N.Y. Retirement & Social Security Law § 101: Reduction or suspension of benefits

§ 101. Reduction or suspension of benefits. a. If a retired member,

receiving a retirement allowance for other than physical disability,

returns to active public service, except as otherwise provided in this

section or section two hundred eleven or two hundred twelve of this

chapter, and is eligible for membership in the retirement system, he

thereupon shall become a member and his retirement allowance shall

cease. In such event, he shall contribute to the retirement system as if

he were a new member. Upon his subsequent retirement he shall:

1. Be credited with all member service earned by him since he last

became a member of the retirement system, and

2. Receive a retirement allowance which shall consist of:

(a) An annuity which is the actuarial equivalent of all his

accumulated contributions, and

(b) The pension including the

pension-providing-for-increased-take-home-pay which he was receiving

immediately prior to his last restoration to membership, plus a pension

including the pension-providing-for-increased-take-home-pay based upon

the member service credit earned by him since he last became a member.

Such latter pensions shall be computed as if he were a new member when

he last became a member.

Where such member shall have earned at least two years of member

service credit after restoration to active service, the total service

credit to which he was entitled at the time of his earlier retirement

may, at his option, again be credited to him and upon his subsequent

retirement he shall be credited in addition with all member service

earned by him subsequent to his last restoration to membership. Such

total service credit to which he was entitled at the time of his earlier

retirement shall be so credited only in the event that such member

returns to the retirement system with regular interest the actuarial

equivalent of the amount of the retirement allowance he received, or in

the event that such amount is not so repaid the actuarial equivalent

thereof shall be deducted from his subsequent retirement allowance.

Notwithstanding the foregoing provisions of this subdivision, a

retired member who is receiving a retirement allowance for other than

physical disability, and who returns to active public service, may elect

not to be restored to membership in the retirement system until he has

rendered one year of service following his return to public service. In

such event his retirement allowance shall be suspended during such year

of service as provided in subdivision b of this section. Upon

restoration to membership following completion of such year of service,

his service in such year shall be deemed to be service while a member

for purposes of subdivision b of section sixty of this chapter. He may

purchase member service credit for such year, which shall be deemed

earned member service credit. This paragraph shall not be construed to

authorize the return to public service of any person who is otherwise

not eligible therefor on account of having reached age seventy.

If a retired member receiving a retirement allowance for other than

physical disability, returns to active public service, and is then

ineligible for membership in the retirement system, his retirement

allowance shall be suspended in the same manner as provided in

subdivision b of this section.

b. Temporary service.

1. The payment of any retirement allowance, or of any benefit in lieu

thereof, on account of retirement for other than physical disability

shall be suspended as provided herein, during the time that the

beneficiary thereof is in receipt of other compensation paid from direct

or indirect state or municipal taxes:

(a) For temporary government or temporary public service other than

jury duty, or

(b) For service pursuant to subdivision d of this section where the

retired member continues as a beneficiary of the retirement system, or

(c) For service pursuant to subdivision e of this section where the

retired member has not elected to again become a member of the

retirement system.

2. In the case of a retirement allowance, without option, the amount

of the pension portion, including the

pension-providing-for-increased-take-home-pay, suspended for any period

shall be equal to the amount of such other compensation for the same

period.

3. In the case where an optional benefit in lieu of a retirement

allowance without option shall have been selected, the pension portion

thereof, including the pension-providing-for-increased-take-home-pay,

shall be suspended in such manner as the comptroller shall approve. The

amount so suspended shall be equal to the actuarial equivalent of the

amount by which the pension portion of the retirement allowance,

including the pension-providing-for-increased-take-home-pay, as it would

be without option, would be suspended pursuant to paragraph two of this

subdivision b. The retired member, however, may pay to the fund or funds

from which the pension portion of his retirement allowance, including

the pension-providing-for-increased-take-home-pay, is payable the

difference between the suspended portion thereof, without option, and

the suspended portion of the optional pension portion of the retirement

allowance, including the pension-providing-for-increased-take-home-pay,

granted to him. In such event any payments to his beneficiary shall be

made as if no suspension occurred.

4. In the case of a member whose compensation for public service is

equal to or greater than his final salary as defined herein, the annuity

portion of his retirement allowance shall be suspended during the period

that he is receiving such compensation. In the case of a member whose

compensation for public service is less than his final salary as defined

herein and who has retired without option, he shall be entitled to

receive that portion of his annuity computed without option which, when

added to his compensation for public service, does not exceed the

aforesaid final salary, except that in the case of a retired judge or

justice who serves as an official referee he shall receive that portion

of his annuity computed without option, which when added to the

compensation he is receiving from the state shall not exceed such final

salary paid by the state. Where an optional benefit has been selected in

lieu of a retirement allowance without option, the amount of the annuity

suspended shall be the actuarial equivalent of the amount that would

have been suspended if the retirement allowance had been without option.

In such a case the retired member may pay to the fund or funds, from

which the annuity portion of his retirement allowance is payable, the

difference between that portion of the annuity which is actually

suspended, in accordance with the provisions of this paragraph, and the

corresponding portion of the annuity without option. In such event any

payments to his beneficiary shall be made as if no suspension occurred.

The term "final salary", as used in this paragraph, shall mean the

maximum salary or compensation which the retired member currently would

be receiving in the position from which he last retired, if he had not

so retired, except in the case of an official referee shall mean his

final average salary had he retired at age seventy. If the position from

which he was so retired has been abolished the comptroller, upon the

basis of salary or compensation currently paid in similar or comparable

positions, shall determine the maximum amount of salary or compensation

which the retired member currently would be receiving in the abolished

position.

c. Retired judges or justices certified for service as justices of the

supreme court.

1. In the event that a judge or justice shall:

(a) Have retired and is receiving a retirement allowance from this

retirement system, or another retirement system of which he was a

member, and

(b) Be certified for service as a justice of the supreme court

pursuant to section one hundred fourteen or one hundred fifteen of the

judiciary law, his retirement allowance shall cease. He thereupon again

shall become a member of the retirement system of which he formerly was

a member. In such event he shall contribute, as if he were a new member,

to the annuity savings fund of this retirement system or to the

equivalent fund of such other retirement system.

2. Upon his subsequent retirement he shall:

(a) Be credited by the appropriate retirement system with all member

service earned by him since he last became a member thereof, and

(b) Receive a retirement allowance from such system which shall

consist of:

(1) An annuity which is the actuarial equivalent of all of the

member's accumulated contributions, and

(2) The pension, including the

pension-providing-for-increased-take-home-pay, which he was receiving

immediately prior to his last restoration to membership, plus a pension,

including the pension-providing-for-increased-take-home-pay, based upon

the member service credit earned by him since he last became a member.

Such latter pensions shall be computed as if he were a new member when

he last became a member.

3. The provisions of this subdivision c shall be controlling

notwithstanding any other provision of this chapter.

d. Election or appointment of retired members to certain public

offices.

1. A retired member, unless otherwise disqualified, shall be eligible

to:

(a) Election to a state office, or

(b) Appointment to fill a vacancy in an elective state office, or

(c) Appointment as an official referee.

2. In the event a retired member is so elected, except a retired

member so elected and who is receiving less than ten thousand dollars in

retirement allowance or benefit payments in any one year, or appointed,

or so qualifies, he may:

(a) Upon written notice to the comptroller, receive from the

retirement system the then present value of the annuity earned by his

accumulated contributions, and upon receipt thereof cease to be a

beneficiary of the retirement system, or

(b) Continue as a beneficiary of the retirement system, but with

payments of any retirement allowance or any benefit in lieu thereof, on

account of retirement for other than physical disability, suspended

during the time he is in receipt of compensation for state or public

service. Such suspension shall be governed by the provisions of

paragraphs two, three and four of subdivision b of this section.

3. The provisions of section one hundred fifty of the civil service

law shall govern with respect to state and local elective public

officers.

e. Legislative officers and employees.

In the case of any person who shall have retired after having served

as an officer or employee of the legislature for a period in excess of

fifteen years and whose return to active service shall be requested, in

a written certificate of and filed with the comptroller by:

1. The president pro tem of the senate, if the service be in the

senate, or

2. The speaker of the assembly, if the service be in the assembly, or

3. Both such officers, if the service be under the jurisdiction of the

senate and assembly jointly, except that the president of the senate and

the speaker of the assembly shall be authorized to make such request in

a case where they are empowered to make such an appointment,

the provisions of subdivision a of this section shall not be applicable

unless the officer or employee so returned to active service shall file

with the comptroller, within thirty days thereafter, a written notice

that he elects to be subject to the provisions thereof. In the event he

does not so elect, the provisions of subdivision b of this section shall

be applicable to him.