N.Y. Military Law § 243: Provisions applicable to public employees who are absent on military duty

§ 243. Provisions applicable to public employees who are absent on

military duty. 1. Definitions. As used in this section:

(a) The term "public employee" shall mean an officer or employee

holding a position by appointment or employment in the state of New York

or in the cities, counties, towns, villages or school districts thereof,

or in any other political or civil division of the state or of a

municipality, or in any public or special district, or in the service of

any public authority, public benefit corporation, commission or board,

or in any other branch of the public service.

(b) The term "military duty" shall mean military service in the

military, naval, aviation, space or marine service of the United States

subsequent to July first, nineteen hundred forty, or service under the

selective training and service act of nineteen hundred forty, or the

national guard and reserve officers mobilization act of nineteen hundred

forty, or any other act of congress supplementary or amendatory thereto,

or any similar act of congress hereafter enacted and irrespective of the

fact that such service was entered upon following a voluntary enlistment

therefor or was required under one of the foregoing acts of congress, or

service with the United States public health service as a commissioned

officer, or service with the national oceanic and atmospheric

administration as a commissioned officer, or service with the American

Red Cross while with the armed forces of the United States on foreign

service, or service with the special services section of the armed

forces of the United States on foreign service, or service in the

merchant marine which shall consist of service as an officer or member

of the crew on or in connection with a vessel documented under the laws

of the United States or a vessel owned by, chartered to, or operated by

or for the account or use of the government of the United States, or

service by one who was employed by the War Shipping Administration or

Office of Defense Transportation or their agents as a merchant seaman

documented by the United States Coast Guard or Department of Commerce,

or as a civil servant employed by the United States Army Transport

Service (later redesignated as the United States Army Transportation

Corps, Water Division) or the Naval Transportation Service; and who

served satisfactorily as a crew member during the period of armed

conflict, December seventh, nineteen hundred forty-one, to August

fifteenth, nineteen hundred forty-five, aboard merchant vessels in

oceangoing, i.e., foreign, intercoastal, or coastwise service as such

terms are defined under federal law (46 USCA 10301 & 10501) and further

to include "near foreign" voyages between the United States and Canada,

Mexico, or the West Indies via ocean routes, or public vessels in

oceangoing service or foreign waters and who has received a Certificate

of Release or Discharge from Active Duty and a discharge certificate, or

an Honorable Service Certificate/Report of Casualty, from the Department

of Defense, or who served as a United States civilian employed by the

American Field Service and served overseas under United States Armies

and United States Army Groups in world war II during the period of armed

conflict, December seventh, nineteen hundred forty-one through May

eighth, nineteen hundred forty-five, and who (i) was discharged or

released therefrom under honorable conditions, or (ii) has a qualifying

condition, as defined in section one of the veterans' services law, and

has received a discharge other than bad conduct or dishonorable from

such service, or (iii) is a discharged LGBT veteran, as defined in

section one of the veterans' services law, and has received a discharge

other than bad conduct or dishonorable from such service, or who served

as a United States civilian Flight Crew and Aviation Ground Support

Employee of Pan American World Airways or one of its subsidiaries or its

affiliates and served overseas as a result of Pan American's contract

with Air Transport Command or Naval Air Transport Service during the

period of armed conflict, December fourteenth, nineteen hundred

forty-one through August fourteenth, nineteen hundred forty-five, and

who (iv) was discharged or released therefrom under honorable

conditions, or (v) has a qualifying condition, as defined in section one

of the veterans' services law, and has received a discharge other than

bad conduct or dishonorable from such service, or (vi) is a discharged

LGBT veteran, as defined in section one of the veterans' services law,

and has received a discharge other than bad conduct or dishonorable from

such service; or service in police duty on behalf of the United States

government in a foreign country, if such person is a police officer, as

defined by section 1.20 of the criminal procedure law, and if such

police officer obtained the prior consent of their public employer to

absent themself from such police officer's their position to engage in

the performance of such service; or as an enrollee in the United States

maritime service on active duty and, to such extent as may be prescribed

by or under the laws of the United States, any period awaiting

assignment to such service and any period of education or training for

such service in any school or institution under the jurisdiction of the

United States government, but shall not include temporary and

intermittent gratuitous service in any reserve or auxiliary force. It

shall include time spent in reporting for and returning from military

duty and shall be deemed to commence when the public employee leaves

their position and to end when such public employee they are reinstated

to their position, provided such reinstatement is within ninety days

after the termination of military duty, as hereinafter defined.

Notwithstanding the foregoing provisions of this paragraph, the term

"military duty" shall not include any of the foregoing services entered

upon voluntarily on or after January first, nineteen hundred forty-seven

and before June twenty-fifth, nineteen hundred fifty; and, on or after

July first, nineteen hundred seventy, the term "military duty" shall not

include any voluntary service in excess of four years performed after

that date, or the total of any voluntary services, additional or

otherwise, in excess of four years performed after that date, shall not

exceed five years, if the service in excess of four years is at the

request and for the convenience of the federal government, except if

such voluntary service is performed during a period of war, or national

emergency declared by the president.

(c) The term "termination of military duty" shall mean the date of a

certificate of honorable discharge or a certificate of completion of

training and service as set forth in the selective training and service

act of nineteen hundred forty, and the national guard and reserve

officers mobilization act of nineteen hundred forty or, or a certificate

of release or discharge from active duty where an employee (i) has a

qualifying condition, as defined in section one of the veterans'

services law, and has received a discharge other than bad conduct or

dishonorable from such service, or (ii) is a discharged LGBT veteran, as

defined in section one of the veterans' services law, and has received a

discharge other than bad conduct or dishonorable from such service, or

in the event of the incurrence of a temporary disability arising out of

and in the course of such military duty, the date of termination of such

disability. The existence and termination of such temporary disability,

in the case of a public employee occupying a position in the classified

civil service or of a person on an eligible list for a position in such

service, shall be determined by the civil service commission having

jurisdiction over such position and, in the case of a public employee

occupying a position not in the classified civil service, shall be

determined by the officer or body having the power of appointment.

(d) The term "position" shall mean the office or position held by a

public employee at the time of his entrance upon military duty.

2. Leave of absence and re-employment. (a) Every public employee shall

be entitled to absent himself or herself from his or her position while

engaged in the performance of military duty, except for those police

officers who are required by paragraph (b) of subdivision one of this

section to obtain the prior consent of their public employers before

absenting themselves from their positions for military service, who

accordingly shall be entitled to absent themselves from their positions

only after obtaining such prior consent, and shall be deemed to have a

leave of absence for the duration of such military duty. Such public

employee shall be reinstated to his position as soon as possible

provided he makes application for such reinstatement within ninety days

after the termination of his military duty, or at any time during his

terminal leave. Thereafter, he may be so reinstated, at any time after

such ninety-day period and within one year after the termination of his

military duty, in the discretion of the appointing officer or body.

(b) A public employee who resigned from his position during his

military duty, or within six months prior to the commencement of such

military duty, may, in the discretion of the appointing officer or body,

be reinstated to his position within one year after the date of his

resignation, excluding from said period the time he was on military

duty. Every public employee reinstated under the provisions of this

subdivision or pursuant to subdivision one-a of rule sixteen of the

rules for the classified civil service for the state or pursuant to any

comparable rule of a municipal civil service commission, shall be deemed

to have been on a leave of absence for the duration of his military

duty.

3. Substitutes. A position held by a public employee who is absent on

military duty shall, so far as practicable, be continued in existence

but shall be deemed temporarily vacant and shall be filled only when the

public interest so requires. Any appointment to fill such vacancy shall

be designated as a substitute appointment and the request for

certification, the certification and the indicia of appointment shall

show that the person is being appointed as a substitute. Any public

employee, who accepts appointment as a substitute shall be granted a

leave of absence from his former position until the termination of such

appointment and the temporary vacancy resulting from such leave of

absence shall be filled in like manner only when the public interest so

requires and any appointment to such position shall also be designated

as a substitute appointment and the request for certification, the

certification and the indicia of appointment shall show that the person

is being appointed to such position as a substitute. Every such

substitute appointment shall be for a period not exceeding the leave of

absence of the former incumbent and shall be made in accordance with the

provisions of law applicable to such position, provided, however, that

such substitute appointment may be continued for a period in excess of

one year, notwithstanding the provisions of section fifteen of the civil

service law. Such substitute employee shall acquire no right to

permanent appointment or tenure by virtue of his service as a substitute

and such service may be terminated at any time in the discretion of the

appointing officer or body. His rights, if any, with respect to

appointment or tenure, shall not, however, be impaired in any way by his

acceptance of an appointment as a substitute and his name shall remain

on any eligible or other list and he shall be certified as eligible for

any other appointment authorized by law during the existence of such

list.

The appointment of a substitute shall terminate (a) upon the return of

the former incumbent to his position or (b) upon the death or permanent

total disability of the former incumbent or (c) upon failure of the

former incumbent to return to said position within ninety days after the

termination of his military duty or (d) upon the appointment or

promotion of the former incumbent to another position as authorized by

subdivision six of this section, and, upon the happening of any of such

events, said position may then be filled in the manner provided by law.

4. Pensions. Any public employee who is a member of any pension or

retirement system may elect, while on military duty, to contribute to

such pension or retirement system the amount which he would have

contributed had his employment been continuous and upon making such

contribution he shall have the same rights in respect to membership in

the retirement system as he would have had if he had been present and

continuously engaged in the performance of the duties of his position.

Time during which a member is absent on military duty shall not

constitute an interruption of continuous employment, but such time shall

not be counted or included in determining the length of total service

unless such member contributes to the retirement system the amount he or

she would have been required to contribute if he or she had been

continuously employed during such period. Such contribution, or any part

thereof, may be paid at any time and from time to time, while in

military duty, or within five years after the date of his or her

restoration to his or her position or before December thirty-first,

nineteen hundred sixty-two, whichever date is later, or in the event of

the death of the member while in military duty such contribution, or any

part thereof, may be paid by the named beneficiary or the legal

representative of the member's estate within one year following proof of

such death. A member of the New York state employees' retirement system

or of the New York state and local police and fire retirement system,

other than a member of the state police in a collective negotiating unit

established pursuant to article fourteen of the civil service law, who

is in the employ of the state on March thirty-first, nineteen hundred

seventy, who failed to make such contributions during the prescribed

period of time may nonetheless obtain credit for time during which he or

she was on military duty by depositing with such retirement system an

amount equal to the contribution he or she would have made had he or she

made a timely election, with regular interest, on or before March

thirty-first, nineteen hundred seventy-two, provided, however, such

member may elect to deposit such amount over a period of time no greater

than the period for which credit is being claimed, in which case such

payments must commence no later than March thirty-first, nineteen

hundred seventy-two. If the full amount of such payments is not paid to

the retirement system, the amount of service credited shall be

proportional to the total amount of the payments made. A member of the

New York state and local police and fire retirement system who is a

member of the state police in a collective negotiating unit established

pursuant to article fourteen of the civil service law, who is in the

employ of the state on March thirty-first, nineteen hundred seventy-one,

who failed to make such contributions during the prescribed period of

time may nonetheless obtain credit for time during which he or she was

on military duty by depositing with such retirement system an amount

equal to the contribution he or she would have made had he or she made a

timely election, with regular interest, on or before March thirty-first,

nineteen hundred seventy-two, provided, however, such member may elect

to deposit such amount over a period of time no greater than the period

for which credit is being claimed, in which case such payments must

commence no later than March thirty-first, nineteen hundred seventy-two.

If the full amount of such payments is not paid to the retirement

system, the amount of service credited shall be proportional to the

total amount of the payments made.

A member of the New York state teachers' retirement system, whose

service terminates on the expiration of his contract, and for whom there

is no employer to cover the cost of his accruing pension rights while in

military service following the cessation of his contract, may pay in

addition to his own contributions, an amount equal to the percentage of

his salary which his employer would have paid had he remained under

contract, which contributions shall be paid into the pension

accumulation fund of the aforementioned retirement system and be treated

as if they had been continued by his employer except that in the event

of his death as a member prior to retirement or on his withdrawal of his

accumulated contributions from the system, the amounts so paid by him

shall be returnable, with regular interest, as if they were a part of

his accumulated contributions. Such contributions or any parts thereof

may be paid at any time and from time to time while in military duty or

within five years after the member has returned to public school

teaching in New York state or before December thirty-first, nineteen

hundred sixty-two, whichever date is later.

Any such member, while on military duty, or his beneficiary, as the

case may be, shall be entitled to all benefits of the retirement system

of which he is a member except accidental disability retirement and

accidental death benefit.

Any public employee holding a position by appointment who is or was a

member of any pension or retirement system and who, while such member

and while on military duty, applied for retirement as a member of such

system to take effect within thirty days prior to the date of expiration

of his appointment and who shall accordingly have been retired pursuant

to such application but thereafter and within thirty days after the

effective date of such retirement shall have been reappointed to his

said position and shall have applied thereafter, before or upon his

release from military duty, for membership in such pension or retirement

system, shall be deemed to have had continuous membership in such

pension or retirement system and shall be entitled to all the rights,

benefits and privileges under his contract of membership as it existed

at the time of such retirement, provided he shall (1) return any

pension, annuity and retirement allowance payments received by him

during the period of such retirement, (2) consent to the termination of

his right to receive pension, annuity or retirement allowance payments

on the basis of such retirement, (3) pay into the appropriate fund of

such pension or retirement system the amount he would have contributed

thereto, if he had not so retired, on the basis of the salary he was

receiving when he so retired, and (4) pay into the appropriate fund of

such pension or retirement system the amount which his employer would

have paid thereto on his account if he had continued as a member during

such period of retirement.

4-a. Notwithstanding the provisions of subdivision four of this

section, in any case where any member of any pension or retirement

system maintained under any provision of the administrative code of the

city of New York, or under section twenty-five hundred seventy-five of

the education law, did not, within five years after the date of the

restoration of such member to his position, pay the contribution

required by such subdivision four to be paid within such period, as a

prerequisite to obtaining service credit in such system for the period

of his military duty, such contribution, or any part thereof remaining

due, may be paid on or before June thirtieth, nineteen hundred

fifty-seven, provided that any such member who, on or before such

last-mentioned date, retires or is retired, without having paid such

contribution, shall not be entitled to make such payment.

4-b. (a) As used in this subdivision, the following terms shall mean

and include:

(1) "New York city veteran of world war II". Any member of the New

York city employees' retirement system in city-service who, after his or

her last membership in such system began, served as a member of the

armed forces of the United States during the period beginning on

December seventh, nineteen hundred forty-one and ending on December

thirty-first, nineteen hundred forty-six, and (i) was honorably

discharged or released under honorable circumstances from such service,

or (ii) has a qualifying condition, as defined in section one of the

veterans' services law, and has received a discharge other than bad

conduct or dishonorable from such service, or (iii) is a discharged LGBT

veteran, as defined in section one of the veterans' services law, and

has received a discharge other than bad conduct or dishonorable from

such service.

(2) "New York city veteran of the Korean conflict." Any member of the

New York city employees' retirement system in city-service who, after

his or her last membership in such system began, served as a member of

the armed forces of the United States during the period beginning on the

twenty-seventh of June, nineteen hundred fifty and ending on the

thirty-first day of January, nineteen hundred fifty-five, and (i) was

honorably discharged or released under honorable circumstances from such

service, or (ii) has a qualifying condition, as defined in section one

of the veterans' services law, and has received a discharge other than

bad conduct or dishonorable from such service, or (iii) is a discharged

LGBT veteran, as defined in section one of the veterans' services law,

and has received a discharge other than bad conduct or dishonorable from

such service.

(b) Notwithstanding any provision of subdivision four of this section

to the contrary, any New York city veteran of World War II or New York

city veteran of the Korean conflict who did not, within the applicable

period of time prescribed by subdivision four of this section, comply

with the requirements of such subdivision for obtaining service credit

in the New York city employees' retirement system for the period of his

military duty, may, by a written application duly executed and filed

with the board of estimate of the city of New York, prior to July first,

nineteen hundred sixty-nine, elect to purchase such service credit. If

such veteran shall pay to such retirement system, prior to July first,

nineteen hundred sixty-nine, the amount which he would have contributed

thereto if he had been continuously employed during such period of

military duty, he shall have in such retirement system the service

credit which he could have obtained for such period of military duty if

he had complied with the requirements of such subdivision four within

the period of time therein prescribed.

5. Rights upon restoration to position. A public employee restored to

his position after the termination of his military duty or after the

termination of his substitute appointment shall thereafter be entitled

to the rate of compensation he would have received had he remained in

his position continuously during such period of military duty or during

such period of service as a substitute and shall be deemed to have

rendered satisfactory and efficient service in such position during the

period of his leave of absence and shall not be subjected directly or

indirectly to any loss of time service, increment, or any other right or

privilege, or be prejudiced in any way with reference to promotion,

transfer, reinstatement or continuance in office. If a public employee,

by reason of injuries sustained or disease contracted while on military

duty, as hereinbefore defined, is incapable of efficiently performing

the duties of his position after the termination of his military duty,

he may, with the approval of the civil service commission having

jurisdiction of such position, be transferred to any vacant position in

the same jurisdictional classification and in the same governmental unit

for which he has applied in writing and for which he has been found

qualified, after such tests as the commission may deem appropriate,

provided the rate of compensation for such position is not greater than

the rate of compensation for the position to which such public employee

was restored. If a promotion examination is held while a public employee

entitled to participate therein is on military duty, such public

employee shall be given a comparable examination, provided he makes

request therefor within sixty days after restoration to his position. If

he passes such examination his name shall be placed upon a special

eligible list provided that his name would have been reached for

certification between the date when he entered upon such military duty

and the date that he was officially notified that he had passed such

examination. Such special eligible list shall remain in existence for a

period of two years from the date that the name of such person is placed

thereon and such special eligible list shall be certified before

certification shall be made from any subsequent or eligible list,

whether open competitive, promotion or preferred which has been

established for the same position, or from the original eligible list

for such position. A public employee thus appointed after passing a

comparable examination as herein provided, shall, for the purpose of

computing seniority credit and training and experience credit upon

promotion and seniority in the event of suspension or demotion, be

deemed to have been appointed on the earliest date upon which any

eligible, who was lower on the regular promotion eligible list, was

appointed.

6. Appointment while on military duty. Any appointing officer or body

may, in his or its discretion, fill a vacancy by the appointment or

promotion of a public employee or any other person legally eligible for

such appointment or promotion, notwithstanding the absence of such

person or employee in military duty but such appointment or promotion

shall not serve to increase in any degree any civil compensation which

he may have been receiving pursuant to section six of chapter six

hundred eight of the laws of nineteen hundred fifty-two. Such employee,

upon the termination of his military duty shall have the same rights,

privileges and obligations as if he had served continuously in such

position from the date of his appointment thereto.

7. Status of existing lists. Any person whose name is on any eligible

list shall, while in military duty, retain his rights and status on such

list. If the name of any such person is reached for certification during

his military duty, it shall be placed on a special eligible list in the

order of his original standing, provided he makes request therefor

following termination of his military duty and during the period of his

eligibility on such list. Such list shall be certified before

certification shall be made from a subsequent open competitive or

promotion eligible list for the same position or from the original

eligible list for such position. Such names shall remain on such special

eligible list for a period of two years after the termination of such

military duty. Any such person thus appointed shall, for the purpose of

computing seniority credit and training and experience credit for

promotion and date of membership in the retirement system and seniority

in the event of suspension or demotion, be deemed to have been appointed

on the earliest date upon which any eligible, who was the lower on such

original eligible list, was appointed, provided, however that service

credit shall be computed from the actual date of appointment. The

retirement system contributions of any such person who made any

contribution to the retirement system pursuant to article fourteen or

fifteen of the retirement and social security law, and who was appointed

on or after July twenty-seventh, nineteen hundred seventy-six shall not

be refunded.

7-b. Status of applicants called for military duty before taking all

parts of an examination. Any person who has passed one or more of

several parts of an examination for a position for which competitive

examinations are required, and who has been prevented from taking or

completing the remaining part or parts of the examination for such

position by reason of his service in military duty shall be afforded an

opportunity to take a comparable examination as to such remaining part

or parts, provided he makes request therefor during the period of ninety

days following termination of his military duty. If he passes such

examination his name shall be placed upon a special eligible list

provided that his name would have been reached for certification between

the date when he entered upon such military duty and the date that he

was officially notified that he had passed such examination. Such

special eligible list shall remain in existence for a period of two

years from the date that the name of such person is placed thereon. Such

special eligible list shall be certified before certification shall be

made from a subsequent eligible list whether open competitive, promotion

or preferred for the same position or from the original eligible list

for such position. Any such person thus appointed shall, for the purpose

of computing seniority credit and training and experience credit for

promotion and seniority in the event of suspension or demotion, be

deemed to have been appointed on the earliest date upon which any

eligible was appointed who was lower on such original eligible list or

lower in relative order of rating thereon than such person would have

been had his name been entered thereon.

8. Service and efficiency ratings. A public employee who is absent on

military duty shall be credited with the average of the efficiency

ratings which he received for the three periods immediately prior to his

absence on military duty but such rating shall not be less than a

passing grade for the period of such absence, nor shall it be less than

the rating which he received for the period immediately prior to his

absence on military duty. In computing seniority and service

requirements for promotion eligibility, such period of military duty

shall be counted as service in the position held by such employee.

9. Probationary service. If a public employee or other person enters

military duty before the expiration of the probationary period in any

position to which he may have theretofore been appointed, or to which he

may thereafter be appointed or promoted pursuant to subdivision six of

this section, the time he is absent on military duty shall be credited

as satisfactory service during such probationary period.

9-a. Probationary service of teachers. Notwithstanding the provisions

of subdivision five of this section and subdivision four of section two

hundred forty-two of this chapter, in any case where a teacher, as

defined in section thirty-one hundred one of the education law, enters

military duty before the expiration of the probationary period to which

he may have theretofore been appointed, the time he is absent on

military duty shall be credited as satisfactory service during such

probationary period. If the end of such probationary service occurs

while the teacher is on military duty or within one year following the

termination of such military duty, the period of such probationary

service may be extended by the local board of education for a period of

not to exceed one year from the date of termination of such military

duty, but in no event for a period of probationary service in the actual

performance of teaching services, exclusive of such military service,

beyond that required by the school district at the time of his entry

into military service.

10. Physical examination. If a physical examination is required for

employment in or promotion to any position in the public service, the

physical disability of a candidate incurred by reason of injury

sustained or disease contracted while in military duty, as hereinbefore

defined, or during the world war shall not be deemed to disqualify him

for such position unless the disability is of such a nature as to

prevent him from efficiently performing the duties of such position.

10-a. Age requirements. If maximum age requirements are established by

law, or rule or by action of a civil commission for examination for, or

for appointment or promotion to, any position in the public service, the

period of military duty as hereinbefore defined, the period of service

after June twenty-seventh, nineteen hundred fifty, voluntarily entered

upon between January first, nineteen hundred forty-seven, and June

twenty-seventh, nineteen hundred fifty, if such service otherwise falls

within the definition of military duty, and the period of terminal leave

granted by the military authorities of a candidate or eligible shall not

be included in computing the age of such candidate or eligible for the

purposes of such examination or appointment or promotion; provided,

however, that neither shall the total time deducted hereunder in

computing the age of a candidate or eligible exceed seven years for any

position including, but not limited to, in cities with a population of

one million or more.

10-b. If a public employer consolidates, abolishes, displaces, or

demotes a position, in accordance with section eighty or eighty-five of

the civil service law, which is occupied by a public employee currently

on active duty with the armed forces of the United States, as pursuant

to title ten, fourteen or thirty-two of the United States code, such

employer shall comply with subdivisions eleven and twelve of this

section and, upon the termination of the public employee's active duty,

as defined in title ten, fourteen or thirty-two of the United States

code, such public employer shall provide full re-employment rights

warranted to such employee under the Federal Uniformed Services

Employment and Reemployment Rights Act of 1994, provided, however, the

right of re-employment under this subdivision does not entitle such

employee to displacement rights over any person with greater seniority.

Such public employer shall not abolish any position or positions solely

based upon the fact that the position or positions are currently filled

by an individual or individuals engaged in military duty.

11. Preferred lists. If the position occupied by a public employee is

abolished prior to the termination of his military duty his name shall

be placed forthwith upon a preferred list, as herein provided. Public

employees in the competitive class of the civil service shall have their

names placed upon a preferred eligible list, pursuant to the provisions

of section eighty-one of the civil service law and public employees

subject to sections twenty-five hundred ten, twenty-five hundred

eighty-five and twenty-five hundred eighty-eight of the education law

shall have their names placed upon a preferred list as provided in such

section.

12. Military re-employment lists. If the position occupied by a public

employee, who is not included in the provisions of subdivision eleven of

this section, has been abolished or is no longer in existence upon the

termination of his military duty such employee, upon filing a written

request within ninety days after the termination of his military duty,

shall have his name placed forthwith, upon a military re-employment

list, as herein provided, for the position last held by him or any

similar position. The military re-employment list for public employees

in the classified civil service, other than in the competitive class,

shall be established by the civil service commission having jurisdiction

of such position and such list for public employees who are not in the

classified civil service shall be established by the officer who makes

payment of the wages or salary for such position. Separate lists shall

be established for positions in the non-competitive and the labor class

of the classified civil service. After the establishment of a military

re-employment list, it shall be made available to appointing officers

and bodies and no position shall be filled until the appointing officer

or body certifies to the civil service commission or to the disbursing

officer, as the case may be, that no person on such military

re-employment list, who formerly held the same or a similar position, is

qualified to fill and willing to accept appointment to such vacancy. The

civil service commission or the disbursing officer, as the case may be,

shall refuse to approve the payroll for such position until such

certificate is filed. Appointments from a military re-employment list

may be made without regard to the order of standing on said list.

Eligibility for appointment from such military re-employment list shall

not continue for a period longer than four years from the date of

termination of military duty. Refusal to accept an offer of appointment

to a position similar to the last held by such public employee shall

cause the removal of his name from such list. Upon a failure or refusal

to comply with the provisions of subdivisions eleven and twelve of this

section, the supreme court is empowered, upon the filing of a petition

or other appropriate pleading, by the public employee entitled to the

benefits of such provisions, to specifically require compliance

therewith, and may, as an incident thereto, compensate such employee for

any loss of wages suffered by reason of such unlawful action. The court

shall order a speedy hearing in any such case and shall advance it on

the calendar. Nothing in this subdivision shall be construed to apply to

positions in the exempt class of the classified civil service.

13. Temporary positions. The provisions of subdivisions three and five

of this section shall not be applicable to a public employee holding a

temporary position, but such employee shall, nevertheless, be placed

upon a military re-employment list, as provided in subdivision twelve of

this section and, so far as practicable, shall be restored to a position

similar to that held at the time such employee entered military duty.

14. Public employees appointed for a definite term. A public employee

appointed for a definite term shall be deemed to have a leave of absence

until the end of his term of office and until his successor has been

appointed, but not thereafter, for the purpose of determining his rights

under this section.

15. Elective officers. The provisions of subdivision four of this

section shall be applicable to an elective officer and he shall be

deemed to continue in his office until his successor has been elected,

but not thereafter, for the purpose of determining his rights under such

subdivision. No other provisions of this section shall be applicable to

elective officers.

16. Salaries. Nothing in this section shall be construed to give any

public employee any claim for salary or compensation during his absence

on military duty.

17. Certificates as to service. A certificate signed by the commander,

total army personnel center as to persons in the army or in any branch

of the United States service while serving pursuant to law with the army

of the United States, signed by the commander, naval military personnel

as to persons in the United States service while serving pursuant to law

with the United States navy, and signed by the commandant, United States

marine corps, as to persons in the marine corps, or in any other branch

of the United States service while serving pursuant to law with the

marine corps, signed by the chief, air force military personnel center

as to persons in the United States service while serving pursuant to law

with the United States air force or with the United States space force,

or signed by an officer designated by any of them, respectively, for the

purpose, shall when produced be prima facie evidence as to any of the

following facts stated in such certificate: That a person named has not

been, or is, or has been in military service; the time when and the

place where such person entered military service, such person's

residence at that time, and the rank, branch, and unit of such service

that such person entered, the dates within which such person was in

military service, the monthly pay received by such person at the date of

issuing the certificate, the time when and the place where such person

died in or was discharged from such service. It is the duty of the

foregoing officers to furnish such certificate on application, and any

such certificate when purporting to be signed by any one of such

officers, or by any person purporting upon the face of the certificate

to have been so authorized, shall be prima facie evidence of its

contents and of the authority of the signer to issue the same.

18. Rights and privileges of public employees and other persons while

engaged in essential war work. Every public employee, or other person to

whom this section is applicable, who has been or may be discharged or

relieved from military duty on condition that he engage in work

essential to the prosecution of the war, shall be entitled, while

engaged in such work, to all the rights and privileges to which he would

have been entitled, under the provisions of this section, had he

continued to perform military duty. A certificate of the war manpower

commission, or of the United States employment service, or of the proper

authorities in the armed forces of the United States, or of any other

authorized federal agency, that any such public employee, or other

person to whom this section is applicable, is or has been, for the

period stated in such certificate, engaged in such work, shall be

required in order to confer upon such employee or person the rights and

privileges accorded by this subdivision, and such certificate shall be

presumptive evidence of such facts.

19. Leaves of absence and re-employment of certain teachers and school

supervisors. A member of the teaching or supervising staff in a school

district other than a school district employing a superintendent of

schools shall be entitled to absent himself from his position while

engaged in the performance of military duty and shall be deemed to have

a leave of absence for the duration of such military duty. Such person

shall be reinstated to his position provided he makes application for

such reinstatement within ninety days after the termination of his

military duty, notwithstanding that his contract with the school

district shall have expired.

20. Payment of pension contributions by city of New York. A. As used

in this subdivision:

(1) the term "New York city member" shall mean any public employee (a)

who was granted a leave of absence for the period of his military duty

pursuant to the provisions of subdivision two of this section and who

was on April eleventh, nineteen hundred forty-seven, or shall become

prior to January first, nineteen hundred fifty-two, a member of any

pension or retirement system to which the city of New York, the

Triborough bridge and tunnel authority, or the New York city housing

authority is required by law to make contributions on account of such

employee, or (b) who was on April eleventh, nineteen hundred

forty-seven, or shall thereafter become a member of any such system and

who is or shall be entitled to seniority credit and training and

experience credit under the provisions of subdivision seven, seven-a or

seven-b of this section by reason of appointment from an eligible list

or special eligible list, but such term shall not include any public

employee whose rights as to civil compensation are or were governed by

section six of chapter six hundred eight of the laws of nineteen hundred

fifty-two;

(2) the term "system" shall mean any pension or retirement system

referred to in subsection (1) of paragraph A of this subdivision.

B. Except as otherwise provided in paragraphs C, D and E of this

subdivision, any New York city member shall have as to any period of

military duty performed by him the same rights and shall be entitled to

the same benefits in respect to his membership in any system as he would

have had if he had been present and continuously engaged in the

performance of the duties

(1) of the position from which he was granted a leave of absence

pursuant to the provisions of subdivision two of this section, if he is

not entitled to seniority and training and experience credit as provided

by subdivision seven, seven-a or seven-b of this section, and was not

appointed to a position while on military duty as provided by

subdivision six of this section, or

(2) if he was granted such leave and received an appointment as

provided by subdivision six of this section, of the position from which

he received such leave of absence, up to the date of such appointment,

and thereafter as if he had been present and continuously engaged in the

performance of the duties of such position to which he was appointed, or

(3) if granted such leave of absence and entitled to credit as

provided by subdivision seven, seven-a or seven-b of this section, of

the position from which he was granted such leave of absence, up to the

date upon which he is deemed to have been appointed as provided in such

subdivision seven, seven-a or seven-b and thereafter as if he had been

present and continuously engaged in the performance of the duties of the

position with respect to which the date on which he is deemed to have

been appointed is specified by such subdivision seven, seven-a or

seven-b, or

(4) if he did not receive such leave, but is entitled to credit under

such subdivision seven, seven-a or seven-b, of the position to which he

is deemed to have been appointed on the date specified therein, and as

if he had actually been appointed and had entered upon the performance

of the duties of such position upon such date.

C. No New York city member shall be entitled to any of the rights,

benefits or credit conferred by this subdivision with respect to

(1) any period of military duty, or portion thereof, during which the

military base pay of such member or his compensation for military duty

performed other than as a member of the armed forces, exceeded the civil

compensation of the position or positions with respect to which his

rights and benefits for the corresponding period or portion thereof are

determined by the provisions of paragraph B of this subdivision, or

(2) any period of military duty or portion thereof prior to the date

upon which any member, who was not granted a leave of absence pursuant

to the provisions of subdivision two of this section, is deemed to have

been appointed by virtue of the provisions of subdivision seven, seven-a

or seven-b of this section.

As to any period of military duty or portion thereof referred to in

subsection (1) of this paragraph, the rights of any such member with

respect to membership in any system shall be governed by the provisions

of subdivision four of this section.

D. Time during which any New York city member was absent on military

duty shall not constitute an interruption of continuous employment and,

except as provided in paragraph C of this subdivision, such time shall

be counted and included in determining the length of total service.

E. Upon the death or retirement of a New York city member, but not

otherwise, the city of New York, the Triborough bridge and tunnel

authority, or the New York city housing authority (whichever shall have

first employed such member after the termination of his military duty)

shall pay into the appropriate fund of the system in which such member

held membership at the time of his death or retirement, the amount of

all contributions which such member would have been required to make if,

during the period of his military duty, he had been present and had

continuously performed the duties of the position or positions with

respect to which his rights and benefits during the corresponding period

or portion thereof are determined by the provisions of paragraph B of

this subdivision; provided that such city or authority shall not pay

into any such fund any contributions payable or accruing for any period

of military duty or portion thereof, referred to in paragraph C of this

subdivision. Each such member shall be credited with such contributions

paid in his behalf by such city or authority for all pension or

retirement purposes; provided that (1) any portion of any retirement

allowance, pension, death benefit or other benefit or right derived from

such contributions paid in behalf of such member by such city or

authority, shall be such amount as the payment required by this

paragraph, made at the time herein specified, shall provide, (2) such

member shall not under any circumstances have the right to withdraw the

amount of such contributions, or any interest thereon, as a part of his

accumulated deductions or otherwise, and (3) such contributions shall be

excluded in determining the amount of any loan which any such member

shall be entitled to make.

F. In any case where any New York city member has heretofore paid or

shall hereafter pay to any system any contributions which the city of

New York, the Triborough bridge and tunnel authority, or the New York

city housing authority is required to pay to such system by the

provisions of this subdivision, such contributions shall be regarded as

excess contributions which are (1) creditable in lieu of regular

contributions (a) upon the return of such member to his position after

the termination of his military duty, or (b) upon his becoming a member

of such system, if he did not become a member thereof until after the

termination of such duty, or (2) payable in addition to other benefits

upon separation meanwhile with benefit.