N.Y. Retirement & Social Security Law § 443: Final average salary

§ 443. Final average salary. a. The salary base used for the

computation of benefits upon retirement, hereinafter called in this

article final average salary, applicable to all members of the

retirement systems who are subject to the provisions of this article,

shall be the average salary earned by such a member during any three

consecutive years which provide the highest average salary, exclusive of

any form of termination pay (which shall include any compensation in

anticipation of retirement), or any lump sum payment for deferred

compensation, sick leave, or accumulated vacation credit, or any other

payment for time not worked (other than compensation received while on

sick leave or authorized leave of absence); provided, however, if the

salary or wages earned during any year included in the period used to

determine final average salary exceeds that of the average of the

previous two years by more than twenty percentum, the amount in excess

of twenty percentum shall be excluded from the computation of final

average salary. Where the period used to determine final average salary

is the period which immediately precedes the date of retirement, any

month or months (not in excess of twelve) which would otherwise be

included in computing final average salary but during which the member

was on authorized leave of absence at partial pay or without pay shall

be excluded from the computation of final average salary and the month

or an equal number of months immediately preceding such period shall be

substituted in lieu thereof.

b. Notwithstanding the provisions of subdivision a of this section,

with respect to the members of the New York state employees' retirement

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

and the New York city teachers' retirement system, the final average

salary, shall be equal to one-third of the highest total salary earned

during any continuous period of employment for which the member was

credited with three years of service credit, exclusive of any form of

termination pay (which shall include any compensation in anticipation of

retirement), any lump sum payment for deferred compensation, sick leave,

or accumulated vacation credit, or any other payment for time not worked

(other than compensation received while on sick leave or authorized

leave of absence); provided, however, if the salary earned during any

year of credited service included in the period used to determine final

average salary exceeds the average of the salaries of the previous two

years of credited service by more than twenty per centum, the amount in

excess of twenty per centum shall be excluded from the computation of

final average salary.

c. Notwithstanding the provisions of subdivisions a and b of this

section, with respect to police officers and firefighters as defined in

section four hundred fifty of this chapter, the final average salary of

an employee who has been a member of a retirement system for less than

one year shall be the projected one year salary, with the calculation

based upon a twelve month projection of the sums earned in the portion

of the year worked. If a member has been employed for more than one year

but less than two years, then the member's final average salary shall be

the average of the first year and projected second year earnings based

upon the calculation above, and if more than two years, but less than

three years, then one-third the total of the first two years of

employment plus the projected third year's earnings, calculated as

indicated above.

d. Notwithstanding the provisions of subdivisions a and b of this

section, the final average salary of an employee who has been a member

of the New York city employees' retirement system or the New York city

teachers' retirement system for less than one year shall be the

projected one year salary, with the calculation based upon a twelve

month projection of the sums earned in the portion of the year worked.

If a member has been employed for more than one year but less than two

years, then the member's final average salary shall be the average of

the first year and projected second year earnings based upon the

calculation above, and if more than two years, but less than three

years, then one-third the total of the first two years of employment

plus the projected third year's earnings, calculated as indicated above.

e. Subject to the provisions of subdivision d of this section, and

notwithstanding the provisions of subdivision a of this section, with

respect to members of the New York city employees' retirement system and

the New York city board of education retirement system who are subject

to the provisions of this article, the final average salary shall be

determined pursuant to the provisions of paragraph twelve of subdivision

e of section 13-638.4 of the administrative code of the city of New

York.

f. Notwithstanding the provisions of subdivisions a, b and c of this

section, a participating employer may elect, pursuant to the provisions

of paragraph d of subdivision nine of section three hundred two of this

chapter, to have the provisions of such paragraph apply to the police

officers and firefighters in its employ who are subject to the

provisions of this article.

f-1. A demand in collective negotiations for the additional pension

benefit provided by subdivision f of this section shall not be subject

to the provisions of paragraph (b) or (c) of subdivision four of section

two hundred nine of the civil service law, nor shall such demand be

subject to any provision for interest arbitration contained in any local

law, resolution or ordinance adopted by any governmental entity pursuant

to subdivision one of section two hundred twelve of the civil service

law.

g. Notwithstanding the provisions of subdivisions a and c of this

section, the benefits for the first twenty years or less of service of

members of the New York city police pension fund, subchapter two, who

are subject to the provisions of this article, and members of the fire

department pension fund, subchapter two, who are subject to the

provisions of this article, shall be determined by using a salary base

equal to the salary earned by such member during the one-year period

immediately prior to retirement or separation from service due to

vesting, exclusive of any form of termination pay (which shall include

any compensation in anticipation of retirement), or any lump sum payment

for deferred compensation, sick leave, or accumulated vacation credit,

or any other payment for time not worked (other than compensation

received while on sick leave or authorized leave of absence); provided,

however, if the salary or wages earned during the one-year period

immediately prior to retirement or separation from service due to

vesting exceeds that of the previous one-year period by more than twenty

per centum, the amount in excess of twenty per centum shall be excluded

from the computation of final average salary. In determining final

average salary, any month or months (not in excess of three) which would

otherwise be included in computing final average salary but during which

the member was on authorized leave of absence without pay shall be

excluded from the computation of final average salary and the month or

an equal number of months immediately preceding such period shall be

substituted in lieu thereof.

h. Notwithstanding any general, special or local law, charter,

administrative code, agreement, resolution or rule or regulation to the

contrary, the salary base for members of the city of New York fire

department pension fund whose employment with the fire department of the

city of New York commenced on or after the first of July, two thousand

to whom this article otherwise applies shall be determined in the same

manner as the salary base for members of the city of New York fire

department pension fund whose employment with the fire department of the

city of New York commenced before the first of July, two thousand.