NY Educ L § 393 (2021)
2021 New York Laws EDN - Education Title 1 - General Provisions Article 8-B - State University Optional Retirement Program 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.