§ 443 — Final average salary

§ 443. Final average salary. a. The salary base used for the\ncomputation of benefits upon retirement, hereinafter called in this\narticle final average salary, applicable to all members of the\nretirement systems who are subject to the provisions of this article,\nshall be the average salary earned by such a member during any three\nconsecutive years which provide the highest average salary, exclusive of\nany form of termination pay (which shall include any compensation in\nanticipation of retirement), or any lump sum payment for deferred\ncompensation, sick leave, or accumulated vacation credit, or any other\npayment for time not worked (other than compensation received while on\nsick leave or authorized leave of absence); provided, however, if the\nsalary or wages earned during any year included in the period used to\ndetermine final average salary exceeds that of the average of the\nprevious two years by more than twenty percentum, the amount in excess\nof twenty percentum shall be excluded from the computation of final\naverage salary. Where the period used to determine final average salary\nis the period which immediately precedes the date of retirement, any\nmonth or months (not in excess of twelve) which would otherwise be\nincluded in computing final average salary but during which the member\nwas on authorized leave of absence at partial pay or without pay shall\nbe excluded from the computation of final average salary and the month\nor an equal number of months immediately preceding such period shall be\nsubstituted in lieu thereof.\n b. Notwithstanding the provisions of subdivision a of this section,\nwith respect to the members of the New York state employees' retirement\nsystem, the New York state and local police and fire retirement system\nand the New York city teachers' retirement system, the final average\nsalary, shall be equal to one-third of the highest total salary earned\nduring any continuous period of employment for which the member was\ncredited with three years of service credit, exclusive of any form of\ntermination pay (which shall include any compensation in anticipation of\nretirement), any lump sum payment for deferred compensation, sick leave,\nor accumulated vacation credit, or any other payment for time not worked\n(other than compensation received while on sick leave or authorized\nleave of absence); provided, however, if the salary earned during any\nyear of credited service included in the period used to determine final\naverage salary exceeds the average of the salaries of the previous two\nyears of credited service by more than twenty per centum, the amount in\nexcess of twenty per centum shall be excluded from the computation of\nfinal average salary.\n c. Notwithstanding the provisions of subdivisions a and b of this\nsection, with respect to police officers and firefighters as defined in\nsection four hundred fifty of this chapter, the final average salary of\nan employee who has been a member of a retirement system for less than\none year shall be the projected one year salary, with the calculation\nbased upon a twelve month projection of the sums earned in the portion\nof the year worked. If a member has been employed for more than one year\nbut less than two years, then the member's final average salary shall be\nthe average of the first year and projected second year earnings based\nupon the calculation above, and if more than two years, but less than\nthree years, then one-third the total of the first two years of\nemployment plus the projected third year's earnings, calculated as\nindicated above.\n d. Notwithstanding the provisions of subdivisions a and b of this\nsection, the final average salary of an employee who has been a member\nof the New York city employees' retirement system or the New York city\nteachers' retirement system for less than one year shall be the\nprojected one year salary, with the calculation based upon a twelve\nmonth projection of the sums earned in the portion of the year worked.\nIf a member has been employed for more than one year but less than two\nyears, then the member's final average salary shall be the average of\nthe first year and projected second year earnings based upon the\ncalculation above, and if more than two years, but less than three\nyears, then one-third the total of the first two years of employment\nplus the projected third year's earnings, calculated as indicated above.\n e. Subject to the provisions of subdivision d of this section, and\nnotwithstanding the provisions of subdivision a of this section, with\nrespect to members of the New York city employees' retirement system and\nthe New York city board of education retirement system who are subject\nto the provisions of this article, the final average salary shall be\ndetermined pursuant to the provisions of paragraph twelve of subdivision\ne of section 13-638.4 of the administrative code of the city of New\nYork.\n f. Notwithstanding the provisions of subdivisions a, b and c of this\nsection, a participating employer may elect, pursuant to the provisions\nof paragraph d of subdivision nine of section three hundred two of this\nchapter, to have the provisions of such paragraph apply to the police\nofficers and firefighters in its employ who are subject to the\nprovisions of this article.\n f-1. A demand in collective negotiations for the additional pension\nbenefit provided by subdivision f of this section shall not be subject\nto the provisions of paragraph (b) or (c) of subdivision four of section\ntwo hundred nine of the civil service law, nor shall such demand be\nsubject to any provision for interest arbitration contained in any local\nlaw, resolution or ordinance adopted by any governmental entity pursuant\nto subdivision one of section two hundred twelve of the civil service\nlaw.\n g. Notwithstanding the provisions of subdivisions a and c of this\nsection, the benefits for the first twenty years or less of service of\nmembers of the New York city police pension fund, subchapter two, who\nare subject to the provisions of this article, and members of the fire\ndepartment pension fund, subchapter two, who are subject to the\nprovisions of this article, shall be determined by using a salary base\nequal to the salary earned by such member during the one-year period\nimmediately prior to retirement or separation from service due to\nvesting, exclusive of any form of termination pay (which shall include\nany compensation in anticipation of retirement), or any lump sum payment\nfor deferred compensation, sick leave, or accumulated vacation credit,\nor any other payment for time not worked (other than compensation\nreceived while on sick leave or authorized leave of absence); provided,\nhowever, if the salary or wages earned during the one-year period\nimmediately prior to retirement or separation from service due to\nvesting exceeds that of the previous one-year period by more than twenty\nper centum, the amount in excess of twenty per centum shall be excluded\nfrom the computation of final average salary. In determining final\naverage salary, any month or months (not in excess of three) which would\notherwise be included in computing final average salary but during which\nthe member was on authorized leave of absence without pay shall be\nexcluded from the computation of final average salary and the month or\nan equal number of months immediately preceding such period shall be\nsubstituted in lieu thereof.\n h. Notwithstanding any general, special or local law, charter,\nadministrative code, agreement, resolution or rule or regulation to the\ncontrary, the salary base for members of the city of New York fire\ndepartment pension fund whose employment with the fire department of the\ncity of New York commenced on or after the first of July, two thousand\nto whom this article otherwise applies shall be determined in the same\nmanner as the salary base for members of the city of New York fire\ndepartment pension fund whose employment with the fire department of the\ncity of New York commenced before the first of July, two thousand.\n