§ 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.