2023 New York Laws › EDN - Education › Title 1 - General Provisions › Article 3 - Education Department › Part 5 - Education Department Optional Retirement Program › 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.