46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO THE PUBLIC EMPLOYEES RETIREMENT ACT; PROVIDING THAT CERTAIN PERSONS RETIRED AND RECEIVING RETIREMENT BENEFITS PURSUANT TO THAT ACT SHALL NOT BE REQUIRED TO SUSPEND BENEFITS WHEN EMPLOYED BY AN AFFILIATED PUBLIC EMPLOYER.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 10-11-3 NMSA 1978 (being Laws 1987, Chapter 253, Section 3, as amended) is amended to read:

"10-11-3. MEMBERSHIP--REQUIREMENTS--EXCLUSIONS--

TERMINATION.--

A. Except as may be provided for in the Volunteer Firefighters Retirement Act, the Judicial Retirement Act, the Magistrate Retirement Act, the Educational Retirement Act and the provisions of Sections 29-4-1 through 29-4-11 NMSA 1978 governing the state police pension fund, each employee and elected official of every affiliated public employer shall be a member of the association, unless excluded from membership in accordance with Subsection B of this section.

B. The following employees and elected officials are excluded from membership in the association:

(1) elected officials who file with the association a written application for exemption from membership within thirty days of taking office;

(2) elected officials who file with the association a written application for exemption from membership within thirty days of the date the elected official's public employer becomes an affiliated public employer;

(3) employees designated by the affiliated public employer as seasonal or student employees;

(4) employees who file with the association a written application for exemption from membership within thirty days of the date the employee's public employer becomes an affiliated public employer;

(5) employees of an affiliated public employer that is making contributions to a private retirement program on behalf of the employee as part of a compensation arrangement who file with the association a written application for exemption within thirty days of employment, unless the employee has previously retired under the provisions of the Public Employees Retirement Act; [and]

(6) employees of an affiliated public employer who have retired under and are receiving a pension pursuant to the provisions of the Educational Retirement Act; and

(7) employees of an affiliated public employer who have retired under and are receiving a pension pursuant to the Public Employee Retirement Act and who begin employment with an affiliated public employer at least twelve months after retirement.

C. Employees designated as seasonal and student employees shall be notified in writing by their affiliated public employer of the designation and the consequences of the designation with respect to membership, service credit and benefits. A copy of the notification shall be filed with the association within thirty days of the date of employment.

D. An exemption from membership by an elected official shall expire at the end of the term of office for which filed.

E. Employees and elected officials who have exempted themselves from membership may subsequently withdraw the exemption by filing a membership application. Membership shall commence the first day of the first pay period following the date the application is filed.

F. The membership of an employee or elected official shall cease if the employee terminates employment with an affiliated public employer or the elected official leaves office and the employee or elected official requests and receives a refund of member contributions."

Section 2. Section 10-11-8 NMSA 1978 (being Laws 1987, Chapter 253, Section 8, as amended) is amended to read:

"10-11-8. NORMAL RETIREMENT--SUSPENSION.--

A. A member may retire upon fulfilling the following requirements:

(1) a written application for normal retirement, in the form prescribed by the association, is filed with the association prior to the selected date of retirement;

(2) employment is terminated with all employers covered by any state system or the educational retirement system prior to the selected date of retirement;

(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. If a member retires and is subsequently employed by any affiliated public employer, the retired member's pension will be suspended effective the first day of the month following the month in which the previously retired member earns one hundred percent or more of the amount that causes a decrease or suspension of an old age benefit under the federal social security program or fifteen thousand dollars ($15,000), whichever is less. When the pension is suspended, the following conditions shall apply:

(1) the retired member who is subsequently employed by an affiliated public employer shall become a member. 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 a previously retired member terminates the subsequent employment with an affiliated public employer, he 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.

D. The provisions of Subsection C of this section shall not apply to a retired member who is appointed chief of police of an affiliated public employer, other than of the affiliated public employer from which retired, or who is appointed undersheriff if the retired member files an irrevocable exemption from membership with the association within thirty days of appointment. For purposes of this subsection, each sheriff's office shall be limited to one undersheriff. The irrevocable exemption shall be for the chief of police's or the undersheriff's term of office. Filing of an irrevocable exemption shall irrevocably bar the retired member from acquiring service credit for the period of exemption from membership.

E. The provisions of Subsection C of this section shall not apply to any retired member who is subsequently employed by an employer who is not an affiliated public employer.

F. The provisions of Subsection C of this section shall not apply to a retired member who is elected to serve a term as an elected official if the retired member files an irrevocable exemption from membership with the association within thirty days of taking office. Filing of an irrevocable exemption shall irrevocably bar the retired member from acquiring service credit for the period of exemption from membership.

G. Beginning January 1, 2004 and continuing until January 1, 2014, the provisions of Subsection C of this section shall not apply to a retired member and the member shall not be required to suspend retirement benefits if the member begins employment with an affiliated public employer and has not been employed as an employee or independent contractor by an affiliated public employer for at least twelve consecutive months from the date of retirement to the commencement of employment or reemployment with an affiliated public employer. If the retired member returns to employment without first completing twelve consecutive months of retirement, the retired member shall remove himself from retirement. A retired member who returns to employment during retirement pursuant to this subsection is entitled to continue to receive retirement benefits but is not entitled to acquire service credit or to acquire or purchase service credit in the future for the period of the retired member's employment with an affiliated public employer.

[G.] H. The pension of a member who has three or more years of service credit under each of two or more coverage plans shall be determined in accordance with the coverage plan that produces the highest pension. The pension of a member who has service credit 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 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. 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."

Section 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.