A provisional member is a person who is employed by the board, the department, the New Mexico school for the deaf, the northern New Mexico state school, the New Mexico school for the blind and visually impaired, the girls' welfare home, the New Mexico boys' school or the Los Lunas medical center and who has the option of qualifying for coverage under either the Educational Retirement Act or the public employees retirement association. This option shall be exercised by filing a written election with both the director and the executive secretary of the public employees retirement association. This election shall be made within six months after employment and shall be irrevocable regardless of subsequent employment or reemployment in any administrative unit enumerated in this section. Until this election is made, the provisional member shall be covered and shall be required to make contributions under the Educational Retirement Act.

History: 1953 Comp., § 77-9-17, enacted by Laws 1967, ch. 16, § 141; 1971, ch. 268, § 1; 1973, ch. 382, § 1; 1983, ch. 101, § 1; 1987, ch. 208, § 1; 1989, ch. 30, § 1; 1993, ch. 69, § 5; 2003, ch. 227, § 1; 2017, ch. 21, § 8.

Cross references. — For the Social Security Act, see 42 U.S.C. § 301 et seq.

For the school for the deaf, see 21-6-1 NMSA 1978.

For the northern New Mexico state school, see 21-4-1 NMSA 1978.

For the New Mexico school for the blind and visually impaired, see 21-5-2 NMSA 1978.

For the New Mexico boys' school, see N.M. Const. art. XIV, § 1.

For the girls' welfare home, see N.M. Const. art. XIV, § 1.

The 2017 amendment, effective June 16, 2017, clarified the requirements for provisional membership; deleted Subsections A through D and removed the subsection designation for former Subsection E; in the undesignated paragraph, after "provisional member", added "is a person who is", after "the department", deleted "of education", after "New Mexico school for the", added "blind and", after "visually", deleted "handicapped" and added "impaired", after the next occurrence of "the", deleted "New Mexico", after "girls'", deleted "school" and added "welfare home", after "Los Lunas medical center", deleted "shall have" and added "and who has", after each occurrence of "public employees retirement association", deleted "of New Mexico", after "written election with both the", deleted "educational retirement", and after "enumerated in this", deleted "subsection" and added "section".

The 2003 amendment, effective June 20, 2003, inserted "by the local administrative unit" following "shall be informed" in Subsection C; added present Subsection D; redesignated former Subsection D as present Subsection E; in present Subsection E, substituted "medical center" for "mental hospital" following "the Los Lunas", and substituted "executive secretary" for "director" following "director and the".

The 1993 amendment, effective June 18, 1993, deleted a portion of Subsection C, pertaining to conditions governing the right of a provisional member to acquire earned service credit for periods of employment during which the exemption or exemptions were in force and, in Subsection D, substituted "New Mexico girls' school" for "girls' welfare home" and made minor stylistic changes.

The 1989 amendment, effective July 1, 1989, in Subsection C, substituted all of the present language of Paragraph (1) beginning with "board's" for "average rate earned by the fund during the five fiscal years preceding the fiscal year in which payment is made", and substituted "1992" for "1986" in Paragraph (4).

Suspension of benefits upon resumption of employment. — An employee of the department of finance and administration, retired pursuant to the provisions of the Public Employees Retirement Act, may not resume employment with the department of education without suspension of retirement benefits. 1987 Op. Att'y Gen. No. 87-37 (decided under former Section 10-11-22 NMSA 1978).

An employee of a public school system, retired pursuant to the provisions of the Educational Retirement Act, may not resume employment with the department of education without suspension of her educational retirement benefits. 1987 Op. Att'y Gen. No. 87-38 (decided under former Section 10-11-8 NMSA 1978).

Public Employees Retirement Act annuitants whom the department of education subsequently employs and who elect to participate in the educational retirement system by making contributions to that system do not "qualify for (retirement) coverage" under Paragraph D, since they are not considered as having acquired any service credit for purposes of educational retirement benefits. 1987 Op. Att'y Gen. No. 87-37 (decided under former Section 10-11-22 NMSA 1978).

"Double dipping" disallowed. — This section does not contemplate a useless act or a manipulative election of coverage under the Public Employees Retirement Act for the sole purpose of enabling the state employee to engage in "double dipping". 1987 Op. Att'y Gen. No. 87-38.