n If a retired member receiving a retirement allowance for other than\nphysical disability, returns to active public service, and is then\nineligible for membership in the retirement system, his retirement\nallowance shall be suspended in the same manner as provided in\nsubdivision b of this section.\n b. Temporary service.\n 1. The payment of any retirement allowance, or of any benefit in lieu\nthereof, on account of retirement for other than physical disability\nshall be suspended as provided herein, during the time that the\nbeneficiary thereof is in receipt of other compensation paid from direct\nor indirect state or municipal taxes:\n (a) For temporary government or temporary public service other than\njury duty, or\n (b) For service pursuant to subdivision d of this section where the\nretired member continues as a beneficiary of the retirement system, or\n (c) For service pursuant to subdivision e of this section where the\nretired member has not elected to again become a member of the\nretirement system.\n 2. In the case of a retirement allowance, without option, the amount\nof the pension portion, including the\npension-providing-for-increased-take-home-pay, suspended for any period\nshall be equal to the amount of such other compensation for the same\nperiod.\n 3. In the case where an optional benefit in lieu of a retirement\nallowance without option shall have been selected, the pension portion\nthereof, including the pension-providing-for-increased-take-home-pay,\nshall be suspended in such manner as the comptroller shall approve. The\namount so suspended shall be equal to the actuarial equivalent of the\namount by which the pension portion of the retirement allowance,\nincluding the pension-providing-for-increased-take-home-pay, as it would\nbe without option, would be suspended pursuant to paragraph two of this\nsubdivision b. The retired member, however, may pay to the fund or funds\nfrom which the pension portion of his retirement allowance, including\nthe pension-providing-for-increased-take-home-pay, is payable the\ndifference between the suspended portion thereof, without option, and\nthe suspended portion of the optional pension portion of the retirement\nallowance, including the pension-providing-for-increased-take-home-pay,\ngranted to him. In such event any payments to his beneficiary shall be\nmade as if no suspension occurred.\n 4. In the case of a member whose compensation for public service is\nequal to or greater than his final salary as defined herein, the annuity\nportion of his retirement allowance shall be suspended during the period\nthat he is receiving such compensation. In the case of a member whose\ncompensation for public service is less than his final salary as defined\nherein and who has retired without option, he shall be entitled to\nreceive that portion of his annuity computed without option which, when\nadded to his compensation for public service, does not exceed the\naforesaid final salary, except that in the case of a retired judge or\njustice who serves as an official referee he shall receive that portion\nof his annuity computed without option, which when added to the\ncompensation he is receiving from the state shall not exceed such final\nsalary paid by the state. Where an optional benefit has been selected in\nlieu of a retirement allowance without option, the amount of the annuity\nsuspended shall be the actuarial equivalent of the amount that would\nhave been suspended if the retirement allowance had been without option.\nIn such a case the retired member may pay to the fund or funds, from\nwhich the annuity portion of his retirement allowance is payable, the\ndifference between that portion of the annuity which is actually\nsuspended, in accordance with the provisions of this paragraph, and the\ncorresponding portion of the annuity without option. In such event any\npayments to his beneficiary shall be made as if no suspension occurred.\nThe term "final salary", as used in this paragraph, shall mean the\nmaximum salary or compensation which the retired member currently would\nbe receiving in the position from which he last retired, if he had not\nso retired, except in the case of an official referee shall mean his\nfinal average salary had he retired at age seventy. If the position from\nwhich he was so retired has been abolished the comptroller, upon the\nbasis of salary or compensation currently paid in similar or comparable\npositions, shall determine the maximum amount of salary or compensation\nwhich the retired member currently would be receiving in the abolished\nposition.\n c. Retired judges or justices certified for service as justices of the\nsupreme court.\n 1. In the event that a judge or justice shall:\n (a) Have retired and is receiving a retirement allowance from this\nretirement system, or another retirement system of which he was a\nmember, and\n (b) Be certified for service as a justice of the supreme court\npursuant to section one hundred fourteen or one hundred fifteen of the\njudiciary law, his retirement allowance shall cease. He thereupon again\nshall become a member of the retirement system of which he formerly was\na member. In such event he shall contribute, as if he were a new member,\nto the annuity savings fund of this retirement system or to the\nequivalent fund of such other retirement system.\n 2. Upon his subsequent retirement he shall:\n (a) Be credited by the appropriate retirement system with all member\nservice earned by him since he last became a member thereof, and\n (b) Receive a retirement allowance from such system which shall\nconsist of:\n (1) An annuity which is the actuarial equivalent of all of the\nmember's accumulated contributions, and\n (2) The pension, including the\npension-providing-for-increased-take-home-pay, which he was receiving\nimmediately prior to his last restoration to membership, plus a pension,\nincluding the pension-providing-for-increased-take-home-pay, based upon\nthe member service credit earned by him since he last became a member.\nSuch latter pensions shall be computed as if he were a new member when\nhe last became a member.\n 3. The provisions of this subdivision c shall be controlling\nnotwithstanding any other provision of this chapter.\n d. Election or appointment of retired members to certain public\noffices.\n 1. A retired member, unless otherwise disqualified, shall be eligible\nto:\n (a) Election to a state office, or\n (b) Appointment to fill a vacancy in an elective state office, or\n (c) Appointment as an official referee.\n 2. In the event a retired member is so elected, except a retired\nmember so elected and who is receiving less than ten thousand dollars in\nretirement allowance or benefit payments in any one year, or appointed,\nor so qualifies, he may:\n (a) Upon written notice to the comptroller, receive from the\nretirement system the then present value of the annuity earned by his\naccumulated contributions, and upon receipt thereof cease to be a\nbeneficiary of the retirement system, or\n (b) Continue as a beneficiary of the retirement system, but with\npayments of any retirement allowance or any benefit in lieu thereof, on\naccount of retirement for other than physical disability, suspended\nduring the time he is in receipt of compensation for state or public\nservice. Such suspension shall be governed by the provisions of\nparagraphs two, three and four of subdivision b of this section.\n 3. The provisions of section one hundred fifty of the civil service\nlaw shall govern with respect to state and local elective public\nofficers.\n e. Legislative officers and employees.\n In the case of any person who shall have retired after having served\nas an officer or employee of the legislature for a period in excess of\nfifteen years and whose return to active service shall be requested, in\na written certificate of and filed with the comptroller by:\n 1. The president pro tem of the senate, if the service be in the\nsenate, or\n 2. The speaker of the assembly, if the service be in the assembly, or\n 3. Both such officers, if the service be under the jurisdiction of the\nsenate and assembly jointly, except that the president of the senate and\nthe speaker of the assembly shall be authorized to make such request in\na case where they are empowered to make such an appointment,\nthe provisions of subdivision a of this section shall not be applicable\nunless the officer or employee so returned to active service shall file\nwith the comptroller, within thirty days thereafter, a written notice\nthat he elects to be subject to the provisions thereof. In the event he\ndoes not so elect, the provisions of subdivision b of this section shall\nbe applicable to him.\n