N.Y. Retirement & Social Security Law § 40: Membership of retirement system

§ 40. Membership of retirement system. a. Each person who becomes a

member of the retirement system shall file a duly executed application

with the comptroller. Such application shall contain:

1. A detailed statement of all such person's service, and

2. A statement that he consents and agrees to membership and to the

contributions prescribed by this article.

b. Membership in the retirement system shall be mandatory for the

following:

1. All persons who enter or re-enter the service of the state or of a

participating employer on and after July first, nineteen hundred

forty-eight, except those:

(a) In the exempt class of the classified service.

(b) In the labor class.

(c) Who are laborers and who are not covered by article nine of the

military law.

(d) In the unclassified service.

(e) Who are teachers or instructors and who are eligible to membership

in another retirement system.

(f) Sixty years of age and over, whose positions in the exempt class,

labor class or unclassified service have by reason of a reclassification

of positions on or after December fifteenth, nineteen hundred

forty-eight, been placed in the competitive or non-competitive class of

the classified service.

(g) Whose positions are excluded from eligibility for membership in

the retirement system and are covered only by old-age and survivors

insurance.

(h) Whose positions pay compensation at a rate of less than fifteen

hundred dollars a year.

(i) Otherwise specifically provided for by law.

Persons employed in state or local institutions reporting to or subject

to the supervision of the state departments of correction, education,

social welfare, health or mental hygiene need not become members until

the completion of six months of service.

2. (a) Those persons who enter or re-enter service in the state

colleges of agriculture, home economics, veterinary medicine, or

industrial and labor relations, the state agricultural experiment

station at Geneva, or any other institution or agency under the

management and control of Cornell university as representative of the

state university trustees, or who enter or re-enter service in the state

college of ceramics under the management and control of Alfred

university as the representative of the state university trustees, and

who do not elect the optional retirement program established by article

eight-B of the education law, except employees who hold federal

cooperative appointments with the United States department of

agriculture as designated by the director of the New York state

cooperative extension service and who are eligible for participation in

the federal retirement system as provided in subparagraph (b) below.

Each such member shall be covered by the provisions of this article to

the full amount of the salary paid to him from direct or indirect

federal or state taxes. Any person who is in such service when this

paragraph takes effect and who has not made contribution to the annuity

savings fund of the New York state employees' retirement system may on

or before July first, nineteen hundred fifty-seven become a member of

the New York state employees' retirement system and receive credit for

allowable service rendered prior to January first, nineteen hundred

twenty-one, by filing with the comptroller a statement duly executed and

acknowledged, consenting and agreeing to membership and to the

deductions for annuity purposes prescribed in this article, provided he

or she shall pay to the proper fund in installments as he or she shall

elect, except that such payments shall be made within a period no

greater than the number of months of his or her service elapsed between

January first, nineteen hundred twenty-one and his or her date of

membership, an amount equal to the amount that would have been in the

fund had he or she been a member during such elapsed service. Such

persons shall receive member service credit for the time for which such

payments are made.

(b) (1) Any employee of a county extension service association and any

employee of Cornell university appointed for the first time on or after

August first, nineteen hundred seventy-seven who holds a federal

cooperative appointment with the United States department of agriculture

as designated by the director of the New York state cooperative

extension service and who is eligible for participation in the federal

retirement system shall be excluded from membership in the state

employees' retirement system;

(2) any person who on or before July thirty-first, nineteen hundred

seventy-seven holds a state cooperative appointment as designated by the

director of the New York state cooperative extension service, may elect

to receive federal cooperative appointment in the manner provided for by

the relevant federal laws, rules and regulations and to participate in

the federal retirement system and discontinue participation in the state

retirement system by filing a written notice of termination, on or

before December thirty-first, nineteen hundred seventy-eight with the

comptroller. Any employee who is a member of the New York state

employees' retirement system at the time he or she elects coverage in

the federal retirement program shall be deemed to be a person who

discontinues service on the effective date of such election, for the

purpose of determining his or her eligibility for rights and benefits in

such state system; provided however, that if he or she does not withdraw

accumulated contributions, (i) continued service with the county

extension service association or Cornell university while under the

federal retirement program shall be deemed to be member service in the

state employees' retirement system for the purpose of determining

eligibility for any vested retirement allowance, retirement allowance or

ordinary death benefit under such system dependent upon a specified

period of total service or upon attainment of a specified age while in

service or upon death while in service; and (ii) the amount of any such

benefit to which the person or his or her estate or person designated by

him or her may become entitled under either such system shall be

computed only on the basis of service otherwise creditable to him or her

therein and his or her compensation during such service. Electing

employees and their beneficiaries shall not be entitled to any right or

benefit under the New York state employees' retirement system other than

a vested retirement allowance, retirement allowance or ordinary death

benefit to the extent provided for in this chapter.

3. Every police officer and firefighter, appointed to and employed by

a city, county, town, village or police or fire district, in a position

in the classified civil service, other than in a position in the exempt

class, and who is not eligible to become a member of a local pension

system. Notwithstanding any other provision of this article, so far as

such police officers and firefighters are concerned, their employers

shall be treated in all respects as if they were participating

employers. Such employers shall pay into the pension accumulation fund

the amount required to pay the accrued liability on account of such

police officers and firefighters, as computed by the actuary. Such

payment shall be made in such installments as the comptroller shall

require.

c. The following may become members of the retirement system:

1. An officer or employee who is in the service of a participating

employer on the date it becomes a participating employer, unless his

office or position has been excluded from eligibility for membership in

the retirement system pursuant to sections thirty or thirty-one of this

article.

2. An officer or employee in the service of the state or of a

participating employer who would be excluded from membership by the

provisions of subdivision e of this section except for the fact that he,

nevertheless, may become a member pursuant to a specific provision of

law.

3. Any other person in the service of the state or a participating

employer, except as provided in subdivision b or subdivision e of this

section.

4. Officers or employees of the federal government who have at least

five years of member service credit at the time they become federal

officers or employees may continue as contributing members.

The provisions of this paragraph four as hereby amended shall not

affect the membership of officers or employees of the federal government

heretofore commenced or continued hereunder, provided, however, that all

memberships hereunder shall be conditioned upon the receipt by the

retirement system of the payments required by section forty-two of this

article.

5. A person who:

(a) Is a teacher within the meaning of subdivision four of section

five hundred one of the education law,

(b) Is not a member of the New York state teachers' retirement system

and has not elected the optional retirement program established either

by article eight-b or by article three, part V of the education law,

(c) On or after April first, nineteen hundred fifty, enters upon his

employment as such a teacher in a state-operated institution or

community college under the jurisdiction of the board of trustees of the

state university, and

(d) Elects to become a member of this retirement system upon his entry

into such employment and at no other time.

6. An officer or employee who is in the service of an institution for

the instruction of the deaf, mute or the blind, which receives state

pupils whose instruction and support are paid for by the state or a

participating employer.

7. All war veterans in state service on March twenty-first, nineteen

hundred thirty, entitled to benefit under the provisions of former

section twenty-one-a of the civil service law or former subdivision

eight of section three of the public buildings law or section two

hundred fourteen or two hundred fifteen of the military law shall have

the right to elect to become members of the New York state employees'

retirement system, and to be covered by all the provisions of law

relative thereto. Upon exercising such right, such war veteran shall be

deemed to have waived his rights to any benefits under such sections.

8. Any person who is regularly employed under the control of the

division of military and naval affairs whose duties in such employment

require substantially all normal working hours and whose regular

compensation is paid by the United States from funds allocated to the

New York army national guard, or the New York air national guard. For

purposes of eligibility for membership in the retirement system, such

employees shall be deemed to be employees of the state. The provisions

of this paragraph eight shall be effective only if and during the time

that the United States shall undertake to and does provide the

employers' contributions which the state is required to pay to the

retirement system on account of the memberships of such employees.

9. Notwithstanding any inconsistent provision of subdivision e of this

section, or of this chapter or of any other law, an officer or employee

in the service of the state or of a participating employer who, at the

time of entering such service, was or is entitled to benefits by any

other pension or retirement system maintained by the state or a

political subdivision thereof, provided such benefits, exclusive of any

annuity based solely on his own contributions and interest thereon, are

suspended during his active membership in the retirement system. He

shall contribute to the retirement system as a new member.

d. A member, discontinued from the government service because the

office in which he was employed was transferred to:

1. The federal government, or

2. Any public authority or public corporation organized pursuant to

the laws of this state and which is not a participating employer,

may file a written election with the comptroller stating that he elects

to continue as a member. Such election shall be subject to the approval

of the comptroller and such continuance shall be conditioned upon the

receipt by the retirement system of the payments required by section

forty-two of this article.

e. Any person who is or may be entitled to benefits by any other law

providing for pensions and annuities for civil service employees, wholly

or partly at the expense of the state or of a political subdivision

thereof, shall not be a member. This provision, however, shall not:

1. Affect the membership of any person who legally is a member of the

retirement system on July first, nineteen hundred forty-eight.

2. Exclude from membership any person who is or may become a member

pursuant to paragraph two of subdivision c of this section.

3. Exclude from membership any person paid a salary from two or more

sources, each of which entitles him to membership in a retirement

system.

4. Exclude from membership any person holding office pursuant to

appointment by the governor by and with the advice and consent of the

senate, who at the time of such appointment would otherwise be entitled

to a retirement allowance wholly or partly at the expense of the state

or of a political subdivision thereof.

5. Exclude from membership any person who is or may become eligible

for old-age and survivors insurance benefits pursuant to the provisions

of this article except where his position was or is excluded from

eligibility for membership in this retirement system in order to extend

old-age and survivors insurance coverage to it and such eligibility

shall not have been restored.

f. Termination of membership. Membership in the retirement system

shall cease upon the occurrence of any one of the following conditions:

1. When seven years have elapsed since a member has performed

government service provided, however, that no part of such seven year

period shall run during such time as a member, with at least five years

of member service credit, shall serve as an officer or employee of the

federal government or the United Nations or other international

organizations of which the United States of America is a member.

2. When a member shall die.

3. When a member shall retire.

4. When a member shall have withdrawn all or part of his accumulated

contributions. Acceptance by a member of a refund of excess

contributions pursuant to subdivision g of section twenty-one,

subdivision c of section seventy-two, subdivision c or d of section

seventy-one, subdivision c or d of section seventy-one-a or subdivision

c of section eighty-four, subdivision i of section eighty-five or

subdivision h of section eighty-six of this article or borrowing from

his fund in the retirement system pursuant to section fifty of this

article shall not terminate his membership. Acceptance of such a refund

of excess contributions by a member entitled to a vested retirement

allowance pursuant to section seventy-six of this chapter shall not

terminate his right to such vested retirement allowance nor shall

acceptance by him of a refund of the amount of his contributions and

regular interest thereon which is in excess of the amount of the

accumulated contributions which he would then have to his credit had he

been contributing on the basis of his rate of normal contribution

terminate his right to such vested retirement allowance.

5. When a member who has not attained eligibility for a retirement

allowance or a vested retirement allowance has discontinued service with

the state or a participating employer for a period of at least thirty

consecutive days and has requested termination of membership on a form

prepared by the comptroller for such purpose by filing such form with

the comptroller. If such person subsequently rejoins the retirement

system within five years from the date he discontinued service with the

state or a participating employer, such person shall be entitled to

every retirement right, benefit and privilege which would have been

available to him had he reentered employment on the date of such

discontinuance from service.

g. As to any class of persons whose compensation is only partly paid

by the state or a participating employer or who are serving on a

temporary or other than per annum basis, the comptroller, in his

discretion, may:

1. Deny the right to become members, or

2. Make optional the individual entrance of those whose membership

otherwise would be mandatory.