2006 New York Code - Final Average Salary.

 
    §  443.  Final  average  salary.  a.  The  salary  base  used  for the
  computation of benefits upon  retirement,  hereinafter  called  in  this
  article   final  average  salary,  applicable  to  all  members  of  the
  retirement systems who are subject to the provisions  of  this  article,
  shall  be  the  average  salary earned by such a member during any three
  consecutive years which provide the highest average salary, exclusive of
  any form of termination pay (which shall  include  any  compensation  in
  anticipation  of  retirement),  or  any  lump  sum  payment for deferred
  compensation, sick leave, or accumulated vacation credit, or  any  other
  payment  for  time not worked (other than compensation received while on
  sick leave or authorized leave of absence); provided,  however,  if  the
  salary  or  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 twenty percentum, the amount in excess
  of twenty percentum 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. Notwithstanding the provisions of subdivision a  of  this  section,
  with  respect to the members of the New York state employees' retirement
  system and New York state policemen's and firemen's  retirement  system,
  the  final  average  salary,  shall be equal to one-third of the highest
  total salary earned during any continuous period of employment for which
  the member was credited with three years of service credit, exclusive of
  any form of termination pay (which shall  include  any  compensation  in
  anticipation   of   retirement),  any  lump  sum  payment  for  deferred
  compensation, sick leave, or accumulated vacation credit, or  any  other
  payment  for  time not worked (other than compensation received while on
  sick leave or authorized leave of absence); provided,  however,  if  the
  salary earned during any year of credited service included in the period
  used  to  determine  final  average  salary  exceeds  the average of the
  salaries of the previous two years of  credited  service  by  more  than
  twenty  per  centum,  the amount in excess of twenty per centum shall be
  excluded from the computation of final average salary.
    c. Notwithstanding the provisions of subdivisions  a  and  b  of  this
  section,  with  respect  to  policemen and firemen as defined in section
  four hundred fifty of this chapter,  the  final  average  salary  of  an
  employee  who has been a member of a retirement system for less than one
  year shall be the projected one year salary, with the calculation  based
  upon  a twelve month projection of the sums earned in the portion of the
  year worked. If a member has been employed for more than  one  year  but
  less than two years, then the member's final average salary shall be the
  average  of the first year and projected second year earnings based upon
  the calculation above, and if more than two years, but less  than  three
  years,  then  one-third  the  total of the first two years of employment
  plus the projected third year's earnings, calculated as indicated above.
    d. Notwithstanding the provisions of subdivisions  a  and  b  of  this
  section,  the  final average salary of an employee who has been a member
  of the New York city employees' retirement system for less than one year
  shall be the projected one year salary, with the calculation based  upon
  a  twelve month projection of the sums earned in the portion of the year
  worked. If a member has been employed for more than one  year  but  less
  than  two  years,  then  the  member's final average salary shall be the
  average of the first year and projected second year earnings based  upon
  the  calculation  above, and if more than two years, but less than three
  years, then one-third the total of the first  two  years  of  employment
  plus the projected third year's earnings, calculated as indicated above.
    e.  Subject  to  the  provisions of subdivision d 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, the final  average  salary  shall  be
  determined pursuant to the provisions of paragraph twelve of subdivision
  e  of  section  13-638.4  of  the administrative code of the city of New
  York.
    f. Notwithstanding the provisions of subdivisions a, b and c  of  this
  section,  a participating employer may elect, pursuant to the provisions
  of paragraph d of subdivision nine of section three hundred two of  this
  chapter,  to  have  the provisions of such paragraph apply to the police
  officers  and  firefighters  in  its  employ  who  are  subject  to  the
  provisions of this article.
    f-1.  A  demand  in collective negotiations for the additional pension
  benefit provided by subdivision f of this section shall not  be  subject
  to the provisions of paragraph (b) or (c) of subdivision four of section
  two  hundred  nine  of  the  civil service law, nor shall such demand be
  subject to any provision for interest arbitration contained in any local
  law, resolution or ordinance adopted by any governmental entity pursuant
  to subdivision one of section two hundred twelve of  the  civil  service
  law.
    g.  Notwithstanding  the  provisions  of  subdivisions a and c of this
  section, the benefits for the first twenty years or less of  service  of
  members  of  the  New York city police pension fund, subchapter two, who
  are subject to the provisions of this article, and members of  the  fire
  department  pension  fund,  subchapter  two,  who  are  subject  to  the
  provisions of this article, shall be determined by using a  salary  base
  equal  to  the  salary  earned by such member during the one-year period
  immediately prior to  retirement  or  separation  from  service  due  to
  vesting,  exclusive  of any form of termination pay (which shall include
  any compensation in anticipation of retirement), or any lump sum payment
  for deferred compensation, sick leave, or accumulated  vacation  credit,
  or  any  other  payment  for  time  not  worked (other than compensation
  received while on sick leave or authorized leave of absence);  provided,
  however,  if  the  salary  or  wages  earned  during the one-year period
  immediately prior to  retirement  or  separation  from  service  due  to
  vesting exceeds that of the previous one-year period by more than twenty
  per  centum, the amount in excess of twenty per centum shall be excluded
  from the computation of  final  average  salary.  In  determining  final
  average salary, any month or months (not in excess of three) which would
  otherwise be included in computing final average salary but during which
  the  member  was  on  authorized  leave  of absence 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.