N.Y. Retirement & Social Security Law § 445-d: Optional age fifty-five improved benefit retirement program for certain New York city members

* § 445-d. Optional age fifty-five improved benefit retirement program

for certain New York city members. a. Definitions. The following words

and phrases as used in this section shall have the following meanings

unless a different meaning is plainly required by the context.

1. "NYCERS" shall mean the New York city employees' retirement system.

2. "BERS" shall mean the board of education retirement system of the

city of New York.

3. "Administrative code" shall mean the administrative code of the

city of New York.

4. "BERS rules and regulations" shall mean the rules and regulations

for the government, management and control of BERS adopted pursuant to

section twenty-five hundred seventy-five of the education law.

5. "New York city eligible position" shall mean:

(i) with respect to members of NYCERS, all positions in city-service

(as defined in subdivision three of section 13-101 of the administrative

code), except (a) any position in the uniformed transit police force, as

defined in subdivision thirty-one of section 13-101 of the

administrative code; (b) any position in the New York city transit

authority which is covered by the provisions of section 13-161 of the

administrative code, whether or not the person employed in such position

elected the benefits of such section 13-161; (c) any position in the

housing police service, as defined in subdivision thirty-five of section

13-101 of the administrative code; (d) any position in the uniformed

correction force, as defined in subdivision thirty-nine of section

13-101 of the administrative code; (e) any position in the uniformed

force of the department of sanitation, as defined in subdivision

sixty-two of section 13-101 of the administrative code; (f) the

positions of bridge and tunnel officer, bridge and tunnel sergeant,

bridge and tunnel lieutenant, assistant bridge and tunnel maintainer,

bridge and tunnel maintainer, senior bridge and tunnel maintainer and

laborer with the Triborough bridge and tunnel authority; (g) any

position in the division of housing and community renewal; (h) any

position in the unified court system; (i) any teaching position with the

city university of New York; and (j) any position as an investigator

member; or

(ii) with respect to members of BERS, all positions in education

service (as defined in paragraph fifteen of this subdivision), except

any position as a substitute teacher or any other position represented

by the recognized teacher organization for collective bargaining

purposes.

6. "New York city eligible member" shall mean a member of NYCERS or

BERS who is subject to the provisions of this article and who is

employed in a New York city eligible position.

7. "Age fifty-five improved benefit retirement program" shall mean all

the terms and conditions of this section.

8. "Starting date of the age fifty-five improved benefit retirement

program" shall mean the commencement date of the first payroll period

which begins after January first, nineteen hundred ninety-five.

9. "Enactment date of the age fifty-five improved benefit retirement

program" shall mean the date this section takes effect.

10. "Participant in the age fifty-five improved benefit retirement

program" shall mean any New York city eligible member who, under the

applicable provisions of subdivision b of this section, is entitled to

the rights, benefits and privileges and is subject to the obligations of

the age fifty-five improved benefit retirement program, as applicable to

him or her.

11. "Physically taxing position" shall mean, for a member of NYCERS, a

New York city eligible position which is a physically taxing position as

defined in subdivision fifty-six of section 13-101 of the administrative

code or, for a member of BERS, a New York city eligible position which

is a physically taxing position as defined in subdivision thirty-five of

section two of the BERS rules and regulations.

12. "Participating retirement system" shall mean NYCERS or BERS.

13. "Credited CPP qualifying service" shall mean, for a member of

NYCERS, career pension plan qualifying service, as defined in

subdivision forty-eight of section 13-101 of the administrative code,

which is credited to such member or, for a member of BERS, creditable

career pension plan service, as defined in subdivision thirty-eight of

section two of the BERS rules and regulations, which is credited to such

member.

14. "Active service" shall mean, for a member of NYCERS, city-service

(as defined in subdivision three of section 13-101 of the administrative

code) for which such member is being paid on the payroll or, for a

member of BERS, education service (as defined in paragraph fifteen of

this subdivision) for which such member is being paid on the payroll.

15. "Education service" shall mean service as a paid official or

employee of the board of education of the city of New York or the New

York city school construction authority, and allowable pursuant to the

applicable provisions which govern the service credit of a member of

BERS.

16. "Active or retired employee of the council of the city of New

York" shall mean all duly sworn members of the city council as well as

all salaried employees who comprise the staff of the city council on a

full-time or part-time basis who are either in active service on the

effective date of this paragraph or who are retired from such service.

17. "Retired employee of the council of the city of New York" shall

mean all duly sworn members of the New York city council as well as all

salaried employees who comprise the staff of the city council on a

full-time or part-time basis who are retired from active service.

b. Participation in age fifty-five improved benefit retirement

program. 1. Subject to the provisions of paragraphs five and six of

this subdivision, any person who is a New York city eligible member in

active service on the enactment date of the age fifty-five improved

benefit retirement program may elect to become a participant in the age

fifty-five improved benefit retirement program by filing, within ninety

days after such enactment date, a duly executed application for such

participation with the retirement system of which such person is a

member, provided he or she is a New York city eligible member in active

service on the date such application is filed. Notwithstanding this

provision, a New York city eligible member in active service on the

enactment date of the age fifty-five improved benefit retirement program

who is an active or retired employee of the council of the city of New

York may elect to participate in the age fifty-five improved benefit

retirement program at any time subsequent to the enactment date of such

program.

2. Subject to the provisions of paragraphs five and six of this

subdivision, any person who becomes a New York city eligible member in

active service after the enactment date of the age fifty-five improved

benefit retirement program may elect to become a participant in the age

fifty-five improved benefit retirement program by filing, within ninety

days after becoming a New York city eligible member in active service, a

duly executed application for such participation with the retirement

system of which such person is a member, provided he or she is a New

York city eligible member in active service on the date such application

is filed.

3. (i) Except as provided in subparagraph (ii) of this paragraph, any

election to be a participant in the age fifty-five improved benefit

retirement program shall be irrevocable.

(ii) Notwithstanding any other provision of law to the contrary, any

participant in the age fifty-five improved benefit retirement program

whose age and amount of credited CPP qualifying service (which amount of

credited CPP qualifying service shall, for the limited purposes only of

this subparagraph, include service rendered previous to becoming a

member which is not yet credited, but for which such person is or may

become eligible to obtain CPP qualifying service credit pursuant to

applicable provisions of law) at the time of first becoming such a

participant are such that he or she could not possibly be able to

accumulate a total of at least twenty-five years of credited CPP

qualifying service by the time he or she reaches age sixty-two, assuming

such person were to earn a full year of credited CPP qualifying service

in each and every year until he or she becomes sixty-two years of age

(whether or not such person actually intends to earn such amounts of

credit), may withdraw from the age fifty-five improved benefit

retirement program by filing, within two years after first becoming such

a participant, or within the period beginning November first, nineteen

hundred ninety-seven and ending January thirtieth, nineteen hundred

ninety-eight, a written request to withdraw from such program with the

retirement system of which such person is a member.

4. Where any participant in the age fifty-five improved benefit

retirement program shall cease to hold a New York city eligible

position, he or she shall cease to be such a participant and, during any

period in which such person is not a New York city eligible member, he

or she shall not be a participant in the age fifty-five improved benefit

retirement program.

5. Where any participant in the age fifty-five improved benefit

retirement program terminates service in a New York city eligible

position and returns to service in a New York city eligible position at

a later date and again becomes a New York city eligible member, he or

she shall again become such a participant upon becoming a New York city

eligible member.

6. Notwithstanding any other provision of law to the contrary, any

person who is eligible to elect to become a participant in the age

fifty-five improved benefit retirement program pursuant to paragraph one

or two of this subdivision for the full ninety-day period provided for

in such applicable paragraph, and who fails to timely file a duly

executed application for such participation with the appropriate

retirement system, shall not thereafter be eligible to become a

participant in such program. The provisions of this paragraph shall not

bar participation in such program, however, by a New York city eligible

member in active service on the enactment date of the age fifty-five

improved benefit retirement program who is an active or retired employee

of the council of the city of New York.

c. 1. Non-physically taxing service retirement. Notwithstanding any

other provision of law to the contrary, a participant in the age

fifty-five improved benefit retirement program:

(i) who is otherwise eligible to retire for service with immediate

payability of a retirement allowance pursuant to section 13-162 of the

administrative code or section thirty of the BERS rules and regulations;

and

(ii) who has completed twenty-five or more years of credited CPP

qualifying service; and

(iii) who has attained age fifty-five; and

(iv) who, subject to the provisions of paragraph ten of subdivision d

of this section, has paid, before the effective date of retirement, all

additional member contributions and interest (if any) required by

paragraphs one, four, five and six of subdivision d of this section, or,

for a New York city eligible member in active service on the enactment

date of the age fifty-five improved benefit retirement program who is an

active or retired employee of the council of the city of New York, who

has paid all additional member contributions pursuant to paragraph five

of subdivision d of this section; and

(v) who shall be a participant in the age fifty-five improved benefit

retirement program in active service at the time so specified for his or

her retirement; shall, subject to the provisions of paragraph ten of

subdivision d of this section, be permitted to retire with a minimum

retirement age of fifty-five, and the benefit reduction provisions set

forth in subdivision a of section four hundred forty-two of this article

shall not be applied to the calculation of such participant's retirement

benefit.

For a New York city eligible member in active service on the enactment

date of the age fifty-five improved benefit retirement program who is a

retired employee of the council of the city of New York, however, there

shall be no requirement of active service at the time of filing for

retirement provided that such employee has met the other requirements of

this paragraph.

2. Physically taxing service retirement. A participant in the age

fifty-five improved benefit retirement program:

(i) who is otherwise eligible to retire for service with immediate

payability of a retirement allowance pursuant to section 13-162 of the

administrative code or section thirty of the BERS rules and regulations;

and

(ii) who has completed twenty-five or more years of credited CPP

qualifying service in a physically taxing position (as defined in

paragraph eleven of subdivision a of this section); and

(iii) who has attained age fifty; and

(iv) who, subject to the provisions of paragraph ten of subdivision d

of this section, has paid, before the effective date of retirement, all

additional member contributions and interest (if any) required by

paragraphs one, four, five and six of subdivision d of this section; and

(v) who shall be a participant in the age fifty-five improved benefit

retirement program in active service at the time so specified for his or

her retirement; shall, subject to the provisions of paragraph ten of

subdivision d of this section, be permitted to retire with a minimum

retirement age of fifty, and the benefit reduction provisions set forth

in subdivision a of section four hundred forty-two of this article shall

not be applied to the calculation of such participant's retirement

benefit.

d. Additional member contributions. 1. In addition to the member

contributions required by section 13-125 or 13-162 of the administrative

code or section eight or thirty of the BERS rules and regulations, each

participant in the age fifty-five improved benefit retirement program

shall contribute, subject to the applicable provisions of section

13-125.2 of the administrative code or subdivision nineteen of section

twenty-five hundred seventy-five of the education law, an additional

percentage or additional percentages of his or her compensation to the

retirement system of which he or she is a member in accordance with the

following schedule:

(i) (A) each such participant shall contribute an additional four and

thirty-five one-hundredths percent of his or her compensation earned

from all credited CPP qualifying service (whether or not in a physically

taxing position) rendered on and after the starting date of the age

fifty-five improved benefit retirement program and prior to the

commencement date of the first payroll period which begins after January

first, nineteen hundred ninety-eight (1) while such person is a

participant in such program; and (2) before such person becomes such a

participant pursuant to paragraph one or two of subdivision b of this

section (whether or not rendered in a New York city eligible position);

and (3) after such person ceases to be a participant, but before he or

she again becomes such a participant pursuant to paragraph five of such

subdivision b (whether or not rendered in a New York city eligible

position); and

(B) each such participant shall contribute an additional two and

eighty-five one-hundredths percent of his or her compensation earned

from all credited CPP qualifying service (whether or not in a physically

taxing position) rendered on and after the commencement date of the

first payroll period which begins after January first, nineteen hundred

ninety-eight and prior to the commencement date of the first payroll

period which begins subsequent to the effective date of the chapter of

the laws of two thousand one which amended this item (1) while such

person is a participant in such program; and (2) before such person

becomes such a participant pursuant to paragraph one or two of

subdivision b of this section (whether or not rendered in a New York

city eligible position); and (3) after such person ceases to be a

participant, but before he or she again becomes such a participant

pursuant to paragraph five of such subdivision b (whether or not

rendered in a New York city eligible position); and

(C) each such participant shall contribute an additional one and

eighty-five one-hundredths percent of his or her compensation earned

from all credited CPP qualifying service (whether or not in a physically

taxing position) rendered on and after the commencement date of the

first payroll period which begins subsequent to the effective date of

the chapter of the laws of two thousand one which added this item (1)

while such person is a participant in such program; and (2) before such

person becomes such a participant pursuant to paragraph one or two of

subdivision b of this section (whether or not rendered in a New York

city eligible position); and (3) after such person ceases to be a

participant, but before he or she again becomes such a participant

pursuant to paragraph five of such subdivision b (whether or not

rendered in a New York city eligible position); and

(ii) each such participant who is employed in a physically taxing

position (as defined in paragraph eleven of subdivision a of this

section) shall contribute, in addition to the additional member

contributions required to be made at the percentage of compensation

specified in subparagraph (i) of this paragraph for the credited CPP

qualifying service specified in such subparagraph (i), an additional one

and ninety-eight one-hundredths percent of his or her compensation

earned from that portion of such credited CPP qualifying service which

is rendered in a physically taxing position on and after the starting

date of the age fifty-five improved benefit retirement program (A) while

such person is a participant in such program; and (B) before such person

becomes such a participant pursuant to paragraph one or two of

subdivision b of this section; and (C) after such person ceases to be a

participant, but before he or she again becomes such a participant

pursuant to paragraph five of such subdivision b.

2. A participant in the age fifty-five improved benefit retirement

program shall contribute additional member contributions only until he

or she has twenty-five years of credited CPP qualifying service.

3. (i) Commencing with the first full payroll period after each person

becomes a participant in the age fifty-five improved benefit retirement

program, additional member contributions at the applicable rate or rates

specified in paragraph one of this subdivision for the particular

credited CPP qualifying service being rendered shall be deducted,

subject to the applicable provisions of section 13-125.2 of the

administrative code or subdivision nineteen of section twenty-five

hundred seventy-five of the education law, from the compensation of such

participant on each and every payroll of such participant for each and

every payroll period for which he or she is such a participant.

(ii) (A) Those portions of the additional member contributions

required by paragraph one of this subdivision which are attributable to

credited CPP qualifying service rendered on and after the enactment date

of the age fifty-five improved benefit retirement program, and prior to

the actual commencement of deductions from compensation pursuant to

subparagraph (i) of this paragraph, by a person who becomes a

participant pursuant to paragraph one of subdivision b of this section,

shall be paid by deductions from the compensation of such participant

pursuant to and in accordance with the provisions of item (B) of this

subparagraph.

(B) Commencing with the payroll period in which deductions of

additional member contributions from such participant's compensation are

begun pursuant to subparagraph (i) of this paragraph, in addition to

such deductions required by such subparagraph (i), there shall be

another deduction of additional member contributions made from the

compensation of such participant at one-third the applicable rate or

rates at which deductions are being made pursuant to such subparagraph

(i), subject to the applicable provisions of section 13-125.2 of the

administrative code or subdivision nineteen of section twenty-five

hundred seventy-five of the education law, on each and every payroll

period until the total amount of unpaid additional member contributions

described in item (A) of this subparagraph, if any, has been paid by

deductions from compensation pursuant to this subparagraph, provided,

however, that deductions pursuant to this item (B) shall be made only

during the period while such person is a participant after first

becoming a participant pursuant to paragraph one of subdivision b of

this section and before ceasing to be such a participant.

4. In addition to the member contributions required by section 13-125

or section 13-162 of the administrative code or section eight or thirty

of the BERS rules and regulations, and the additional member

contributions required pursuant to paragraph one of this subdivision,

each participant in the age fifty-five improved benefit retirement

program who was not a member of either NYCERS or BERS on July first,

nineteen hundred ninety-three shall, subject to the provisions of

paragraph two of this subdivision, make retroactive additional member

contributions to the retirement system of which he or she is a member in

accordance with the following schedule:

(i) each such participant shall contribute an additional four and

thirty-five one-hundredths percent of his or her compensation earned

from all credited CPP qualifying service rendered prior to the starting

date of the age fifty-five improved benefit retirement program (whether

or not rendered in a physically taxing position or a New York city

eligible position); and

(ii) each such participant who was employed in a physically taxing

position as defined in paragraph eleven of subdivision a of this section

shall contribute, in addition to the additional member contributions

required to be made at the percentage of compensation specified in

subparagraph (i) of this paragraph for the credited CPP qualifying

service specified in such subparagraph (i), an additional one and

ninety-eight one-hundredths percent of his or her compensation earned

from that portion of such credited CPP qualifying service which was

rendered in a physically taxing position prior to the starting date of

the age fifty-five improved benefit retirement program.

5. (i) Each participant in the age fifty-five improved benefit

retirement program shall be charged with a contribution deficiency

consisting of:

(A) the total amounts of additional member contributions such person

is required to make pursuant to paragraph one of this subdivision which

are not deducted from his or her compensation pursuant to paragraph

three of this subdivision, if any, together with interest thereon,

compounded annually, and computed in accordance with the provisions of

subparagraphs (ii), (iii) and (iv) of this paragraph; and

(B) the total amounts of retroactive additional member contributions

such person is required to make pursuant to paragraph four of this

subdivision, if any, together with interest thereon, compounded

annually, and computed in accordance with the provisions of

subparagraphs (ii), (iii) and (iv) of this paragraph.

(ii) (A) Subject to the provisions of subparagraphs (iii) and (iv) of

this paragraph, the interest required to be paid on each such amount

specified in items (A) and (B) of subparagraph (i) of this paragraph

shall accrue from the end of the payroll period for which such amount

would have been deducted from compensation if he or she had been a

participant at the beginning of that payroll period and such deduction

had been required for such payroll period, until such amount is paid to

the retirement system.

(B) The rate of interest to be applied to each such amount during the

period for which interest accrues on that amount shall be equal to the

rate or rates of interest required by law to be used during that same

period to credit interest on the accumulated deductions of retirement

system members.

(iii) Except as otherwise provided in paragraph six of this

subdivision, no interest shall be due on any unpaid additional member

contributions which are attributable to credited CPP qualifying service

rendered on or after the starting date of the age fifty-five improved

benefit retirement program, but prior to the enactment date of the age

fifty-five improved benefit retirement program by a person who becomes a

participant pursuant to paragraph one of subdivision b of this section.

(iv) Except as otherwise provided in paragraph six of this

subdivision, no interest shall be due on any unpaid additional member

contributions which are not attributable to a period prior to the first

full payroll period referred to in paragraph three of this subdivision.

6. (i) (A) Should any person who, pursuant to paragraph twelve of this

subdivision, has received a refund of the employee portion of his or her

additional member contributions (as established in accordance with item

(B) of subparagraph (ii) of paragraph seven of this subdivision),

including any interest paid on such employee portion, again become a

participant in the age fifty-five improved benefit retirement program

pursuant to paragraph five of subdivision b of this section, an

appropriate amount shall be included in such participant's contribution

deficiency (including interest thereon as calculated pursuant to

subparagraph (ii) of this paragraph) for any credited CPP qualifying

service for which such person received a refund of such employee portion

of additional member contributions (including any amount of an unpaid

loan balance deemed to have been returned to such person pursuant to

paragraph fourteen of this subdivision), as if such employee portion of

additional contributions never had been paid.

(B) Any person who has his or her membership in one participating

retirement system terminated without transferring such membership

directly from such participating retirement system to the other

participating retirement system, who has an unpaid balance of a loan of

the employee portion of his or her additional member contributions

pursuant to paragraph thirteen of this subdivision at the time of the

termination of such membership, who, pursuant to paragraph five of

subdivision b of this section, thereafter again becomes a participant in

the age fifty-five improved benefit retirement program as a member of

either participating retirement system without having received a refund

of the employee portion of his or her additional member contributions

pursuant to paragraph twelve of this subdivision, shall have an

appropriate amount included in such participant's contribution

deficiency (including interest thereon as calculated in subparagraph

(ii) of this paragraph) for any credited CPP qualifying service for

which such person borrowed and did not repay such employee portion of

additional member contributions, as if such employee portion of

additional member contributions never had been paid.

(ii) (A) Interest on the employee portion of a participant's

additional member contributions included in such participant's

contribution deficiency pursuant to subparagraph (i) of this paragraph

shall be calculated as if such employee portion of additional member

contributions never had been paid by such participant, and such interest

shall accrue from the end of the payroll period to which an amount of

such employee portion of additional member contributions is

attributable, compounded annually, until such amount is paid to the

retirement system.

(B) The rate of interest to be applied to each such amount during the

period for which interest accrues on that amount shall be equal to the

rate or rates of interest required by law to be used during that same

period to credit interest on the accumulated deductions of retirement

system members.

7. (i) All additional member contributions required by this

subdivision (and any interest paid thereon) which are received by the

retirement system of which the participant is a member shall be paid

into its contingent reserve fund and shall not for any purpose be deemed

to be member contributions or accumulated deductions of a member under

section 13-125 or 13-162 of the administrative code or section eight or

thirty of the BERS rules and regulations or otherwise while he or she is

a participant in the age fifty-five improved benefit retirement program

or otherwise.

(ii) All additional member contributions required for any period of

credited CPP qualifying service pursuant to paragraph one or four of

this subdivision (and any interest paid thereon pursuant to paragraph

five of this subdivision) which, pursuant to subparagraph (i) of this

paragraph, are paid by a participant, subject to the applicable

provisions of section 13-125.2 of the administrative code or subdivision

nineteen of section twenty-five hundred seventy-five of the education

law, into the contingent reserve fund of the retirement system of which

such participant is a member (other than repayments of loans of

additional member contributions pursuant to paragraph thirteen of this

subdivision or amounts paid in satisfaction of a contribution deficiency

calculated in accordance with paragraph six of this subdivision) shall

be divided in the following manner:

(A) one-half of such additional member contributions (and any such

interest paid thereon) shall be the employer contribution portion of

such additional member contributions; and

(B) one-half of such additional member contributions (and any such

interest paid thereon) shall be the employee portion of such additional

member contributions, and shall be credited to the employee additional

contributions account which shall be established for such participant

within the contingent reserve fund of such retirement system.

(iii) No person, while he or she is a participant or otherwise, shall

at any time be permitted (A) to borrow, pursuant to paragraph thirteen

of this subdivision or any other provision, any of the employer

contribution portion of his or her additional member contributions (as

established in accordance with item (A) of subparagraph (ii) of this

paragraph, including any interest paid thereon) which has been paid into

the contingent reserve fund of the retirement system; or (B) to receive

a refund of any of such employer contribution portion pursuant to

paragraph twelve of this subdivision or any other provision.

(iv) None of the employer contribution portion of a participant's

additional member contributions (including any interest paid thereon)

shall for any purpose (A) be deemed to be part of the employee portion

of additional member contributions paid by a participant; or (B) be

credited to the employee additional contributions account established

for such participant in the contingent reserve fund of the retirement

system.

(v) All repayments of loans of the employee portion of additional

member contributions pursuant to paragraph thirteen of this subdivision

and all payments of the employee portion of additional member

contributions in satisfaction of a contribution deficiency calculated in

accordance with paragraph six of this subdivision which are paid by a

participant to the contingent reserve fund of a participating retirement

system (and any interest paid thereon) shall be part of the employee

portion of such participant's additional member contributions and shall

be credited to the employee additional contributions account established

for such participant in the contingent reserve fund of such retirement

system.

8. Where a person who was a participant in the age fifty-five improved

benefit retirement program as a member of one participating retirement

system becomes such a participant as a member of the other participating

retirement system:

(i) the employer contribution portion of the additional member

contributions paid by such person to such first retirement system

pursuant to this subdivision (including any interest paid thereon) that

is attributable to any period of credited CPP qualifying service

obtained in such second retirement system by purchase or transfer, which

previously was credited in such first retirement system, shall (only for

purposes of this subdivision, and not for purposes of determining

required employer contributions to such second retirement system) be

deemed to have been paid to such second retirement system rather than to

such first retirement system; and

(ii) the employee portion of the additional member contributions paid

by such person to such first retirement system pursuant to this

subdivision (including any interest paid thereon) which remains credited

to the employee additional contributions account established for such

person in the contingent reserve fund of such first retirement system

that is attributable to any period of credited CPP qualifying service

obtained in such second retirement system by purchase or transfer, which

previously was credited in such first retirement system, shall (only for

purposes of this subdivision, and not for purposes of determining

required employer contributions to such second retirement system) be

deemed to have been paid to such second retirement system rather than to

such first retirement system, and shall be credited to the employee

additional contributions account established for such participant in the

contingent reserve fund of such second retirement system.

9. A person who was a participant in the age fifty-five improved

benefit retirement program as a member of one participating retirement

system, who becomes such a participant as a member of the other

participating retirement system and who thereafter transfers his or her

membership in such first retirement system directly to such second

retirement system as such a participant shall be deemed to have the same

unpaid balance of a loan of the employee portion of additional member

contributions pursuant to paragraph thirteen of this subdivision

(including accrued interest) as he or she had in such first retirement

system at the time of such transfer of membership to the second

retirement system.

10. Where a participant who is otherwise eligible for service

retirement pursuant to subdivision c of this section did not, prior to

the effective date of retirement, pay the entire amount of a

contribution deficiency chargeable to him or her pursuant to paragraphs

five and six of this subdivision, or repay the entire amount of a loan

of the employee portion of his or her additional member contributions

pursuant to paragraph thirteen of this subdivision (including accrued

interest on such loan), that participant, nevertheless, shall be

eligible to retire pursuant to subdivision c of this section, provided,

however, that where such participant is not entitled to a refund of the

employee portion of additional member contributions pursuant to

subparagraph (iii) of paragraph twelve of this subdivision, such

participant's service retirement benefit calculated pursuant to the

applicable provisions of section 13-162 of the administrative code or

section thirty of the BERS rules and regulations shall be reduced by a

life annuity (calculated in accordance with the method set forth in

subdivision i of section six hundred thirteen-b of this chapter) which

is actuarially equivalent to:

(i) the amount of any unpaid contribution deficiency chargeable to

such member pursuant to paragraphs five and six of this subdivision;

plus

(ii) the amount of any unpaid balance of a loan of the employee

portion of his or her additional member contributions pursuant to

paragraph thirteen of this subdivision (including accrued interest on

such loan).

11. The board of trustees of NYCERS and the retirement board of BERS

may, consistent with the provisions of this subdivision, promulgate

regulations for the payment of additional member contributions required

by this subdivision, and any interest thereon, by participants in the

age fifty-five improved benefit retirement program (including the

deduction of such contributions, and any interest thereon, from the

participants' compensation).

12. (i) Subject to the provisions of paragraph fourteen of this

subdivision, a participant in the age fifty-five improved benefit

retirement program who retires for disability pursuant to section 13-167

or 13-168 of the administrative code or section fifteen or seventeen of

the BERS rules and regulations shall be entitled, upon such retirement,

to a refund of the employee portion of his or her additional member

contributions paid pursuant to this subdivision (including any interest

on such employee portion paid to the retirement system) which remains

credited to the employee additional contributions account established

for such person in the contingent reserve fund of the retirement system

of which he or she is a member at the time of such retirement for

disability, together with interest thereon at the rate of interest

required by law to be used to credit interest on the accumulated

deductions of retirement system members, compounded annually.

(ii) Subject to the provisions of paragraph fourteen of this

subdivision, upon the death of a participant in the age fifty-five

improved benefit retirement program, there shall be paid to such person

as he or she has nominated or shall nominate to receive his or her

accumulated deductions by written designation duly executed and filed

with the retirement system during the lifetime of such participant, or,

to his or her estate if no such person is nominated, the employee

portion of his or her additional member contributions paid pursuant to

this subdivision (including any interest on such employee portion paid

to the retirement system) which remains credited to the employee

additional contributions account established for such person in the

contingent reserve fund of the retirement system of which he or she is a

member at the time of his or her death, together with interest thereon

at the rate of interest required by law to be used to credit interest on

the accumulated deductions of retirement system members, compounded

annually.

(iii) Subject to the provisions of paragraph fourteen of this

subdivision, a person (A) who is or was a participant in the age

fifty-five improved benefit retirement program; (B) who retires for

service as a member of NYCERS or BERS pursuant to the applicable service

retirement provisions of the administrative code or the BERS rules and

regulations; (C) who is in active service on the effective date of

retirement; (D) who is at least sixty-two years of age on the effective

date of retirement; and (E) who was in active service for a total of at

least six months out of each of the two twelve-month periods immediately

preceding his or her retirement for service, shall, upon such retirement

for service, be entitled to a refund of the employee portion of his or

her additional member contributions paid pursuant to this subdivision

(including any interest on such employee portion paid to the retirement

system) which remains credited to the employee additional contributions

account established for such person in the contingent reserve fund of

the retirement system of which he or she is a member at the time of such

retirement for service, together with interest thereon at the rate of

interest required by law to be used to credit interest on the

accumulated deductions of retirement system members, compounded

annually.

(iv) Subject to the provisions of paragraph fourteen of this

subdivision, a person who ceases to be a participant in the age

fifty-five improved benefit retirement program as a member of a

participating retirement system because he or she ceases to hold a New

York city eligible position, who thereafter is employed in another

position in public employment which is not a New York city eligible

position, but which entitles such person to membership in another public

retirement system which is maintained in whole or in part by the city or

state of New York, and who thereafter transfers his or her membership in

such participating retirement system directly to such second public

retirement system, shall be permitted to withdraw the employee portion

of his or her additional member contributions paid pursuant to this

subdivision (including any interest on such employee portion paid to the

retirement system) which remains credited to the employee additional

contributions account established for such person in the contingent

reserve fund of such participating retirement system, together with

interest thereon at the rate of interest required by law to be used to

credit interest on the accumulated deductions of retirement system

members, compounded annually.

(v) Subject to the provisions of paragraph fourteen of this

subdivision, any person who withdraws as a participant in the age

fifty-five improved benefit retirement program by filing a valid request

for such withdrawal pursuant to subparagraph (ii) of paragraph three of

subdivision b of this section shall, upon such withdrawal, be entitled

to a refund of the employee portion of his or her additional member

contributions paid pursuant to this subdivision (including any interest

on such employee portion paid to the retirement system) which remains

credited to the employee additional contributions account established

for such person in the contingent reserve fund of the retirement system

of which he or she is a member at the time of such withdrawal as a

participant, together with interest thereon at the rate of interest

required by law to be used to credit interest on the accumulated

deductions of retirement system members, compounded annually.

(vi) Subject to the provisions of paragraph fourteen of this

subdivision, a participant in the age fifty-five improved benefit

retirement program who has been terminated from employment in a New York

city eligible position for economic reasons by his or her public

employer shall be entitled, upon such termination, to withdraw the

employee portion of his or her additional member contributions paid

pursuant to this subdivision (including any interest on such employee

portion paid to the retirement system) which remains credited to the

employee additional contributions account established for such person in

the contingent reserve fund of the retirement system of which he or she

is a member at the time of such termination from employment, together

with interest thereon at the rate of interest required by law to be used

to credit interest on the accumulated deductions of retirement system

members, compounded annually.

(vii) Subject to the provisions of paragraph fourteen of this

subdivision, a participant in the age fifty-five improved benefit

retirement program (A) who retires for service pursuant to paragraph two

of subdivision c of this section; (B) who is in active service as a

participant in such program on the effective date of retirement; (C)

who, on the effective date of retirement, is at least fifty-five years

of age, but less than sixty-two years of age; and (D) who was in active

service as a participant in such program for a total of at least six

months out of each of the two twelve-month periods immediately preceding

his or her retirement for service, shall, upon such retirement for

service, be entitled to a refund of only that part of the employee

portion of his or her additional member contributions paid pursuant to

subparagraph (ii) of paragraph one of this subdivision and subparagraph

(ii) of paragraph four of this subdivision (including any interest on

such part of such employee portion paid to the retirement system) which

remains credited to the employee additional contributions account

established for such person in the contingent reserve fund of the

retirement system of which he or she is a member at the time of such

retirement for service, together with interest thereon at the rate of

interest required by law to be used to credit interest on the

accumulated deductions of retirement system members, compounded

annually, and shall not be entitled to a refund of any part of the

employee portion of his or her additional member contributions paid

pursuant to subparagraph (i) of paragraph one of this subdivision or

subparagraph (i) of paragraph four of this subdivision (or any interest

paid on such part of such employee portion of his or her additional

member contributions), or any part of the employer contribution portion

of his or her additional member contributions (as established in

accordance with item (A) of subparagraph (ii) of paragraph seven of this

subdivision) paid pursuant to subparagraph (i) or (ii) of paragraph one

of this subdivision or subparagraph (i) or (ii) of paragraph four of

this subdivision (or any interest paid on such employer contribution

portion of his or her additional member contributions).

(viii) Notwithstanding any other provision of law to the contrary, (A)

no person shall be permitted to withdraw from the retirement system any

additional member contributions paid pursuant to this subdivision or any

interest paid thereon, except pursuant to and in accordance with the

preceding subparagraphs of this paragraph; and (B) no person, while he

or she is a participant in the age fifty-five improved benefit

retirement program, shall be permitted to withdraw any such additional

member contributions or any interest paid thereon pursuant to any of the

preceding subparagraphs of this paragraph or otherwise; and (C) no

person, while he or she is a participant or otherwise, shall at any time

be permitted to withdraw any of the employer contribution portion of his

or her additional member contributions, including any interest paid

thereon (as established in accordance with item (A) of subparagraph (ii)

of paragraph seven of this subdivision), pursuant to any of the

preceding subparagraphs of this paragraph or otherwise.

13. A participant in the age fifty-five improved benefit retirement

program shall be permitted to borrow from the employee portion of his or

her additional member contributions (as established in accordance with

item (B) of subparagraph (ii) of paragraph seven of this subdivision,

including any interest paid thereon) which is credited to the employee

additional contributions account established for such participant in the

contingent reserve fund of the retirement system of which he or she is a

member. The borrowing from such employee portion of additional member

contributions pursuant to this paragraph shall be governed by the same

rights, privileges, obligations and procedures set forth in section six

hundred thirteen-b of this chapter which govern the borrowing by members

subject to article fifteen of this chapter of member contributions made

pursuant to section six hundred thirteen of this chapter. The board of

trustees of NYCERS and the retirement board of BERS may, consistent with

the provisions of this subdivision and the provisions of section six

hundred thirteen-b of this chapter as made applicable to this

subdivision, promulgate regulations governing the borrowing of such

employee portion of additional member contributions, provided, however,

that no person, while he or she is a participant or otherwise, shall at

any time be permitted to borrow, pursuant to this paragraph or any other

provision, any of the employer contribution portion of his or her

additional member contributions, including any interest paid thereon (as

established in accordance with item (A) of subparagraph (ii) of

paragraph seven of this subdivision).

14. Whenever a person has an unpaid balance of a loan of the employee

portion of his or her additional member contributions pursuant to

paragraph thirteen of this subdivision at the time he or she becomes

entitled to a refund of the employee portion of his or her additional

member contributions pursuant to paragraph twelve of this subdivision,

the amount of such unpaid loan balance (including accrued interest)

shall be deemed to have been returned to such member, and the refund of

such employee portion shall be the net amount of such employee portion,

together with interest thereon in accordance with the provisions of

paragraph twelve of this subdivision.

15. Notwithstanding any other provision of law to the contrary, the

provisions of section one hundred thirty-eight-b of this chapter shall

not be applicable to the additional member contributions which are

required by this subdivision.

16. Notwithstanding any other provision of law to the contrary, the

additional member contributions which are required by this subdivision

shall not be reduced under any program for increased-take-home-pay.

17. The provisions of subdivision b of section four hundred forty of

this article shall apply to participants under this section.

* NB There are 2 § 445-d's