2020 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 11 - Retirement of Public Officers and Employees Generally
Section 10-11-8 - Normal retirement; return to employment; benefits continued; contributions.
A. A member may retire upon fulfilling the following requirements prior to the selected date of retirement:
(1) a written application for normal retirement, in the form prescribed by the association, is filed with the association;
(2) employment is terminated with all employers covered by any state system or the educational retirement system;
(3) the member selects an effective date of retirement that is the first day of a calendar month; and
(4) the member meets the age and service credit requirement for normal retirement specified in the coverage plan applicable to the member.
B. The amount of normal retirement pension is determined in accordance with the coverage plan applicable to the member.
C. Except as provided in Subsection D of this section, on or after July 1, 2010, a retired member may be subsequently employed by an affiliated public employer only pursuant to the following provisions:
(1) the retired member has not been employed as an employee of an affiliated public employer or retained as an independent contractor by the affiliated public employer from which the retired member retired for at least twelve consecutive months from the date of retirement to the commencement of subsequent employment or reemployment with an affiliated public employer;
(2) the retired member's pension shall be suspended upon commencement of the subsequent employment;
(3) except as provided in Subsection F of this section, the retired member shall not become a member and shall not accrue service credit, and the retired member and that person's subsequent affiliated public employer shall not make contributions under any coverage plan pursuant to the Public Employees Retirement Act; and
(4) upon termination of the subsequent employment, the retired member's pension shall resume in accordance with the provisions of Subsection A of this section.
D. The provisions of Subsections C, G and H of this section do not apply to:
(1) a retired member employed by the legislature for legislative session work;
(2) a retired member employed temporarily as a precinct board member for a municipal election or an election covered by the Election Code [Chapter 1 NMSA 1978]; or
(3) a retired member who is elected to serve a term as an elected official in an office covered pursuant to the Public Employees Retirement Act; provided that:
(a) the retired member files an irrevocable exemption from membership with the association within thirty days of taking office; and
(b) the irrevocable exemption shall be for the elected official's term of office.
E. A retired member who returns to employment during retirement pursuant to Subsection D of this section is entitled to receive retirement benefits but is not entitled to accrue service credit or to acquire or purchase service credit in the future for the period of the retired member's subsequent employment with an affiliated public employer.
F. At any time during a retired member's subsequent employment pursuant to Subsection C of this section, the retired member may elect to become a member and the following conditions shall apply:
(1) the previously retired member and the subsequent affiliated public employer shall make the required employee and employer contributions, and the previously retired member shall accrue service credit for the period of subsequent employment; and
(2) when the previously retired member terminates the subsequent employment with an affiliated public employer, the previously retired member shall retire according to the provisions of the Public Employees Retirement Act, subject to the following conditions:
(a) payment of the pension shall resume in accordance with the provisions of Subsection A of this section;
(b) unless the previously retired member accrued at least three years of service credit on account of the subsequent employment, the recalculation of pension shall: 1) employ the form of payment selected by the previously retired member at the time of the first retirement; and 2) use the provisions of the coverage plan applicable to the member on the date of the first retirement; and
(c) the recalculated pension shall not be less than the amount of the suspended pension.
G. A retired member who returned to work with an affiliated public employer prior to July 1, 2010 shall be subject to the provisions of this section in effect on the date the retired member returned to work; provided that on and after July 1, 2010, the retired member shall pay the employee contribution in an amount specified in the Public Employees Retirement Act for the position in which the retired member is subsequently employed.
H. Effective July 1, 2014, if a retired member who, subsequent to retirement, is employed and covered pursuant to the provisions of the Magistrate Retirement Act [Chapter 10, Article 12C NMSA 1978] or Judicial Retirement Act [Chapter 10, Article 12B NMSA 1978], during the period of subsequent employment:
(1) the member shall be entitled to receive retirement benefits;
(2) the retired member's cost-of-living pension adjustment shall be suspended upon commencement of the employment; and
(3) upon termination of the employment, the retired member's suspended cost-of-living pension adjustment shall be reinstated as provided under Section 10-11-118 NMSA 1978.
I. The pension of a member who has earned service credit under more than one coverage plan shall be determined as follows:
(1) the pension of a member who has three or more years of service credit earned on or before June 30, 2013 under each of two or more coverage plans shall be determined in accordance with the coverage plan that produces the highest pension;
(2) the pension of a member who has service credit earned on or before June 30, 2013 under two or more coverage plans but who has three or more years of service credit under only one of those coverage plans shall be determined in accordance with the coverage plan in which the member has three or more years of service credit. If the service credit is acquired under two different coverage plans applied to the same affiliated public employer as a consequence of an election by the members, adoption by the affiliated public employer or a change in the law that results in the application of a coverage plan with a greater pension, the greater pension shall be paid a member retiring from the affiliated public employer under which the change in coverage plan took place regardless of the amount of service credit under the coverage plan producing the greater pension; provided that the member has three or more years of continuous employment with that affiliated public employer immediately preceding or immediately preceding and immediately following the date the coverage plan changed;
(3) the pension of a member who has service credit earned on or before June 30, 2013 under each of two or more coverage plans and who has service credit earned under any coverage plan on or after July 1, 2013 shall be equal to the sum of:
(a) the pension attributable to the service credit earned on or before June 30, 2013 determined pursuant to Paragraph (1) or (2) of this subsection; and
(b) the pension attributable to the service credit earned under each coverage plan on or after July 1, 2013;
(4) the pension of a member who has service credit earned only on and after July 1, 2013 shall be equal to the sum of the pension attributable to the service credit the member has accrued under each coverage plan; and
(5) the provisions of each coverage plan for the purpose of this subsection shall be those in effect at the time the member ceased to be covered by the coverage plan. "Service credit", for the purposes of this subsection, shall be only personal service rendered an affiliated public employer and credited to the member under the provisions of Subsection A of Section 10-11-4 NMSA 1978. Service credited under any other provision of the Public Employees Retirement Act shall not be used to satisfy the three-year service credit requirement of this subsection.
History: Laws 1987, ch. 253, § 8; 1989, ch. 79, § 1; 1992, ch. 116, § 4; 1995, ch. 114, § 2; 2003, ch. 85, § 3; 2004, ch. 2, § 1; 2004, ch. 68, § 4; 2009, ch. 285, § 1; 2010, ch. 18, § 1; 2012, ch. 26, § 2; 2013, ch. 225, § 5; 2014, ch. 35, § 1; 2014, ch. 39, § 1; 2014, ch. 43, § 1; 2020, ch. 11, § 3.
ANNOTATIONSRepeals and reenactments. — Laws 1987, Chapter 253 repealed former 10-11-8 NMSA 1978, as amended by Laws 1978, ch. 167, § 2 relating to affiliated public employers, and enacted a new 10-11-8 NMSA 1978.
Repeals. — Laws 2009, ch. 285, § 2 repealed Laws 2004, ch. 2, § 1, effective July 1, 2009.
The 2020 amendment, effective July 1, 2020, removed provisions regarding the suspension of cost-of-living adjustments for certain retirees who return to work for certain public employers; deleted former Subsection D and redesignated the succeeding subsections accordingly; in Subsection D, in the introductory clause, after "C", added "G and", and after "H", deleted "and I"; in Subsection G, deleted paragraph designation "(1)" and Paragraphs (2) and (3); and in Subsection H, Paragraph H(3), after "provided under", deleted "Subsection B of".
2014 Multiple Amendments. — Laws 2014, ch. 35, § 1, Laws 2014, ch. 39, § 1 and Laws 2014, ch. 43, § 1, all effective July 1, 2014, provided for the suspension of the cost-of-living adjustment for retired members who return to work; in Subsection C, Paragraph (1), after "commencement of", added "subsequent"; in Subsection C, Paragraph (2), at the beginning of the sentence, after "the", deleted "previously", and after "commencement of the", added "subsequent"; in Subsection C, Paragraph (3), after "this section, the", deleted "previously", after "become a member and", deleted "thus the previously retired member", after "service credit, and the", deleted "previously", and after "that person's", added "subsequent"; in Subsection C, Paragraph (4), after "employment, the", deleted "previously"; in Subsection D, in the introductory paragraph, after "Educational Retirement Act", added the remainder of the sentence; in Subsection E, in the introductory sentence, after "Subsection C", deleted "and", and after "Subsections C, H", added "and I"; in Subsection E, Paragraph (3), after "an elected official", added "in an office covered pursuant to the Public Employees Retirement Act"; in Subsection F, after "the period of the", deleted "previously", and after "retired member's", deleted "reemployment" and added "subsequent employment"; in Subsection G, in the introductory paragraph, after "during a", deleted "previously" and after "section, the" deleted "previously"; in Subsection H, in the introductory paragraph, after "A", deleted "previously", and after "effective on the date the", deleted "previously"; in Subsection H, Paragraph (1), after "July 1, 2010, the", deleted "previously", after "position in which the", deleted "previously", and after "retired member is", added "subsequently"; in Subsection H, Paragraph (2), after "July 1, 2013, the", deleted "previously"; in Subsection H, Paragraph (3), after "termination of the", added "subsequent", and after "public employer, the", deleted "previously"; and added Subsection I.
Severability. — Laws 2014, ch. 43, § 16 provided that if any part or application of Laws 2014, ch. 43 is held invalid, the remainder or its application to other situations or persons shall not be affected.
The 2013 amendment, effective July 1, 2013, suspended the cost of living adjustment for certain return-to-work retirees; provided the method to calculate the pension of members who earned service credit under more than one coverage plan; in the title, after "continued", deleted "employer"; in Paragraph (2) of Subsection C, at the beginning of the sentence, after "the" added "previously"; added Subsection D; in Subsection E, in the introductory sentence, after "The provisions of", changed "Subsection C" to "Subsections C and H"; added Paragraphs (2) and (3) of Subsection H; in Subsection I, added the introductory sentence, in Paragraph (1) of Subsection I, after "service credit", added "earned on or before June 30, 2013"; in Paragraph (2) of Subsection I, in the first sentence, after "service credit", added "earned on or before June 30, 2013"; and added Paragraphs (3) and (4) of Subsection I.
The 2012 amendment, effective March 3, 2012, allowed retired members to be employed as precinct board members without suspending their pension benefits, and in Subsection D, added a new Paragraph (2) and relettered the succeeding paragraph.
The 2010 amendment, effective July 1, 2010, in Subsection C, in the introductory sentence, after "Subsection D", deleted "or E"; after "of this section", added "on or after July 1, 2010"; and after "employed by an affiliated public employer", deleted "if the following conditions apply" and added "only pursuant to the following provisions"; in Subsection C(1), after "(1) the", added "retired"; after "as an employee of an affiliated public employer", added "or retained as an independent contractor by the affiliated public employer from which the retired member retired"; after "for at least", changed "ninety consecutive days from the date of retirement" to "twelve consecutive months from the date of retirement"; and after "reemployment with an affiliated public employer,", deleted "If the retired member returns to employment without first completing ninety consecutive days of retirement"; in Subsection C(2), after "pension shall be suspended", deleted "immediately and" and added "upon commencement of the employment"; in Subsection C(3), at the beginning of the sentence, added "except as provided in Subsection F of this section,"; after "retired member shall", added "not"; and after "not become a member", added the remainder of the sentence; in Subsection C(4), after "retired member's pension shall", deleted "be calculated pursuant to Paragraph (2) of Subsection E" and added "resume in accordance with the provisions of Subsection A"; deleted former Paragraphs (2), (3) and (4) of Subsection C, which provided that a retired member was required to make contributions when the retired member's total earnings exceeded $25,000 during a calendar year, that an affiliated public employer that employed a retired member was required to make contributions, and that a retired member was not entitled to acquire service credits; deleted former Subsection D, which provided that former Subsection C(4) applied to a retired member who is appointed chief of police of an affiliated public employer or is appointed undersheriff; in Subsection D, added the introductory sentence; added Subsection E; in Subsection F, in the introductory sentence, after "Subsection C of this section, the", added "previously", and after "member may elect to", deleted "suspend the pension. When the pension is suspended" and added "become a member and"; in Subsection F(1), after "(1) the", deleted "retired member who is subsequently employed by an affiliated public employer shall become a member. The"; and added Subsection G.
The 2009 amendment, effective July 1, 2009, in Subsection D, deleted the former language which referred to Paragraphs (2) and (3) of Subsection C and added new language; and added Paragraph (3) of Subsection D.
The 2004 amendment, effective March 4, 2004, amended Subsection A to add "prior to the selected date of retirement" at the beginning of the subsection, to delete the same language from Paragraphs (1) and (2), amended Subsection C to insert at the beginning of the subsection "Except as provided in Subsection D or E of this section", added Subparagraphs (a) and (b) of Paragraph (1) to provide for contributions by a retired member who earns more than $25,000 in a calendar year in Paragraph (2), added new Subsections D and E and redesignated former Subsection D as Subsection F.
The 2003 amendment, effective July 1, 2003, deleted former Subsections C, D, E and F, concerning return to employment, inserted present Subsection C and redesignated former Subsection G as present Subsection D.
The 1995 amendment, effective June 16, 1995, in Subsection C, deleted "or the educational retirement system" following "public employer" in the first sentence, inserted "the following conditions shall apply" in the second sentence, designated Paragraph (1), deleted former Paragraph (1), regarding previously retired members subsequently employed by an employer covered under the Educational Retirement Act, and substituted "Public Employees Retirement Act" for "retirement act covering the subsequent employer" in Paragraph (2); deleted "on or before July 1, 1992" at the end of the sentence in Subsection E; and substituted "provision" for "subsection" in the last sentence of Subsection G.
The 1992 amendment, effective July 1, 1992, deleted "or vested former member" following "member" and substituted "service credit" for "credited service" several times throughout the section; substituted "employers covered by any state system or the educational retirement system" for "affiliated public employers" in Subsection A(2); rewrote Subsection C; added Subsection E; redesignated former Subsections E and F as Subsections F and G; in Subsection G, deleted "from among the two or more coverage plans" following "planned" in the first sentence and rewrote the former second sentence so as to constitute the present second and third sentences; and made minor stylistic changes throughout the section.
Applicability of elected official exception. — The former wording of the elected official exception clearly indicates that the legislature intended for there to be a difference between a person who "became" an elected official, and a person who was serving a successive term. Therefore, the only conclusion is that a person who begins a successive term has not become an elected official. The elected official exception, on its face, applies only to those who became an elected official after they were already an annuitant. Rainaldi v. Public Emps. Ret. Bd., 1993-NMSC-028, 115 N.M. 650, 857 P.2d 761 (decided under former 10-11-9E NMSA 1978).
Purpose of elected official exception. — The elected official exception serves the limited purpose of encouraging people who have accumulated expertise and wisdom in their years of service to run for elected office after retiring from their former positions. The legislature could not have intended to encourage those who have already been serving to simultaneously collect a salary and retirement benefits earned in that position. Rainaldi v. Public Emps. Ret. Bd., 1993-NMSC-028, 115 N.M. 650, 857 P.2d 761.
Applicability of chief of police exemption after 2010 amendment. — Where the city appointed plaintiff as chief of police in September 2006 without specifying the end date of plaintiff's term of office; at the time of the appointment, plaintiff was a PERA retiree and 10-11-8(D) NMSA 1978 contained a chief of police exemption that permitted plaintiff to receive both a pension and a salary; in 2010, 10-11-8 NMSA 1978 was amended to remove the exemption and require that the pension of a PERA retiree appointed as chief of police after July 1, 2010 be suspended; defendant sought to suspend plaintiff's pension after the city's March 2012 election; and plaintiff claimed that because plaintiff's appointment was for an indefinite term, the exemption remained in effect until plaintiff's term of office terminated, plaintiff's term of office commenced following the March 2010 municipal election and ended when the city held its organizational meeting following the March 2012 election, because municipal appointees serve definitive terms of two years subject to reappointment at the municipality's organizational meeting following each biennial municipal election. City of Artesia v. PERA of N.M., 2014-NMCA-009, cert. denied, 2013-NMCERT-011.
Effect of 1987 recodification. — The 1987 recodification of the public employees retirement act does not permit a normal or disability retirement pension to be made retroactive. 1988 Op. Att'y Gen. No. 88-15.
Written application for retirement. — The public employees retirement board may not excuse the statutory requirement that a member file a written application for retirement, even where a member alleges that he made verbal requests of the public employees retirement association for an application form but did not receive the form promptly, since strict compliance with the statutory requirements for receiving retirement benefits is required. 1988 Op. Att'y Gen. No. 88-33.
Death not treated as retirement. — An employee who dies during employment does not retire, and thus an employee's affidavit directing that his death be treated as his retirement is ineffectual. 1989 Op. Att'y Gen. No. 89-06.
The general rule under Subsection F (now Subsection D) is that a retiring member who has coverage under two different coverage plans will receive benefits calculated under the provisions of the better coverage plan if the member has three years of credited service under the better coverage plan. If not, the member will receive benefits calculated under the provisions of the lesser coverage plan. 1987 Op. Att'y Gen. No. 87-66.
The only exception to the general rule under Subsection F (now see Subsection D) is where the retiring member acquires credited service under two coverage plans "applied to the same affiliated public employer . . . ." This exception must be strictly construed, because it departs from the general rule, financially impacts the association as imminent retirees make little contribution toward the greater benefits, and envisions potential manipulation and abuse as demonstrated by the association's experience with the "loopholers" or "job jumpers". 1987 Op. Att'y Gen. No. 87-66.
The object to the phrase "same affiliated public employer" in Subsection F (now Subsection D) is to prevent "job jumping" from a public employer covered under a lower benefit formula to a public employer covered under a higher benefit formula to retire at the higher formula from the second entity after working, if at all, for a brief period of time. 1987 Op. Att'y Gen. No. 87-66.
Reappointment after suspension of benefits. — County treasurer could not retire in June, 1988, and resume office as county treasurer without suspension of public employee retirement benefits, if the county commission reappointed him as county treasurer to serve the remainder of his unexpired term, ending December 31, 1988. 1987 Op. Att'y Gen. No. 87-80.
Suspension of benefits upon resumption of employment. — An employee of the department of finance and administration, retired pursuant to the provisions of Public Employee's Retirement Act, may not resume employment with the department of education without suspension of retirement benefits. 1987 Op. Att'y Gen. No. 87-37 (decided under former 10-11-22 NMSA 1978).
An employee of a public school system, retired pursuant to the provisions of the Educational Retirement Act, may not resume employment with the department of education without suspension of educational retirement benefits. 1987 Op. Att'y Gen. No. 87-38 (decided under former Section 10-11-8 NMSA 1978).
The suspension provisions of the disbursing system apply to the benefits granted pursuant to the reciprocity act to a member retired under the public employee retirement association and the educational retirement system who resumes employment. 1988 Op. Att'y Gen. No. 88-22.
Public Employee Retirement Act annuitants whom the department of education subsequently employs and who elect to participate in the educational retirement system by making contributions to that system do not "qualify for (retirement) coverage" under 22-11-17D NMSA 1978, since they are not considered as having acquired any service credit for purposes of educational retirement benefits. 1987 Op. Att'y Gen. No. 87-37 (decided under former Section 10-11-22 NMSA 1978).
Exception to 3-year credited service requirement. — Because a leave of absence without pay can be distinguished from a termination of employment, is not a complete separation of employment, and denotes continuity of employment status, members who take a bona fide leave of absence without pay are eligible for Subsection F's (now see Subsection D) exception to the three-year credited service requirement for coverage under state general member coverage plan 2. 1988 Op. Att'y Gen. No. 88-19.
Reemployment as seasonal employees of legislature. — Retirees of the Public Employees Retirement Association who are reemployed as seasonal employees by the state legislature are subject to benefit suspension when they exceed the maximum earnings permitted by former Subsection C. 1989 Op. Att'y Gen. No. 89-15.
