N.Y. Retirement & Social Security Law § 138-a: Referenda among public employees; extension of old-age and survivors insurance

§ 138-a. Referenda among public employees; extension of old-age and

survivors insurance. 1. As soon as practicable after the effective date

hereof, the governor or the state agency or officer designated by him

shall, in accordance with the applicable provisions of the federal

social security act and subdivision thirteen of this section, authorize

the separate referenda described below (and thereafter, such similarly

separated referenda as may be deemed appropriate and be consistent with

this article and such federal act):

a. One referendum among all eligible employees of the state (exclusive

of those in police officer or firefighter positions) who are members of

the New York state employees' retirement system, a second referendum

among all eligible employees of political subdivisions of the state

(exclusive of those in police officer or firefighter positions) who are

members of such retirement system, which subdivisions elected to provide

seven calendar quarters of retroactive coverage for such employees

pursuant to subdivision seven of this section, a third referendum among

all eligible employees of political subdivisions of the state (exclusive

of those in police officer or firefighter positions) who are members of

such retirement system, which subdivisions elected to provide six

calendar quarters of retroactive coverage for such employees pursuant to

subdivision seven of this section, a fourth referendum among all

eligible employees of political subdivisions of the state (exclusive of

those in police officer or firefighter positions) who are members of

such retirement system, which subdivisions elected to provide four

calendar quarters of retroactive coverage for such employees pursuant to

subdivision seven of this section, and a fifth referendum among all

eligible employees of the remaining political subdivisions of the state

(exclusive of those in police officer or firefighter positions) who are

members of such retirement system, on the question of whether service in

positions (exclusive of police officer or firefighter positions) in the

employ of the state or of such political subdivisions, as the case may

be, and covered by such system also shall be covered by old-age and

survivors insurance.

b. Separate referenda among eligible employees of the state (exclusive

of those in police officer or firefighter positions) whose positions are

covered by a separate retirement system or plan maintained by the state,

other than the New York state and local employees' retirement system or

the New York state teachers' retirement system, and who are members of

such system or plan, on the question of whether service in positions

(exclusive of police officer or firefighter positions) covered by such

system or plan also shall be covered by old-age and survivors insurance.

c. One referendum among all eligible employees of the state who are

members of the New York state teachers' retirement system, a second

referendum among all eligible employees of political subdivisions of the

state who are members of such retirement system, which subdivisions

elected to provide seven calendar quarters of retroactive coverage for

such employees pursuant to subdivision seven of this section, a third

referendum among all eligible employees of political subdivisions of the

state who are members of such retirement system, which subdivisions

elected to provide six calendar quarters of retroactive coverage for

such employees pursuant to subdivision seven of this section, a fourth

referendum among all eligible employees of political subdivisions of the

state who are members of such retirement system, which subdivisions

elected to provide four calendar quarters of retroactive coverage for

such employees pursuant to subdivision seven of this section, and a

fifth referendum among all eligible employees of the remaining political

subdivisions of the state who are members of such retirement system, on

the question of whether service in positions covered by such system also

shall be covered by old-age and survivors insurance.

d. Separate referenda among eligible employees of each political

subdivision (exclusive of those in police officer or firefighter

positions) who are members of a retirement system or plan maintained by

such political subdivision other than a retirement system relating to

retirement benefits under the Canada pension plan, on the question of

whether service in positions in the employ of such political subdivision

and covered by such system or plan also shall be covered by old-age and

survivors insurance. The modification providing old-age and survivors

insurance coverage pursuant to such referenda shall provide such

retroactive coverage, if any, and shall exclude from old-age and

survivors insurance coverage such classes of employment as authorized by

paragraph b of subdivision two of section one hundred thirty-six of this

article, if any, as the governing body of such political subdivision

shall determine, consistent with the federal social security act. Such

determination shall be made within a reasonable period of time fixed by

the director and indicated in a certificate filed with the director.

2. In the event the federal social security act is amended to

authorize the extension of old-age and survivors insurance coverage to

service performed in this state in police officer or firefighter

positions, the governor or the state agency or officer designated by him

or her shall, as soon as practicable after the enactment of such

amendment and in accordance with the applicable provisions of such

federal act and subdivision thirteen of this section, to the extent then

applicable, shall take such action as may be necessary to extend old-age

and survivors insurance coverage to such positions, including, to the

extent applicable, referenda as follows:

a. One referendum among all eligible employees of the state serving in

police officer or firefighter positions who are members of the New York

state and local employees' retirement system.

b. A separate referendum among all eligible employees of the state

serving in police officer or firefighter positions whose positions are

covered by a retirement system or plan maintained by the state other

than the New York state and local employees' retirement system, and who

are members of such system or plan.

c. One referendum among all eligible employees of political

subdivisions of the state serving in police officer or firefighter

positions who are members of the New York state and local employees'

retirement system, which political subdivisions elected to provide

retroactive coverage to or about March sixteenth, nineteen hundred

fifty-six, to such employees pursuant to subdivision seven of this

section, a second referendum among all eligible employees of political

subdivisions of the state serving in police officer or firefighter

positions who are members of such retirement system, which subdivisions

elected to provide retroactive coverage to or about June sixteenth,

nineteen hundred fifty-six, to such employees pursuant to subdivision

seven of this section, a third referendum among all eligible employees

of political subdivisions of the state serving in police officer or

firefighter positions who are members of such retirement system, which

political subdivisions elected to provide retroactive coverage to or

about December sixteenth, nineteen hundred fifty-six, to such employees

pursuant to subdivision seven of this section, and a fourth referendum

among all eligible employees of the remaining political subdivisions of

the state serving in police officer or firefighter positions who are

members of such system, which eligible employees shall have retroactive

coverage to or about December sixteenth, nineteen hundred fifty-seven.

d. Separate referenda among eligible employees of each political

subdivision serving in police officer or firefighter positions whose

positions are covered by a separate retirement system or plan maintained

by such political subdivision and who are members of such system or

plan. Each such referendum shall be on the question of whether service

in the police officer or firefighter positions affected thereby also

shall be covered by old-age and survivors insurance.

2-a. Notwithstanding any inconsistent provision of this article:

a. The alternative referendum and certification procedure provided by

paragraph seven of subdivision (d) of section two hundred eighteen of

the federal social security act, as added by public law eighty-five-two

hundred twenty-nine, may be followed in lieu of any referendum and

certification of the result thereof as required by this section. All

actions heretofore duly taken which comply or anticipate compliance with

any procedure authorized or contemplated by such paragraph seven are

hereby ratified and confirmed and shall be deemed to have been taken in

full compliance with this section.

b. Any action duly taken which extended or extends retroactive

coverage to a date on or about March sixteenth, nineteen hundred

fifty-six, or thereafter, for any public employees, including those not

provided with such coverage prior to January first, nineteen hundred

fifty-eight, is hereby ratified and confirmed and such retroactive

coverage shall be deemed to have been provided in full compliance with

this section as hereby amended.

3. Each notice of referendum required by the federal social security

act to be given to employees shall contain or shall be accompanied by a

statement, in such form and with such detail as the governor, or the

state agency or officer designated by him, shall determine is sufficient

to inform such employees of the rights which will accrue to them, their

dependents and survivors, and of the liabilities to which they will be

subject in the event that service in their positions is covered by

old-age and survivors insurance. Such information also shall be made

available to employees for a reasonable period before they are required

to indicate, pursuant to subdivision thirteen of this section, whether

they desire old-age and survivors insurance coverage.

4. The governor or the state agency or officer designated by him shall

have power to require the filing by public agencies and officers of

information and data necessary for the conduct of referenda provided for

herein and the determination of the results thereof.

5. Where in any such referendum a majority of the eligible employees

vote in favor of covering service in positions covered by a retirement

system or plan under old-age and survivors insurance, and the other

applicable conditions of the federal social security act have been met,

the governor shall make the necessary certificate to the federal

secretary in accordance with such act.

6. Whenever any such certification is made to the federal secretary,

the director shall take the necessary action to effectuate the result of

such referendum and modify the state's agreement with the federal

secretary accordingly, except that with respect to the referenda

provided by paragraph c of subdivision one of this section among

eligible employees of political subdivisions who are members of the New

York state teachers' retirement system, no such modification shall be

made with respect to employees of political subdivisions unless a

majority of all the members of the system (counted without reference to

any division theretofore made pursuant to subdivision thirteen hereof)

employed by political subdivisions voted in favor of coverage in such

referenda.

7. In the event a referendum which includes employees of the state

favors the extension of old-age and survivors insurance coverage to

positions in the employ of the state, the director shall, in such

modification, provide for retroactive coverage to March sixteenth,

nineteen hundred fifty-six. The director shall fix a reasonable period

of time during which the governing body of each political subdivision,

having employees who are members of the New York state employees'

retirement system, the New York state teachers' retirement system, or a

pension or retirement system maintained by the political subdivision may

determine to provide retroactive coverage to or about March sixteenth,

nineteen hundred fifty-six, June sixteenth, nineteen hundred fifty-six,

December sixteenth, nineteen hundred fifty-six, or December sixteenth,

nineteen hundred fifty-seven to its employees who are members of any of

such systems. The director shall have power to fix the precise

retroactive date in each such case.

7-a. Notwithstanding any action previously taken by the governing body

of any political subdivision with respect to whether or not retroactive

coverage should be extended to any of its employees or the amount of

retroactive coverage which it has provided, and notwithstanding any

inconsistent provision of this section or of any general, special or

local law, city or village charter, ordinance or resolution, in the

event the federal social security act authorizes or is amended to

authorize it to do so such governing body may, during the period

authorized by and in the manner provided by such act, extend retroactive

coverage to employees of such political subdivision to a date not

earlier than one in the first calendar quarter of nineteen hundred

fifty-six so that only one payroll date or such other minimum period,

determined by the director, shall be included in such retroactive period

to accomplish the result of providing retroactive coverage for the

earliest calendar quarter to be included in such retroactive coverage.

The director shall have power to fix the precise retroactive date in

each such case.

8. a. Notwithstanding any other provision of law, any individual who,

on or after August first, nineteen hundred fifty-six, had an option to

join a retirement system or plan applicable to his position and who

could have joined such retirement system or plan prior to the execution

date of a modification extending old-age and survivors insurance to any

position covered by such retirement system or plan, but who had not

joined such retirement system or plan prior thereto, is hereby declared

personally ineligible for membership in such retirement system or plan,

effective as of August first, nineteen hundred fifty-six, or if he first

occupies such position later, such later date.

b. The director shall modify the federal agreement under this article

to provide old-age and survivors insurance coverage to individuals in

the employ of the state who are ineligible to become members of a

retirement system applicable to their positions, including individuals

to whom paragraph a of this subdivision is applicable, and provide, with

respect to such individuals, the retroactive coverage specified in

subdivision seven of this section.

c. The director shall modify the federal agreement under this article

to provide old-age and survivors insurance coverage to individuals in

the employ of any political subdivision of the state who are ineligible

to become members of a retirement system applicable to their positions,

including individuals to whom paragraph a of this subdivision is

applicable, and provide, with respect to such individuals, the

retroactive coverage, if any, and the excludable classes of employment

as authorized by paragraph b of subdivision two of section one hundred

thirty-six of this article, if any, determined by the governing body of

the political subdivision by which such individuals are employed,

consistent with the federal social security act.

d. Eligibility for membership in a retirement system or plan is hereby

restored to every employee who was made ineligible for membership in

such a system or plan by operation of any provision of paragraph a, b or

c of this subdivision eight as originally enacted by chapter seven

hundred seventy-six of the laws of nineteen hundred fifty-seven.

9. In the event that a referendum among eligible employees of the

state or of one or more political subdivisions favors the extension of

old-age and survivors insurance coverage to positions covered by a

retirement system or plan of which they are members, persons who are

members of such system or plan as of the referendum date shall be given

such coverage only if they indicated their desire therefor, prior to the

applicable referendum, in such manner and on or before such date as the

director shall specify by rule or regulation consistent with the federal

social security act.

10. a. In the event that the referenda among eligible employees of

political subdivisions of the state (exclusive of those in police

officer or firefighter positions) who are members of the New York state

and local employees' retirement system favor the extension of old-age

and survivors insurance coverage to their positions, all positions in

the employ of each political subdivision of the state, except those

covered by a retirement system or plan of the state or the political

subdivision and subject to separate referenda hereunder, and except

those excluded from coverage pursuant to paragraph b of subdivision two

of section one hundred thirty-six of this article, also shall be covered

by old-age and survivors insurance at or about the same time that the

director modifies the agreement with the federal secretary to effectuate

the result of such referenda as to the political subdivisions affected

thereby. Each political subdivision to which old-age and survivors

insurance is extended pursuant to this subdivision shall have the

option, within a reasonable period of time fixed by the director, to

file a certificate with the director fixing the effective date of its

coverage (which may include retroactive coverage for such period as its

governing body shall determine subject to the federal social security

act and which effective date shall be not later than its last payroll

date in December nineteen hundred fifty-seven) and excluding from

coverage classes of employment as authorized by paragraph b of

subdivision two of section one hundred thirty-six of this article.

b. In the event that the referenda among eligible employees of

political subdivisions of the state who are members of the New York

state employees' retirement system favor the extension of old-age and

survivors insurance coverage to their positions, all positions in the

employ of a political subdivision of the state which is created

subsequent to the date of the modification of the agreement with the

federal secretary, to effectuate the result of such referenda also shall

be covered by old-age and survivors insurance, effective the date the

political subdivision first has employees on the payroll, or becomes

eligible, or as soon thereafter as is consistent with the federal social

security act. Each political subdivision to which old-age and survivors

insurance is extended pursuant to this paragraph shall have the option,

within a reasonable period of time fixed by the director and prior to

participation by such political subdivision in New York state employees'

retirement system, to file a certificate with the director excluding

from coverage classes of employment as authorized by paragraph b of

subdivision two of section one hundred thirty-six of this article.

11. Where the agreement with the federal secretary is modified, each

political subdivision affected thereby shall be obligated under this

article as if the modification had been made on the basis of its

application to and agreement with the director that it be so modified.

12. Where the director modifies the agreement with the federal

secretary to provide for old-age and survivors insurance coverage to

employees of the state or of a political subdivision in addition to

their coverage by a retirement system or plan, such action shall, as of

the effective date of coverage, be deemed to restore the eligibility for

membership in such system or plan of employees in positions in the

employ of the state or the political subdivision, as the case may be,

who theretofore were eligible for membership therein, but whose

positions were excluded from eligibility therein in order that old-age

and survivors insurance coverage could be extended to them.

13. A retirement system or plan, for the purposes of this article,

shall be deemed to constitute a separate retirement system with respect

to the positions covered thereby for which a separate referendum is

authorized herein. Each retirement system or plan shall be divided into

two parts, one of which shall be composed of positions of members of

such system who desire old-age and survivors insurance coverage on the

basis of their service in such positions and the other to be composed of

positions of the members who do not desire such coverage. Each such part

shall be deemed a separate retirement system for the purposes of the

referenda provided for in this article. Positions of persons who become

members of a retirement system or plan after old-age and survivors

insurance shall have been extended shall be included in the part

composed of members desiring such coverage.

14. Notwithstanding the provisions of section one hundred forty-three

of this article, the costs of each referendum conducted hereunder shall

be paid as an administrative expense by the retirement system or plan

among whose members the referendum is conducted. The governor or state

officer or agency designated by him shall have power to require each

such system or plan to pay the costs so incurred.

15. Where the compensation of any person whose position is covered by

old-age and survivors insurance pursuant to this article is paid from a

special or administrative fund provided for by law other than an income

fund of the state university or the mental hygiene services fund, the

contributions required to be paid by his employer for such coverage,

including a proportionate share of the costs of administration charged

to such employer pursuant to section one hundred thirty-nine of this

article, shall be paid from such special or administrative fund.

16. Notwithstanding anything to the contrary contained in subdivision

nine of this section, the director is hereby authorized, on behalf of

the state, consistent with the provisions of the federal social security

act, to modify the agreement with the federal secretary for the purpose

of extending old age and survivors insurance coverage to positions of

members of the division or part of a retirement system composed of

members who do not desire coverage, if in the manner and before the date

specified by the director, the individuals occupying such positions,

file with him a written request therefor.