Section 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.