Section 40. Membership of retirement system

a. Each person who becomes a
  member  of  the  retirement  system  shall  file  a  duly  executed  and
  acknowledged  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  policeman and fireman, 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
  policemen and firemen 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  policemen  and  firemen,  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.