Election of retired public officers and employees to public office

Civil Service Law §150 - Suspension of pension and annuity benefits during public employment

A number of reports of election results indicate that some successful candidates currently employed by a New York State public employer have announced their intention of retiring from their current position in the public service. Some may find themselves confronting the so-called Law of Unforeseen Consequences in that he or she may not be eligible to continue to receive a retirement allowance from a public retirement system of this State upon their being sworn into and assuming their elective office.

As a general rule, Civil Service Law §150 provides that a retiree of a public retirement system of this State shall have his or her retirement allowance suspended upon reemployment by the State or a political subdivision of the State.*

§150, however, excuses from this mandate retirees who receive compensation in connection with jury duty, serving with the office of inspector of election, serving as a poll clerk or ballot clerk pursuant to the Election Law, serving as a notary public or commissioner of deeds, or as an elected public officer [emphasis supplied].**

As noted in 2 NYCRR 374.1,*** there is a public policy basis for the exception with respect to elective office: “to encourage, or at least remove an obstacle that may discourage, retirees from running for and holding elective office.”

However, the “election to public office” exception applies only in the event the individual has already retired – the exception does not apply to those who retire from the public service following their election to public office.

The Retirement System has noted that the Retirement and Social Security Law “clearly envisions that an employee must separate from the service of the public employment upon which his or her benefit eligibility is based in order to commence receiving a retirement allowance based on such employment.”

The Retirement System has also stated that “While Section 150 of the Civil Service Law exempts individuals who are elected to public office after retirement … an individual who wishes to retire … must separate from the payroll … in order to commence receiving his or her retirement allowance.

Accordingly, it seems clear that an individual retiring from his or her public employment after being elected to a public office is not a person “elected to public office after retirement.”

* An individual receiving a retirement allowance from a New York State public retirement system may be eligible to continue to receive his or her retirement allowance pursuant to §§101, 211 or 212 of the Retirement and Social Security Law, §503 of the Education Law or as permitted by a local law or charter. The Optional Retirement Plan available to certain employees of the State University, the City University, the Community Colleges, the statutory contract colleges at Cornell and Alfred Universities and the State Department of Education is not a public retirement system of New York State.

** There is an exception to the exception: any person, subsequent to his or her retirement from an elective public office, who accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired is to have his or her retirement allowance suspended until the date he or she vacates such elective public office in the event the compensation earned for any calendar year for that elective public office does not exceed the earning limitation provided for retired persons in §212 of the Retirement and Social Security law. In addition, the age sixty-five unlimited earnings provision set out in §212 of the Retirement and Social Security Law does not apply to “any person, subsequent to his or her retirement from an elective public office, if such person accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired.”

*** 2 NYCRR 374 address the retirement of an individual who is serving in an elective office while simultaneously employed by a public employer under certain circumstances.