N.Y. Education Law § 183: Election

§ 183. Election. 1. Election of the education department optional

retirement program. (a) Each eligible employee initially appointed on or

after July first, nineteen hundred sixty-eight, shall, within thirty

days of his entry into service, elect (i) to join either the New York

state teachers' retirement system or the New York state employees'

retirement system in accordance with the provisions of law applicable

thereto or (ii) to elect the education department optional retirement

program established pursuant to this part V of this article. Each

eligible employee employed by the department prior to July first,

nineteen hundred sixty-eight shall make such election on or before

December fourth, nineteen hundred sixty-eight. Any such election shall

be effective as of the date of entry into service with the department,

except that with respect to those eligible employees possessing

contracts which may legally be continued under this part and who

initially entered into service with the department prior to the

effective date of this part, the deferred election shall be effective as

of the effective date of this part.

(b) In the event an eligible employee fails to make an election as

provided in paragraph (a) of this subdivision, he shall be deemed to

have elected membership in the New York state teachers' retirement

system. Such membership shall be effective as of the date of entry into

service with the department.

(c) The amount, if any, required to be contributed by any employee in

accordance with an election, a deferred election or a failure to elect

pursuant to paragraph (a) or paragraph (b) of this subdivision shall be

collected by payroll deductions in such manner as may be provided by the

state comptroller for those persons electing the education department

optional retirement program, or in the case of membership in either the

New York state employees' retirement system or the New York state

teachers' retirement system, by such retirement system. Nothing herein

contained shall be construed to authorize or require payment by the

state of contributions on account of services rendered prior to the

effective date of this part by eligible employees who at the time of

their employment with the department chose to continue, on a voluntary

basis, coverage similar to that conferred by this part, but shall be

construed to authorize continuation of such contracts after the

effective date of this part, subject to rules and regulations to be

established by the commissioner.

2. Ineligibility for retirement system membership. Any employee who

elects the education department optional retirement program shall be

ineligible for membership in either the New York state employees'

retirement system or the New York state teachers' retirement system so

long as he shall remain employed in the department and shall continue in

the education department optional retirement program.

3. (a) Any eligible employee who is a member of either the New York

state employees' retirement system or the New York state teachers'

retirement system at the time he elects the optional retirement program

established pursuant to this part shall be deemed to be a person who

discontinues service on the effective date of such election, for the

purpose of determining his eligibility for rights and benefits in either

such system; provided, however, that if he does not withdraw his

accumulated contributions (i) his continued service with the education

department while under the optional retirement program shall be deemed

to be member service in either the New York state employees' retirement

system or the New York state teachers' retirement system for the purpose

of determining his eligibility for any vested retirement allowance,

retirement allowance or ordinary death benefit under either such system

dependent upon a specified period of total service or upon attainment of

a specified age while in service or upon death while in service and (ii)

the amount of any such benefit to which he or his estate or person

designated by him may become entitled under either such system shall be

computed only on the basis of service otherwise creditable to him

therein and his compensation during such service.

(b) Electing employees and their beneficiaries shall not be entitled

to any right or benefit under either the New York state employees'

retirement system or the New York state teachers' retirement system

other than a vested retirement allowance, retirement allowance or

ordinary death benefit to the extent expressly provided for in this

section.

4. (a) Subdivision two of this section shall not apply to any eligible

employee who has elected the education department optional retirement

program and after June thirtieth, two thousand two, renders service

which is creditable in the New York state teachers' retirement system,

other than service for which a contribution is made to the education

department optional retirement program.

(b) Subdivision three of this section shall not apply to any member of

the New York state teachers' retirement system who, after joining such

system, elects the education department optional retirement program.

(c) Anything in subdivision three of this section notwithstanding, any

eligible employee who is a member of the New York state teachers'

retirement system and had elected the education department optional

retirement program prior to July first, two thousand two, may obtain

credit for service, other than service for which a contribution is made

to the education department optional retirement program, which is

creditable in such system, was rendered after such member had elected

the education department optional retirement program, and was rendered

between December first, nineteen hundred ninety-one and June thirtieth,

two thousand two, provided (i) such member has rendered at least five

years of service credited with the New York state teachers' retirement

system at the time such service is credited, and (ii) in the case of

such member subject to the provisions of article fourteen or fifteen of

the retirement and social security law, the member contributes three

percent of the wages earned for such service together with interest at

the rate of five percent per annum compounded annually from the date of

such service until payment is made.

(d) Anything in this subdivision four notwithstanding, service as an

eligible employee for which a contribution is made to the education

department optional retirement program shall neither entitle any

eligible employee to join or rejoin the New York state teachers'

retirement system nor be creditable in such system.