§ 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.