N.Y. Retirement & Social Security Law § 31: Participation by public or quasi-public organizations

§ 31. Participation by public or quasi-public organizations. a. Any

public or quasi-public organization created wholly or partly or deriving

its powers by the legislature of the state and which organization

employs persons engaged in service to the public or any state agency as

defined in section fifty-three-a of the state finance law, or the New

York state association of town superintendents of highways, inc. or any

school board association, by resolution legally adopted by its governing

body and approved by the comptroller, may elect to have its officers and

employees become eligible to participate in the retirement system.

Acceptance of the officers and employees of such an employer for

membership in the retirement system shall be optional with the

comptroller. If he shall approve their participation, such organization,

except as specifically provided in this article to the contrary, shall

thereafter be treated as a participating employer. Any election made

pursuant to this subdivision by a school board association shall be

applicable to current employees of such association.

b. The officers and employees of such organization shall be credited

with such periods of prior service as shall be certified by their

employer for service rendered to it, or its predecessor, or the state,

or in any other capacity approved by such employer and the comptroller.

Service for such employer after the date on which it commences to

participate in the retirement system and on account of which such

employer pays contributions shall be considered as member service. An

officer or employee of such employer who, as of the date he is so

approved for membership in the retirement system, is already a member

thereof, shall not have his total credit reduced by such approval. Any

reserve held on account of any such officer or employee in the pension

accumulation fund shall be used as an offset against the deficiency

contribution payable thereafter by such employer on account of such

officer or employee for any prior service credit and any such previous

credit. Except as otherwise provided in this article, an officer or

employee of such employer who, by reason of this service, is a member of

any other governmental retirement system shall not participate in this

retirement system on that part of his compensation so covered. The term

"governmental retirement system", as used in this subdivision, shall

include any retirement system wholly or partly maintained by this state,

by a municipality of this state, by another state or political

subdivision thereof, by the United States government, or by any foreign

country or political subdivision thereof.

c. An agreement, made by such an employer pursuant to this section, to

contribute on account of its officers and employees shall be

irrevocable. In the event that such employer for any reason becomes

financially unable to make the contributions required on account of its

officers and employees, it shall be deemed to be in default. A

certificate to such effect thereupon shall be sent by the comptroller to

the employer and to the state superintendent of financial services.

Every member of the retirement system, who was an officer or employee of

such employer at the time of default, upon demand made within ninety

days thereafter, shall be entitled to discontinue his membership in the

retirement system and to a refund of his accumulated contributions. As

of a date ninety days following the date of such certificate of default,

the actuary of the retirement system, by actuarial valuation, shall

determine the amount of the reserves held on account of each active

member and pensioner of such employer. He shall credit to each such

member and pensioner the amount of reserve so held. In the event such an

active member does not discontinue his membership and thus become

entitled to the refund of his accumulated contributions, the reserve so

credited, together with the amount of his accumulated contributions

shall be used to provide for him a paid up deferred annuity beginning at

age sixty. The reserve of each pensioner shall be used in providing such

part of his existing pension as the reserve so held will provide, which

pension, together with his annuity, shall thereafter be payable to him.

The rights and privileges of both active members and pensioners of such

employer shall thereupon terminate except as to the payment of the

deferred annuities so provided for the previous active members and the

annuities and the pensions, or parts thereof, provided for the

pensioners.

d. Notwithstanding anything to the contrary, the retirement system

shall not be liable for the payment of any pensions or other benefits on

account of the officers, employees or pensioners of any employer under

this section, for which reserves have not been previously created from

funds contributed by such employer or its officers or employees for such

benefits. This provision shall not apply to any municipality which

elected to participate in the retirement system under former section

seventy-five-a of this law prior to July first, nineteen hundred

forty-eight.

e. 1. Any public organization not participating in the retirement

system prior to October first, nineteen hundred fifty-three, and which

has not provided old-age and survivors insurance coverage for its

employees, may, at the time of making election to participate, exclude

from eligibility for membership in the retirement system such class or

classes of offices or positions for which membership in the retirement

system is not made mandatory by this article, as the public organization

may specify in the resolution adopted pursuant to subdivision a of this

section. Participation by any such public organization which may exclude

from eligibility for membership any class or classes of its offices or

positions shall not become effective until such public organization

shall have entered into an agreement to provide old-age and survivors

insurance coverage for such class or classes of offices or positions in

the manner and to the extent provided by article three of this chapter.

2. Any public organization participating in the retirement system

prior to October first, nineteen hundred fifty-three, may, by the

adoption of a resolution in the manner provided in subdivision a of this

section and filed with the comptroller prior to the time such public

organization makes an agreement to provide old-age and survivors

insurance coverage for its employees, elect to exclude from eligibility

for membership in the retirement system any class or classes of offices

or positions for which membership in the retirement system is not made

mandatory by this article. Public notice of the proposed adoption of any

such resolution shall be given at least three months prior to the

adoption thereof. Officers and employees holding offices or positions

in any such excluded class or classes, however, who are members of the

retirement system at the time of the filing of such resolution shall

continue to be members of the retirement system. Such resolution

providing for such exclusion from eligibility for membership shall not

become effective, however, until such public organization shall have

entered into an agreement to provide old-age and survivors insurance

coverage for the class or classes of offices or positions so excluded

from eligibility for membership in the retirement system in the manner

and to the extent provided by article three of this chapter.

3. The power to exclude employees from eligibility for membership in

the retirement system pursuant to paragraph one or paragraph two of this

subdivision e shall terminate on the day after the modification

extending the old-age and survivors insurance system to any position

covered by such system and held by an employee of a political

subdivision of the state (exclusive of one in a police officer's or

firefighter's position) is executed.