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SECTION 138-A
Referenda among public employees; extension of old-age and survivors insurance
Retirement & Social Security (RSS) CHAPTER 51-A, ARTICLE 3
§ 138-a. Referenda among public employees; extension of old-age and
survivors insurance. 1. As soon as practicable after the effective date
hereof, the governor or the state agency or officer designated by him
shall, in accordance with the applicable provisions of the federal
social security act and subdivision thirteen of this section, authorize
the separate referenda described below (and thereafter, such similarly
separated referenda as may be deemed appropriate and be consistent with
this article and such federal act):

a. One referendum among all eligible employees of the state (exclusive
of those in police officer or firefighter positions) who are members of
the New York state employees' retirement system, a second referendum
among all eligible employees of political subdivisions of the state
(exclusive of those in police officer or firefighter positions) who are
members of such retirement system, which subdivisions elected to provide
seven calendar quarters of retroactive coverage for such employees
pursuant to subdivision seven of this section, a third referendum among
all eligible employees of political subdivisions of the state (exclusive
of those in police officer or firefighter positions) who are members of
such retirement system, which subdivisions elected to provide six
calendar quarters of retroactive coverage for such employees pursuant to
subdivision seven of this section, a fourth referendum among all
eligible employees of political subdivisions of the state (exclusive of
those in police officer or firefighter positions) who are members of
such retirement system, which subdivisions elected to provide four
calendar quarters of retroactive coverage for such employees pursuant to
subdivision seven of this section, and a fifth referendum among all
eligible employees of the remaining political subdivisions of the state
(exclusive of those in police officer or firefighter positions) who are
members of such retirement system, on the question of whether service in
positions (exclusive of police officer or firefighter positions) in the
employ of the state or of such political subdivisions, as the case may
be, and covered by such system also shall be covered by old-age and
survivors insurance.

b. Separate referenda among eligible employees of the state (exclusive
of those in police officer or firefighter positions) whose positions are
covered by a separate retirement system or plan maintained by the state,
other than the New York state and local employees' retirement system or
the New York state teachers' retirement system, and who are members of
such system or plan, on the question of whether service in positions
(exclusive of police officer or firefighter positions) covered by such
system or plan also shall be covered by old-age and survivors insurance.

c. One referendum among all eligible employees of the state who are
members of the New York state teachers' retirement system, a second
referendum among all eligible employees of political subdivisions of the
state who are members of such retirement system, which subdivisions
elected to provide seven calendar quarters of retroactive coverage for
such employees pursuant to subdivision seven of this section, a third
referendum among all eligible employees of political subdivisions of the
state who are members of such retirement system, which subdivisions
elected to provide six calendar quarters of retroactive coverage for
such employees pursuant to subdivision seven of this section, a fourth
referendum among all eligible employees of political subdivisions of the
state who are members of such retirement system, which subdivisions
elected to provide four calendar quarters of retroactive coverage for
such employees pursuant to subdivision seven of this section, and a
fifth referendum among all eligible employees of the remaining political
subdivisions of the state who are members of such retirement system, on
the question of whether service in positions covered by such system also
shall be covered by old-age and survivors insurance.

d. Separate referenda among eligible employees of each political
subdivision (exclusive of those in police officer or firefighter
positions) who are members of a retirement system or plan maintained by
such political subdivision other than a retirement system relating to
retirement benefits under the Canada pension plan, on the question of
whether service in positions in the employ of such political subdivision
and covered by such system or plan also shall be covered by old-age and
survivors insurance. The modification providing old-age and survivors
insurance coverage pursuant to such referenda shall provide such
retroactive coverage, if any, and shall exclude from old-age and
survivors insurance coverage such classes of employment as authorized by
paragraph b of subdivision two of section one hundred thirty-six of this
article, if any, as the governing body of such political subdivision
shall determine, consistent with the federal social security act. Such
determination shall be made within a reasonable period of time fixed by
the director and indicated in a certificate filed with the director.

2. In the event the federal social security act is amended to
authorize the extension of old-age and survivors insurance coverage to
service performed in this state in police officer or firefighter
positions, the governor or the state agency or officer designated by him
or her shall, as soon as practicable after the enactment of such
amendment and in accordance with the applicable provisions of such
federal act and subdivision thirteen of this section, to the extent then
applicable, shall take such action as may be necessary to extend old-age
and survivors insurance coverage to such positions, including, to the
extent applicable, referenda as follows:

a. One referendum among all eligible employees of the state serving in
police officer or firefighter positions who are members of the New York
state and local employees' retirement system.

b. A separate referendum among all eligible employees of the state
serving in police officer or firefighter positions whose positions are
covered by a retirement system or plan maintained by the state other
than the New York state and local employees' retirement system, and who
are members of such system or plan.

c. One referendum among all eligible employees of political
subdivisions of the state serving in police officer or firefighter
positions who are members of the New York state and local employees'
retirement system, which political subdivisions elected to provide
retroactive coverage to or about March sixteenth, nineteen hundred
fifty-six, to such employees pursuant to subdivision seven of this
section, a second referendum among all eligible employees of political
subdivisions of the state serving in police officer or firefighter
positions who are members of such retirement system, which subdivisions
elected to provide retroactive coverage to or about June sixteenth,
nineteen hundred fifty-six, to such employees pursuant to subdivision
seven of this section, a third referendum among all eligible employees
of political subdivisions of the state serving in police officer or
firefighter positions who are members of such retirement system, which
political subdivisions elected to provide retroactive coverage to or
about December sixteenth, nineteen hundred fifty-six, to such employees
pursuant to subdivision seven of this section, and a fourth referendum
among all eligible employees of the remaining political subdivisions of
the state serving in police officer or firefighter positions who are
members of such system, which eligible employees shall have retroactive
coverage to or about December sixteenth, nineteen hundred fifty-seven.

d. Separate referenda among eligible employees of each political
subdivision serving in police officer or firefighter positions whose
positions are covered by a separate retirement system or plan maintained
by such political subdivision and who are members of such system or
plan. Each such referendum shall be on the question of whether service
in the police officer or firefighter positions affected thereby also
shall be covered by old-age and survivors insurance.

2-a. Notwithstanding any inconsistent provision of this article:

a. The alternative referendum and certification procedure provided by
paragraph seven of subdivision (d) of section two hundred eighteen of
the federal social security act, as added by public law eighty-five-two
hundred twenty-nine, may be followed in lieu of any referendum and
certification of the result thereof as required by this section. All
actions heretofore duly taken which comply or anticipate compliance with
any procedure authorized or contemplated by such paragraph seven are
hereby ratified and confirmed and shall be deemed to have been taken in
full compliance with this section.

b. Any action duly taken which extended or extends retroactive
coverage to a date on or about March sixteenth, nineteen hundred
fifty-six, or thereafter, for any public employees, including those not
provided with such coverage prior to January first, nineteen hundred
fifty-eight, is hereby ratified and confirmed and such retroactive
coverage shall be deemed to have been provided in full compliance with
this section as hereby amended.

3. Each notice of referendum required by the federal social security
act to be given to employees shall contain or shall be accompanied by a
statement, in such form and with such detail as the governor, or the
state agency or officer designated by him, shall determine is sufficient
to inform such employees of the rights which will accrue to them, their
dependents and survivors, and of the liabilities to which they will be
subject in the event that service in their positions is covered by
old-age and survivors insurance. Such information also shall be made
available to employees for a reasonable period before they are required
to indicate, pursuant to subdivision thirteen of this section, whether
they desire old-age and survivors insurance coverage.

4. The governor or the state agency or officer designated by him shall
have power to require the filing by public agencies and officers of
information and data necessary for the conduct of referenda provided for
herein and the determination of the results thereof.

5. Where in any such referendum a majority of the eligible employees
vote in favor of covering service in positions covered by a retirement
system or plan under old-age and survivors insurance, and the other
applicable conditions of the federal social security act have been met,
the governor shall make the necessary certificate to the federal
secretary in accordance with such act.

6. Whenever any such certification is made to the federal secretary,
the director shall take the necessary action to effectuate the result of
such referendum and modify the state's agreement with the federal
secretary accordingly, except that with respect to the referenda
provided by paragraph c of subdivision one of this section among
eligible employees of political subdivisions who are members of the New
York state teachers' retirement system, no such modification shall be
made with respect to employees of political subdivisions unless a
majority of all the members of the system (counted without reference to
any division theretofore made pursuant to subdivision thirteen hereof)
employed by political subdivisions voted in favor of coverage in such
referenda.

7. In the event a referendum which includes employees of the state
favors the extension of old-age and survivors insurance coverage to
positions in the employ of the state, the director shall, in such
modification, provide for retroactive coverage to March sixteenth,
nineteen hundred fifty-six. The director shall fix a reasonable period
of time during which the governing body of each political subdivision,
having employees who are members of the New York state employees'
retirement system, the New York state teachers' retirement system, or a
pension or retirement system maintained by the political subdivision may
determine to provide retroactive coverage to or about March sixteenth,
nineteen hundred fifty-six, June sixteenth, nineteen hundred fifty-six,
December sixteenth, nineteen hundred fifty-six, or December sixteenth,
nineteen hundred fifty-seven to its employees who are members of any of
such systems. The director shall have power to fix the precise
retroactive date in each such case.

7-a. Notwithstanding any action previously taken by the governing body
of any political subdivision with respect to whether or not retroactive
coverage should be extended to any of its employees or the amount of
retroactive coverage which it has provided, and notwithstanding any
inconsistent provision of this section or of any general, special or
local law, city or village charter, ordinance or resolution, in the
event the federal social security act authorizes or is amended to
authorize it to do so such governing body may, during the period
authorized by and in the manner provided by such act, extend retroactive
coverage to employees of such political subdivision to a date not
earlier than one in the first calendar quarter of nineteen hundred
fifty-six so that only one payroll date or such other minimum period,
determined by the director, shall be included in such retroactive period
to accomplish the result of providing retroactive coverage for the
earliest calendar quarter to be included in such retroactive coverage.
The director shall have power to fix the precise retroactive date in
each such case.

8. a. Notwithstanding any other provision of law, any individual who,
on or after August first, nineteen hundred fifty-six, had an option to
join a retirement system or plan applicable to his position and who
could have joined such retirement system or plan prior to the execution
date of a modification extending old-age and survivors insurance to any
position covered by such retirement system or plan, but who had not
joined such retirement system or plan prior thereto, is hereby declared
personally ineligible for membership in such retirement system or plan,
effective as of August first, nineteen hundred fifty-six, or if he first
occupies such position later, such later date.

b. The director shall modify the federal agreement under this article
to provide old-age and survivors insurance coverage to individuals in
the employ of the state who are ineligible to become members of a
retirement system applicable to their positions, including individuals
to whom paragraph a of this subdivision is applicable, and provide, with
respect to such individuals, the retroactive coverage specified in
subdivision seven of this section.

c. The director shall modify the federal agreement under this article
to provide old-age and survivors insurance coverage to individuals in
the employ of any political subdivision of the state who are ineligible
to become members of a retirement system applicable to their positions,
including individuals to whom paragraph a of this subdivision is
applicable, and provide, with respect to such individuals, the
retroactive coverage, if any, and the excludable classes of employment
as authorized by paragraph b of subdivision two of section one hundred
thirty-six of this article, if any, determined by the governing body of
the political subdivision by which such individuals are employed,
consistent with the federal social security act.

d. Eligibility for membership in a retirement system or plan is hereby
restored to every employee who was made ineligible for membership in
such a system or plan by operation of any provision of paragraph a, b or
c of this subdivision eight as originally enacted by chapter seven
hundred seventy-six of the laws of nineteen hundred fifty-seven.

9. In the event that a referendum among eligible employees of the
state or of one or more political subdivisions favors the extension of
old-age and survivors insurance coverage to positions covered by a
retirement system or plan of which they are members, persons who are
members of such system or plan as of the referendum date shall be given
such coverage only if they indicated their desire therefor, prior to the
applicable referendum, in such manner and on or before such date as the
director shall specify by rule or regulation consistent with the federal
social security act.

10. a. In the event that the referenda among eligible employees of
political subdivisions of the state (exclusive of those in police
officer or firefighter positions) who are members of the New York state
and local employees' retirement system favor the extension of old-age
and survivors insurance coverage to their positions, all positions in
the employ of each political subdivision of the state, except those
covered by a retirement system or plan of the state or the political
subdivision and subject to separate referenda hereunder, and except
those excluded from coverage pursuant to paragraph b of subdivision two
of section one hundred thirty-six of this article, also shall be covered
by old-age and survivors insurance at or about the same time that the
director modifies the agreement with the federal secretary to effectuate
the result of such referenda as to the political subdivisions affected
thereby. Each political subdivision to which old-age and survivors
insurance is extended pursuant to this subdivision shall have the
option, within a reasonable period of time fixed by the director, to
file a certificate with the director fixing the effective date of its
coverage (which may include retroactive coverage for such period as its
governing body shall determine subject to the federal social security
act and which effective date shall be not later than its last payroll
date in December nineteen hundred fifty-seven) and excluding from
coverage classes of employment as authorized by paragraph b of
subdivision two of section one hundred thirty-six of this article.

b. In the event that the referenda among eligible employees of
political subdivisions of the state who are members of the New York
state employees' retirement system favor the extension of old-age and
survivors insurance coverage to their positions, all positions in the
employ of a political subdivision of the state which is created
subsequent to the date of the modification of the agreement with the
federal secretary, to effectuate the result of such referenda also shall
be covered by old-age and survivors insurance, effective the date the
political subdivision first has employees on the payroll, or becomes
eligible, or as soon thereafter as is consistent with the federal social
security act. Each political subdivision to which old-age and survivors
insurance is extended pursuant to this paragraph shall have the option,
within a reasonable period of time fixed by the director and prior to
participation by such political subdivision in New York state employees'
retirement system, to file a certificate with the director excluding
from coverage classes of employment as authorized by paragraph b of
subdivision two of section one hundred thirty-six of this article.

11. Where the agreement with the federal secretary is modified, each
political subdivision affected thereby shall be obligated under this
article as if the modification had been made on the basis of its
application to and agreement with the director that it be so modified.

12. Where the director modifies the agreement with the federal
secretary to provide for old-age and survivors insurance coverage to
employees of the state or of a political subdivision in addition to
their coverage by a retirement system or plan, such action shall, as of
the effective date of coverage, be deemed to restore the eligibility for
membership in such system or plan of employees in positions in the
employ of the state or the political subdivision, as the case may be,
who theretofore were eligible for membership therein, but whose
positions were excluded from eligibility therein in order that old-age
and survivors insurance coverage could be extended to them.

13. A retirement system or plan, for the purposes of this article,
shall be deemed to constitute a separate retirement system with respect
to the positions covered thereby for which a separate referendum is
authorized herein. Each retirement system or plan shall be divided into
two parts, one of which shall be composed of positions of members of
such system who desire old-age and survivors insurance coverage on the
basis of their service in such positions and the other to be composed of
positions of the members who do not desire such coverage. Each such part
shall be deemed a separate retirement system for the purposes of the
referenda provided for in this article. Positions of persons who become
members of a retirement system or plan after old-age and survivors
insurance shall have been extended shall be included in the part
composed of members desiring such coverage.

14. Notwithstanding the provisions of section one hundred forty-three
of this article, the costs of each referendum conducted hereunder shall
be paid as an administrative expense by the retirement system or plan
among whose members the referendum is conducted. The governor or state
officer or agency designated by him shall have power to require each
such system or plan to pay the costs so incurred.

15. Where the compensation of any person whose position is covered by
old-age and survivors insurance pursuant to this article is paid from a
special or administrative fund provided for by law other than an income
fund of the state university or the mental hygiene services fund, the
contributions required to be paid by his employer for such coverage,
including a proportionate share of the costs of administration charged
to such employer pursuant to section one hundred thirty-nine of this
article, shall be paid from such special or administrative fund.

16. Notwithstanding anything to the contrary contained in subdivision
nine of this section, the director is hereby authorized, on behalf of
the state, consistent with the provisions of the federal social security
act, to modify the agreement with the federal secretary for the purpose
of extending old age and survivors insurance coverage to positions of
members of the division or part of a retirement system composed of
members who do not desire coverage, if in the manner and before the date
specified by the director, the individuals occupying such positions,
file with him a written request therefor.