N.Y. Education Law § 393: Election

§ 393. Election. 1. Election of the optional retirement program.

(a) Each eligible employee initially appointed on or after July first,

nineteen hundred sixty-four, within thirty days of his entry into

service, shall elect (i) to join either the New York state teachers'

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

other public retirement system in this state in accordance with the

provisions of law applicable thereto or (ii) to elect the optional

retirement program established pursuant to this article; provided

however, that (1) such persons initially entering service during the

period July first, nineteen hundred sixty-four through November fourth,

nineteen hundred sixty-four may defer such election until December

fourth, nineteen hundred sixty-four, and (2) eligible employees of an

electing employer initially appointed on or after the effective date of

the election to offer such program may defer such election until the

ninetieth day following such effective date of the election to offer

such program established by an electing employer. Any such deferred

election shall be effective as of the date of entry into service or the

effective date of such offer, whichever is later.

(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, or such public retirement system in this state in which his

membership may be otherwise required in accordance with law, except that

eligible employees of institutions under the management and control of

Cornell university or Alfred university as the representative of the

state university trustees shall be deemed to have elected membership in

the New York state employees' retirement system. Such membership shall

be effective as of the date of entry into service, or in the case of

membership in the New York city employees retirement system, at the time

otherwise required by law.

(c) The amount, if any, required to have been contributed by any

employee in accordance with an election, a deferred election or 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 comptroller for employees of state university electing

the optional retirement program, or by the appropriate fiscal officer

for employees of an electing employer, or in the case of membership in

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

state teachers' retirement system or other public retirement system in

this state, by the retirement system concerned.

(d) Eligible employees other than those employed by an electing

employer appointed on or before June thirtieth, nineteen hundred

sixty-four, may elect the optional retirement program established

pursuant to this article. Such election shall be made on or before

December fourth, nineteen hundred sixty-four, and shall become effective

as of January first, nineteen hundred sixty-five. Eligible employees of

an electing employer appointed before the effective date of the election

to offer such program may elect the optional retirement program

established pursuant to this article. Such election shall be made on or

before the ninetieth day following the effective date of such offer and

shall become effective on or as of the first day of January next

following the effective date of such offer.

(e) Any state employee or employee of an electing employer who becomes

eligible to elect the optional retirement program by reason of (i) the

certification of the position held by him pursuant to paragraph three of

section three hundred ninety of this article or (ii) his appointment,

promotion, transfer or reclassification to a position previously so

certified, may elect the optional retirement program established

pursuant to this article. Such election shall be made within thirty days

after notice in writing to such employee of his eligibility, and shall

become effective on the date of such election, except that in no case

shall such election by a state employee become effective prior to

January first, nineteen hundred sixty-five, or in the case of an

eligible employee of an electing employer, prior to the first day of

January next following the effective date of the offer of such program.

(f) Any eligible employee who was employed by the University of

Buffalo prior to its merger into state university and who elected to

continue in the retirement program theretofore provided by the

University of Buffalo in accordance with section three of chapter nine

hundred eighty of the laws of nineteen hundred sixty-two and who elects

the optional retirement program established pursuant to this article as

provided in paragraphs (d) or (e) of this subdivision shall become

ineligible to continue in the retirement program provided by the

University of Buffalo prior to merger on the effective date of such

election. Such election shall constitute a waiver of all rights and

benefits provided under sections three and seven of chapter nine hundred

eighty of the laws of nineteen hundred sixty-two.

(g) No election by an eligible employee of the optional retirement

program shall be effective unless it shall be accompanied by an

appropriate application, where required, for the issuance of a contract

or contracts under the program.

2. Ineligibility for retirement system membership. Any employee who

elects the optional retirement program shall be ineligible for

membership in the New York state employees' retirement system, the New

York state teachers' retirement system or any other public retirement

system in this state so long as he shall remain continuously employed in

any position by state university or the institutions under the

management and control of Cornell university or Alfred university as

representative of the board or by an electing employer and shall

continue in the 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 article, 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 state

university 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) Any eligible employee of an electing employer who is a member

or transferred contributor of either the New York city teachers'

retirement system or the New York city employees' retirement system at

the time he elects the optional retirement program offered by an

electing employer pursuant to this article shall be deemed to be a

person who terminates membership 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 at a community

college whose employees are otherwise eligible for the New York city

teachers' retirement system, or the New York city employees' retirement

system shall be deemed to be member service in either the New York city

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

system for the purpose of determining his eligibility for any 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 city teachers' retirement system or the New

York city employees' retirement system other than a retirement allowance

or ordinary death benefit to the extent expressly provided for in this

section. Such employee shall not be eligible for any benefit pursuant to

section B3-36.0, subdivision two or section B3-36.0, subdivision three

of the administrative code of the city of New York or section two

hundred forty-five of the military law.

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

employee who has elected the 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 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 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 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 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 five notwithstanding, service as an

eligible employee for which a contribution is made to the 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.