2013 New York Consolidated Laws
RSS - Retirement & Social Security
Article 11 - (440 - 451) LIMITATIONS APPLICABLE TO NEW ENTRANTS
443 - 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, the New York state and local police and fire  retirement  system
  and  the  New  York  city teachers' 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 or the New York city
  teachers' 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.