Senate Bill S7174

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7174--A

                            I N  S E N A T E

                               May 1, 2012
                               ___________

Introduced  by  Sen. MARTINS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Civil Service and Pensions
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and recommitted to said committee

AN  ACT  to amend the retirement and social security law, in relation to
  providing accidental disability retirement  benefits  for  chief  fire
  marshals, assistant fire marshals, division supervising fire marshals,
  supervising fire marshals, fire marshals and fire marshal trainees

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The retirement and social security law is amended by adding
a new section 605-d to read as follows:
  S 605-D. ACCIDENTAL DISABILITY RETIREMENT  FOR  CHIEF  FIRE  MARSHALS,
ASSISTANT FIRE MARSHALS, DIVISION SUPERVISING FIRE MARSHALS, SUPERVISING
FIRE  MARSHALS,  FIRE  MARSHALS  AND  FIRE MARSHAL TRAINEES. A. A MEMBER
EMPLOYED AS A CHIEF  FIRE  MARSHAL,  ASSISTANT  FIRE  MARSHAL,  DIVISION
SUPERVISING FIRE MARSHAL, SUPERVISING FIRE MARSHAL, FIRE MARSHAL OR FIRE
MARSHAL TRAINEE SHALL BE ENTITLED TO AN ACCIDENTAL DISABILITY RETIREMENT
ALLOWANCE IF, AT THE TIME APPLICATION THEREFOR IS FILED, SUCH MEMBER IS:
  1. PHYSICALLY OR MENTALLY INCAPACITATED FOR PERFORMANCE OF DUTY AS THE
NATURAL  AND  PROXIMATE  RESULT  OF  AN ACCIDENT, UNLESS THE CONTRARY BE
PROVED BY COMPETENT EVIDENCE, NOT CAUSED BY HIS OWN WILLFUL  NEGLIGENCE,
SUSTAINED  IN SUCH SERVICE AND WHILE ACTUALLY A MEMBER OF THE RETIREMENT
SYSTEM; AND
  2. ACTUALLY IN SERVICE UPON WHICH HIS  OR  HER  MEMBERSHIP  IS  BASED.
HOWEVER,  IN  A  CASE WHERE A MEMBER IS DISCONTINUED FROM SERVICE SUBSE-
QUENT TO THE ACCIDENT, EITHER VOLUNTARILY OR INVOLUNTARILY, AND PROVIDED
THAT THE MEMBER MEETS THE REQUIREMENTS OF PARAGRAPH ONE OF THIS SUBDIVI-
SION, APPLICATION MAY BE MADE EITHER (A) BY A  VESTED  MEMBER  INCAPACI-
TATED  AS  THE  RESULT  OF  A QUALIFYING WORLD TRADE CENTER CONDITION AS
DEFINED IN SECTION TWO OF THIS CHAPTER AT ANY TIME,  OR  (B)  NOT  LATER
THAN TWO YEARS AFTER THE MEMBER IS FIRST DISCONTINUED FROM SERVICE.
  B.  APPLICATION  FOR AN ACCIDENTAL DISABILITY RETIREMENT ALLOWANCE FOR
SUCH A MEMBER MAY BE MADE BY:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15351-03-2

S. 7174--A                          2

  1. SUCH MEMBER; OR
  2. THE HEAD OF THE DEPARTMENT IN WHICH SUCH MEMBER IS EMPLOYED; OR
  3. ANY PERSON ACTING ON BEHALF OF AND AUTHORIZED BY SUCH MEMBER.
  C.  1.  AFTER  THE FILING OF SUCH AN APPLICATION, SUCH MEMBER SHALL BE
GIVEN ONE OR MORE MEDICAL EXAMINATIONS. NO  SUCH  APPLICATION  SHALL  BE
APPROVED,  HOWEVER, UNLESS THE MEMBER OR SOME OTHER PERSON ON HIS BEHALF
SHALL HAVE FILED WRITTEN NOTICE IN THE OFFICE OF THE COMPTROLLER  WITHIN
NINETY DAYS AFTER THE ACCIDENT, SETTING FORTH:
  (A) THE TIME WHEN AND THE PLACE WHERE SUCH ACCIDENT OCCURRED; AND
  (B) THE PARTICULARS THEREOF; AND
  (C) THE NATURE AND EXTENT OF THE MEMBER'S INJURIES; AND
  (D) HIS OR HER ALLEGED INCAPACITY.
  2. THE NOTICE HEREIN REQUIRED NEED NOT BE GIVEN:
  (A)  IF  THE NOTICE OF SUCH ACCIDENT SHALL BE FILED IN ACCORDANCE WITH
THE PROVISIONS OF THE WORKERS' COMPENSATION  LAW  OF  ANY  STATE  WITHIN
WHICH  A  PARTICIPATING  EMPLOYER  SHALL  HAVE  ITS EMPLOYEES LOCATED OR
PERFORMING FUNCTIONS AND DUTIES WITHIN THE NORMAL SCOPE OF THEIR EMPLOY-
MENT; OR
  (B) IF THE APPLICATION FOR ACCIDENTAL DISABILITY RETIREMENT  IS  FILED
WITHIN ONE YEAR AFTER THE DATE OF SUCH ACCIDENT; OR
  (C)  IF A FAILURE TO FILE NOTICE HAS BEEN EXCUSED FOR GOOD CAUSE SHOWN
AS PROVIDED BY RULES AND REGULATIONS PROMULGATED BY THE COMPTROLLER.
  D. IF THE COMPTROLLER DETERMINES THAT  THE  MEMBER  IS  PHYSICALLY  OR
MENTALLY  INCAPACITATED  FOR  THE  PERFORMANCE  OF  DUTY AND OUGHT TO BE
RETIRED FOR ACCIDENTAL DISABILITY, SUCH MEMBER SHALL BE SO RETIRED. SUCH
RETIREMENT SHALL BE EFFECTIVE AS OF A DATE APPROVED BY THE COMPTROLLER.
  E. THE ANNUAL RETIREMENT ALLOWANCE PAYABLE UPON ACCIDENTAL  DISABILITY
RETIREMENT  SHALL  BE  A  PENSION OF THREE-QUARTERS OF HIS FINAL AVERAGE
SALARY. THE PAYMENT OF SUCH PENSION SHALL BE SUBJECT TO  THE  PROVISIONS
OF SECTION SIXTY-FOUR OF THIS CHAPTER.
  F.  IF  THE  MEMBER, AT THE TIME OF THE FILING OF AN APPLICATION UNDER
THE PROVISIONS OF SUBDIVISION B OF  THIS  SECTION,  IS  ELIGIBLE  FOR  A
SERVICE RETIREMENT BENEFIT, THEN AND IN THAT EVENT, HE MAY SIMULTANEOUS-
LY  FILE  AN  APPLICATION  FOR SERVICE RETIREMENT IN ACCORDANCE WITH THE
PROVISION OF SECTION SEVENTY OF THIS CHAPTER, PROVIDED THAT  THE  MEMBER
INDICATES  ON  THE APPLICATION FOR SERVICE RETIREMENT THAT SUCH APPLICA-
TION IS FILED WITHOUT PREJUDICE TO THE APPLICATION FOR ACCIDENTAL  DISA-
BILITY RETIREMENT.
  G.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF LAW, THIS SECTION SHALL
APPLY TO CHIEF FIRE MARSHALS, ASSISTANT FIRE MARSHALS,  DIVISION  SUPER-
VISING  FIRE MARSHALS, SUPERVISING FIRE MARSHALS, FIRE MARSHALS AND FIRE
MARSHAL TRAINEES WHO WERE HIRED ON OR AFTER JULY  TWENTY-SEVENTH,  NINE-
TEEN HUNDRED SEVENTY-SIX.
  H.  1.  (A)  NOTWITHSTANDING  ANY PROVISIONS OF THIS CHAPTER OR OF ANY
GENERAL, SPECIAL OR LOCAL LAW, CHARTER, ADMINISTRATIVE CODE OR  RULE  OR
REGULATION  TO THE CONTRARY, IF ANY CONDITION OR IMPAIRMENT OF HEALTH IS
CAUSED BY A QUALIFYING  WORLD  TRADE  CENTER  CONDITION  AS  DEFINED  IN
SECTION  TWO  OF  THIS CHAPTER, IT SHALL BE PRESUMPTIVE EVIDENCE THAT IT
WAS INCURRED IN THE PERFORMANCE AND DISCHARGE OF DUTY  AND  THE  NATURAL
AND  PROXIMATE  RESULT  OF  AN  ACCIDENT NOT CAUSED BY SUCH MEMBER'S OWN
WILLFUL NEGLIGENCE, UNLESS THE CONTRARY BE PROVED BY COMPETENT EVIDENCE.
  (B) THE COMPTROLLER IS HEREBY AUTHORIZED TO PROMULGATE RULES AND REGU-
LATIONS TO IMPLEMENT THE PROVISIONS OF THIS PARAGRAPH.
  2. (A) NOTWITHSTANDING THE PROVISIONS OF THIS CHAPTER OR OF ANY GENER-
AL, SPECIAL OR LOCAL LAW, CHARTER, ADMINISTRATIVE CODE OR RULE OR  REGU-
LATION  TO  THE  CONTRARY,  IF  A MEMBER WHO PARTICIPATED IN WORLD TRADE

S. 7174--A                          3

CENTER RESCUE, RECOVERY OR CLEANUP OPERATIONS, AS DEFINED IN SECTION TWO
OF THIS CHAPTER, AND SUBSEQUENTLY RETIRED ON A  SERVICE  RETIREMENT,  AN
ORDINARY  DISABILITY  RETIREMENT  OR  A  PERFORMANCE  OF DUTY DISABILITY
RETIREMENT  AND SUBSEQUENT TO SUCH RETIREMENT IS DETERMINED BY THE COMP-
TROLLER TO HAVE A QUALIFYING WORLD TRADE CENTER CONDITION, AS DEFINED IN
SECTION TWO OF THIS CHAPTER, UPON SUCH DETERMINATION BY THE  COMPTROLLER
IT  SHALL  BE PRESUMED THAT SUCH DISABILITY WAS INCURRED IN THE PERFORM-
ANCE AND DISCHARGE OF DUTY AS THE NATURAL AND  PROXIMATE  RESULT  OF  AN
ACCIDENT  NOT  CAUSED  BY SUCH MEMBER'S OWN WILLFUL NEGLIGENCE, AND THAT
THE MEMBER WOULD HAVE BEEN PHYSICALLY OR MENTALLY INCAPACITATED FOR  THE
PERFORMANCE  AND  DISCHARGE OF DUTY OF THE POSITION FROM WHICH HE OR SHE
RETIRED HAD THE CONDITION BEEN KNOWN AND FULLY DEVELOPED AT THE TIME  OF
THE  MEMBER'S  RETIREMENT,  UNLESS  THE  CONTRARY IS PROVEN BY COMPETENT
EVIDENCE.
  (B) THE COMPTROLLER SHALL CONSIDER A RECLASSIFICATION OF THE  MEMBER'S
RETIREMENT  AS  AN  ACCIDENTAL DISABILITY RETIREMENT EFFECTIVE AS OF THE
DATE OF SUCH RECLASSIFICATION.
  (C) SUCH MEMBER'S RETIREMENT OPTION SHALL NOT BE CHANGED AS  A  RESULT
OF SUCH RECLASSIFICATION.
  (D)  THE  MEMBER'S FORMER EMPLOYER AT THE TIME OF THE MEMBER'S RETIRE-
MENT SHALL HAVE AN OPPORTUNITY TO BE HEARD ON THE  MEMBER'S  APPLICATION
FOR  RECLASSIFICATION  BY THE COMPTROLLER ACCORDING TO PROCEDURES DEVEL-
OPED BY THE COMPTROLLER.
  (E) THE COMPTROLLER IS HEREBY AUTHORIZED TO PROMULGATE RULES AND REGU-
LATIONS TO IMPLEMENT THE PROVISIONS OF THIS PARAGRAPH.
  I. NOTWITHSTANDING ANY OTHER PROVISION  OF  THIS  CHAPTER  OR  OF  ANY
GENERAL,  SPECIAL  OR LOCAL LAW, CHARTER, ADMINISTRATIVE CODE OR RULE OR
REGULATION TO THE CONTRARY, IF A RETIREE WHO: (1) HAS MET  THE  CRITERIA
OF  SUBDIVISION H OF THIS SECTION AND RETIRED ON A SERVICE OR DISABILITY
RETIREMENT, OR WOULD HAVE MET THE CRITERIA IF NOT ALREADY RETIRED ON  AN
ACCIDENTAL  DISABILITY; AND (2) HAS NOT BEEN RETIRED FOR MORE THAN TWEN-
TY-FIVE YEARS; AND (3) DIES FROM A QUALIFYING WORLD TRADE CENTER  CONDI-
TION,  AS  DEFINED  IN SECTION TWO OF THIS CHAPTER, AS DETERMINED BY THE
APPLICABLE HEAD OF THE RETIREMENT SYSTEM OR  APPLICABLE  MEDICAL  BOARD,
THEN  UNLESS  THE CONTRARY BE PROVEN BY COMPETENT EVIDENCE, SUCH RETIREE
SHALL BE DEEMED TO HAVE DIED AS A NATURAL AND  PROXIMATE  RESULT  OF  AN
ACCIDENT  SUSTAINED  IN  THE  PERFORMANCE OF DUTY AND NOT AS A RESULT OF
WILLFUL NEGLIGENCE ON HIS OR HER PART. SUCH RETIREE'S ELIGIBLE BENEFICI-
ARY, AS SET FORTH IN SECTION SIX HUNDRED ONE OF THIS ARTICLE,  SHALL  BE
ENTITLED  TO  AN  ACCIDENTAL  DEATH  BENEFIT  AS PROVIDED BY SECTION SIX
HUNDRED SEVEN OF THIS ARTICLE, HOWEVER, FOR THE PURPOSES OF  DETERMINING
THE  SALARY  BASE UPON WHICH THE ACCIDENTAL DEATH BENEFIT IS CALCULATED,
THE RETIREE SHALL BE DEEMED TO HAVE DIED ON  THE  DATE  OF  HIS  OR  HER
RETIREMENT.  UPON  THE  RETIREE'S  DEATH, THE ELIGIBLE BENEFICIARY SHALL
MAKE A WRITTEN APPLICATION TO THE HEAD OF THE RETIREMENT  SYSTEM  WITHIN
THE  TIME  FOR  FILING AN APPLICATION FOR AN ACCIDENTAL DEATH BENEFIT AS
SET FORTH IN SECTION  SIX  HUNDRED  SEVEN  OF  THIS  ARTICLE  REQUESTING
CONVERSION OF SUCH RETIREE'S SERVICE OR DISABILITY RETIREMENT BENEFIT TO
AN  ACCIDENTAL DEATH BENEFIT. AT THE TIME OF SUCH CONVERSION, THE ELIGI-
BLE BENEFICIARY SHALL RELINQUISH ALL RIGHTS TO THE PROSPECTIVE  BENEFITS
PAYABLE  UNDER  THE  SERVICE OR DISABILITY RETIREMENT BENEFIT, INCLUDING
ANY POST-RETIREMENT DEATH BENEFITS, SINCE THE RETIREE'S DEATH.   IF  THE
ELIGIBLE  BENEFICIARY  IS NOT THE ONLY BENEFICIARY RECEIVING OR ENTITLED
TO RECEIVE A BENEFIT UNDER THE SERVICE OR DISABILITY RETIREMENT  BENEFIT
(INCLUDING,  BUT NOT LIMITED TO, POST-RETIREMENT DEATH BENEFITS OR BENE-
FITS PAID OR PAYABLE PURSUANT TO THE RETIREE'S  OPTION  SELECTION),  THE

S. 7174--A                          4

ACCIDENTAL  DEATH  BENEFIT  PAYMENTS TO THE ELIGIBLE BENEFICIARY WILL BE
REDUCED BY ANY AMOUNTS PAID OR PAYABLE TO ANY OTHER BENEFICIARY.
  J.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  THIS CHAPTER OR OF ANY
GENERAL, SPECIAL OR LOCAL LAW, CHARTER, ADMINISTRATIVE CODE OR  RULE  OR
REGULATION TO THE CONTRARY, IF A MEMBER WHO: (1) HAS MET THE CRITERIA OF
SUBDIVISION  H  OF  THIS  SECTION; AND (2) DIES IN ACTIVE SERVICE FROM A
QUALIFYING WORLD TRADE CENTER CONDITION, AS DEFINED IN  SECTION  TWO  OF
THIS  CHAPTER,  AS  DETERMINED  BY THE APPLICABLE HEAD OF THE RETIREMENT
SYSTEM OR APPLICABLE MEDICAL BOARD TO HAVE BEEN CAUSED BY SUCH  MEMBER'S
PARTICIPATION  IN  THE  WORLD  TRADE  CENTER RESCUE, RECOVERY OR CLEANUP
OPERATIONS, AS DEFINED IN SECTION TWO OF THIS CHAPTER, THEN  UNLESS  THE
CONTRARY BE PROVEN BY COMPETENT EVIDENCE, SUCH MEMBER SHALL BE DEEMED TO
HAVE  DIED AS A NATURAL AND PROXIMATE RESULT OF AN ACCIDENT SUSTAINED IN
THE PERFORMANCE OF DUTY AND NOT AS A RESULT OF WILLFUL NEGLIGENCE ON HIS
OR HER PART. SUCH MEMBER'S ELIGIBLE BENEFICIARY, AS SET FORTH IN SECTION
SIX HUNDRED ONE OF THIS ARTICLE, SHALL  BE  ENTITLED  TO  AN  ACCIDENTAL
DEATH  BENEFIT  PROVIDED HE OR SHE MAKES WRITTEN APPLICATION TO THE HEAD
OF THE RETIREMENT SYSTEM WITHIN THE TIME FOR FILING AN  APPLICATION  FOR
AN ACCIDENTAL DEATH BENEFIT AS SET FORTH IN SECTION SIX HUNDRED SEVEN OF
THIS ARTICLE.
  S 2. The amount specified in this section, or so much thereof as shall
be  sufficient to accomplish the purpose designated, is hereby appropri-
ated and authorized to be paid as hereinafter provided,  to  the  public
officers and for the purposes specified, which amount shall be available
for the state fiscal year beginning April 1, 2012.

           MISCELLANEOUS -- ALL STATE DEPARTMENTS AND AGENCIES
                          GENERAL STATE CHARGES
                        STATE OPERATIONS 2012-13

GENERAL STATE CHARGES

  General Fund
  State Purposes Account

For  the state's contribution to the employ-
  ees'  retirement  system  pension  accumu-
  lation  fund and the New York state public
  employees group life  insurance  plan,  as
  required  by  section 25 of the retirement
  and social security law, to  pay  for  the
  purposes  of  section 605-d of the retire-
  ment and social security law .................... 52,000

  S 3. This act shall take effect immediately; provided,  however,  that
section  two  of this act shall be deemed to have been in full force and
effect on and after April 1, 2012.
  FISCAL NOTE.--Pursuant to Legislative Law, Section 50:
  This bill would grant Tier 3, 4 and 5 chief fire  marshals,  assistant
fire  marshals,  division  supervising  fire  marshals, supervising fire
marshals, fire marshals and fire marshal trainees an accidental disabil-
ity for injuries sustained in the performance of duty and the result  of
an  accident,  unless  the contrary be proven by competent evidence. The
benefit for an accidental disability would be 75% of final average sala-
ry less worker's compensation.

S. 7174--A                          5

  If this bill is enacted during the 2012 session, insofar as this  bill
would  affect  Nassau  County,  there  will  be an estimated increase of
approximately $52,000 in the annual contributions for  the  fiscal  year
ending March 31, 2013.
  These  estimated costs are based on fifty-three (53) members having an
annual salary for the fiscal year ending March 31, 2012 of approximately
$5.5 million.
  There would also be a cost for any other  municipality  which  employs
fire  marshals,  which would depend on the salaries of the affected fire
marshals.
  Summary of relevant resources:
  Data: March 31, 2011 Actuarial Year End  File  with  distributions  of
membership  and  other  statistics  displayed  in the 2011 Report of the
Actuary and 2011 Comprehensive Annual Financial Report.
  Assumptions and Methods: 2010 and 2011  Annual  Report  to  the  Comp-
troller  on  Actuarial  Assumptions,  Codes Rules and Regulations of the
State of New York: Audit and Control.
  Market Assets and GASB Disclosures: March 31, 2011 New York State  and
Local  Retirement System Financial Statements and Supplementary Informa-
tion.
  Valuations of Benefit Liabilities and Actuarial Assets: summarized  in
the 2011 Actuarial Valuations report.
  I am a member of the American Academy of Actuaries and meet the Quali-
fication Standards to render the actuarial opinion contained herein.
  This  estimate,  dated March 15, 2012 and intended for use only during
the 2012 Legislative Session, is Fiscal Note No.  2012-90,  prepared  by
the  Actuary  for  the  New  York  State and Local Employees' Retirement
System.