§ 401 — Reduction or suspension of benefits

§ 401. 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 sections two hundred eleven or two hundred twelve of this\nchapter, and is eligible for membership in the police and fire\nretirement system, he or she thereupon shall become a member and his or\nher retirement allowance shall cease. In such event, he or she shall\ncontribute to the police and fire retirement system as if he or she were\na new member. Upon his subsequent retirement he or she shall:\n 1. Be credited with all member service earned by him or her since he\nor she last became a member of the police and fire retirement system,\nand\n 2. Received a retirement allowance which shall consist of:\n (a) An annuity which is the actuarial equivalent of all his or her\naccumulated contributions, and\n (b) The pension including the\npension-providing-for-increased-take-home-pay which he or she was\nreceiving immediately prior to his or her last restoration to\nmembership, plus a pension including the\npension-providing-for-increased-take-home-pay based upon the member\nservice credit earned by him or her since he or she last became a\nmember. Such latter pensions shall be computed as if he or she were a\nnew member when he or she 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 or she was entitled at the time of his or her earlier\nretirement may, at his or her option, again be credited to him or her\nand upon his or her subsequent retirement he or she shall be credited in\naddition with all member service earned by him or her subsequent to his\nor her last restoration to membership. Such total service credit to\nwhich he or she was entitled at the time of his or her earlier\nretirement shall be so credited only in the event that such member\nreturns to the police and fire retirement system with regular interest\nthe actuarial equivalent of the amount of the retirement allowance he or\nshe received, or in the event that such amount is not so repaid the\nactuarial equivalent thereof shall be deducted from his or her\nsubsequent 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 police and fire retirement\nsystem until he or she has rendered one year of service following his or\nher return to public service. In such event his or her retirement\nallowance shall be suspended during such year of service as provided in\nsubdivision b of this section. Upon restoration to membership following\ncompletion of such year of service, his or her service in such year\nshall be deemed to be service while a member for purposes of subdivision\nb of section three hundred sixty of this chapter. He or she may purchase\nmember service credit for such year, which shall be deemed earned member\nservice credit. This paragraph shall not be construed to authorize the\nreturn to public service of any person who is otherwise not eligible\ntherefor 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 police and fire retirement system, his\nor her retirement allowance shall be suspended in the same manner as\nprovided in subdivision b of this section.\n b. Temporary service.\n 1. The payment of any retirement allowance, or 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 c of this section where the\nretired member continues as a beneficiary of the police and fire\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-increase-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. 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.\n In such even any payments to his beneficiary shall be made as if no\nsuspension occurred. The term "final salary", as used in this paragraph,\nshall mean the maximum salary or compensation which the retired member\ncurrently would be receiving in the position from which he last retired,\nif he had not so retired. If the position from which he was so retired\nhas been abolished the comptroller, upon the basis of salary or\ncompensation currently paid in similar or comparable positions, shall\ndetermine the maximum amount of salary or compensation which the retired\nmember currently would be receiving in the abolished position.\n The provisions of this subdivision c shall be controlling\nnotwithstanding any other provision of this chapter.\n c. 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.\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 police\nand fire retirement system the then present value of the annuity earned\nby his or her accumulated contributions, and upon receipt thereof cease\nto be a beneficiary of the police and fire retirement system, or\n (b) Continue as a beneficiary of the police and fire retirement\nsystem, but with payments of any retirement allowance or any benefit in\nlieu thereof, on account of retirement for other than physical\ndisability, suspended during the time he or she is in receipt of\ncompensation for state or public service. Such suspension shall be\ngoverned by the provisions of paragraphs two, three and four of\nsubdivision b of this section.\n 3. The provisions of subdivision one of section one hundred fifty of\nthe civil service law shall govern with respect to state and local\nelective public officers.\n d. Privilege of certain retired members, retired for other than\nphysical disability, to undertake public employment.\n 1. Notwithstanding any inconsistent provisions of this section or of\nsection one hundred fifty of the civil service law the provisions of\nthis section shall be suspended to the extent necessary to permit a\nretired member to continue as such and to earn not to exceed eighteen\nhundred dollars per calendar year as compensation in any position of a\ntemporary, seasonal or occasional nature in government service or public\nservice, provided he duly executes and files with the comptroller a\nstatement that he elects to have the provisions of this subdivision f\napply to him, and:\n (a) His retirement allowance, computed without optional modification,\ndoes not exceed thirty-five hundred dollars per year, or\n (b) His retirement allowance, computed without optional modification,\nexceeds thirty-five hundred dollars per year and he annually waives that\nportion which is in excess of thirty-five hundred dollars by duly\nexecuting and filing with the comptroller a waiver of the aforesaid\nexcess portion. The waiver shall be irrevocable during the calendar year\nin which it is filed.\nA statement of election executed and filed pursuant to this subdivision\nf may be withdrawn by a retired member at any time by a statement\nsimilarly executed and filed.\n 2. The privilege granted by this subdivision f, to retired members to\ncontinue as such and to earn compensation in positions of a temporary,\nseasonal or occasional nature in government service or public service\nshall remain in full force and effect until July first, nineteen hundred\nsixty-five.\n