§ 393 — Election

§ 393. Election. 1. Election of the optional retirement program.\n (a) Each eligible employee initially appointed on or after July first,\nnineteen hundred sixty-four, within thirty days of his entry into\nservice, shall elect (i) to join either the New York state teachers'\nretirement system or the New York state employees' retirement system or\nother public retirement system in this state in accordance with the\nprovisions of law applicable thereto or (ii) to elect the optional\nretirement program established pursuant to this article; provided\nhowever, that (1) such persons initially entering service during the\nperiod July first, nineteen hundred sixty-four through November fourth,\nnineteen hundred sixty-four may defer such election until December\nfourth, nineteen hundred sixty-four, and (2) eligible employees of an\nelecting employer initially appointed on or after the effective date of\nthe election to offer such program may defer such election until the\nninetieth day following such effective date of the election to offer\nsuch program established by an electing employer. Any such deferred\nelection shall be effective as of the date of entry into service or the\neffective date of such offer, whichever is later.\n (b) In the event an eligible employee fails to make an election as\nprovided in paragraph (a) of this subdivision, he shall be deemed to\nhave elected membership in the New York state teachers' retirement\nsystem, or such public retirement system in this state in which his\nmembership may be otherwise required in accordance with law, except that\neligible employees of institutions under the management and control of\nCornell university or Alfred university as the representative of the\nstate university trustees shall be deemed to have elected membership in\nthe New York state employees' retirement system. Such membership shall\nbe effective as of the date of entry into service, or in the case of\nmembership in the New York city employees retirement system, at the time\notherwise required by law.\n (c) The amount, if any, required to have been contributed by any\nemployee in accordance with an election, a deferred election or failure\nto elect pursuant to paragraph (a) or paragraph (b) of this subdivision\nshall be collected by payroll deductions in such manner as may be\nprovided by the comptroller for employees of state university electing\nthe optional retirement program, or by the appropriate fiscal officer\nfor employees of an electing employer, or in the case of membership in\neither the New York state employees' retirement system or the New York\nstate teachers' retirement system or other public retirement system in\nthis state, by the retirement system concerned.\n (d) Eligible employees other than those employed by an electing\nemployer appointed on or before June thirtieth, nineteen hundred\nsixty-four, may elect the optional retirement program established\npursuant to this article. Such election shall be made on or before\nDecember fourth, nineteen hundred sixty-four, and shall become effective\nas of January first, nineteen hundred sixty-five. Eligible employees of\nan electing employer appointed before the effective date of the election\nto offer such program may elect the optional retirement program\nestablished pursuant to this article. Such election shall be made on or\nbefore the ninetieth day following the effective date of such offer and\nshall become effective on or as of the first day of January next\nfollowing the effective date of such offer.\n (e) Any state employee or employee of an electing employer who becomes\neligible to elect the optional retirement program by reason of (i) the\ncertification of the position held by him pursuant to paragraph three of\nsection three hundred ninety of this article or (ii) his appointment,\npromotion, transfer or reclassification to a position previously so\ncertified, may elect the optional retirement program established\npursuant to this article. Such election shall be made within thirty days\nafter notice in writing to such employee of his eligibility, and shall\nbecome effective on the date of such election, except that in no case\nshall such election by a state employee become effective prior to\nJanuary first, nineteen hundred sixty-five, or in the case of an\neligible employee of an electing employer, prior to the first day of\nJanuary next following the effective date of the offer of such program.\n (f) Any eligible employee who was employed by the University of\nBuffalo prior to its merger into state university and who elected to\ncontinue in the retirement program theretofore provided by the\nUniversity of Buffalo in accordance with section three of chapter nine\nhundred eighty of the laws of nineteen hundred sixty-two and who elects\nthe optional retirement program established pursuant to this article as\nprovided in paragraphs (d) or (e) of this subdivision shall become\nineligible to continue in the retirement program provided by the\nUniversity of Buffalo prior to merger on the effective date of such\nelection. Such election shall constitute a waiver of all rights and\nbenefits provided under sections three and seven of chapter nine hundred\neighty of the laws of nineteen hundred sixty-two.\n (g) No election by an eligible employee of the optional retirement\nprogram shall be effective unless it shall be accompanied by an\nappropriate application, where required, for the issuance of a contract\nor contracts under the program.\n 2. Ineligibility for retirement system membership. Any employee who\nelects the optional retirement program shall be ineligible for\nmembership in the New York state employees' retirement system, the New\nYork state teachers' retirement system or any other public retirement\nsystem in this state so long as he shall remain continuously employed in\nany position by state university or the institutions under the\nmanagement and control of Cornell university or Alfred university as\nrepresentative of the board or by an electing employer and shall\ncontinue in the optional retirement program.\n 3. (a) Any eligible employee who is a member of either the New York\nstate employees' retirement system or the New York state teachers'\nretirement system at the time he elects the optional retirement program\nestablished pursuant to this article, shall be deemed to be a person who\ndiscontinues service on the effective date of such election, for the\npurpose of determining his eligibility for rights and benefits in either\nsuch system; provided however, that if he does not withdraw his\naccumulated contributions, (i) his continued service with state\nuniversity while under the optional retirement program shall be deemed\nto be member service in either the New York state employees' retirement\nsystem or the New York state teachers' retirement system for the purpose\nof determining his eligibility for any vested retirement allowance,\nretirement allowance or ordinary death benefit under either such system\ndependent upon a specified period of total service or upon attainment of\na specified age while in service or upon death while in service; and\n(ii) the amount of any such benefit to which he or his estate or person\ndesignated by him may become entitled under either such system shall be\ncomputed only on the basis of service otherwise creditable to him\ntherein and his compensation during such service.\n (b) Electing employees and their beneficiaries shall not be entitled\nto any right or benefit under either the New York state employees'\nretirement system or the New York state teachers' retirement system\nother than a vested retirement allowance, retirement allowance or\nordinary death benefit to the extent expressly provided for in this\nsection.\n 4. (a) Any eligible employee of an electing employer who is a member\nor transferred contributor of either the New York city teachers'\nretirement system or the New York city employees' retirement system at\nthe time he elects the optional retirement program offered by an\nelecting employer pursuant to this article shall be deemed to be a\nperson who terminates membership on the effective date of such election,\nfor the purpose of determining his eligibility for rights and benefits\nin either such system; provided however, that if he does not withdraw\nhis accumulated contributions, (i) his continued service at a community\ncollege whose employees are otherwise eligible for the New York city\nteachers' retirement system, or the New York city employees' retirement\nsystem shall be deemed to be member service in either the New York city\nteachers' retirement system or the New York city employees' retirement\nsystem for the purpose of determining his eligibility for any retirement\nallowance or ordinary death benefit under either such system dependent\nupon a specified period of total service or upon attainment of a\nspecified age while in service or upon death while in service; and (ii)\nthe amount of any such benefit to which he or his estate or person\ndesignated by him may become entitled under either such system shall be\ncomputed only on the basis of service otherwise creditable to him\ntherein and his compensation during such service. (b) Electing employees\nand their beneficiaries shall not be entitled to any right or benefit\nunder either the New York city teachers' retirement system or the New\nYork city employees' retirement system other than a retirement allowance\nor ordinary death benefit to the extent expressly provided for in this\nsection. Such employee shall not be eligible for any benefit pursuant to\nsection B3-36.0, subdivision two or section B3-36.0, subdivision three\nof the administrative code of the city of New York or section two\nhundred forty-five of the military law.\n 5. (a) Subdivision two of this section shall not apply to any eligible\nemployee who has elected the optional retirement program and after June\nthirtieth, two thousand two, renders service which is creditable in the\nNew York state teachers' retirement system, other than service for which\na contribution is made to the optional retirement program.\n (b) Subdivision three of this section shall not apply to any member of\nthe New York state teachers' retirement system who, after joining such\nsystem, elects the optional retirement program.\n (c) Anything in subdivision three of this section notwithstanding, any\neligible employee who is a member of the New York state teachers'\nretirement system and had elected the optional retirement program prior\nto July first, two thousand two, may obtain credit for service, other\nthan service for which a contribution is made to the optional retirement\nprogram, which is creditable in such system, was rendered after such\nmember had elected the education department optional retirement program,\nand was rendered between December first, nineteen hundred ninety-one and\nJune thirtieth, two thousand two, provided (i) such member has rendered\nat least five years of service credited with the New York state\nteachers' retirement system at the time such service is credited, and\n(ii) in the case of such member subject to the provisions of article\nfourteen or fifteen of the retirement and social security law, the\nmember contributes three percent of the wages earned for such service\ntogether with interest at the rate of five percent per annum compounded\nannually from the date of such service until payment is made.\n (d) Anything in this subdivision five notwithstanding, service as an\neligible employee for which a contribution is made to the optional\nretirement program shall neither entitle any eligible employee to join\nor rejoin the New York state teachers' retirement system nor be\ncreditable in such system.\n