§ 803. Retroactive membership. a. A public retirement system shall
have the authority to grant relief from a failure to file an application
for membership in that system in connection with service rendered prior
to April first, nineteen hundred ninety-three in accordance with the
provisions of this section. If the determination is made by a public
retirement system other than the public retirement system of which he or
she is a member, such other system shall notify the member's current
system of its determination and the retroactive membership resulting
from such determination shall be deemed to have been immediately
transferred to the member's current system. In such event, the member's
current system shall advise such other system of the additional cost
resulting from such relief, which shall thereupon be billed and
collected by such other system and remitted to the member's current
system.

b. Retroactive membership shall be granted to a member of a public
retirement system who was entitled to join a public retirement system
prior to the date on which the member actually joined such a system
provided that:

(1) the member files a written request for retroactive membership in a
public retirement system with the member's current retirement system
within three years of the effective date of this article, or within two
years of the enactment of a local law by the city of New York for a
member who: (i) is an employee of the city of New York; or (ii) is not
an employee of the city of New York, but has prior employment with such
city, which without the transfer and crediting provisions of this
article would render him or her ineligible for retroactive membership
under the provisions of this section;

(2) membership shall only be granted retroactively back to the date
from which the member has served continuously in a position or positions
which would have entitled the member to join a public retirement system.
For the purpose of this paragraph (and subdivision b of section eight
hundred one of this article), a member shall be considered to have
served continuously from the earliest date after which he or she shall
have rendered at least twenty days of eligible service during each plan
year of such public retirement system, excluding one break in service of
not more than one plan year or not more than two plan years when such
break in service is attributable to the birth of a child of the member
or care for such child or the placement of a child with the member for
adoption or foster care, provided that for the limited purposes of this
section only, no employment with the city of New York, the board of
education of the city of New York or with any employer which
participates in the New York city employees' retirement system or the
New York city board of education retirement system shall be deemed to be
service which would have entitled the member to join a public retirement
system, or shall be deemed to be retirement system eligible service,
where the person rendering such service would have been deemed by such
retirement system prior to May thirty-first, nineteen hundred
eighty-eight to be ineligible for membership in such retirement system
because he or she was not regularly scheduled to work a sufficient
number of hours per year, or because such employment was being rendered
not on a per annum basis, but rather on a per hour basis, a per diem
basis or some other basis; and

(3) the employer who employed such member at the time he or she was
first eligible to join a public retirement system files with the
retirement system an affidavit stating that the relief sought is
appropriate because the member did not (i) expressly decline membership
in a form filed with the employer; (ii) participate in a procedure
explaining the option to join the system in which a form, booklet or
other written material is read from, explained or distributed, such
form, booklet or written material can be produced and documentation or a
notation to the effect that he or she so participated exists; or (iii)
participate in a procedure that a reasonable person would recognize as
an explanation or request requiring a formal decision by him or her to
join a public retirement system. Such affidavit shall also set forth the
facts and circumstances giving rise to the request for relief, including
but not necessarily limited to dates of employment and the date on which
the member was first eligible to join a public retirement system and
salary information. The employer shall respond to all requests for such
affidavits by a public retirement system. A member seeking to prove that
he or she did not participate in a procedure described in clause (ii) or
(iii) hereof must do so by substantial evidence. An employer shall
establish a review process which shall afford a member an opportunity to
appear in person or in writing. If a determination has been made to deny
retroactive membership, the employer shall produce an affidavit
including a statement of the grounds on which such denial was based.
Nothing herein is intended to require a public retirement system to
conduct a hearing if one is not customarily held by the system to
determine pension rights, privileges or benefits.

c. If a member is entitled to relief pursuant to this section, the
public retirement system shall determine the member's date of
membership, which shall be the date on which such member would have
become a member of such retirement system pursuant to subdivision b of
this section.

d. Nothing in this section shall be construed to change or modify the
requirements for filing an application for membership prescribed by the
head of the retirement system or by applicable law or to modify the
obligations of employers or any public retirement system with respect to
informing employees of their right to join a public retirement system or
with respect to transmitting their application to such a system.

e. (1) The entire cost of retroactive membership granted pursuant to
this section shall be paid by the employer who employed such member at
the time he or she was first eligible to join a public retirement
system, subject to the limitations provided in paragraph two of this
subdivision. For the purposes of this section, the additional cost shall
be the increase in the accrued liabilities resulting from relief under
this section. At the employer's election, the additional cost to be paid
by it may be paid with interest equal to the valuation rate of the
member's current system in equal annual installments over a period of
either five or ten years.

(2) In the case of an individual who on March thirty-first, nineteen
hundred ninety-three was a member of any public retirement system and
who, on such date, was employed by an employer other than the employer
which employed such member at the time he or she was first eligible to
join a public retirement system, costs to such original employer shall
not exceed a percentage of the total cost but not greater than one
hundred percent of such cost; (a) such percentage to be determined in
the case of the New York state and local employees' retirement system
and the New York state and local police and fire retirement system by
dividing the greater of the amounts calculated under subparagraph (i) or
(ii) of this paragraph by the salary used for calculating costs under
paragraph one of this subdivision: (i) the annual compensation such
member would have earned during the salary period used for calculating
costs under this subdivision had such member remained in the original
position, as determined by applying annual increases of seven percent
from the time of such original twelve month period to the amount of
annual compensation such member was actually paid by such employer
during the first twelve months of employment or (ii) the amount
determined by applying annual increases of seven percent to the amount
an individual employed on a full-time basis at the then applicable state
minimum wage would have earned during such twelve month period; (b) such
percentage in the case of the New York state teachers' retirement system
to be determined by dividing by the member's annualized salary in the
year in which the cost under paragraph one of this subdivision is
determined, by the following: the member's annualized salary in the plan
year in which the member was first eligible to join a public retirement
system increased by seven percent per year for each year from the plan
year in which the member was first eligible to join a public retirement
system to the plan year in which such cost is determined.

f. Notwithstanding any other provision of this section to the
contrary, this section shall not apply to any person who received a
retroactive membership date pursuant to the provisions of chapter one
thousand forty-four of the laws of nineteen hundred eighty-one, chapter
five hundred thirty-nine of the laws of nineteen hundred eighty-four,
chapter five hundred twenty-two of the laws of nineteen hundred
eighty-eight or chapter five hundred twenty-three of the laws of
nineteen hundred eighty-eight.

g. A member receiving a retroactive membership date pursuant to
subdivision b of this section shall pay to his or her current retirement
system those payments, with applicable interest thereon, which would
have been made by such member had he or she been a member of such
retirement system during the period of service beginning from the date
which is being credited pursuant to such subdivision b. For members of a
retirement system or pension fund maintained by the city of New York,
the granting of any service credit pursuant to this section (1) shall be
used only for the purpose of determining the amount of any benefit and
not for the purpose of determining eligibility for a benefit and (2)
shall not be deemed or construed to create any right for the payment of
a pension-providing-for-increased-take-home-pay for such period or to
create any liability or responsibility for the funding of such benefit
by the city of New York or any other pension obligor or to create any
liability or responsibility for the accumulation of a
reserve-for-increased-take-home-pay.

h. Anything in this section to the contrary notwithstanding, any
member of a public retirement system who, prior to reinstatement to an
original date of membership prior to the twenty-seventh day of July,
nineteen hundred seventy-six under section six hundred forty-five of
this chapter, is required to pay mandatory arrears under this section
and still has an amount due, shall, upon application to the comptroller
under the provisions of section six hundred forty-five of this chapter
for reinstatement under such section six hundred forty-five, and upon
conveying in writing to the comptroller a rescission of their election
under this section, thereafter not be required to pay mandatory arrears
under this section provided that payments previously made for such
arrears shall not be refunded to such member. When a member elects to
rescind benefits pursuant to this section and makes application under
section six hundred forty-five of this chapter as permitted under this
subdivision, such member's reinstated rights, benefits and status in the
public retirement system will derive and be defined by such section six
hundred forty-five rather than this section.