Section 41. Allowances for service  


Latest version.
  • a. Generally. Subject to all provisions
      of law appertaining thereto and to such reasonable rules and regulations
      as the comptroller shall adopt or amend in pursuance thereof,  he  shall
      determine  and  may  modify allowances for service and shall issue prior
      service certificates and certificates for service in war after world war
      I. The comptroller, however, shall not  allow  more  than  one  year  of
      credit for all service rendered in any calendar year.
        b.  Allowable  service.  Only  the following types of service shall be
      allowable in computing service credits:
        1. Government service.
        2. Prior city and county service rendered in a city of the state or in
      a county within the boundaries of such city, if such city has a  pension
      system allowing credit for prior state and county service.
        3.  Prior  service  rendered to an employer before the latter became a
      participating employer. Such credit shall be allowable immediately  upon
      such employer's becoming a participating employer. The employer for whom
      the  member is working at the time such prior service credit is allowed,
      shall pay the contribution required to be made by an employer on account
      of such credit.
        4. Civil service in any capacity as an  officer  or  employee  of  the
      federal  government, or military duty in the armed forces of the federal
      government and not otherwise creditable,  rendered  or  performed  by  a
      member  prior  to  the  time  he  last became a member. The allowance of
      credit for such service shall be conditioned upon  the  receipt  by  the
      retirement  system  of  all  the payments required to be made on account
      thereof by section forty-two of this article.
        5. Civil service rendered as an officer or  employee  of  the  federal
      government as provided in subdivision d or paragraph four of subdivision
      c  of  section  forty  of this article. The allowance of credit for such
      service shall be conditioned upon the receipt by the  retirement  system
      of  all  the  payments required to be made on account thereof by section
      forty-two of this article. Except as  so  provided,  employment  by  the
      federal  government  shall  not  entitle  a  person to contribute to the
      retirement system during the period of such employment.
        6. Any member may obtain credit for any allowable service:
        (a) For which  he  made  contributions,  regardless  of  whether  such
      contributions were returned to him when he left such service, or
        (b)  Rendered  by him while not a member of any retirement system that
      is actuarially sound and of which the state or municipality thereof is a
      contributor, provided  he  makes  the  contributions  required  by  this
      article for such credit and renders at least two years of member service
      after he last became a member.
      No  credit shall be allowed for service if, but for the member's failure
      to avail himself of the privilege of transfer within the time and in the
      manner provided in section forty-three of this article, credit for  such
      service  could  have been obtained upon transfer from another retirement
      system pursuant to such section.
        c. Purchase of previous member service credit.
        1. A member who has not previously been a member may  purchase  credit
      at  any time for all allowable member service; provided, however, that a
      member joining the system pursuant to paragraph nine of subdivision c of
      section forty of this article shall not be permitted to purchase  credit
      for,  or otherwise be allowed credit for the previous service upon which
      his retirement or pension from another pension or retirement  system  is
      or  would  be based. In order to purchase credit, which may be purchased
      pursuant to this paragraph,  the  member  shall  pay  into  the  annuity
      savings  fund,  either  in a lump sum or in installments, a sum equal to
      the amount which would have been in such  fund  to  his  credit  had  he
    
      actually  been a member contributing thereto during the entire period of
      such previous member service. If such payment be made  in  installments,
      the  same  shall  be  paid within a period no greater than the number of
      months of such member service.
        2.  A member who, after a previous membership, withdrew all or part of
      his accumulated contributions  shall  be  credited  with  all  allowable
      service rendered prior to such withdrawal, provided he:
        (a)  Renders  at  least  two  years  of  member service after his last
      withdrawal, and
        (b) Redeposits such withdrawn amount  in  the  annuity  savings  fund,
      either  in  a  lump  sum  or  in installments; provided, however, that a
      member joining the system pursuant to paragraph nine of subdivision c of
      section forty of this article shall not be permitted to purchase  credit
      for,  or otherwise be allowed credit for the previous service upon which
      his retirement or pension from another pension or retirement  system  is
      or  would  be  based.  If such payment be made in installments, the same
      shall be paid within a period no greater than the number  of  months  of
      member service lost by such withdrawal.
        d.  Credit  allowable  only  if  paid  for. In the event that a member
      retires or that any benefit becomes payable because of his membership in
      the retirement system prior to the completion of  all  of  the  payments
      required  to  be  made  by him as a condition precedent to his obtaining
      credit for member service, the amount of  his  retirement  allowance  or
      such other benefits shall be based only on:
        1.  The  service  rendered by him since he last became a member of the
      retirement system and for which contributions have been paid by him, and
        2. Any  additional  service,  all  the  conditions  precedent  to  the
      crediting  of  which  have been completely fulfilled by him. However, if
      the full amount of the payments required to be made by the member is not
      paid to the retirement system, the amount of  service  credit  shall  be
      proportional to the total amount of the payments made.
        e. Waiver of membership requirement in certain cases. In the case of a
      person  in  the  employ of a participating employer, the requirements in
      sections sixty and seventy-five of this article that a member must  have
      credit for one or more years of service as a member shall not apply if:
        1.  Such  person  became  a  member within one year after his employer
      became a participating employer, and
        2. He was in the service of such participating employer for the entire
      year previous to his retirement or death.
        f. Restoration of credit in certain cases.
        1. A member who has been discontinued from service through no fault of
      his own and who has withdrawn his accumulated contributions  shall  have
      his total service credit restored in full if:
        (a)  He had less than twenty years of total service credit when he was
      so discontinued, and
        (b) He returns to service within ten years after such  discontinuance,
      and
        (c) He redeposits the total amount so withdrawn by him and
        (d)  His  employer  elects to and does pay to the pension accumulation
      fund an amount equal to the reserve required to cover  such  restoration
      of credit.
        2.  Upon  such  return to service, such member shall contribute to the
      retirement system as a new member.
        3. In the event such a member retires before his employer  makes  such
      payment,  he  may  elect  to  receive his benefit immediately as if full
      service credit were allowable. He thereupon shall be entitled to receive
      the full amount of such benefit for such period as the same can be  paid
      from  the  combined  reserve  available  on  his  account in the annuity
    
      reserve fund and pension reserve fund.  When  his  employer  makes  such
      payment,  his  benefit thereafter shall be continued from the reserve so
      paid.
        4.   The  provisions  of  this  subdivision  f  shall  be  controlling
      notwithstanding any provision in this article to the contrary.
        g. Prior service credit and credit for service in war after world  war
      I  in certain cases. Allowable prior service credit and allowable credit
      for service in war after world war I shall be granted immediately to:
        1. Any member who shall have rendered at least two  years  of  service
      since he last became a member.
        2. Any person who is in the service of a participating employer on the
      date  it approves participation and who becomes a member within one year
      after such date.
      The employer for whom the member is  working  at  the  time  such  prior
      service  credit  or  credit  for  service  in  war  after world war I is
      allowed, shall pay the contribution required to be made by  an  employer
      on account of such credit.
        h.  Prior  service  certificates  and  certificates for service in war
      after world war I.
        1. The comptroller shall issue a certificate, to be known as  a  prior
      service  certificate,  to  each member entitled to prior service credit.
      Such certificate shall certify the amount of such credit which shall  be
      allowed in computing any pension provided for by this article.
        2.  The  comptroller,  upon application, shall issue a certificate for
      service in war after world war I to each member entitled  thereto.  Such
      certificate  shall certify to service in war after world war I allowable
      to such member.
        3. The comptroller, upon application of a member at any time, or  upon
      his  own initiative within one year from the date of issuance of a prior
      service certificate or a certificate for service in war after world  war
      I  may  modify any such certificate in accordance with the allowance for
      prior service or service in war after world war I credit  to  which  the
      member is shown to be entitled.
        4.  A  member's  prior service certificate, certificate for service in
      war after world war I, or any such certificate as modified, shall become
      void upon the termination of his membership in  the  retirement  system.
      Except  as  provided by subdivision d of section one hundred two of this
      article, resumption  of  membership  after  such  termination  shall  be
      without credit for prior service or service in war after world war I.
        i. Allowances during leaves of absence without pay.
        1. Time during which a member is absent on leave without pay:
        (a) Shall not be included in computing prior service.
        (b)  May  be  included  in  computing member service and final average
      salary only if the head of  the  department  in  which  such  member  is
      employed  and the comptroller allow such time for retirement purposes at
      the time such leave of absence is granted.
        (c) Shall be included in computing member service  and  final  average
      salary  in  case  such a leave of absence was granted, during the period
      from March first, nineteen hundred forty, until  six  months  after  the
      termination  of  world war II, to enable the member to enter the service
      of the federal government or its associated powers, or to engage in  war
      work or defense industries only if:
        (1)  The  fact  that  such  service was rendered is established to the
      satisfaction of the comptroller, and
        (2) Such member shall have notified the comptroller in writing, on  or
      before  July  first,  nineteen  hundred  forty-seven, or within one year
      after such leave of absence was granted, that he claims  member  service
      credit pursuant to the provisions of this subparagraph (c), and
    
        (3) Such member, within a period not greater than the number of months
      during which he was on leave of absence, shall pay into:
        (aa)  The annuity savings fund such amounts as would have been in such
      fund to his credit had he remained in the  performance  of  his  regular
      duties  as  a member at the same salary he was receiving when such leave
      of absence was granted, and
        (bb) The pension accumulation fund such amounts as would have been  in
      such fund had he remained in the performance of his regular duties. Such
      amounts  shall  be  determined by the actuary and shall be sufficient to
      pay the contribution that the state or a  participating  employer  would
      have  paid  for  an  ordinary  death benefit and for that portion of the
      pension provided for in paragraph two of subdivision a or paragraph  two
      of  subdivision  b  of  section seventy-five of this article for service
      during such period.
        (d) Shall be included in computing member service  and  final  average
      salary  in case such a leave of absence commenced during the period from
      April first, nineteen hundred sixty-six through June thirtieth, nineteen
      hundred seventy-four, and was granted for a period of not more than  two
      years  to enable the member to perform services as a civilian officer or
      employee of  the  Federal  government  or  one  of  its  agencies  or  a
      contractor  of  the  United  States Agency for International Development
      engaged to perform the work of such  agency,  the  United  Nations,  any
      other  international  organization of which the United States of America
      is a member, or a foreign government only if:
        (1) The comptroller allows  inclusion  of  such  time  for  retirement
      purposes at the time such leave of absence is granted, and
        (2)  Payment during such leave of absence or within one year after the
      end of such leave of absence is made by the employee into:
        (aa)  The  annuity  savings  fund  of  contributions  equal   to   the
      contributions which the member would have made during the period of such
      leave of absence had he been performing his regular duties, and
        (bb)  The pension accumulation fund of a further contribution equal to
      the contribution which his employer would have made on his behalf during
      the period of such leave of absence had he been performing  his  regular
      duties.  The  payments  required  by  this  item (bb) may be made on the
      member's behalf by the organization employing him during such  leave  of
      absence.
        2.  In  the  event that, during a leave of absence granted pursuant to
      subparagraph (c) of paragraph one of this subdivision i
        (a) The position of such  member  is  abolished  or  made  unnecessary
      through  no delinquency or misconduct on his part, such leave of absence
      shall be deemed to continue until six months after  the  termination  of
      world  war II and such member may continue his contributions and receive
      credit therefor during such period.
        (b) A disability or injury of such member occurs, he shall be entitled
      only to the return of his contributions.
        (c)  The  death  of  such  member   occurs,   his   beneficiaries   or
      representatives  shall be entitled only to the return of his accumulated
      contributions and the ordinary death  benefit,  if  such  benefit  would
      otherwise be payable.
        3. In the event that a member, who made contributions pursuant to such
      subparagraph  (c),  is separated from service before he becomes eligible
      for a retirement allowance or a death benefit,  all  such  contributions
      and  his  accumulated  contributions  shall be returned to him or to his
      beneficiaries or representatives.
        j. Allowance for unused sick leave for members in the  employ  of  the
      state.
    
        1.  In  addition  to  any  other  service credit to which he or she is
      entitled, a member who meets the requirements set  forth  in  paragraphs
      two and three of this subdivision shall be granted one day of additional
      service credit for each day of accumulated unused sick leave which he or
      she has at time of retirement for service, but such credit shall not (a)
      exceed  one  hundred  sixty-five  days, (b) be considered in meeting any
      service or age requirements prescribed  in  this  chapter,  and  (c)  be
      considered  in computing final average salary. However, for an executive
      branch member designated managerial or confidential pursuant to  article
      fourteen of the civil service law or in the collective negotiating units
      established  by article fourteen of the civil service law designated the
      professional,  scientific  and  technical  services   unit,   the   rent
      regulation  services negotiating unit, the security services negotiating
      unit, the security supervisors negotiating unit,  the  state  university
      professional  services  negotiating  unit,  the  administrative services
      negotiating unit,  the  institutional  services  negotiating  unit,  the
      operational  services  negotiating unit and the division of military and
      naval affairs negotiating unit such service credit  limitation  provided
      in subparagraph (a) of this paragraph shall not exceed two hundred days.
      For a nonjudicial officer or employee of the unified court system not in
      a  collective  negotiating  unit  or  in  a  collective negotiating unit
      specified in section one of chapter two hundred three of the laws of two
      thousand four, for employees of the New York state dormitory  authority,
      for  employees  of  the  New  York state thruway authority, the New York
      state canal corporation and the state university construction  fund  and
      for  employees  of  the  New York liquidation bureau such service credit
      limitation provided in subparagraph (a)  of  this  paragraph  shall  not
      exceed two hundred days.
        2.  Such service retirement credit shall be granted only to members in
      the employ of the state who, prior to retirement, were subject to a plan
      established by law, rule, regulation, written order  or  written  policy
      which provided for the regular earning and accumulation of sick leave.
        3.  In  the  case  of persons who last became members on or after July
      first,  nineteen  hundred  seventy-three,   the   provisions   of   this
      subdivision  shall  apply  only  to those retiring from service prior to
      July first, nineteen hundred seventy-four.
        k. Credit for certain world war II service. 1. In addition  to  credit
      for  military  service  as  defined  in  paragraph  one  of  subdivision
      thirty-one of section two of this chapter, a member in the employ of the
      state as of March thirty-first, nineteen  hundred  seventy,  may  obtain
      credit  for  military service as defined in paragraph two of subdivision
      thirty-one of section  two  of  this  chapter  in  accordance  with  the
      provisions of this subdivision.
        2.  To  obtain  such credit a member shall: (a) deposit in the annuity
      savings fund  a  sum  equal  to  the  product  of  his  normal  rate  of
      contribution  at  time  of  entry into state service, his annual rate of
      compensation at that time, and the  period  of  military  service  being
      claimed,   with  regular  interest,  and  (b)  deposit  in  the  pension
      accumulation fund a sum equal to  the  product  of  the  state's  normal
      contribution  rate  at the time of the member's entry into such service,
      his annual rate of compensation at that time, and the period of military
      service being claimed, with regular interest. Such deposit must be  made
      on or before March thirty-first, nineteen hundred seventy-two, provided,
      however,  such  member may elect to deposit such amount over a period of
      time no greater than the period for which credit is  being  claimed,  in
      which case such payments must commence no later than March thirty-first,
      nineteen hundred seventy-two. If the full amount of such payments is not
    
      paid  to  the retirement system, the amount of service credited shall be
      proportional to the total amount of the payments made.
        3.  (a)  A member who enters the employ of the state on or after April
      first, nineteen hundred seventy  and  prior  to  April  first,  nineteen
      hundred  seventy-two  shall have one year from his date of entry to make
      application and payment for such service in the manner specified  above.
      The  salary  base  for  such  an  employee  shall  be his annual rate of
      compensation at the time of his entry into state service.
        (b) A member who reenters the employ of the state on  or  after  April
      first,  nineteen  hundred  seventy  and  prior  to April first, nineteen
      hundred seventy-two shall have one year from his date of reentry to make
      application and payment for such service in the manner specified  above.
      The  salary  base  for  such payments shall be either the employee's (i)
      annual rate of compensation at the time  of  original  entry  into  such
      service  or  (ii) his annual rate of compensation upon reentry into such
      service, whichever would result in the greater contributions.
        4. Such credit for military service shall not be used  to  increase  a
      service  retirement benefit if at the time of retirement such member (a)
      is retiring from service with less  than  ten  years  of  total  service
      credit,  or (b) is retiring with less than three years of member service
      rendered subsequent to the date of last entry into state  service;  upon
      retirement  as  specified in (a) or (b), there shall be refunded to such
      member the amount of such deposit plus accrued interest exclusive of the
      amount deposited to the pension accumulation fund attributable to  death
      and disability benefits.
        5.  For  the  purposes of this subdivision the member's normal rate of
      contribution in the case of an employee of  the  state  who  (a)  enters
      service  on  or  after the date that employee contributions were reduced
      pursuant to section seventy-a or when  no  employee  contributions  were
      required  shall  be  based on the latest schedule of normal contribution
      rates in effect for employees of the state, and shall be set as if  such
      schedule had been in effect at the time of his entry into state service,
      or  (b)  transfers into the retirement system shall not be less than the
      rate the member would have had if all his  service,  exclusive  of  that
      being  claimed  pursuant  to  this  subdivision,  had been rendered as a
      member of the retirement system.
        6. In no event shall credit be granted pursuant to this subdivision if
      credit is granted  for  the  same  period  of  time  pursuant  to  other
      provisions of law.
        7. Subject to the provisions of paragraph three of this subdivision no
      application  for  credit  pursuant to the provisions of this subdivision
      shall be honored if made on  or  after  April  first,  nineteen  hundred
      seventy-two.
        8.  A member may direct, upon a form prepared by the comptroller, that
      his excess contributions be applied toward the payments required by this
      subdivision.  The  term  excess  contributions  shall  mean  accumulated
      contributions  in  excess  of  the  amount thereof required to provide a
      pension or retirement allowance. Appropriate transfers  and  credits  to
      the  annuity savings fund and the pension accumulation fund will be made
      in the manner set  forth  in  an  official  regulation  adopted  by  the
      comptroller for such purpose.
        * l.  Employer pick-up of contributions in respect of previous service
      or military service. Notwithstanding any other  provision  of  law,  any
      member  eligible  to  purchase credit for previous service with a public
      employer pursuant to this section or section forty-two of this title  or
      to  purchase  credit  for military service pursuant to article twenty of
      this chapter, may elect to purchase  any  or  all  of  such  service  by
      executing a periodic payroll deduction agreement where and to the extent
    
      such  elections  are  permitted  by  the  retirement  system  by rule or
      regulation.   Such agreement shall set  forth  the  amount  of  previous
      service or military service being purchased, the estimated total cost of
      such  service  credit,  and  the number of payroll periods in which such
      periodic payments shall be made. Such agreement  shall  be  irrevocable,
      shall  not  be  subject  to amendment or modification in any manner, and
      shall  expire  only  upon  completion  of  payroll  deductions  required
      therein.  Notwithstanding the foregoing, any member who has entered into
      such  a  payroll deduction agreement and who terminates employment prior
      to the completion of the payments required  therein  shall  be  credited
      with   any  service  as  to  which  such  member  shall  have  paid  the
      contributions required under the terms of the agreement.
        * NB Takes effect upon notice of ruling by Internal Revenue Service --
      expires per ch. 627/2007 §22