§ 41 — Allowances for service

§ 41. Allowances for service. a. Generally. Subject to all provisions\nof law appertaining thereto and to such reasonable rules and regulations\nas the comptroller shall adopt or amend in pursuance thereof, he shall\ndetermine and may modify allowances for service and shall issue prior\nservice certificates and certificates for service in war after world war\nI. The comptroller, however, shall not allow more than one year of\ncredit for all service rendered in any calendar year.\n b. Allowable service. Only the following types of service shall be\nallowable in computing service credits:\n 1. Government service.\n 2. Prior city and county service rendered in a city of the state or in\na county within the boundaries of such city, if such city has a pension\nsystem allowing credit for prior state and county service.\n 3. Prior service rendered to an employer before the latter became a\nparticipating employer. Such credit shall be allowable immediately upon\nsuch employer's becoming a participating employer. The employer for whom\nthe member is working at the time such prior service credit is allowed,\nshall pay the contribution required to be made by an employer on account\nof such credit.\n 4. Civil service in any capacity as an officer or employee of the\nfederal government, or military duty in the armed forces of the federal\ngovernment and not otherwise creditable, rendered or performed by a\nmember prior to the time he last became a member. The allowance of\ncredit for such service shall be conditioned upon the receipt by the\nretirement system of all the payments required to be made on account\nthereof by section forty-two of this article.\n 5. Civil service rendered as an officer or employee of the federal\ngovernment as provided in subdivision d or paragraph four of subdivision\nc of section forty of this article. The allowance of credit for such\nservice shall be conditioned upon the receipt by the retirement system\nof all the payments required to be made on account thereof by section\nforty-two of this article. Except as so provided, employment by the\nfederal government shall not entitle a person to contribute to the\nretirement system during the period of such employment.\n 6. Any member may obtain credit for any allowable service:\n (a) For which he made contributions, regardless of whether such\ncontributions were returned to him when he left such service, or\n (b) Rendered by him while not a member of any retirement system that\nis actuarially sound and of which the state or municipality thereof is a\ncontributor, provided he makes the contributions required by this\narticle for such credit and renders at least two years of member service\nafter he last became a member.\nNo credit shall be allowed for service if, but for the member's failure\nto avail himself of the privilege of transfer within the time and in the\nmanner provided in section forty-three of this article, credit for such\nservice could have been obtained upon transfer from another retirement\nsystem pursuant to such section.\n c. Purchase of previous member service credit.\n 1. A member who has not previously been a member may purchase credit\nat any time for all allowable member service; provided, however, that a\nmember joining the system pursuant to paragraph nine of subdivision c of\nsection forty of this article shall not be permitted to purchase credit\nfor, or otherwise be allowed credit for the previous service upon which\nhis retirement or pension from another pension or retirement system is\nor would be based. In order to purchase credit, which may be purchased\npursuant to this paragraph, the member shall pay into the annuity\nsavings fund, either in a lump sum or in installments, a sum equal to\nthe amount which would have been in such fund to his credit had he\nactually been a member contributing thereto during the entire period of\nsuch previous member service. If such payment be made in installments,\nthe same shall be paid within a period no greater than the number of\nmonths of such member service.\n 2. A member who, after a previous membership, withdrew all or part of\nhis accumulated contributions shall be credited with all allowable\nservice rendered prior to such withdrawal, provided he:\n (a) Renders at least two years of member service after his last\nwithdrawal, and\n (b) Redeposits such withdrawn amount in the annuity savings fund,\neither in a lump sum or in installments; provided, however, that a\nmember joining the system pursuant to paragraph nine of subdivision c of\nsection forty of this article shall not be permitted to purchase credit\nfor, or otherwise be allowed credit for the previous service upon which\nhis retirement or pension from another pension or retirement system is\nor would be based. If such payment be made in installments, the same\nshall be paid within a period no greater than the number of months of\nmember service lost by such withdrawal.\n d. Credit allowable only if paid for. In the event that a member\nretires or that any benefit becomes payable because of his membership in\nthe retirement system prior to the completion of all of the payments\nrequired to be made by him as a condition precedent to his obtaining\ncredit for member service, the amount of his retirement allowance or\nsuch other benefits shall be based only on:\n 1. The service rendered by him since he last became a member of the\nretirement system and for which contributions have been paid by him, and\n 2. Any additional service, all the conditions precedent to the\ncrediting of which have been completely fulfilled by him. However, if\nthe full amount of the payments required to be made by the member is not\npaid to the retirement system, the amount of service credit shall be\nproportional to the total amount of the payments made.\n e. Waiver of membership requirement in certain cases. In the case of a\nperson in the employ of a participating employer, the requirements in\nsections sixty and seventy-five of this article that a member must have\ncredit for one or more years of service as a member shall not apply if:\n 1. Such person became a member within one year after his employer\nbecame a participating employer, and\n 2. He was in the service of such participating employer for the entire\nyear previous to his retirement or death.\n f. Restoration of credit in certain cases.\n 1. A member who has been discontinued from service through no fault of\nhis own and who has withdrawn his accumulated contributions shall have\nhis total service credit restored in full if:\n (a) He had less than twenty years of total service credit when he was\nso discontinued, and\n (b) He returns to service within ten years after such discontinuance,\nand\n (c) He redeposits the total amount so withdrawn by him and\n (d) His employer elects to and does pay to the pension accumulation\nfund an amount equal to the reserve required to cover such restoration\nof credit.\n 2. Upon such return to service, such member shall contribute to the\nretirement system as a new member.\n 3. In the event such a member retires before his employer makes such\npayment, he may elect to receive his benefit immediately as if full\nservice credit were allowable. He thereupon shall be entitled to receive\nthe full amount of such benefit for such period as the same can be paid\nfrom the combined reserve available on his account in the annuity\nreserve fund and pension reserve fund. When his employer makes such\npayment, his benefit thereafter shall be continued from the reserve so\npaid.\n 4. The provisions of this subdivision f shall be controlling\nnotwithstanding any provision in this article to the contrary.\n g. Prior service credit and credit for service in war after world war\nI in certain cases. Allowable prior service credit and allowable credit\nfor service in war after world war I shall be granted immediately to:\n 1. Any member who shall have rendered at least two years of service\nsince he last became a member.\n 2. Any person who is in the service of a participating employer on the\ndate it approves participation and who becomes a member within one year\nafter such date.\nThe employer for whom the member is working at the time such prior\nservice credit or credit for service in war after world war I is\nallowed, shall pay the contribution required to be made by an employer\non account of such credit.\n h. Prior service certificates and certificates for service in war\nafter world war I.\n 1. The comptroller shall issue a certificate, to be known as a prior\nservice certificate, to each member entitled to prior service credit.\nSuch certificate shall certify the amount of such credit which shall be\nallowed in computing any pension provided for by this article.\n 2. The comptroller, upon application, shall issue a certificate for\nservice in war after world war I to each member entitled thereto. Such\ncertificate shall certify to service in war after world war I allowable\nto such member.\n 3. The comptroller, upon application of a member at any time, or upon\nhis own initiative within one year from the date of issuance of a prior\nservice certificate or a certificate for service in war after world war\nI may modify any such certificate in accordance with the allowance for\nprior service or service in war after world war I credit to which the\nmember is shown to be entitled.\n 4. A member's prior service certificate, certificate for service in\nwar after world war I, or any such certificate as modified, shall become\nvoid upon the termination of his membership in the retirement system.\nExcept as provided by subdivision d of section one hundred two of this\narticle, resumption of membership after such termination shall be\nwithout credit for prior service or service in war after world war I.\n i. Allowances during leaves of absence without pay.\n 1. Time during which a member is absent on leave without pay:\n (a) Shall not be included in computing prior service.\n (b) May be included in computing member service and final average\nsalary only if the head of the department in which such member is\nemployed and the comptroller allow such time for retirement purposes at\nthe time such leave of absence is granted.\n (c) Shall be included in computing member service and final average\nsalary in case such a leave of absence was granted, during the period\nfrom March first, nineteen hundred forty, until six months after the\ntermination of world war II, to enable the member to enter the service\nof the federal government or its associated powers, or to engage in war\nwork or defense industries only if:\n (1) The fact that such service was rendered is established to the\nsatisfaction of the comptroller, and\n (2) Such member shall have notified the comptroller in writing, on or\nbefore July first, nineteen hundred forty-seven, or within one year\nafter such leave of absence was granted, that he claims member service\ncredit pursuant to the provisions of this subparagraph (c), and\n (3) Such member, within a period not greater than the number of months\nduring which he was on leave of absence, shall pay into:\n (aa) The annuity savings fund such amounts as would have been in such\nfund to his credit had he remained in the performance of his regular\nduties as a member at the same salary he was receiving when such leave\nof absence was granted, and\n (bb) The pension accumulation fund such amounts as would have been in\nsuch fund had he remained in the performance of his regular duties. Such\namounts shall be determined by the actuary and shall be sufficient to\npay the contribution that the state or a participating employer would\nhave paid for an ordinary death benefit and for that portion of the\npension provided for in paragraph two of subdivision a or paragraph two\nof subdivision b of section seventy-five of this article for service\nduring such period.\n (d) Shall be included in computing member service and final average\nsalary in case such a leave of absence commenced during the period from\nApril first, nineteen hundred sixty-six through June thirtieth, nineteen\nhundred seventy-four, and was granted for a period of not more than two\nyears to enable the member to perform services as a civilian officer or\nemployee of the Federal government or one of its agencies or a\ncontractor of the United States Agency for International Development\nengaged to perform the work of such agency, the United Nations, any\nother international organization of which the United States of America\nis a member, or a foreign government only if:\n (1) The comptroller allows inclusion of such time for retirement\npurposes at the time such leave of absence is granted, and\n (2) Payment during such leave of absence or within one year after the\nend of such leave of absence is made by the employee into:\n (aa) The annuity savings fund of contributions equal to the\ncontributions which the member would have made during the period of such\nleave of absence had he been performing his regular duties, and\n (bb) The pension accumulation fund of a further contribution equal to\nthe contribution which his employer would have made on his behalf during\nthe period of such leave of absence had he been performing his regular\nduties. The payments required by this item (bb) may be made on the\nmember's behalf by the organization employing him during such leave of\nabsence.\n 2. In the event that, during a leave of absence granted pursuant to\nsubparagraph (c) of paragraph one of this subdivision i\n (a) The position of such member is abolished or made unnecessary\nthrough no delinquency or misconduct on his part, such leave of absence\nshall be deemed to continue until six months after the termination of\nworld war II and such member may continue his contributions and receive\ncredit therefor during such period.\n (b) A disability or injury of such member occurs, he shall be entitled\nonly to the return of his contributions.\n (c) The death of such member occurs, his beneficiaries or\nrepresentatives shall be entitled only to the return of his accumulated\ncontributions and the ordinary death benefit, if such benefit would\notherwise be payable.\n 3. In the event that a member, who made contributions pursuant to such\nsubparagraph (c), is separated from service before he becomes eligible\nfor a retirement allowance or a death benefit, all such contributions\nand his accumulated contributions shall be returned to him or to his\nbeneficiaries or representatives.\n j. Allowance for unused sick leave for members in the employ of the\nstate.\n 1. In addition to any other service credit to which he or she is\nentitled, a member who meets the requirements set forth in paragraphs\ntwo and three of this subdivision shall be granted one day of additional\nservice credit for each day of accumulated unused sick leave which he or\nshe has at time of retirement for service, but such credit shall not (a)\nexceed one hundred sixty-five days, (b) be considered in meeting any\nservice or age requirements prescribed in this chapter, and (c) be\nconsidered in computing final average salary. However, for an executive\nbranch member designated managerial or confidential pursuant to article\nfourteen of the civil service law or in the collective negotiating units\nestablished by article fourteen of the civil service law designated the\nprofessional, scientific and technical services unit, the rent\nregulation services negotiating unit, the security services negotiating\nunit, the security supervisors negotiating unit, the state university\nprofessional services negotiating unit, the administrative services\nnegotiating unit, the institutional services negotiating unit, the\noperational services negotiating unit and the division of military and\nnaval affairs negotiating unit and, effective on and after June\ntwenty-seventh, two thousand seventeen for the agency police services\nunit such service credit limitation provided in subparagraph (a) of this\nparagraph shall not exceed two hundred days. For a nonjudicial officer\nor employee of the unified court system not in a collective negotiating\nunit or in a collective negotiating unit specified in section one of\nchapter two hundred three of the laws of two thousand four, for\nemployees of the New York state dormitory authority, for employees of\nthe New York state thruway authority, the New York state canal\ncorporation and the state university construction fund and for employees\nof the New York liquidation bureau such service credit limitation\nprovided in subparagraph (a) of this paragraph shall not exceed two\nhundred days. For members who first become members of a public\nretirement system of the state on or after April first, two thousand\ntwelve, such credit shall not exceed one hundred days.\n 2. Such service retirement credit shall be granted only to members in\nthe employ of the state who, prior to retirement, were subject to a plan\nestablished by law, rule, regulation, written order or written policy\nwhich provided for the regular earning and accumulation of sick leave.\n 3. In the case of persons who last became members on or after July\nfirst, nineteen hundred seventy-three, the provisions of this\nsubdivision shall apply only to those retiring from service prior to\nJuly first, nineteen hundred seventy-four.\n k. Credit for certain world war II service. 1. In addition to credit\nfor military service as defined in paragraph one of subdivision\nthirty-one of section two of this chapter, a member in the employ of the\nstate as of March thirty-first, nineteen hundred seventy, may obtain\ncredit for military service as defined in paragraph two of subdivision\nthirty-one of section two of this chapter in accordance with the\nprovisions of this subdivision.\n 2. To obtain such credit a member shall: (a) deposit in the annuity\nsavings fund a sum equal to the product of his normal rate of\ncontribution at time of entry into state service, his annual rate of\ncompensation at that time, and the period of military service being\nclaimed, with regular interest, and (b) deposit in the pension\naccumulation fund a sum equal to the product of the state's normal\ncontribution rate at the time of the member's entry into such service,\nhis annual rate of compensation at that time, and the period of military\nservice being claimed, with regular interest. Such deposit must be made\non or before March thirty-first, nineteen hundred seventy-two, provided,\nhowever, such member may elect to deposit such amount over a period of\ntime no greater than the period for which credit is being claimed, in\nwhich case such payments must commence no later than March thirty-first,\nnineteen hundred seventy-two. If the full amount of such payments is not\npaid to the retirement system, the amount of service credited shall be\nproportional to the total amount of the payments made.\n 3. (a) A member who enters the employ of the state on or after April\nfirst, nineteen hundred seventy and prior to April first, nineteen\nhundred seventy-two shall have one year from his date of entry to make\napplication and payment for such service in the manner specified above.\nThe salary base for such an employee shall be his annual rate of\ncompensation at the time of his entry into state service.\n (b) A member who reenters the employ of the state on or after April\nfirst, nineteen hundred seventy and prior to April first, nineteen\nhundred seventy-two shall have one year from his date of reentry to make\napplication and payment for such service in the manner specified above.\nThe salary base for such payments shall be either the employee's (i)\nannual rate of compensation at the time of original entry into such\nservice or (ii) his annual rate of compensation upon reentry into such\nservice, whichever would result in the greater contributions.\n 4. Such credit for military service shall not be used to increase a\nservice retirement benefit if at the time of retirement such member (a)\nis retiring from service with less than ten years of total service\ncredit, or (b) is retiring with less than three years of member service\nrendered subsequent to the date of last entry into state service; upon\nretirement as specified in (a) or (b), there shall be refunded to such\nmember the amount of such deposit plus accrued interest exclusive of the\namount deposited to the pension accumulation fund attributable to death\nand disability benefits.\n 5. For the purposes of this subdivision the member's normal rate of\ncontribution in the case of an employee of the state who (a) enters\nservice on or after the date that employee contributions were reduced\npursuant to section seventy-a or when no employee contributions were\nrequired shall be based on the latest schedule of normal contribution\nrates in effect for employees of the state, and shall be set as if such\nschedule had been in effect at the time of his entry into state service,\nor (b) transfers into the retirement system shall not be less than the\nrate the member would have had if all his service, exclusive of that\nbeing claimed pursuant to this subdivision, had been rendered as a\nmember of the retirement system.\n 6. In no event shall credit be granted pursuant to this subdivision if\ncredit is granted for the same period of time pursuant to other\nprovisions of law.\n 7. Subject to the provisions of paragraph three of this subdivision no\napplication for credit pursuant to the provisions of this subdivision\nshall be honored if made on or after April first, nineteen hundred\nseventy-two.\n 8. A member may direct, upon a form prepared by the comptroller, that\nhis excess contributions be applied toward the payments required by this\nsubdivision. The term excess contributions shall mean accumulated\ncontributions in excess of the amount thereof required to provide a\npension or retirement allowance. Appropriate transfers and credits to\nthe annuity savings fund and the pension accumulation fund will be made\nin the manner set forth in an official regulation adopted by the\ncomptroller for such purpose.\n * l. Employer pick-up of contributions in respect of previous service\nor military service. Notwithstanding any other provision of law, any\nmember eligible to purchase credit for previous service with a public\nemployer pursuant to this section or section forty-two of this title or\nto purchase credit for military service pursuant to article twenty of\nthis chapter, may elect to purchase any or all of such service by\nexecuting a periodic payroll deduction agreement where and to the extent\nsuch elections are permitted by the retirement system by rule or\nregulation. Such agreement shall set forth the amount of previous\nservice or military service being purchased, the estimated total cost of\nsuch service credit, and the number of payroll periods in which such\nperiodic payments shall be made. Such agreement shall be irrevocable,\nshall not be subject to amendment or modification in any manner, and\nshall expire only upon completion of payroll deductions required\ntherein. Notwithstanding the foregoing, any member who has entered into\nsuch a payroll deduction agreement and who terminates employment prior\nto the completion of the payments required therein shall be credited\nwith any service as to which such member shall have paid the\ncontributions required under the terms of the agreement.\n * NB Takes effect upon notice of ruling by Internal Revenue Service --\nexpires per ch. 627/2007 §22\n