Legal Malpractice: Final Average Salary - Tier 4 and Tier 6 Members

Introduction

In an April 23, 2019 posting, I outlined a fight between a NYCERS member and the NYCERS management over the calculation of the member’s projected pension benefit, in particular, over her final average salary (FAS). As a point of reference the management of NYCERS is engaging in this harassment over the difference between an annual benefit $5,300 versus $8,400.

In a March 20, 2019 letter the NYCERS Deputy General Counsel denied the member’s legally supported request for a proper calculation of her projected retirement benefit. The counsel’s letter failed to provide legal justification for the denial.

In response to the denial letter the member wrote to the Board of Trustees. She then received a second denial letter, dated April 22, 2019, this time from the NYCERS General Counsel, Ilyse Sisolak. This letter attempted to provide the legal support that the first denial letter lacked. This new letter, unfortunately, is either completely incorrect or purposely deceptive. I will assume that it is incorrect.

The Part-Time Law

In 1992, the governor signed Chapter 749 which was a response to NYCERS defeat in the Doctors Council part time litigation. Listed below is the first part the general counsel’s legal argument for denial of the member’s pension rights:

NYCERS First Argument

The new law added Ad. Code Section 13 -638 4 titled “Membership rights in NYCERS and BERS for part-time service credit for service, dual employment positions, membership rights of school crossing guards." The legislative history for this law establishes that the only purpose for Chapter 749 was to permit part-timers to receive service credit and a final average salary (FAS) from their part-time service. The purpose was never to change a Tier 4 member's FAS for full time service. New York Retirement and Social Security Law (RSSL) Section 608 subdivision (d) was added as part of Chapter 749 in order to account for the new calculation created for members with part-time service within Article 15 of the RSSL. Once this section was added, one could not, from the four comers of the statute, discern whether section (a)' or section (d) should be used to calculate a Tier 4 member's FAS; however, the legislative history made it clear that for full time Tier 4 members, RSSL S. 608(a) was the proper statute to use.

Using a tactic that her deputy general counsel used, Ms. Sisolak makes a statement about a section of law, Section 608(d), without quoting the actual law. Quoted below is the current wording of the statute.

Section 608(d) of the NYS RSSL

d. Subject to the provisions of subdivision c of this section, and notwithstanding the provisions of subdivision a of this section, with respect to members of the New York city employees' retirement system and the New York city board of education retirement system who are subject to the provisions of this article, a member's final average salary shall be determined pursuant to the provisions of paragraph fourteen of subdivision e of section 13-638.4 of the administrative code of the city of New York (the following text was added as part of the Tier 6 Law on 4/1/2012) , provided, however, that the applicable provisions and limitations of the term "wages", as defined in subdivision l of section six hundred one of this article, shall apply to such determinations of final average salary.

As of 1992 when Section 608(d) was created, all NYCERS and BERS Tier 4 members became subject to this subdivision “notwithstanding the provisions of subdivision a of this section”. This language is totally clear. There is no limitation with respect to full or part-time members. There is no confusion in this language. All Tier 4 NYCERS members are covered. Therefore, there is no reason to go searching the legislative history of Chapter 749. Ms. Sisolak is searching for confusion where none exists. Ms. Sisolak’s argument is simply wrong.

As an aside, you will notice that she again provides no quotes from the legislative history to support her comments.

The Tier 6 Law

Ms. Sisolak also added a second argument referring to Chapter 18 of the Laws of 2012, the “Tier 6” law. Again she provides no quotes from Chapter 18.

NYCERS Second Argument

In 2012, the NYS Legislature passed Chapter 18 of the Laws of 2012, which created Tier 6. Enactment of the Tier 6 legislation clarified that Chapter 749 only applied to part-time service. This law further modified RSSL Section 608(a) to explicitly delineate that the first sentence within this subsection, which sets forth the FAS calculation for Tier 4 members applies to NYCERS members who joined prior to April 1, 2012. The second sentence explicitly excludes NYCERS and states that it only applies to the New York state systems. Therefore, the Ad Code provisions are only to be used for part-time service and NYCERS Tier 6 members, because they are not covered by RSSL Section 608(a). As such, Chapter 18 of the Laws of 2012 provides the statutory basis for how NYCERS calculated your pension and the assertion that there is no statutory basis is incorrect.

As a reference you can see how Chapter 18 of the Laws of 2012 amended Section 608 by clicking on the link.

Chapter 18 makes no specific reference to the part-time issue.

As background, after the passage of 749 in 1992, there were still Tier 4 members in the state retirement systems that were covered by Section 608(a), i.e. state teachers, police, and firefighters.

In the first sentence of the modified Section 608.a you can clearly see that the Chapter 18 is protecting the rights of those all state?local/city members who first became members before April 1, 2012. It does not explicitly include NYCERS in this sentence as Ms. Sisolak claims.

In the new added second sentence of Section 608.a, all NYSLERS and NYSTRS members who join after April 1, 2012 are made subject to the new Tier 6 five year FAS calculation. It also does not explicitly exclude NYCERS as Ms. Sisolak claims. It imposes Tier 6 restrictions only on state employess and teachers (not police or firefighters). It is silent about city workers.

Actually as of 1992, Section 608.d (see above) was already offering Tier 4 NYCERS members another FAS definition in accordance to Section 13-638.4.e(14) inspite of S.608.a (RSSL). That is what "notwithstanding the provisions of subdivision a of this section" means as it appears in S.608.d and what "notwithstanding the provisions of subdivision a of section six hundred eight of the RSSL," means in S.13-638.4.e(14).

It is true that Section 608(d) was modified by Chapter 18 but only so far as pointing specifically to subdivision e and by adding limitations to the definition of wages. All Tier 4 NYCERS members had already been routed to Section 13-638.4.e(14) via the Part-Time Law.

In turn, Chapter 18 modified Section 13-638.4.e(14) by adding a component that applied the new 5 year calculation to new NYCERS members. You can refer to a previous post for the gory details of Section 13-638.4.e.

Conclusion

I see no logic in NYCERS arguments on this issue. It is clear to me that this member is entitled to the six consecutive year FAS in calculating her pension benefit.

NYCERS, unfortunately, has all the initial power in these situations. Unless NYCERS changes its position, the member will have to file an Article 78 which is difficult but not overwhelming. But even if she wins, NYCERS will appeal and then the cost of fighting becomes onerous.

This usually breaks the ordinary member unless you are Mr. King.

Chapter 18: Section 608 Modifications

§ 54. Subdivisions a, b, c and d of section 608 of the retirement and social security law, subdivision a as amended by chapter 379 of the laws of 1986, subdivisions b and c as amended by chapter 286 of the laws of 2010 and subdivision d as added by chapter 749 of the laws of 1992, are amended to read as follows:

a. [A] For members who first become members of a public retirement system of the state before April first, two thousand twelve, a member's final average salary shall be the average wages earned by such a member during any three consecutive years which provide the highest average wage; provided, however, if the wages earned during any year included in the period used to determine final average salary exceeds that of the average of the previous two years by more than ten percent, the amount in excess of ten percent shall be excluded from the computation of final average salary. For members who first become members of the New York state and local employees' retirement system or the New York state teachers' retirement system on or after April first, two thousand twelve, a member's final average salary shall be the average wages earned by such member during any five consecutive years which provide the highest average wage; provided, however, if the wages earned during any year included in the period used to determine final average salary exceeds that of the average of the previous four years by more than ten percent, the amount in excess of ten percent shall be excluded from the computation of final average salary. Where the period used to determine final average salary is the period which immediately precedes the date of retirement, any month or months (not in excess of twelve) which would otherwise be included in computing final average salary but during which the member was on authorized leave of absence at partial pay or without pay shall be excluded from the computation of final average salary and the month or an equal number of months immediately preceding such period shall be substituted in lieu thereof.

b. … c. …

d. Subject to the provisions of subdivision c of this section, and notwithstanding the provisions of subdivision a of this section, with respect to members of the New York city employees' retirement system and the New York city board of education retirement system who are subject to the provisions of this article, a member's final average salary shall be determined pursuant to the provisions of paragraph fourteen of > subdivision e of section 13-638.4 of the administrative code of the city of New York , provided, however, that the applicable provisions and limita- tions of the term "wages", as defined in subdivision l of section six hundred one of this article, shall apply to such determinations of final average salary.

The Fight Goes On: Overtime and Final Average Salary - Tier 4 and Tier 6 members

I previously posted a write up concerning the compensation base (Final Average Salary: FAS) used by NYCERS to compute Tier 4 retirement benefits. For most retirees this is the most important component in their retirement calculation.

In the posting I referred to a member I was helping with her dispute with NYCERS over the calculation of her compensation base to be used in her retirement benefit calculation. This member is currently working in a classic part-time title. This dispute was the reason I began to dig into the statutory definition for the Tier 4 FAS. The posting was the result of that research.

The dispute was caused by the fact that the member did not have five years of continuous full-time service to be used in the calculation of her FAS. This is a situation that occurs much more often for women than men because of child care responsibilities that fall on women for the most part and also the care of aging parents. The part-time law, that was passed in 1992, was aimed at fixing these types of problems (Chapter 749/Laws of 1992).

Through correspondence and in-person meetings with NYCERS the member clearly pointed out the statutory provisions she wanted applied to her case. On March 20, 2019, the NYCERS Deputy General Counsel, Maya Khodos, sent the member a final decision on the dispute and notified her of her right to file an Article 78 within four months of the letter’s date. We have the King v. NYCERS decision to thank for the clear appeal notice.

The key paragraph in the letter is listed below:

“NCERS is unable to perform a calculation of your Final Average Salary (FAS) pursuant to New York Administrative Code (Ad. Code) section 13-638.4(e)(14)(ii) using the years of 2000 through 2005 as you requested because such a calculation is contrary to the law. A six-year average calculation pursuant to Ad. Code 13-638.4(e)(14)(ii) may only be performed using part­time service. Full-time service is defined by this statute as City-service rendered in a title in which a person is regularly scheduled to work at least eighteen hundred twenty-seven hours per year. Your service, as reported by your agency, was full-time from 2000 to 2005.”

The key sentence in this paragraph is “A six-year average calculation pursuant to Ad. Code 13-638.4(e)(14)(ii) may only be performed using part­time service.”.

If that were a correct statement, I am fairly certain that Ms. Khodos would have stated the statutory language for restricting the six year calculation to only part-time service. She, however, did not state any statutory basis. That is because there is none. Based on my over 30 years of experience working at NYCERS I know this statement is clearly incorrect. Note: the “(ii)” references in the paragraph are incorrect. They should be “(i)(B)”. The “(ii)” reference covers Tier 6 members.

This member will now have to file an Article 78 in order to fight for her pension rights. My opinion is that NYCERS is stonewalling the member and wants her to just go away. NYCERS is denying a benefit without statutory authority.

This issue not only affects this member. It will affect any Tier 4 member who may have a better six year average FAS than a FAS based on a 110% limited 36 month service period.

Section 13-638.4(e)(14) (NYC Admin Code) is the primary definition of the FAS for all Tier 4 members. It was enacted in 1992 in response to the Doctors Council court decision. Prior to that Section 608 (NYS RSSL) was the controlling statute in 1992 it was amended to refer to the new Section 13-638.4. I have included the text of this section at the end. You can read it for yourself and see that there is no part-time service limitation placed on the six year calculation.

NYC Admin Code Section 13-638.4.e.(14)

(For Tier 4 Members)

(i) Subject to the provisions of subdivision f of this section and the provisions of subdivision c of section six hundred eight of the RSSL, where those provisions are applicable, and notwithstanding the provisions of subdivision a of section six hundred eight of the RSSL,

for a tier IV member of NYCERS

who is not a New York city revised plan member (as defined in subdivision m of section six hundred one of the RSSL) or

for a tier IV member of BERS

who is not a New York city revised plan member,

the term "final average salary", as used in article fifteen of the RSSL,

shall be equal to the greater of:

(A) one-third of the highest total wages earned by such member during any continuous period of employment for which the member was credited with three years of service credit;

provided that if the wages earned during any year of credited service included in the period used to determine final average salary exceeds the average of the wages of the previous two years of credited service by more than ten percent,

the amount in excess of ten percent shall be excluded from the computation of final average salary; or

(B) the total wages earned during any six consecutive years from service for which the member received service credit divided by the amount of such service credit earned during that six-year period,

(added as of April 1, 2012 and if limiting benefits, is not applicable to Tier 4 members)
provided, however, that "wages", as used in this paragraph, shall mean the applicable provisions and limitations of the term "wages", as defined in subdivision 1 of section six hundred one of the RSSL.

(For Tier 6 Mmebers)

  (ii) Subject to the provisions of subdivision f of this section where those provisions are applicable, and notwithstanding the provisions of subdivisions a and c of section six hundred eight of the RSSL,

for a tier IV member of NYCERS

who is a New York city revised plan member as defined in subdivision m of section six hundred one of the RSSL) or

a tier IV member of BERS

who is a New York city revised plan member,

the term "final average salary", as used in article fifteen of the RSSL,

shall be equal to

one-fifth of the highest total wages earned by such member during any continuous period of employment for which the member was credited with five years of service credit;

provided that if the wages earned during any year of credited service included in the period used to determine final average salary exceeds the average of the wages of the previous four years of credited service by more than ten percent,

the amount in excess of ten percent shall be excluded from the computation of final average salary,

provided further that "wages", as used in this paragraph, shall mean the applicable provisions and limitations of the term "wages", as defined in subdivision l of section six hundred one of the RSSL.

Overtime and Final Average Salary - Tier 4 and Tier 6 members

All NYCERS pensioners who retired under Tier 4 with significant over time earnings included in their benefit calculation should ask NYCERS to review their final average salary (FAS) computation and the time period used in that calculation.

As a starting point NYCERS will need to do a month by month earnings determination over at least an seven year period prior to retirement. It maybe longer depending on the member's earnings history. NYCERS will then have to do a month by month FAS computation and spot the best month. Generally this may satisfy NYCERS obligation to the member. If the member, however, can target a given day, then NYCERS will have to check that day. This a great deal of work but most members have simple earnings histories that will be easy to handle.

NYCERS has traditionally (Section 608.a - RSSL) used the last 36 months before retirement or the best three consecutive years as the time period for the FAS calculation. It appears to me that this position is incorrect based on the analysis below.

I began looking at this issue when it came to my attention that NYCERS was giving a member a hard time over over her FAS because she was a part timer with several breaks in her employment with the city.

Based on this analysis Tier 4 retirees are entitled to a sliding 36 month period rather than a fixed three calendar year period. This may increase the FAS amount for some retirees and in turn increase their annual pension benefit.

Analysis

In 1992, the NYS legislature passed a new law (Chapter 749/Laws of 1992) which addressed problems with pension benefits for NYC part time workers. Previously the Court of Appeal had found that the city and NYCERS had violate the pension rights of part time city workers (i.e. doctors, nurses, and others). In order to correct the past wrongs and to avoid more litigation the city and DC-37(Doctors Council) agreed to sponsor Chapter 749.

Specifically one of the issues that law dealt with was the definition of "final average salary" (FAS) used in computing Tier 4 retirement benefits. The existing statute for Tier 4 (Section 608 of the NYS RSSL) which defined FAS was modified (S.608.d) by redirection to a newly created section, S.13-638.4 of the NYC Admin Code.

Listed at the bottom of this post is the portion of Section 13-638.4 which deals with the FAS for Tier 4 and Tier 6 members. The portion of the code marked "(i)" applies to Tier 4 members and "(ii)" applies to Tier 6 members.

Tier 4

In the sub-portion marked "(A)" is a new three year service credit compensation definition. The sub-portion marked "(B)" is a new compensation definition directed at members who have significant breaks in service.

Part "(A)"

Part "(A)" puts in place the following phrase

"any continuous period of employment for which a member was credited with 3 years of service credit".

This phrase replaces the following wording found in Section 608 of the RSSL

"any three consecutive years".

This new language provided NYCERS with a mechanism to compute a fair compensation base for retirement benefits when dealing with members working less than 1827 hours a year. FAS was now defined as one third of the highest total wages earned during any period of employment with three years of credited service. Part "(A)" also has a 2 year service credit look back with a 110% earnings limit.

The "three consecutive years" language of Section 608 unfairly cuts the benefit of part times. For example if a member works 1/2 time, their FAS would 1/2 the amount of a full time worker. A full time worker with 20 years and a FAS of $50,000 would retire at $20,000/yr. A half time worker with 20 years would have a FAS of only $25,000 according to Section 608 and in turn retire at $10,000/yr.

However, this new language also clearly unhinges the definition for FAS from hard calendar years. This has the effect of benefiting full time workers with significant overtime earnings when computing their FAS. Under this section a member is entitled to shift the start and end dates of his/her three years of service credit to maximize his/her FAS. The member is no longer locked into three continuous hard calendar years.

I have to admit I never focused on this subtle change in the new part-time law. NYCERS has continued to use the old Section 608 statutory interpretation since 1992. NYCERS, for better or worse, is required to to correct a benefit calculation if it is not correct. Just ask any Tier 3 disability pensioner who has been caught in the Workers Comp trap.

Part "(B)"

The sub-portion marked as "(B)" was a very creative solution to provide an alternative definition for members who might not have a continuous period of employment where they were credited 3 years of continuous service credit. The most obvious case of this would be women working part time who had multiple maternity leaves.

The definition of FAS under Part "(B)" is the total wages earned during any six consecutive years of where the member received service credit divided by the service earned during the six years. It has no two year 110% look back limit.

Tier 6

In 2012 Section 13-638.4 was significantly updated with the passage of Tier 6, Chapter 18 of the Laws of 2012. Chapter 18 was designed to reduce pension benefits and in turn reduce the city and state's pension costs. Chapter 18 is a clumsy, opaque, and in many ways punitive piece of legislation. It is unclear why it was not structured in as a totally new tier as was done with the 1983 Tier 4 legislation. Tier 6 is generally an overlay on top of Tier 4. As an example Tier 6 members are embedded in Tier 4 and referred to as Tier 4 revised plan members.

The deinition of FAS in tier 6 is one fifth the highest total wages earned during any period of employment with five years of credited service. It also has a 2 year service credit look back with a 110% earnings limit, It also has new limitations on the definition of wages.

Unfortunately, there is no Tier 6 equivalent to the part "(B)" definition for the Tier 4 FAS. This leaves members with significant breaks in employment at risk and NYCERS with no clear direction on how to deal with their FAS calculation.

NYC Admin Code Section 13-638.4.e.(14)

(For Tier 4 Members)

(i) Subject to the provisions of subdivision f of this section and the provisions of subdivision c of section six hundred eight of the RSSL, where those provisions are applicable, and notwithstanding the provisions of subdivision a of section six hundred eight of the RSSL,

for a tier IV member of NYCERS

who is not a New York city revised plan member (as defined in subdivision m of section six hundred one of the RSSL) or

for a tier IV member of BERS

who is not a New York city revised plan member,

the term "final average salary", as used in article fifteen of the RSSL,

shall be equal to the greater of:

(A) one-third of the highest total wages earned by such member during any continuous period of employment for which the member was credited with three years of service credit;

provided that if the wages earned during any year of credited service included in the period used to determine final average salary exceeds the average of the wages of the previous two years of credited service by more than ten percent,

the amount in excess of ten percent shall be excluded from the computation of final average salary; or

(B) the total wages earned during any six consecutive years from service for which the member received service credit divided by the amount of such service credit earned during that six-year period,

(added as of April 1, 2012 and if limiting benefits, is not applicable to Tier 4 members)
provided, however, that "wages", as used in this paragraph, shall mean the applicable provisions and limitations of the term "wages", as defined in subdivision 1 of section six hundred one of the RSSL.

(For Tier 6 Mmebers)

  (ii) Subject to the provisions of subdivision f of this section where those provisions are applicable, and notwithstanding the provisions of subdivisions a and c of section six hundred eight of the RSSL,

for a tier IV member of NYCERS

who is a New York city revised plan member as defined in subdivision m of section six hundred one of the RSSL) or

a tier IV member of BERS

who is a New York city revised plan member,

the term "final average salary", as used in article fifteen of the RSSL,

shall be equal to

one-fifth of the highest total wages earned by such member during any continuous period of employment for which the member was credited with five years of service credit;

provided that if the wages earned during any year of credited service included in the period used to determine final average salary exceeds the average of the wages of the previous four years of credited service by more than ten percent,

the amount in excess of ten percent shall be excluded from the computation of final average salary,

provided further that "wages", as used in this paragraph, shall mean the applicable provisions and limitations of the term "wages", as defined in subdivision l of section six hundred one of the RSSL.

Errors in New SPD for Tier 4 Members in the 62/5 Plan -- Buyback of Previous Service

NYCERS has recently published a new Summary Plan Description (SPD) for Tier 4 members in the 62/5 plan. Unfortunately, there are errors in the SPD. Over several future postings I will try to point out the errors.

Specifically on page 11, dealing with the purchase of prior “New York State” service, NYCERS incorrectly states the primary requirement. The text is listed below with the error highlighted in bold italics:

PURCHASED SERVICE (BUY-BACK)

Purchased Service, commonly referred to as buy-back, is previous full-time or part-time public service rendered in the employ of a public entity anywhere in New York State that has been fully paid for and credited. Previous service will be credited to members who have rendered at least two years of Membership Service.

Generally, in order to purchase previous service, members must have been on the payroll of a public entity (not a private entity) in a position which would have allowed membership in a public employee retirement system in New York City or New York State. One benefit of purchasing previous service is the inclusion of such service as part of your Credited Service, which ultimately will enhance your retirement benefit. Another benefit is that purchasing such service may accelerate the cessation of your Basic Member Contributions (see page 6). Purchasing service does not change your membership date.

Chapter 414 of the Laws of 1983, as amended by Chapter 552 of the Laws of 2000

RSSL §609 subdivision b(1)

This is a misstatement of Chapter 552. The actual controlling text from Chapter 552 of the Laws of 2000 is quoted below with underling indicating the new word being put in the law. The full text of the Section 609 modification is listed at the end of the posting.

§ 3. Paragraph 1 of subdivision b of section 609 of the retirement and social security law, as added by chapter 414 of the laws of 1983, is amended to read as follows:

1. A member shall be eligible to obtain retirement credit hereunder for previous service with a public employer if retirement credit had previously been granted for such service or if such service which would have been creditable in one of the public retirement systems of the state, ... , at the time such service was rendered, if the individual had been a member of such retirement system …

It is easy to see that NYCERS has deviated from the plain wording of Chapter 552. The effect of this error is to deny members the right under Section 609 to buyback CETA service("NYS" service from the 1970's which was financed by federal CETA funds).

The legislature could have easily used the wording

"which would have allowed membership in a public employee retirement system in New York City or New York State"

but they instead used

"which would have been creditable in one of the public retirement systems of the state, ... , at the time such service was rendered, if the individual had been a member of such retirement system"

In 2000, while I was executive director at NYCERS, I clearly instructed NYCERS staff on the correct application of Chapter 552. I wrote a memo pointing out that law stated that service was eligible if it would have been credited to a member at that time and not that the service would have made the member eligible to join a retirement system at that time. The Law Department was not happy with my proper interpretation. They knew, however, that they had no legal basis to overturn the correct interpretation. If the Law Department had a solid legal argument, they would have been obligated to overruled my position.

Obviously, now that I am no longer executive director, NYCERS feels free to overturn the correct interpretation and illegally restrict the buyback benefit. This fits into a growing pattern on NYCERS' part to illegally deny benefits to NYCERS members and retirees. See Disabled EMT Retirees. This creates an unnecessary and expensive burden on NYCERS members and retirees to defend themselves against NYCERS.

Also on page 11, NYCERS incorrectly states that a member must be on payroll in order to apply to buyback service. The following is from the SPD:

In order to purchase previous service, you must complete an Application (Form #241from you;Form 242 and/or 243 from your employer) and file it with NYCERS while you are on active payroll. You may also apply online provided that you are a MY NYCERS accountholder. If you separate from City service, you are generally not allowed to initiate a new claim to purchase previous service unless you are purchasing service to reach a threshold for vesting or disability, five years or ten years, respectively.

Nowhere in Section 609 is it stated that a member must be on active payroll to apply to purchase service. The only requirement is that he/she be a member when he/she files.

In 1988, the Court of Appeals in Doctors Council v. NYCERS clearly stated that:

"The NYCERS Board of Trusrees surely lacks the authority to create retirement eligibility; it likewise lacks the power to disentitle employees whom the legislature has endowed. To countenance the latter, as has been urged by the City, would allow the agency to, in effect, amend the heart of this statute."

The trustees have no plain language authorization to restrict filing eligibility to only members on active payroll. There is no such authorization in Section 609. If there was, you can be sure that NYCERS would have quoted it.

In addition, NYCERS' attempt to carve out exceptions to this unauthorized filing restriction completely underscores the lack of statutory authority to restrict a member's right to purchase prior "NYS" service under Section 609.

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The full text of the Section 609 modification in Chapter 552 of the Laws of 209

§ 3. Paragraph 1 of subdivision b of section 609 of the retirement and social security law, as added by chapter 414 of the laws of 1983, is amended to read as follows:

1. A member shall be eligible to obtain retirement credit hereunder for previous service with a public employer if retirement credit had previously been granted for such service or if such service which would have been creditable in one of the public retirement systems of the state, as defined in subdivision twenty-three of section five hundred one of this chapter, at the time such service was rendered, if the individual had been a member of such retirement system and the member has rendered a minimum of [five] two years of credited service after July first, nineteen hundred seventy-six or after last rejoining a public retirement system, if later; provided, however, retirement credit may be granted for service which predates the date of entry into the retirement system if such service is otherwise creditable and the member satisfied the minimum service requirements set forth in this subdivision[: and

(a) Was rendered by an employee during which employment he became a member of the retirement system; or

(b) Was] and was rendered by an employee of a public employer during which employment he was ineligible to join a public retirement system provided that such public employer was participating in a public retirement system of the state at the time of such employment, or is so participating at the time that such credit for such previous service is being sought.