§ 13-313 Definitions.

The following words and phrases as used in this subchapter unless a different meaning is plainly required by the context, shall have the following meanings:

   1.   "Pension fund" shall mean the fire department pension fund subchapter two provided for in this chapter.

   2.   "Medical board" shall mean the board of physicians provided for in section 13-323 of this subchapter.

   3.   (a)   "City-service", in the case of an original plan member, (as defined in subdivision four-b of this section), shall mean service in the uniformed force of the department and shall include service credit acquired by transfer pursuant to section 15-111 of this code.

      (b)   "City-service", in the case of an improved benefits plan member (as defined in subdivision four-f of this section), shall mean service in the uniformed force of the department and shall include service credit acquired (i) by transfer pursuant to section 15-111 of this code, or (ii) by transfer pursuant to section forty-three or three hundred forty-three of the retirement and social security law, or (iii) by transfer from another pension or retirement system, of funds actuarially determined in a manner similar to that provided by these sections of the retirement and social security law.

      (c)   An "accident" sustained by such original plan member or such improved benefits plan member, while off-duty and within the geographic limits of the city of New York, shall be deemed to have occurred while in the performance of duty and in the performance of city service for the purpose of granting retirement for accident disability pursuant to the provisions of section 13-353 of this subchapter in cases in which:

         (i)   a substantial and imminent danger to life or property occasioned the off-duty intervention of the member;

         (ii)   the conduct of the member was reasonable in the circumstances; and

         (iii)   the member, in the course of his or her off-duty intervention, utilized skills within the scope of his or her employment by the New York city fire department.

      (d)   In any case where a member, after completing his or her minimum period for service retirement, is appointed fire commissioner, and in any case where a person who retired from service as a member of the pension fund is thereafter appointed fire commissioner, his or her service as fire commissioner shall constitute city-service.

      (e)   In any case where a member, after completing his or her minimum period for service retirement, is appointed a deputy fire commissioner, and in any case where a person who retired for service as a member of the pension fund is thereafter appointed a deputy fire commissioner, his or her service as deputy fire commissioner shall constitute city-service.

   4.   "Member" shall mean any person included in the membership of the pension fund as provided in section 13-314 of this subchapter.

   4-a.   "Original plan" shall mean all the terms and conditions of this subchapter, and of all other laws, applicable to original plan members.

   4-b.   "Original plan member" shall mean any member of the original plan pursuant to the provisions of subdivision a of section 13-315 of this subchapter or other applicable provisions of this subchapter.

   4-c.   "Original plan member not subject to article eleven" shall mean an original plan member to whom, under the provisions of law governing the applicability of article eleven of the retirement and social security law, such article eleven does not apply.

   4-d.   "Original plan member subject to article eleven" shall mean an original plan member to whom, under the provisions of law governing the applicability of article eleven of the retirement and social security law, such article eleven applies.

   4-e.   "Improved benefits plan" shall mean all the terms and conditions of this subchapter, and all other laws, applicable to improved benefits plan members.

   4-f.   "Improved benefits plan member" shall mean any member who, under the applicable provisions of subdivisions b, c, d, e and f of section 13-315 of this subchapter or other applicable provisions of this subchapter, is entitled to the rights, privileges, and benefits of the improved benefits plan and is subject to the obligations thereof, as applicable to him or her.

   4-g.   "Elective improved benefits plan member" shall mean a member who became an improved benefits plan member as a result of filing an election application pursuant to section 13-315 of this subchapter.

   4-h.   "Non-elective improved benefits plan member" shall mean a member who became an improved benefits plan member pursuant to the provisions of subdivision b of section 13-315 of this subchapter.

   4-i.   "Improved benefits plan member not subject to article eleven" shall mean any improved benefits plan member who, under the provisions of law governing the applicability of article eleven of the retirement and social security law, is not subject to such article eleven.

   4-j.   "Improved benefits plan member subject to article eleven" shall mean any improved benefits plan member to whom, under the provisions of law governing the applicability of article eleven of the retirement and social security law, such article eleven applies.

   5.   "Beneficiary" shall mean any person in receipt of a pension, an annuity, a retirement allowance, a dependent benefit, a death benefit or any other benefit provided by this subchapter.

   6.   "Final compensation", in the case of an original plan member, shall mean the annual compensation earnable by a member for city-service upon the date of his or her retirement.

   6-a.   "Five-year-average compensation", in the case of an improved benefits plan member, shall mean the average annual compensation earnable by such member for city-service during his or her last five years of city-service, or during any other five consecutive years of city-service since he or she last became a member which such member shall designate.

   6-b.   "Prior original plan member accumulated contributions" shall mean the sum of all the amounts, deducted from the compensation of an original plan member or contributed by him or her while such a member, standing to the credit of his or her individual account in the retirement allowance accumulation fund (as such fund existed prior to the starting date of the improved benefits plan (as such date is defined in subdivision twenty-seven of this section)), without interest thereon.

   6-c.   "Subsequent original plan member accumulated contributions" shall mean the sum of all amounts, if any, deducted from the compensation of an original plan member or contributed by him or her on or after the starting date of the improved benefits plan (as such date is defined in subdivision twenty-seven of this section) and while he or she is such a member, standing to the credit of his or her individual account in the contingent reserve fund, without interest thereon.

   7.   "Total accumulated contributions" shall mean, with respect to an original plan member, the amount obtained by adding together his or her prior original plan member accumulated contributions (as defined in subdivision six-b of this section) and his or her subsequent original plan member accumulated contributions (as defined in subdivision six-c of this section) if any, without interest on any of such contributions.

   7-a.   "Accumulated deductions", with respect to an improved benefits plan member, shall mean the sum of all the amounts, deducted from the compensation of such member or contributed by him or her, standing to the credit of his or her individual account in the annuity savings fund, together with regular interest and special interest, if any, thereon, provided that nothing contained in this subdivision shall be construed as providing or requiring that where any original plan member elects to become an improved benefits plan member, regular interest shall accrue or be credited for any period prior to the effective date of such election on the accumulated contributions of such member transferred to the credit of his or her account in the annuity savings fund pursuant to the applicable provisions of this subchapter.

   8.   (a)   "Regular interest", in the cases of persons who are members on the thirtieth day of June, nineteen hundred forty-seven, shall mean, subject to the provisions of paragraphs (b), (e), (f), (g), (h) and (j) of this subdivision, interest at four per centum per annum, compounded annually, and in the cases of persons becoming members thereafter, shall mean, subject to the provisions of such paragraphs, interest at three per centum per annum, compounded annually to and including the thirty-first day of December, nineteen hundred sixty-seven, and interest at four per centum, compounded annually, from and after the first day of January, nineteen hundred sixty-eight.

      (b)   The provisions of paragraph (a) of this subdivision shall not apply to any non-elective improved benefits plan member (as defined in subdivision four-h of this section). Such provisions shall not apply to any elective improved benefits plan member (as defined in subdivision four-g of this section) during any period wherein he or she is such a member.

      (c)   "Regular interest", in the case of each non-elective improved benefits plan member, shall mean, subject to the provisions of paragraphs (e), (f), (g), (h), (i) and (j) of this subdivision, interest at four per centum per annum, compounded annually.

      (d)   "Regular interest", in the case of each elective improved benefits plan member, shall mean, subject to the provisions of paragraphs (e), (f), (g), (h), (i) and (j) of this subdivision, interest at four per centum per annum, compounded annually, during the period wherein he or she is such a member. Nothing contained in this paragraph shall be construed as providing or requiring that regular interest shall accrue or be credited, for any period prior to the effective date of the election of any such member to be an elective improved benefits plan member, on the accumulated contributions of such member transferred to the credit of his or her account in the annuity savings fund pursuant to the provisions of section 13-315 of this subchapter.

      (e)   The provisions of paragraphs (a), (c) and (d) of this subdivision shall not apply to any actuarial valuation, determination or appraisal which (i) is made pursuant to this subchapter and (ii) is used to determine the amount of any contribution required to be paid by the city into the contingent reserve fund of the pension fund in the nineteen hundred eighty-nineteen hundred eighty-one fiscal year of the city or any subsequent fiscal year thereof.

      (f)   (A)   Subject to the provisions of subparagraph (B) of paragraph i of this subdivision, and except as otherwise provided in paragraph four of subdivision b of section 13-331 of this subchapter with respect to determination of the amount of the balance sheet liability as of June thirtieth, nineteen hundred eighty and balance sheet liability contributions, for the purpose of any actuarial valuation, determination or appraisal which is made pursuant to this subchapter and which is used to determine the amount of any contribution required to be paid by the city into the contingent reserve fund of the pension fund in the nineteen hundred eighty-nineteen hundred eighty-one fiscal years and nineteen hundred eighty-one-nineteen hundred eighty-two of the city, "regular interest" shall mean interest at the rate of seven and one-half per centum per annum, compounded annually.

         (B)   Subject to the provisions of subparagraph (B) of paragraph (i) of this subdivision, and except as otherwise provided in paragraph four of subdivision b of section 13-331 of this subchapter with respect to determination of the amount of the balance sheet liability as of June thirtieth, nineteen hundred eighty and balance sheet liability contributions, for the purpose of any actuarial valuation, determination or appraisal which is made pursuant to this subchapter and which is used to determine the amount of any contribution required to be paid by the city into the contingent reserve fund of the pension fund in the nineteen hundred eighty-two-nineteen hundred eighty-three fiscal year of the city and in each succeeding fiscal year thereof to and including the nineteen hundred eighty-seven-nineteen hundred eighty-eight fiscal year thereof, "regular interest" shall mean interest at the rate of eight per centum per annum, compounded annually.

         (C)   Subject to the provisions of subparagraph (B) of paragraph (i) of this subdivision, and except as otherwise provided in paragraph four of subdivision b of section 13-331 of this subchapter with respect to determination of the amount of the balance sheet liability as of June thirtieth, nineteen hundred eighty and balance sheet liability contributions, for the purpose of any actuarial valuation, determination or appraisal which is made pursuant to this subchapter and which is used to determine the amount of any contribution required to be paid by the city into the contingent reserve fund of the pension fund in the nineteen hundred eighty-eight-nineteen hundred eighty-nine fiscal year of the city and the nineteen hundred eighty-nine-nineteen hundred ninety fiscal year thereof, "regular interest" shall mean interest at the rate of eight and one-quarter per centum per annum, compounded annually.

      (g)   Subject to the provisions of subparagraph (B) of paragraph (i) of this subdivision, and except as otherwise provided in paragraph four of subdivision b of section 13-331 of this subchapter with respect to determination of the amount of the balance sheet liability as of June thirtieth, nineteen hundred eighty and balance sheet liability contributions, for the purpose of any actuarial valuation, determination or appraisal which (i) is made pursuant to this subchapter and (ii) is used to determine the amount of any contribution required to be paid by the city into the contingent reserve fund of the pension fund in the nineteen hundred ninety-nineteen hundred ninety-one fiscal year of the city and in any subsequent fiscal year thereof, "regular interest" shall mean interest at such rate per annum, compounded annually, as shall be prescribed by the legislature in section 13-638.2 of this title.

      (h)   On or after May first, nineteen hundred eighty-nine and not later than October thirty-first of such year, the board shall submit to the governor, the temporary president and minority leader of the senate, the speaker of the assembly, the majority and minority leaders of the assembly, the state superintendent of insurance, the chairperson of the permanent commission on public employee pension and retirement systems, the mayor of the city and the members of the board of estimate and city council thereof, the written recommendations of the board as to the rate of interest and effective period thereof which should be established by law as "regular interest" for the purpose specified in paragraph (g) of this subdivision.

      (i)   (A)   Subject to the provisions of subparagraph (c) of paragraph two of subdivision b of section 13-331 of this subchapter, nothing contained in paragraphs (e), (f), (g) and (h) of this subdivision shall be construed as prescribing, for the purpose of crediting interest to individual accounts of improved benefits plan members in the annuity savings fund or to reserves-for-increased-take-home-pay of such members or for any other purpose besides that specified in such paragraphs, a rate of regular interest other than as prescribed by the applicable provisions of paragraph (c) or paragraph (d) or paragraph (j) of this subdivision.

         (B)   Subject to the provisions of section 13-638.2 of this title, nothing contained in paragraphs (f) and (g) of this subdivision shall be construed as requiring the unfunded accrued liability contribution, as defined in paragraph three of subdivision b of section 13-331 of this subchapter, to be determined in any manner other than as prescribed in such paragraph three. Subject to the provisions of section 13-638.2 of this title, nothing contained in paragraphs (f) and (g) of this subdivision shall be construed as requiring any balance sheet liability or balance sheet liability contribution computed pursuant to the provisions of paragraph four of subdivision b of section 13-331 of this subchapter to be determined in any manner other than as prescribed in such paragraph four.

      (j)   (i)   Commencing on August first, nineteen hundred eighty-three, and continuing thereafter, "regular interest", in the cases of persons who were members on July thirty-first, nineteen hundred eighty-three or who thereafter became or become members, shall mean, subject to the provisions of subparagraphs (ii) to (x), inclusive, of this paragraph (j), interest at seven per centum per annum, compounded annually.

      (ii)   (A)   (1)   Subject to the provisions of sub-items (2) and (3) of this item (A), regular interest at the rate of seven per centum per annum, compounded annually, shall be used as the actuarial interest assumption for determining any actuarial equivalent benefit payable to or on account of any seven percent member for actuarial equivalent benefit purposes.

            (2)   Where an actuarial equivalent benefit is required by board resolution to be determined for any seven percent member for actuarial equivalent benefit purposes through the use of the modified Option 1 pension computation formula (as defined in subdivision thirty-two of this section) the actuarial interest assumptions used in making such determination shall be as prescribed in such formula.

            (3)   Where it is provided by board resolution that a portion of an actuarial equivalent benefit shall be determined for any seven percent member for actuarial equivalent benefit purposes on the basis of gender-neutral mortality tables, and that the remainder of such benefit shall be determined on the basis of mortality tables which are not gender-neutral, regular interest at the rate of seven per centum per annum, compounded annually, shall be used as the actuarial interest assumption for determining the portion of such benefit required by such resolution to be determined on the basis of gender-neutral mortality tables and such rate of regular interest shall not apply to the determination of the remainder of such benefit.

         (B)   Notwithstanding that the process of determining whether a member is a seven percent member for actuarial benefit purposes may include, for the purpose of ascertaining the higher applicable benefit, alternative hypothetical benefit calculations utilizing a rate of regular interest other than such rate of seven per centum, nothing contained in subparagraph (i) of this paragraph (j) or in item (A) of this subparagraph (ii) shall be construed as requiring that in the determination of any actuarial equivalent benefit payable to or on account of any member who is not a seven percent member for actuarial equivalent benefit purposes, any rate of interest be used as the actuarial interest assumption other than regular interest, compounded annually, as prescribed by the applicable provisions of paragraph (a) or paragraph (c) or paragraph (d) of this subdivision eight.

      (iii)   The provisions of item (A) of subparagraph (ii) of this paragraph (j) shall not apply to any person who, prior to August first, nineteen hundred eighty-three, retired as a member of the pension fund for service or superannuation or for ordinary or accident disability and was such a retiree immediately prior to such August first; provided, however, that if any such retiree returned or returns to city-service and, on or after July thirty-first, nineteen hundred eighty-three, was or is restored to membership in the pension fund as required or permitted by law, the provisions of such item (A), from and after the date of such restoration to membership, shall apply to such restored member with respect to determination of any actuarial equivalent benefit which is both (A) a benefit to which he or she became or becomes entitled upon his or her subsequent retirement or subsequent discontinuance of service so as to qualify for benefits, and (B) a benefit which is not a continuation, without change, of a benefit which had previously become payable to him or her by reason of his or her prior retirement; provided further that nothing contained in the preceding provisions of this subparagraph (iii) shall be construed as making the provisions of such item (A) applicable to any such restored member who was not or is not a seven percent member for actuarial equivalent benefit purposes at the time of such subsequent retirement or subsequent discontinuance of service.

      (iv)   (A)   Subject to the provisions of items (B) and (C) of this subparagraph (iv), the provisions of item (A) of subparagraph (ii) of this paragraph (j) shall not apply to any member who, (1) prior to August first, nineteen hundred eighty-three, discontinued service under such circumstances that such member became an original plan discontinued member (as defined in subdivision sixteen of this section 13-313) or an improved benefits plan discontinued member immediately prior to such August first.

         (B)   If such a discontinued member returned or returns to city-service and on or after July thirty-first, nineteen hundred eighty-three and before payability of his or her retirement allowance as such member began or begins, again became or becomes an active member pursuant to the applicable provisions of section 13-360 or 13-361, the provisions of item (A) of subparagraph (ii) of this paragraph (j) shall apply to him or her on and after the date of such resumption of active membership; provided that nothing contained in the preceding provisions of this item (B) shall be construed as making the provisions of item (A) of such subparagraph (ii) applicable to any such member who was not or is not a seven percent member for actuarial equivalent benefit purposes at the time of subsequent retirement or subsequent discontinuance of service so as to qualify for benefits.

         (C)   If such an original plan discontinued member or improved benefits plan discontinued member returned or returns to city-service and on or after July thirty-first, nineteen hundred eighty-three and on or after the date on which payability of his or her retirement allowance as such member began or begins, again became or becomes an active member pursuant to the applicable provisions of section 13-360 or 13-361 of this subchapter, the provisions of item (A) of such subparagraph (ii), on and after the date of such resumption of active membership, shall apply to him or her with respect to determination of any actuarial equivalent benefit which is both (1) a benefit to which he or she became or becomes entitled upon his or her subsequent retirement or subsequent discontinuance of service so as to qualify for benefits, and (2) a benefit which is not a continuation, without change, of a benefit which had previously become payable to him by reason of his or her prior discontinuance of service; provided that nothing contained in the preceding provisions of this item (C) shall be construed as making item (A) of such subparagraph (ii) applicable to any such member who was not or is not a seven percent member for actuarial equivalent benefit purposes at such time of subsequent discontinuance of service.

      (v)   (A)   Subject to the provisions of item (B) of this subparagraph (v) and to the provisions of subparagraph (viii) of this paragraph (j), the selection of mode of benefit (as defined in subdivision thirty-three of this section 13-313) made prior to the date of enactment (as such date is certified pursuant to section forty-one of the legislative law) of this paragraph (j) by a person entitled to a recomputation of benefits pursuant to the better-of-two-computations method (as defined in subdivision thirty-five of this section) in relation to the retirement allowance (or any component thereof) which became payable to him or her prior to such date of enactment shall be the selection of mode of benefit applicable to the recomputed retirement allowance (or any corresponding component thereof) to which he or she is entitled under the better-of-two-computations method (as defined in subdivision thirty-four of this section), and any such person entitled to a recomputation of benefits pursuant to the better-of-two-computations method shall not be entitled to make any change in such selection of mode of benefit.

         (B)   (1)   Notwithstanding the provisions of item (A) of this subparagraph (v), a person entitled to a recomputation of benefits pursuant to the better-of-two-computations method shall be entitled, to the extent and in the manner prescribed in the succeeding sub-items of this item (B), to change the original selection of mode of benefit applicable to the retirement allowance (or any component thereof) which became payable to him or her prior to the date of enactment of this paragraph (j).

            (2)   In any case where the original selection of mode of benefit of a person entitled to a recomputation of benefits pursuant to the better-of-two-computations method was a selection of a joint and survivor option (as defined in subdivision thirty-six of this section), no change from such original selection of a joint and survivor option may be made under this item (B) to any other selection of mode of benefit if the designated beneficiary selected with respect to such joint and survivor option by such person entitled to a recomputation is not alive at the time of filing of the form whereby such person entitled to a recomputation seeks to change, pursuant to this item (B), his or her original selection of such joint and survivor option.

            (3)   Except for a change of selection of mode of benefit prohibited by sub-item two of this item (B), any original selection of mode of benefit may be changed pursuant to this item (B) to another selection of mode of benefit, provided all of the conditions set forth in sub-items four, six and eight of this item (B) are met.

            (4)   Subject to the provisions of sub-items seven and eight of this item (B), a person entitled to a recomputation of benefits pursuant to the better-of-two-computations method may, pursuant to this item (B), effect any such permissible change of his or her original selection of mode of benefit by executing, acknowledging and filing with the pension fund, within the applicable period of time prescribed by sub-item six of this item, a new selection of mode of benefit. If the original selection of mode of benefit of the person filing such new selection was a selection of a joint and survivor option, such new selection shall be void and of no effect unless (a) the designated beneficiary named in such original selection of a joint and survivor option signs and acknowledges, in the form for such new selection of mode of benefit, a consent to such changed selection of mode of benefit, and (b) such original designated beneficiary is alive on the date of filing of such new selection.

            (5)   The pension fund shall mail to each person entitled to a recomputation of benefits pursuant to the better-of-two-computations method a letter showing amounts of benefits, as recomputed for such person under the better-of-two-computations method for modes of benefit other than joint and survivor options, together with a statement advising such person that upon request, the amounts of recomputed benefits under joint and survivor options will be provided.

            (6)   The period of time within which any such person entitled to a recomputation may file a new selection of mode of benefit as provided for in sub-items three and four of this item (B) shall be sixty days after the date of issuance set forth in such letter mailed to such person pursuant to sub-item five of this item; provided, however, that if, pursuant to the request of such person, a later letter setting forth benefits information in relation to new selection of a mode of benefit is mailed to such person by the pension fund, such period of time for filing a new selection of mode of benefit shall be thirty days after the date of issuance set forth in such later letter.

            (7)   Upon the filing of a new selection of mode of benefit pursuant to this item (B) by any such person entitled to a recomputation, such new selection shall be irrevocable and such person shall not be entitled to file any other selection of mode of benefit with respect to such retirement allowance (or any component thereof) which became payable to him or her prior to the date of enactment of paragraph (j).

            (8)   No new selection of mode of benefit filed pursuant to the preceding sub-items of this item (B) shall be valid or effective as a change of mode of benefit or for any other purpose unless the person entitled to a recomputation of benefits pursuant to the better-of-two-computations method who files such new selection is alive on the date (hereinafter referred to as the "validating date") three hundred sixty-five days after the date of filing of such new selection of mode of benefit. If such person filing such new selection of mode of benefit is alive on the validating date with respect to such new selection, such new selection shall become valid and effective on such validating date; provided, however, that from and after the effective date of retirement of such person making such valid and effective new selection of mode of benefit (if he or she retired for service or superannuation or for ordinary or accident disability) or from and after the date on which payability of the original benefits of such person began (if he or she was a discontinued member), such new selection of mode of benefit shall supersede such original selection of mode of benefit and shall apply to and govern the amount of benefits payable to such person or to his or her designated beneficiary or estate.

      (vi)   Subject to the provisions of subparagraph (viii) of this paragraph (j), in any case where a member who retired before August first, nineteen hundred eighty-three for service or superannuation or for ordinary or accident disability returned or returns to city-service and on or after July thirty-first, nineteen hundred eighty-three re-entered or re-enters membership in the pension fund, nothing contained in subparagraphs (i) to (iv), inclusive, of this paragraph (j) shall be construed as authorizing or permitting him or her to change any selection of mode of benefit (as defined in subdivision thirty-three of this section 13-313) made by him or her with respect to any benefit which, upon his or her subsequent retirement or discontinuance of service so as to qualify for benefits, is payable to him or her as a continuation, without change, of a benefit which had previously become payable to him or her by reason of his or her prior retirement.

      (vii)   Subject to the provisions of subparagraph (viii) of this paragraph (j), in any case where a discontinued member referred to in item (A) of subparagraph (iv) of this paragraph (j) returned or returns to city-service and, on or after July thirty-first, nineteen hundred eighty-three, again became or becomes an active member pursuant to applicable provisions of law, nothing contained in subparagraphs (i) to (iv), inclusive, of this paragraph shall be construed as authorizing or permitting him or her to change any selection of mode of benefit (as defined in subdivision thirty-three of this section 13-313) made by him or her with respect to any benefit which, upon his or her subsequent retirement or discontinuance of service so as to qualify for benefits, is payable to him or her as a continuation, without change, of a benefit which had previously become payable to him or her by reason of his or her prior discontinuance of service.

      (viii)   Nothing contained in subparagraphs (v), (vi) and (vii) of this paragraph (j) shall be construed as preventing:

         (A)   any person subject to such subparagraph (v) who, on or after July thirty-first, nineteen hundred eighty-three, re-entered or re-enters city-service and again became or becomes an active member; or

         (B)   any re-entered member referred to in such subparagraph (vi) or subparagraph (vii); upon his or her subsequent retirement, from exercising any right which any other applicable law grants to him or her under such circumstances to make a selection of mode of benefit (as defined in subdivision thirty-three of section 13-313).

      (ix)   Notwithstanding the provisions of subparagraph (i) of this paragraph (j) prescribing a rate of regular interest of seven per centum per annum, compounded annually, for specified members described in such subparagraph (i), the rate of regular interest which shall be applied to fix the rate of interest on any loan to any such member eligible to borrow shall be four per centum per annum, compounded annually.

      (x)   (A)   Subject to the provisions of item (B) of this subparagraph (x), the rate of regular interest applicable to determination of the rate of member contribution of any member whose last membership began prior to the date of enactment (as certified pursuant to section forty-one of the legislative law) of this paragraph (j) shall be the rate of regular interest which was applicable, under the provisions of law in effect prior to such date of enactment, to the determination of the rate of member contribution of such member, and nothing contained in the preceding subparagraphs of this paragraph (j) shall be construed as applicable to the determination of the rate of member contribution of any such member whose last membership so began or as changing or affecting the rate of member contribution of any such member.

         (B)   The rate of regular interest applicable to determination of the rate of member contribution of any elective improved benefits plan member who became or becomes such a member by reason of an election made on or after August first, nineteen hundred eighty-three shall be the rate of regular interest, as prescribed by the applicable provisions of paragraph (a) of subdivision eight of section 13-214 of the code, which is required by the provisions of subdivision (i) of section 13-315 to be applied to the determination of such rate of member contribution. Nothing contained in the preceding subparagraphs of this paragraph (j) shall be construed as applicable to the determination of the rate of member contribution of any such elective improved benefits plan member or as changing or affecting the rate of the member contribution of any such member.

   8-a.   "Pension", with respect to any retired or deceased improved benefits plan member and with respect to any improved benefits plan discontinued member and with respect to the beneficiaries of any such member, shall mean payments for life derived from appropriations made by the city as provided in this subchapter.

   8-b.   "Annuity", with respect to any retired or deceased improved benefits plan member and with respect to any improved benefits plan discontinued member and with respect to the beneficiaries of any such member, shall mean payments for life derived from contributions made by such member as provided in this subchapter.

   9.   "Retirement allowance", in the case of a retired or deceased original plan member and in the case of an original plan discontinued member and in the case of the beneficiaries of any such member, shall mean payments for life derived from appropriations made by the city as provided in this subchapter and from contributions made by a member as provided in this subchapter.

   9-a.   "Retirement allowance", in the case of a retired or deceased improved benefits plan member and in the case of an improved benefits plan discontinued member and in the case of the beneficiaries of any such member, shall mean pension plus the annuity and the pension-providing-for-increased-take-home-pay, if any.

   10.   "Dependent benefit" shall mean payments derived from contributions made by a member as provided in sections 13-329 and 13-355 of this subchapter.

   11.   "Retirement allowance reserve", with respect to any original plan member or his or her beneficiaries, shall mean the present value of all payments to be made on account of any retirement allowance, payable to or on account of a person who retired as an original plan member, or benefit in lieu of any retirement allowance, granted under the provisions of this subchapter, computed upon the basis of such mortality tables as shall be adopted by the board with regular interest.

   11-a.   "Pension reserve", with respect to any improved benefits plan member or his or her beneficiaries, shall mean the present value of all payments to be made on account of any pension, or benefit in lieu of any pension, granted under the provisions of this subchapter, computed upon the basis of such mortality tables as shall be adopted by the board, with regular interest.

   11-b.   "Annuity reserve", with respect to any improved benefits plan member or his or her beneficiaries, shall mean the present value of all payments to be made on account of any annuity, or benefit in lieu of any annuity, granted under the provisions of this subchapter computed on the basis of such mortality tables as shall be adopted by the board, with regular interest.

   12.   "Fiscal year" shall mean any year commencing with the first day of July and ending with the thirtieth day of June next following.

   13.   "Total service", in the case of an original plan member, shall mean all service of such member allowable with respect to such member as provided in subdivision three of this section and section 13-318 of this subchapter.

   13-a.   "Total service", in the case of an improved benefits plan member, shall mean all service of such member allowable with respect to such member as provided in subdivision three-a of this section and section 13-318 of this subchapter.

   14.   "Board" shall mean the board of trustees provided for in section 13-316 of this subchapter.

   15.   "Accumulation-for-increased-take-home-pay", with respect to any original plan member, shall mean a sum consisting of the total of all products obtained by multiplying the compensation of such member, during each period of reduction of his or her member contributions pursuant to the provisions of section 13-326 of this subchapter and subdivision b of section four hundred eighty of the retirement and social security law, occurring while he or she is an original plan member, by the percentage of reduction of his or her contributions applicable under such provisions with respect to such period, without interest thereon.

   15-a.   "Pension-providing-for-increased-take-home-pay", with respect to any improved benefits plan member, shall mean the annual allowance for life payable in monthly installments derived from contributions which the city made to the contingent reserve fund, pursuant to section 13-326 of this subchapter and subdivision b of section four hundred eighty of the retirement and social security law, with respect to the period wherein he or she was an improved benefits plan member.

   15-b.   "Reserve-for-increased-take-home-pay", with respect to an improved benefits plan member, shall mean:

      (a)   the amount of the reserve provided by the city which shall be a sum consisting of the total of all products obtained by multiplying the compensation of the member, during each period of reduction of member contributions under the provisions of section 13-326 of this subchapter and subdivision b of section four hundred eighty of the retirement and social security law while he or she is an improved benefits plan member, by the percentage of reduction of his or her contributions applicable under such provisions with respect to such period, plus regular interest, and additional interest, if any, thereon; plus

      (b)   in the case of any elective improved benefits plan member, the amount of the accumulation-for-increased-take-home-pay, if any, of such member, as such accumulation was on the date next preceding the effective date of his or her election to be such a member, plus regular interest and additional interest, if any, on and after such effective date on the amount of such accumulation; plus

      (c)   in the case of any non-elective improved benefits plan member who is credited, immediately prior to becoming such a member, with an accumulation-for-increased-take-home-pay, the amount of such accumulation-for-increased-take-home-pay, as such accumulation was on the date next preceding the date on which such member became a nonelective improved benefits plan member, plus regular and additional interest, if any, on and after such date on which he or she became a nonelective improved benefits plan member, on the amount of such accumulation.

   16.   "Original plan discontinued member" shall mean an original plan member who has a vested right to a deferred retirement allowance under section 13-360 of this subchapter.

   16-a.   "Original plan discontinued member not subject to article eleven" shall mean an original plan member not subject to article eleven (as defined in subdivision four-c of this section) who has a vested right to a deferred retirement allowance under section 13-360 of this subchapter.

   16-b.   "Original plan discontinued member subject to article eleven" shall mean an original plan member subject to article eleven (as defined in subdivision four-d of this section) who has a vested right to a deferred retirement allowance under section 13-360 of this subchapter.

   16-c.   "Fire uniformed force service" shall for purposes of section 13-361 of this subchapter mean service in the uniformed force of the fire department, as a member of such force, including service for which credit is granted by section 15-111 of the code, but excluding any service credit acquired by transfer or otherwise under any provision of law.

   16-d.   "Improved benefits plan discontinued member" shall mean any improved benefits plan member who has discontinued fire uniformed force service (as defined in subdivision sixteen-c of this section) and who has a vested right to a deferred retirement allowance under section 13-361 of this subchapter.

   16-e.   "Improved benefits plan discontinued member not subject to article eleven" shall mean an improved benefits plan member not subject to article eleven (as defined in subdivision four-i of this section) who has a vested right to a deferred retirement allowance under section 13-361 of this subchapter.

   16-f.   "Improved benefits plan discontinued member subject to article eleven" shall mean an improved benefits plan member subject to article eleven (as defined in subdivision four-j of this section) who has discontinued fire uniformed force service and who has a vested right to a deferred retirement allowance under section 13-361 of this subchapter.

   17.   "Normal rate of contribution as an original plan member" shall mean:

      (a)   in the case of any original plan member who is required to make member contributions as such a member under the applicable provisions of this subchapter, the proportion of his or her earnable compensation which is required to be deducted from the compensation of such member by the applicable provisions of section 13-325 of this subchapter as his or her member contributions, exclusive of any reduction of such proportion on account of any program for increased-take-home-pay in effect.

      (b)   in the case of any original plan member who heretofore completed, or who, on or after the effective date of this subdivision, shall complete, his or her minimum period for service retirement, the proportion of his or her earnable compensation (exclusive of any reduction of such proportion on account of any program of increased-take-home-pay in effect) which, as of the date on which he or she completed his or her minimum period for service retirement, was required to be deducted from the compensation of such member by the applicable provisions of section 13-325 of this subchapter, as in effect on such date.

   18.   "Normal rate of contribution as an improved benefits plan member" shall mean:

      (a)   in the case of any improved benefits plan member who is not eligible to elect to discontinue making member contributions under the applicable provisions of this subchapter, the proportion required to be deducted from the compensation of such member by the applicable provisions of section 13-315 and/or section 13-327 of this subchapter as his or her member contributions, exclusive of any increase in such proportion pursuant to subdivision c or subdivision d of section 13-327 of this subchapter or any reduction thereof on account of any program for increased-take-home-pay in effect or pursuant to subdivision one of section one-hundred thirty-eight-b of the retirement and social security law (relating to election to decrease member contributions by contributions due on account of social security coverage).

      (b)   in the case of any improved benefits plan member who completed his or her minimum period for service retirement before becoming an improved benefits plan member and who is eligible under the provisions of this subchapter to elect to discontinue making member contributions or has made such election, the proportion of his or her earnable compensation (exclusive of any increase in such proportion pursuant to subdivision c or subdivision d of section 13-327 of this subchapter or any reduction thereof on account of any program of increased-take-home-pay in effect) which, as of the date on which he or she completed his or her minimum period for service retirement, would have been required to be deducted from his or her compensation by the applicable provisions of sections 13-315 and/or 13-327 of this subchapter if the improved benefits plan had been in effect on his or her date of inception of pension fund membership (as defined in subdivision twenty of this section) and he or she had become an improved benefits plan member on such date of inception.

   19.   "Date of commencement of contributions as an improved benefits plan member" shall mean the first day (on or after the last commencement of the status of an improved benefits plan member as such member) for which deductions from the compensation of such member are required by the applicable provisions of subdivision i of section 13-315 of this subchapter and/or section 13-327 of this subchapter to be made on account of his or her contributions as an improved benefits plan member.

   20.   "Date of inception of pension fund membership", in the case of any original plan member (as defined in subdivision four-b of this section) or elective improved benefits plan member (as defined in subdivision four-g of this section), shall mean the earliest date on which such member last became eligible for membership in any pension fund established pursuant to former article one-A repealed by chapter three hundred eighty-five of nineteen hundred eighty-one or subchapter two of this chapter. Nothing herein provided shall limit member service credit restoration pursuant to section 13-319 of this subchapter.

   20-a.   "Date of commencement of credited member service in the fire uniformed force" shall mean, with respect to any improved benefits plan member, the date of commencement of the period of service in the uniformed force of the fire department as a member of the pension fund which is credited to such member as of the date on which any benefit under this subchapter becomes payable to such member.

   21.   (a)   "Contribution rate deficiency" shall mean with respect to each elective improved benefits plan member (as defined in subdivision four-g of this section) and shall mean with respect to any non-elective improved benefits plan member (as defined in subdivision four-h of this section) who is subject to such a deficiency, an amount equal to the excess, if any, of (ii) over (i) hereof where: (i) is the amount of the total accumulated contributions (as defined in subdivision seven of this section) of such member (as such amount would be in the absence of a loan) as of the earlier of (1) the date next preceding his or her date of commencement of contributions as an improved benefits plan member (as defined in subdivision nineteen of this section) or (2) the date of completion of his or her minimum period for service retirement; and (ii) is the amount (i) would be if the contribution rate of the member to the date specified in (i) had been his or her normal rate of contribution as an improved benefits plan member.

      (b)   "Contribution rate deficiency" shall mean, with respect to an improved benefits plan discontinued member (as defined in subdivision sixteen-d of this section) who is subject to such a deficiency, an amount equal to the excess, if any, of (ii) over (i) hereof where: (i) is the amount of the total accumulated contributions of such discontinued member (as such amount would be in the absence of a loan) as of the date next preceding his or her date of commencement of contributions as an improved benefits plan member (as defined in subdivision nineteen of this section); and (ii) is the amount (i) would be if the contribution rate of the member to the date specified in (i) had been his or her normal rate of contribution as an improved benefits plan member.

   22.   "Subsequent period for election of the improved benefits plan" shall mean any of the following three-month periods: the period of three months beginning on the date next succeeding the date which is the last day of a period of thirty months next succeeding the starting date of the improved benefits plan (as defined in subdivision twenty-seven of this section), and subsequent, successive periods of three months' duration, such period for the calendar year nineteen hundred eighty-six beginning on September first, nineteen hundred eighty-six, and ending three months thereafter, and for successive calendar years, beginning with the calendar year nineteen hundred eighty-seven, such periods beginning on June first and ending on August thirty-first of each such year.

   23.   "Pension fund one-A" shall mean the pension fund provided for by article one-A of title B of chapter nineteen of the code, as in effect immediately prior to July first, nineteen hundred eighty-one.

   24.   "Special interest" shall mean a distribution to the annuity savings fund, in addition to regular interest, which distribution (a) for each of the periods as to which the provisions of section 13-337 of this subchapter or section 13-638.2 of this title grant special interest, consists of the amount prescribed by such provisions for such period and (b) for each such period, is credited in such applicable amount to the accounts in the annuity savings fund of improved benefits plan members who are eligible under such provisions for crediting of such amount for such period.

   25.   "Additional interest", with respect to any improved benefits plan member, shall mean a distribution to the reserve-for-increased-take-home-pay in addition to regular interest, which distribution (a) for each of the periods, if any, as to which the provisions of section 13-337 of this subchapter or section 13-638.2 of this title grant additional interest, consists of the amount prescribed by such provisions for such period and (b) for each such period, is included in such applicable amount in the reserve-for-increased-take-home-pay of each member who is eligible under such provisions for inclusion of such amount for such period.

   26.   "Supplementary interest" shall mean an annual allowance, in addition to regular interest, of interest on the mean amount for the preceding year in each of the funds provided for in accordance with the provisions of this subchapter (excluding, however, the annuity savings fund and the amounts of total accumulated contributions, accumulations-for-increased-take-home-pay and reserve-for-increased-take-home-pay in the contingent reserve fund), which allowance, (a) for each of the periods as to which the provisions of section 13-337 of this subchapter or section 13.638.2* of this title grant supplementary interest, consists of the amount prescribed by such provisions for such period and (b) for each such period, is credited in such applicable amount to such funds at the time, in the manner, to the extent and subject to the exclusions prescribed by the provisions of such section.

   27.   "Starting date of the improved benefits plan" shall mean the date of enactment of the act which added this subdivision twenty-seven, as such date is certified pursuant to section forty-one of the legislative law.

   28.   "Five-year-average-salary", in the case of an original plan member, shall mean the average annual compensation earnable by such member for city-service during his or her last five years of city-service, or during any other five consecutive years of city-service since he or she last became a member which such member shall designate.

   29.   "Actuarial equivalent benefit." Any benefit which by law is required to be an actuarial equivalent or by law is required to be determined on the basis of an actuarial equivalent.

   30.   "Seven percent member for actuarial equivalent benefit purposes."

      (a)   A member who meets all of the following conditions:

         (i)   subparagraph (i) of paragraph (j) of subdivision eight of this section (relating to the definition of members as to whom regular interests at seven per centum per annum, compounded annually applies) applies to such member; and

         (ii)   an actuarial equivalent benefit has become payable to or on account of such member; and

         (iii)   it is provided by a resolution of the board (A) that a mortality table which takes effect on or after the date of enactment (as certified pursuant to section forty-one of the legislative law) of this subdivision and which does not differentiate on the basis of sex shall be used to calculate such actuarial equivalent benefit or a portion of such benefit, or (B) that the modified Option 1 pension computation formula (as defined in subdivision thirty-two of this section) shall be used to calculate such actuarial equivalent benefit.

      (b)   Except in cases to which the modified Option 1 pension computation formula applies pursuant to a resolution adopted by the board, nothing contained in subparagraph (iii) of paragraph (a) of this subdivision thirty shall be construed as referring to or including any calculation of an actuarial equivalent benefit (or portion of such benefit) payable to any person where such calculation is required by such resolution to be made through the use of a mortality table in effect prior to such date of enactment.

   31.   "Tier I member." A member whose benefits (other than a supplemental retirement allowance) are prescribed by this article and who is not subject to the provisions of article eleven, article fourteen or article fifteen of the retirement and social security law.

   32.   "Modified Option 1 pension computation formula."

      (a)   The method, as set forth in the succeeding paragraphs of this subdivision, of computing the following benefits:

         (i)   the Option 1 retirement allowance payable to a Tier I member who retired as an original plan member for service or superannuation or for ordinary or accident disability or who became an original plan discontinued member not subject to article eleven (as defined in subdivision sixteen-a of this section); and

         (ii)   the pension component of an Option 1 retirement allowance payable to a member who retired as an improved benefits plan member for service or superannuation or ordinary or accident disability or who became an improved benefits plan discontinued member (as defined in subdivision sixteen-d of this section); and

         (iii)   the method of computing the amount of the Option 1 benefit payable to the beneficiary or estate of any such member above referred to in this paragraph.

      (b)   The initial reserve for such original plan retirement allowance or improved benefits plan pension component shall be computed through use of mortality tables which are adopted on or after the date of enactment (as certified pursuant to section forty-one of the legislative law) of this subdivision and which do not differentiate on the basis of sex (hereinafter referred to as "gender-neutral mortality tables") and an interest assumption consisting of regular interest of seven per centum per annum, compounded annually.

      (c)   Solely for the purpose of use as the minuend from which the payments of such original plan retirement allowance or improved benefits plan pension component to such member are subtracted in order to determine the amount of the Option 1 benefit payable, upon such member's death, to such member's beneficiary or estate by reason of such Option 1 selection in relation to such retirement allowance or pension component, the present value of such member's maximum original plan retirement allowance or maximum improved benefits plan pension, as it was at the time of such member's retirement, shall be deemed to be the greater of:

         (i)   such present value determined on the basis of gender-neutral mortality tables and an interest assumption consisting of regular interest of seven per centum per annum, compounded annually; or

         (ii)   such present value determined on the basis of the mortality tables and the regular interest applicable to such member in effect immediately prior to the date of enactment (as certified pursuant to section forty-one of the legislative law) of this subdivision.

      (d)   The original plan retirement allowance or improved benefits plan pension component payable to such member shall be computed on the basis of gender-neutral mortality tables and an interest assumption consisting of regular interest of seven per centum per annum, compounded annually, so that:

         (i)   the present value, as it was at the time of such member's retirement, of such retirement allowance or pension component; plus

         (ii)   the present value, as it was at the time of such member's retirement, of the amount payable to such member's Option 1 beneficiary or estate upon the death of the member as provided for by the applicable provisions of paragraph (e) of this subdivision; shall be equal to the Option 1 initial reserve determined for such original plan retirement allowance or improved benefits plan pension component with respect to such member pursuant to the provisions of paragraph (b) of this subdivision.

      (e)   Where such member dies before he or she has received payments on account of such original plan retirement allowance or improved benefits plan pension component equal to the present value of such member's maximum original plan retirement allowance or maximum improved benefits plan pension as computed pursuant to paragraph (c) of this subdivision, the Option 1 benefit payable to the beneficiary or estate of such deceased member, by reason of such Option 1 selection in relation to such retirement allowance or pension component, shall be the remainder obtained by subtracting from such present value determined pursuant to such paragraph (c) in relation to such retirement allowance or pension component, the total of such Option 1 payments on account of such retirement allowance or pension component received by or payable to such member for the period prior to his or her death.

      (f)   In relation to the Option 1 benefits determined pursuant to the method of computation set forth in this subdivision by reason of discontinuance of service by an original plan discontinued member or an improved benefits plan discontinued member, the phrase "time of such member's retirement," as set forth in paragraphs (c) and (d) of this subdivision, shall be deemed, for the purpose of this subdivision, to mean the date of commencement of the retirement allowance of such discontinued original plan member or discontinued improved benefits plan member.

   33.   "Selection of mode of benefit." The choice made by a member (as permitted by and pursuant to the requirements of law governing such choice by such member) as to whether the maximum amount of his of her retirement allowance of a component thereof shall be payable or such retirement allowance or a component thereof shall be payable under an option selected by the member. The term "selection of mode of benefit" shall include a case where the maximum retirement allowance or a maximum component thereof becomes payable because of a member's omission, within the time permitted by law, to select the maximum benefit or an option.

   34.   "Better-of-two-computations method."

      (a)   A method (as prescribed by a resolution of the board) under which a retirement allowance (or portion thereof) payable to a member is required to be determined for such member so as to be the greater of:

         (i)   such retirement allowance (or portion thereof) determined on the basis of gender-neutral mortality tables and regular interest at the rate of seven per centum per annum, or

         (ii)   such retirement allowance (or portion thereof) determined on the basis of the mortality tables and the regular interest applicable to such member, as such tables and interest were in effect as of a time prescribed in such resolution.

      (b)   Where, under the provisions of any such resolution of the board, the modified Option 1 pension computation formula (as defined in subdivision thirty-two of this section) applies to any member, the term, "better-of-two-computations method," where used in relation to such member, shall be deemed to include such modified Option 1 pension computation formula, to the extent that such formula governs the determination of (i) such member's retirement allowance (or portion thereof), in the case of an original plan member, or (ii) the pension component (or portion thereof) of such member's retirement allowance in the case of an improved benefits plan member.

   35.   "Person entitled to a recomputation of benefits pursuant to the better-of-two-computations method." Any person who meets all of the conditions stated below in this subdivision:

      (a)   such person, during the period beginning on August first, nineteen hundred eighty-three and ending on the date next preceding the date of enactment (as such date is certified pursuant to section forty-one of the legislative law) of this subdivision, (i) retired for service or superannuation or for ordinary or accident disability, or (ii) discontinued service so as to become an original plan discontinued member (as defined in subdivision sixteen of this section) or an improved benefits plan discontinued member (as defined in subdivision sixteen-d of this section); and

      (b)   such person's retirement allowance (or a portion thereof), by reason of such retirement or discontinuance of service, is required by a resolution adopted by the board to be redetermined pursuant to the better-of-two-computations method (as defined in subdivision thirty-four of this section); and

      (c)   a first payment on account of his or her retirement allowance (as such retirement allowance was determined prior to the date of enactment of this subdivision) was made prior to such date of enactment.

   36.   "Joint and survivor option."

      (a)   Any option under which, at the time when such option is selected, a choice is made which includes both:

         (i)   a benefit payable for the lifetime of the retired or vested member by whom or in whose behalf such option is selected; and

         (ii)   a benefit (A) which consists of an amount equal to or constituting a percentage of such retired or vested member's benefit and (B) which is payable for the lifetime of a designated beneficiary selected at the time when such option is selected.

      (b)   In any case where an option described in paragraph (a) of this subdivision includes a provision prescribing that if the designated beneficiary predeceases such retired or vested member, a maximum benefit shall become payable to such member, such option shall nevertheless be deemed to be a joint and survivor option.

   37.   "Original plan member contributions eligible for pick up by the employer."

      (a)   With respect to any payroll period for an original plan member who is required to make member contributions during such payroll period under the provisions of section 13-325 of this subchapter, the term "original plan member contributions eligible for pick up by the employer" shall mean the amount of member contributions which, in the absence of an employer pick up program applicable to such member pursuant to section 13-327.1 of this subchapter (providing for pick up of required member contributions), would be required by law to be deducted, on account of such member's normal rate of contribution (as defined in subdivision seventeen of this section) from the compensation of such member for such payroll period, after (1) giving effect to any reduction in such payroll period, after (1) giving effect to any reduction in such contributions required under any program for increased-take-home-pay and (2) excluding any deductions from such compensation (or redeposits or payments) on account of (i) loans or withdrawals of contributions or (ii) any election by such member to increase his or her contributions pursuant to subdivision d of section 13-325 of this subchapter or (iii) any other cause not attributable to the member's normal rate of contribution, after reduction, if any, in such rate, as described in subparagraph one of this paragraph (a).

      (b)   If no deductions on account of an original plan member's normal rate of contribution are required by law to be made from the compensation of such member for any payroll period, such member shall not have, for such payroll period, any original plan member contributions eligible for pick up by the employer. The amount of an original plan member's original plan member contributions eligible for pick up by the employer for any payroll period shall be determined solely on the basis of compensation paid to such member for such payroll period by his or her public employer. An original plan member shall not have any original plan member contributions eligible for pick up by the employer with respect to any payroll period for which he or she is not paid compensation by his or her public employer.

   38.   "Improved benefits plan member contributions eligible for pick up by the employer."

      (a)   With respect to any payroll period for an improved benefits plan member (other than any such member who is not required to contribute during such payroll period because of his or her currently effective election to discontinue member contributions pursuant to subdivision b of section 13-327 of this subchapter), the term "improved benefits plan member contributions eligible for pick up by the employer" shall mean the amount of member contributions which, in the absence of an employer pick up program applicable to such member pursuant to section 13-327.1 of this subchapter (providing for pick up of required member contributions), would be required by law to be deducted, on account of such member's normal rate of contribution, from the compensation of such member for such payroll period, after (1) giving effect to any reduction in such contributions required under any program for increased-take-home-pay or pursuant to subdivision one of section one hundred thirty-eight-b of the retirement and social security law and (2) excluding any deductions from such compensation (or redeposits, restorations or payments) on account of (i) loans or withdrawals of excess contributions or (ii) any contribution rate deficiency (as defined in subdivision twenty-one of this section) of such member or (iii) any election by such member to increase his or her member contributions pursuant to subdivision c or subdivision d of section 13-327 of this subchapter or (iv) any other cause not attributable to the member's normal rate of contribution after reduction, if any, in such rate as described in subparagraph one of this paragraph (a).

      (b)   If no deductions on account of an improved benefits plan member's normal rate of contribution are required by law to be made from the compensation of such member for any payroll period, such member shall not have, for such payroll period, any improved benefits plan member contributions eligible for pick up by the employer. The amount of an improved benefits plan member's improved benefits plan member contributions eligible for pick up by the employer for any payroll period shall be determined solely on the basis of compensation paid to such member for such payroll period by his or her public employer. An improved benefits plan member shall not have any improved benefits plan member contributions eligible for pick up by the employer with respect to any payroll period for which he or she is not paid compensation by his or her public employer.

   39.   "Starting date for pick up." The first day of the first whole payroll period commencing after the date which is three months after the internal revenue service shall have issued a ruling that member contributions picked up pursuant to section 13-327.1 of this subchapter are not includible as gross income for federal income tax purposes until distributed or made available.

§ 13-314 Membership; composition and eligibility.

The membership of the pension fund shall consist of:

   a.   all persons in city-service, as defined in this subchapter, in positions in the competitive class of the civil service, who shall have served the required probationary period and shall have been appointed medical officers of the fire department or who shall have served the required probationary period and shall have been appointed as fourth grade firefighters after March twenty-ninth, nineteen hundred forty and prior to the date on which this section as hereby amended takes effect, and shall have elected to become a member of the fire department pension fund pursuant to this subchapter prior to such appointment as a fourth grade firefighter or such medical officer; and

   b.   (1)   all persons in city-service, as defined in this subchapter, in positions in the competitive class of the civil service:

         (A)   who shall have been appointed probationary medical officers of the fire department or probationary firefighters on or after April fourteenth, nineteen hundred fifty-six and prior to the starting date of the improved benefits plan (as defined in subdivision twenty-seven of section 13-313 of this subchapter), and shall have elected to become a member of the fire department pension fund pursuant to this subchapter prior to such appointment as probationary firefighters or probationary medical officers; and

         (B)   who shall have been appointed on or after such starting date as probationary medical officers of the fire department or probationary firefighters; and

      (2)   all persons in city-service, as defined in this subchapter, who hold a position of medical officer of the fire department classified in the non-competitive class of the civil service; and

      (3)   all persons in city-service, as defined in this subchapter, who, during the period commencing on July first, nineteen hundred ninety-five and ending on June thirtieth, nineteen hundred ninety-six, are appointed as provisional firefighters; and

      (4)   a person in city-service in the position of chief of department in the exempt class of the civil service.

   c.   in determining the terms of service of any member of the fire department, service as a physician and surgeon in the classified service in any other department in the city; service not exceeding three years as an interne duly appointed and removable by the city of New York in any hospital owned and operated by such city, provided further that such interne shall pay into the pension fund an amount equal to the amount he or she would have paid during such period of service if he or she had been a medical officer in such fire department receiving compensation based on an annual amount of five thousand dollars per year; and temporary service in the fire department as a medical officer, and subsequently thereafter in the fire department shall be counted and held to be service in the fire department of the city. Any person, however, becoming a member of the fire department, in the manner herein provided, shall not be entitled to participate in the benefits of the fire department pension fund, unless he or she shall pay into such fund the total amount he or she would have been required to pay in order to participate therein had he or she been a member of the fire department during the time he or she shall have served in the same or such other department.

   d.   (1)   Notwithstanding any other provision of this subchapter or any other law to the contrary, but subject to the provisions of paragraph two of this subdivision d, in any case where a member who has completed his or her minimum period for service retirement is appointed fire commissioner or deputy fire commissioner he or she shall, while serving as fire commissioner or deputy fire commissioner, continue to be a member of the pension fund. Such member, if he or she was an original plan member at the time of his or her appointment as fire commissioner, shall continue to be an original plan member while serving as fire commissioner, unless he or she elects to become an improved benefits plan member pursuant to the provisions of section 13-315 of this subchapter, and if he or she was an improved benefits plan member at the time of his or her appointment as fire commissioner, he or she shall continue to be an improved benefits plan member while serving as fire commissioner.

      (2)   Notwithstanding any other provision of this subchapter or any other law to the contrary, but subject to the provisions of paragraph three of this subdivision, in any case where an improved benefits plan member who is eligible to retire for service is appointed a deputy fire commissioner, he or she shall, while serving as a deputy fire commissioner, continue to be an improved benefits plan member of the pension fund.

      (3)   The status of any member referred to in paragraph one or paragraph two of this subdivision with respect to applicability or inapplicability of the provisions of article eleven of the retirement and social security law to him or her as a member of the pension fund shall not be affected or changed by his or her appointment as fire commissioner or deputy fire commissioner, as the case may be.

      (4)   For the purposes of this subchapter, an improved benefits plan member serving as a fire commissioner or deputy fire commissioner whose membership is continued pursuant to the applicable provisions of paragraph one or paragraph two of this subdivision or whose membership is restored pursuant to the applicable provisions of section 13-371 or section 13-372 of this subchapter shall, during the period of such continuance or restoration of membership, be deemed to be a member of the uniformed force of the fire department and his or her service as fire commissioner or deputy fire commissioner during such period shall be deemed service in such force.

§ 13-315 Plan membership; original plan, improved benefits plan.

   a.   Each person who is a member of the pension fund on the date next preceding the starting date of the improved benefits plan (as such starting date is defined in subdivision twenty-seven of section 13-313 of this subchapter) shall be entitled to the rights, benefits and privileges and be subject to the obligations of the original plan (as defined in subdivision four-a of such section 13-313), unless and until he or she elects, pursuant to the applicable provisions of this subchapter, to be an improved benefits plan member (as defined in subdivision four-f of such section 13-313).

   b.   Except in the case of re-entry pursuant to section 13-319 and as otherwise provided in this subchapter, each person who becomes or again becomes a member of the pension fund on or after the starting date of the improved benefits plan shall be entitled to the rights, privileges and benefits and be subject to the obligations of the improved benefits plan and shall not be entitled to the rights, privileges and benefits or be subject to the obligations of the original plan.

   c.   Any original plan member, who is in city-service at the time of filing an application to become an improved benefits plan member as hereinafter provided in this subdivision c, may, by a written application duly executed and filed with the board on or after the starting date of the improved benefits plan (as such starting date is defined in subdivision twenty-seven of section 13-313 of this subchapter) and prior to the date next succeeding the date six months after such starting date, or on or after the effective date of subdivision m of this section and prior to January first, nineteen hundred eighty-three, elect to terminate his or her status as an original plan member and become entitled to the rights, benefits and privileges and be subject to the obligations of the improved benefits plan.

   d.   Any original plan member who files an application pursuant to subdivision c of this section shall cease to be an original plan member at the end of the day next preceding the starting date of the improved benefits plan and shall become an improved benefits plan member as of such starting date.

   e.   Any original plan member, who is in city-service at the time of filing an application to become an improved benefits plan member as hereinafter provided in this subdivision e, may, by a written application duly executed and filed with the board during any subsequent period for election of the improved benefits plan (as defined in subdivision twenty-two of section 13-313 of this subchapter), elect to terminate his or her status as an original plan member and become entitled to the rights, privileges and benefits and be subject to the obligations of the improved benefits plan.

   f.   Any original plan member who files an application pursuant to subdivision e of this section shall cease to be an original plan member at the end of the day next preceding the date of filing of such application and shall become an improved benefits plan member commencing on such date of filing.

   g.   Any election to be an improved benefits plan member made pursuant to the provisions of this section shall be irrevocable.

   h.   The status of an original plan member, who elects to become an improved benefits plan member pursuant to the provisions of this section, with respect to applicability or inapplicability of the provisions of article eleven of the retirement and social security law to him or her as a member of the pension fund, shall not be affected or changed by such election.

   i.   Beginning with the payroll period, the first day of which coincides with or next occurs after the date or commencement of the status of an elective improved benefits plan member as such a member, as prescribed by the applicable provisions of this subchapter, there shall be deducted from the compensation of each such member on each and every payroll of such member for each and every payroll period a proportion of his or her earnable compensation equal to the proportion which would have been determined by the actuary, as of his or her date of inception of pension fund membership (as defined in subdivision twenty of section 13-313 of this subchapter), as his or her rate of member contribution (before reduction on account of increased-take-home-pay) as a member of the police pension fund maintained pursuant to subchapter two of chapter two of this title, if, as of such date of inception of pension fund membership, he or she had not become a member of this pension fund and had instead become a member of such police pension fund; provided, however, that if the foregoing provisions of this subdivision i would otherwise require that such proportion be determined pursuant to the provisions of subdivision a of section 13-225 of this title, as enacted by local law number two of the city for nineteen hundred forty, such proportion shall be determined by the actuary in the same manner as if, as of such date of inception of pension fund membership, the provisions of such subdivision a, as amended by local law number eighty-nine of the city for nineteen hundred fifty-one, and been in effect, so that the fraction to be used in such computation shall be twenty-five seventy-fifths. Such proportion of compensation determined for any elective improved benefits plan member pursuant to the provisions of this subdivision i shall be computed to remain constant. The provisions of section 13-327 of this subchapter shall apply to such deductions and to each elective improved benefits plan member, except insofar as the provisions of such section 13-327 are inconsistent with the provisions of this subdivision i.

   j.   (1)   Each elective improved benefits plan member shall be subject to a contribution rate deficiency (as defined in subdivision twenty-one of section 13-313 of this subchapter) unless and until the amount thereof is paid in full to the pension fund.

      (2)   Each non-elective improved benefits plan member (as defined in subdivision four-h of section 13-313 of this subchapter) who is or becomes entitled under any provision of this subchapter to credit for member service in the uniformed force of the fire department with respect to any period:

         (i)   which precedes the date of the last commencement of his or her membership in the pension fund as a non-elective improved benefits plan member; and

         (ii)   with respect to which period he or she was required to make member contributions to the pension fund; and

         (iii)   with respect to which period he or she made required member contributions determined pursuant to section 13-325 of this subchapter, as in effect before or on or after the effective date of this subdivision; shall be subject to a contribution rate deficiency, unless and until the amount thereof has been paid in full to the pension fund.

      (3)   Any improved benefits plan discontinued member (as defined in subdivision sixteen-d of such section 13-313) who, immediately prior to the discontinuance of service which qualified him or her to become such a member, was subject to a contribution rate deficiency, shall be subject to such deficiency while he or she is an improved benefits plan discontinued member, unless and until the amount thereof has been paid in full to the pension fund.

      (4)   In any case where an original plan discontinued member (as defined in subdivision sixteen of such section 13-313) becomes an improved benefits plan discontinued member pursuant to the provisions of paragraph six of subdivision i of section 13-360 of this subchapter, he or she shall be subject to a contribution rate deficiency unless and until the amount thereof has been paid in full to the pension fund.

      (5)   For the purpose of payment of a contribution rate deficiency or any part thereof to the pension fund by an improved benefits plan member who is subject to such a deficiency, such deficiency shall be deemed to consist of:

         (i)   the amount thereof, without regular interest thereon, if such member completed his or her minimum period for service retirement before becoming an improved benefits plan member; or

         (ii)   the amount thereof, plus regular interest and special interest, if any, thereon, from his or her date of commencement of contributions as an improved benefits plan member (as defined in subdivision nineteen of such section) 13-313 to (A) the date of completion of his or her minimum period for service retirement, or (B) the date of payment, if such member becomes an improved benefits plan member before completion of his or her minimum period for service retirement.

      (6)   For the purpose of payment of a contribution rate deficiency or any parts thereof to the pension fund by an improved benefits plan discontinued member who is subject to such deficiency, such deficiency shall be deemed to consist of the amount thereof, plus regular interest and special interest, if any, thereon from the date of commencement of contributions as an improved benefits plan member, as applicable to such member, to and including the date next preceding the date of payment.

      (7)   No contribution rate deficiency which includes regular interest and special interest, if any, thereon as provided for by paragraphs five and six of this subdivision j shall be deemed paid unless the amount thereof, together with such regular interest and special interest, if any, is paid in full to the pension fund.

      (8)   Subject to the provisions of paragraphs five, six and seven of this subdivision, each improved benefits plan member who is subject to a contribution rate deficiency may, at any time while he or she is a member, at his or her election pay to the pension fund the amount of such deficiency or so much thereof as remains unpaid.

      (9)   Subject to the provisions of paragraph five of this subdivision, at any time before the date of required commencement of payment of any benefit payable to an improved benefits plan discontinued member who is subject to a contribution rate deficiency, he or she may at his or her election pay to the pension fund the amount of such deficiency or so much thereof as remains unpaid.

      (10)   The board shall adopt rules and regulations governing the payment of a contribution rate deficiency or the unpaid portion thereof in a lump sum, in periodic installments or in such other manner as the board shall prescribe; provided, however, that such rules and regulations shall not conflict with the provisions of paragraphs five to nine, inclusive, of this subdivision j.

   k.   For the purposes of section 13-342 of this subchapter (relating to loans to members), the accumulated deductions of any elective improved benefits plan member shall not be deemed to include any part of his or her contribution rate deficiency remaining unpaid.

   l.   (1)   Upon the filing of an application by an original plan member to become an elective improved benefits plan member, an amount equal to his or her accumulated contributions (as defined in subdivision seven of section 13-313 of this subchapter), as such contributions were as of the date next preceding the date of commencement of his or her status as an elective improved benefits plan member, shall be transferred from the contingent reserve fund to the credit of such member's account in the annuity savings fund.

      (2)   In any case where a non-elective improved benefits plan member is credited, immediately prior to becoming such a member, with accumulated contributions, such contributions, upon his or her becoming such a member, shall be transferred from the contingent reserve fund to the credit of such member's account in the annuity savings fund.

   m.   (1)   For the purposes of this subdivision m, the term "additional contribution rate deficit" shall mean with respect to a retiree subject to such a deficit under the provisions of paragraph four of this subdivision m, an amount equal to the excess, if any, of (b) over (a), where: (a) is the amount of the subsequent original plan member accumulated contributions (as defined in subdivision six-c of section 13-313 of this subchapter) of such retiree (as such amount would be in the absence of a loan), and (b) is the amount (a) would be if (i) the contribution rate of such retiree on and after July first, nineteen hundred eighty-one had been the rate which would be his or her normal rate of contribution as an improved benefits plan member (as defined in subdivision eighteen of such section 13-313 of this subchapter) and (ii) regular and special interest had been credited on and added to such retiree's hypothetical member contributions on and after such July first resulting from such normal rate.

      (2)   For the purposes of this subdivision m, the term "additional contribution rate deficit" shall mean with respect to a person who is deemed to be an improved benefits plan discontinued member (as defined in subdivision sixteen-d of section 13-313 of this subchapter) under the provisions of paragraph eight of this subdivision and who is subject to such a deficit under the provisions of paragraph nine of this subdivision, an amount equal to the excess of (b) over (a), where: (a) is the amount of the subsequent original plan member accumulated contributions (as defined in subdivision six-c of such section 13-313) of such person (as such amount would be in the absence of a loan) and (b) is the amount (a) would be if (i) the contribution rate of such person on and after July first, nineteen hundred eighty-one had been the rate which would be his or her normal rate of contribution as an improved benefits plan member (as defined in subdivision eighteen of such section 13-313) and (ii) regular and special interest had been credited on and added to such person's hypothetical member contributions on and after such July first resulting from such normal rate.

      (3)   Notwithstanding any other provision of law to the contrary, in any case where, during the period beginning on July second, nineteen hundred eighty-one and ending on the date thirty days after the effective date of this subdivision m, any member was or shall be retired for service or superannuation or for ordinary or accident disability, and at the time of such retirement, such member was or shall be an original plan member, such retiree may, by a written application duly executed and filed with the board on or after the effective date of this subdivision and prior to January first, nineteen hundred eighty-three, elect the applicable benefits of this subdivision. Any retiree who makes such election (a) shall be deemed to have become an improved benefits plan member, effective July first, nineteen hundred eighty-one, (b) shall be deemed to have been retired, on the effective date of his or her retirement, as an improved benefits plan member and (c) shall be entitled to receive, as of the effective date of his or her retirement and in lieu of any other retirement allowance to which he or she would have been entitled if he or she had not made such election, a retirement allowance determined (subject to the provisions of paragraph four of this subdivision m) for him or her in the same manner as if, where such retirement occurred during the period beginning on July second, nineteen hundred eighty-one and ending on January first, nineteen hundred eighty-two, such retiree, on the date next preceding the effective date of his or her retirement, had elected to be an improved benefits plan member, or as if, where such retirement occurred or occurs during the period beginning on January second, nineteen hundred eighty-two and ending on the date thirty days after the effective date of this subdivision m, the provisions of this subchapter had permitted such retiree, on the date next preceding the effective date of his or her retirement, to elect to be an improved benefits plan member, effective July first, nineteen hundred eighty-one, and he or she had made such election on such next preceding date.

      (4)   A retiree who makes such election pursuant to paragraph three of this subdivision m shall be subject to a contribution rate deficiency (as defined in subdivision twenty-one of section 13-313 of this subchapter) unless and until the amount thereof is paid to the pension fund in the manner provided for in paragraph five of this subdivision, and in any case where any such retiree had not completed his or her minimum period for service retirement prior to July first, nineteen hundred eighty-one, he or she shall also be subject to an additional contribution rate deficit (as defined in paragraph one of this subdivision m), unless and until the amount thereof is paid to the pension fund in the manner provided for in such paragraph five. The provisions of paragraphs five and seven of subdivision j of this section shall apply to the determination and payment of the amount of the contribution rate deficiency of any retiree making such election. The rules and regulations adopted pursuant to paragraph ten of subdivision j of this section shall not apply to payment of any such contribution rate deficiency.

      (5)   A retiree who makes such election may elect to pay to the pension fund, in the manner hereinafter provided for in this paragraph five, the whole or any part of the contribution rate deficiency to which he or she is subject or the whole or any part of any additional contribution rate deficit to which he or she is subject. Any such payment, if elected by such retiree, shall be completed no later than the date of filing of such retiree's applicable under paragraph three of this subdivision m electing the application benefits hereof.

      (6)   For the purpose only of determining the pension portion of the retirement allowance for the required minimum period of service of any retiree retired for service or superannuation who has filed an election application pursuant to paragraph three of this subdivision m:

         (i)   in any case where such retiree is subject to a contribution rate deficiency which remains unpaid in whole or in part, the annuity computed for such retiree pursuant to paragraph one of subdivision a of section 13-359 of this subchapter shall be computed as it would be under assumptions (i) to (iv) inclusive, of subparagraph (a) of such paragraph one and in addition, as such annuity would be if an amount equal to the whole or any part of such contribution rate deficiency remaining unpaid as of the date of the filing of such retiree's election of the applicable benefits of this subdivision pursuant to paragraph three thereof had been paid to the pension fund on the earlier of (A) such member's date of commencement of contributions as an improved benefits plan member (as defined in subdivision nineteen of section 13-313 of this subchapter) or (B) the date next following the date of termination of such member's required minimum period of service; and

         (ii)   in any case where such retiree is subject to an additional contribution rate deficit which remains unpaid in whole or in part, such annuity computed for such retiree shall be computed as it would be under assumptions (i) to (iv), inclusive, of such subparagraph (a) and in addition, as such annuity would be if an amount equal to the whole or any part of such additional contribution rate deficit remaining unpaid as of the date of the filing of such member's election of the applicable benefits of this subdivision pursuant to paragraph three thereof had been paid to the pension fund on the date next following the date of completion of such member's required minimum period of service.

      (7)   For the purpose only of determining the pension portion of the retirement allowance payable to any retiree retired for ordinary disability who has filed an election application pursuant to paragraph three of this subdivision m:

         (i)   in any case where such retiree is subject to a contribution rate deficiency which remains unpaid in whole or in part, the annuity computed for such retiree pursuant to paragraph one of subdivision a of section 13-363 of this subchapter shall be computed as it would be under assumptions (i) to (iv), inclusive, of subdivision b of such section, and in addition, as such annuity would be if an amount equal to the whole or any part of such contribution rate deficiency remaining unpaid as of the date of filing of such member's election of the applicable benefits of this subdivision pursuant to paragraph three thereof had been paid to the pension fund on the earlier of (A) the date of commencement of contributions as an improved benefits plan member (as defined in subdivision nineteen of section 13-313 of this subchapter) or (B) the date next following the date of completion of such member's minimum period for service retirement; and

         (ii)   in any case where such retiree is subject to an additional contribution rate deficit which remains unpaid in whole or in part, such annuity computed for such retiree shall be computed as it would be under assumptions (i) to (iv), inclusive, of such subdivision b and in addition, as such annuity would be if an amount equal to the whole or any part of such additional contribution rate deficit remaining unpaid as of the date of such member's election of the applicable benefits of this subdivision pursuant to paragraph three thereof had been paid to the pension fund on the earlier of (A) the date of completion of such retiree's minimum period for service retirement or (B) the day next preceding the effective date of such retiree's retirement.

      (8)   Notwithstanding any other provision of law to the contrary, in any case where, during the period beginning on July second, nineteen hundred eighty-one and ending on the date thirty days after the effective date of this subdivision m, any original plan member discontinued or shall discontinue service so as to acquire a vested right to a deferred retirement allowance under section 13-360 of this subchapter, such original plan discontinued member (as defined in subdivision sixteen of section 13-313 of this subchapter) may, by a written application duly executed and filed with the board on or after the effective date of this subdivision and prior to January first, nineteen hundred eighty-three, elect the applicable benefits of this subdivision. Any such person making such election (a) shall be deemed to have elected to become an improved benefits plan member, effective July first, nineteen hundred eighty-one, (b) shall be deemed to have discontinued service, as of the date of such discontinuance of service as an original plan member, so as to become an improved benefits plan discontinued member (as defined in subdivision sixteen-d of such section 13-313) and (c) shall be entitled to receive, in lieu of any other deferred retirement allowance to which he or she would have been entitled if he or she had not made such election, a deferred retirement allowance determined for him or her (subject to the provisions of paragraph nine of this subdivision) in the same manner as, and payable at the same time as if, where such discontinuance of service occurred during the period beginning on July second, nineteen hundred eighty-one and ending on January first, nineteen hundred eighty-two, such person, on the date next preceding the date of his or her discontinuance of service, had elected to be an improved benefits plan member, or as if, where such discontinuance of service occurred or occurs during the period beginning on January second, nineteen hundred eighty-two and ending on the date thirty days after the effective date of this subdivision, the provisions of this subchapter had permitted such person, on the date next preceding the date of his or her discontinuance of service, to elect to be an improved benefits plan member, effective July first, nineteen hundred eighty-one, and he or she had made such election on such next preceding date.

      (9)   A person who is deemed to be an improved benefits plan discontinued member by reason of an election made pursuant to paragraph eight of this subdivision m shall be subject to a contribution rate deficiency (as defined in subdivision twenty-one of section 13-313 of this subchapter) and he or she shall also be subject to an additional contribution rate deficit (as defined in paragraph two of this subdivision), unless and until the amounts of such deficiency and deficit are paid to the pension fund in the manner provided for in paragraph ten of this subdivision. The provisions of paragraphs six and seven of subdivision j of this section shall apply to the determination and payment of the amount of the contribution rate deficiency of any such person deemed to be an improved benefits plan discontinued member.

      (10)   (i)   A person deemed to be an improved benefits plan discontinued member by reason of an election made pursuant to paragraph eight of this subdivision m may elect to pay to the pension fund, in the manner prescribed by subparagraph (ii) of this paragraph ten the whole or any part of the contribution rate deficiency and/or additional contribution rate deficit to which he or she is subject.

         (ii)   The board shall adopt rules and regulations governing the payment of any such contribution rate deficiency or additional contribution rate deficit or unpaid portion thereof in a lump sum, in periodic installments or in such other manner as the board shall prescribe, provided, however, that any such payment, if elected by any such person deemed to be an improved benefits plan discontinued member, shall be completed no later than the later of (A) the date of filing of such person's application under paragraph eight of this subdivision electing the applicable benefits hereof, or (B) the date of required commencement of payment of benefits to such person under the provisions of section 13-361 of this subchapter.

      (11)   For the purpose only of determining the pension portion (payable pursuant to paragraph two of subdivision c of section 13-361 of this subchapter) of the deferred retirement allowance payable to a person deemed to be an improved benefits plan discontinued member by reason of an election made pursuant to paragraph eight of this subdivision m, the annuity computed for such person pursuant to paragraph one of such subdivision c shall be computed as it would be under assumptions one to five, inclusive, of subdivision d of such section 13-361 and in addition, as it would be in an amount equal to the additional contribution rate deficit of such person had been paid to the pension fund on the day next preceding the date of such person's discontinuance of service which qualified him or her as an original plan discontinued member.

      (12)   An election made pursuant to paragraph three or paragraph eight of this subdivision m shall be irrevocable.

      (13)   Nothing contained in this subdivision m shall affect the applicability of section eleven hundred seventeen of the charter or section 13-356 or section 13-357 of this subchapter or article seven of the retirement and social security law to any person making such an election.

      (14)   The privilege of making an election pursuant to paragraph three or paragraph eight of this subdivision m shall not apply to and may not be exercised by the estate, personal representatives, distributees or beneficiaries of any deceased person.

      (15)   (i)   In any case where a retiree files an application electing the applicable benefits of this subdivision m pursuant to the provisions of paragraph three hereof, or an original plan discontinued member (as defined in subdivision sixteen of section 13-313 of this subchapter) files an application electing the applicable benefits of this subdivision pursuant to the provisions of paragraph eight hereof, and prior to the filing of such application, the period had expired wherein such retiree or original plan discontinued member was entitled to select an option with respect to the original plan retirement allowance to which he or she was entitled prior to the filing of such application, neither such retiree nor discontinued member nor any person who would otherwise be entitled to select an option in behalf of such retiree or discontinued member shall have any other or further period for selection of an option or for a choice or election that a maximum retirement allowance be paid.

         (ii)   In any such case wherein the period for selection of an option expired as described in subparagraph (a) of this paragraph fifteen, any option selected prior to such expiration by or on behalf of any such retiree or discontinued member in relation to his or her original plan retirement allowance or any choice or election prior to such expiration by or on his or her behalf that the maximum of such original plan retirement allowance shall be paid, shall apply to the improved benefits plan retirement allowance to which such retiree or discontinued member becomes entitled by reason of the filing of such application under paragraph three or paragraph eight, as the case may be, of this subdivision.

      (16)   The status of any person who files an application electing the applicable benefits of this subdivision m pursuant to the provisions of paragraph three or paragraph eight hereof with respect to applicability or inapplicability of the provisions of article eleven of the retirement and social security law shall not be affected or changed by such election.

§ 13-316 Board of trustees.

   a.   A board of trustees shall be the head of the New York fire department pension fund subchapter two, and, subject to the provisions of law, from time to time shall establish rules and regulations for the administration and transaction of the business of such fund and for the control and disposition thereof. The provisions of sections one thousand forty-two, one thousand forty-three, one thousand forty-four and one thousand forty-five of the New York city charter shall not be construed to apply to the adoption of such rules and regulations. Such board shall consist of:

      1.   The fire commissioner who shall be chairperson of the board and who shall be entitled to cast three votes.

      2.   The comptroller of the city who shall be entitled to cast three votes.

      3.   A representative of the mayor who shall be appointed by the mayor and who shall be entitled to cast three votes.

      4.   The commissioner of finance of the city who shall be entitled to cast three votes.

      5.   The president of the uniformed firefighters' association of greater New York who shall be entitled to cast two votes.

      6.   The vice-president of the uniformed firefighters' association of greater New York who shall be entitled to cast two votes.

      7.   The treasurer of the uniformed firefighters' association of greater New York who shall be entitled to cast two votes.

      8.   The chairperson of the board of trustees of the uniformed firefighters' association of greater New York who shall be entitled to cast two votes.

      9.   Three elected members of the executive board of the uniformed fire officers' association of the fire department, city of New York, of whom one shall be an officer of the said department with rank above that of captain and shall be entitled to cast one vote; another shall be a captain of the said department and shall be entitled to cast one vote; another shall be a lieutenant of the said department and shall be entitled to cast one and one-half votes.

      10.   A representative holding the title of pilot or marine engineer appointed by the president of the uniformed firefighters association of greater New York, who shall be entitled to cast one-half vote.

      11.   (i)   Where, during any six-month period during a fiscal year, as defined in subdivision three of section 13-382 of the code, the equity portion of the assets of the pension fund is less than forty-five percent, subparagraph (ii) of this paragraph shall be effective during the succeeding fiscal year.

         (ii)   Two investment representatives, one of whom shall be appointed by the mayor and one of whom shall be appointed by the comptroller upon the occurrence of the condition specified in subparagraph (i) of this paragraph. Each such representative shall be entitled to cast two votes only in relation to determinations of the board:

            (A)   as to whether the assets of the pension fund shall be invested in equities or fixed income securities and the proportion of the assets of the pension fund to be invested in equities and fixed income securities; and

            (B)   as to the identity, nature, character and amounts of the equities (within the proportion as determined under item (A) of this subparagraph) to be acquired, held, sold, disposed of or otherwise dealt with by the pension fund; and

            (C)   as to any steps necessary to effectuate any of the functions set forth in items (A) and (B) of this subparagraph; and

            (D)   as to delegation by the board, pursuant to law, of the functions described in items (A), (B) and (C) of this subparagraph.

   b.   Subject to the provisions of subdivision b-1 and subdivision f of this section, every act of the board of trustees shall be by resolution which shall be adopted only by a vote of at least seven-twelfths of the whole number of votes authorized to be cast by all of the members of such board.

   b-1.   Every act of the board of trustees in relation to the investment matters referred to in paragraph thirteen of subdivision a of this section shall be by resolution which shall be adopted only by a vote of at least eight-fourteenths of the whole number of votes authorized to be cast by all of the members of the board empowered to vote on such investment matters.

   c.   The fire commissioner shall appoint an executive director of the pension fund, provided, however, that if such designee of the fire commissioner is not a member of the uniformed force of the fire department, the board of trustees shall approve such appointment. The executive director of the pension fund shall perform such duties as may be conferred upon such executive director by the chairperson of the board, by resolution passed by the board, or by law.

   d.   Any member of the board referred to in paragraphs five, six, seven, eight and ten, respectively, of subdivision a of this section, shall be members of the uniformed force and may authorize in writing at any time any other officer of the respective associations to represent him or her on such board in the event of his or her absence or disability, provided, however, that the by-laws or constitution of such respective associations provide for designation of a representative in such event.

   e.   1.   In addition to the powers conferred upon it by any other provision of law, the board of trustees shall, on or before April first of each year, establish a budget, sufficient to fulfill the powers, duties and responsibilities set forth in this chapter and any other provision of law which sets forth the benefits of members of the pension fund and may draw upon the assets of the pension fund to fund such budget, subject to the provisions of paragraphs two, three, four, five and six of this subdivision and subdivisions f, g, h and i of this section. The provisions of this section shall not be applicable to the payment of investment expenses pursuant to section 13-705 of this title and nothing contained in this subdivision shall be construed as abolishing, limiting, or modifying any power of the board of trustees to provide for the payment of investment expenses pursuant to section 13-705 of this title.

      2.   If a budget has not been adopted by the commencement of the new fiscal year, the budget for the preceding fiscal year shall be deemed to have been extended for the new fiscal year until such time as a new budget is adopted.

      3.   Any budget in effect pursuant to paragraph one or two of this subdivision may be modified during such succeeding fiscal year.

      4.   Notwithstanding any other provision of law, the board of trustees shall have the power either directly or by delegation to the executive director, to obtain by employment or by contract the goods, property and services necessary to fulfill its powers, duties and responsibilities within the appropriation authorized by the board of trustees pursuant to paragraph one of this subdivision.

      5.   (i)   The pension fund shall be considered an entity separate from the city of New York fire department. The board of trustees of the pension fund shall work closely with the city of New York fire department.

         (ii)   The provisions of chapter seventeen of the New York city charter shall continue to apply to the fire department pension fund and such fund shall constitute an agency for the purposes of such chapter. The board of trustees shall not obtain any legal services by the retention of employees or by contract unless the corporation counsel shall consent thereto.

      6.   All contracts for goods or services entered into by the pension fund shall be procured as prescribed in chapter thirteen of the New York city charter; provided, however, that where the provisions of such chapter thirteen require action by the mayor in regard to a particular procurement (except for mayoral action pursuant to subdivision c of section three hundred thirty-four of the New York city charter) such action shall not be taken by the mayor or such appointee of the mayor but shall be taken by the board of trustees or the executive director pursuant to a resolution adopted by the board of trustees delegating such authority to the executive director.

   f.   Notwithstanding any other provisions of this section, any resolution of the board of trustees which establishes a budget or modifies a budget pursuant to the provisions of paragraph one or three of subdivision e of this section shall require the concurrence of the comptroller and the representative of the mayor. This provision shall only apply to this subdivision and nothing contained in this subdivision shall be construed to apply to any other vote of the board. No assets of the pension fund shall be drawn upon pursuant to the provisions of paragraph one of subdivision e of this section unless authorized by a budget or budget modification established by such resolution of the board of trustees.

   g.   Employment by the pension fund shall constitute city-service for the purposes of this subchapter for those employees that are members of the fund pursuant to section 13-314 of this subchapter; for all other employees, employment by the pension fund shall constitute city service for the purposes of chapter one of title thirteen of this code; provided, however, that nothing contained in this subdivision shall be construed as granting membership rights in the pension fund or any retirement system to a contractor of such fund or such contractor's employees. Employees of the pension fund shall be deemed to be employees of the city of New York for the purposes of chapter thirty-five of the charter and title twelve of this code.

   h.   Whenever the assets of the pension fund are drawn upon pursuant to the provisions of paragraph one of subdivision e of this section all monies so withdrawn shall be made a charge to be paid by the employer otherwise required to make contributions to the pension fund no later than the end of the second fiscal year succeeding the time period during which such assets are drawn upon. The actuary shall calculate such charge to be paid by the employer. All charges to be paid pursuant to this subdivision shall be paid at the regular rate of interest utilized by the actuary in determining employer contributions to the pension fund pursuant to the provisions of paragraph two of subdivision b of section 13-638.2 of this title.

   i.   The funds withdrawn from the pension fund shall not be utilized for any purpose other than the budget established by the board of trustees. All expenditures of the pension fund shall be subject to audit by the comptroller, who may make recommendations, including but not limited to, procedures designed to improve accounting and expenditure control. All expenditures of the pension fund shall be reported to the mayor's office of management and budget and the budgetary office of the city of New York fire department.

(Am. 2016 N.Y. Laws Ch. 298, 9/8/2016, eff. 9/8/2016)

§ 13-317 Rules and regulations.

Each member shall be subject, until retirement, to all the provisions of this subchapter and to all the rules and regulations adopted by such board applying to members.