Opinion No. 68-359 (1968) Ag ( 1968 )

Retirement System — Military Technicians — Options Under 74 O.S. 917 [74-917](2) (1968), the State Retirement System must allow those technicians who are eligible and select the option of a vested deferred retirement benefit, the full amount of said vested deferred benefit as provided in Section 74 O.S. 915 [74-915]. The Attorney General has had under consideration your letter of November 8, 1968, wherein you ask as follows: "We, therefore, respectfully request your opinion as to (1) whether the State Retirement System must allow those Technicians who are eligible the option of selecting a vested deferred retirement benefit in lieu of with drawing their accumulated contributions? (2) If so, must we allow them the full amount of said vested deferred benefit, or only a percentage of such benefit since the Federal Plan is allowing them 55% for the same service if they do not elect to remain in the State Retirement System?" O.S.L. 1963, ch. 50, Section 17, as amended O.S.L. 1965, ch. 432, Section 6 (74 O.S. 917 [74-917] (1968)) provides in part: "(1) Upon termination of employment with a participating employer, not followed by employment with such participating employer, or another participating employer, within one hundred twenty days, the member shall be paid an amount equal to his accumulated contributions. A leave of absence or military service shall not be considered a termination of employment unless the member withdraws his accumulated contributions." "(2) If such member has completed ten years of credited service at date of termination he may elect a vested benefit in lieu of receiving his accumulated contributions. The amount of the vested benefit shall commence at the normal retirement date and shall be paid monthly during the lifetime of the retirant with the first payment made on the first day of the month coinciding with or following the normal retirement date and the last payment made on the first day of the month in which death occurs." O.S.L. 1963, ch. 50, Section 23 (74 O.S. 923 [74-923] (1968)) provides: "N o alteration, amendment, or repeal of this act shall affect the then existing rights of members and beneficiaries, but shall be effective only as to rights which would otherwise accrue hereunder as a result of services rendered by an employee after such alteration, amendment, or repeal. Any annuity, benefits, fund, property, or rights created by or accruing to any person under the provisions of this act are hereby made and declared exempt from any tax of the State of Oklahoma or any political subdivision or taxing body thereof, and shall not be subject to execution, garnishment or attachment, or any other process or claim whatsoever, and shall be unassignable, except as specifically provided by this act." Section 74 O.S. 917 [74-917](1) vests in the terminated employee the right to withdraw an amount equal to his accumulated contribution. Section 74 O.S. 917 [74-917](2) grants to such terminating member the additional right if he has completed ten years of credited service at date of termination to elect a vested benefit in lieu of receiving the accumulated contributions. Section 74 O.S. 923 [74-923] prevents existing rights of members and beneficiaries from being affected by alterations, amendments or repeal. Where the meaning of a statute is clear on its face, it must be enforced as written. Skelly Oil Company v. U.S., 255 F. Supp. 228 (N.D. Okl. 1966). O.S.L. 1963, ch. 50, Section 15 as amended O.S.L. 1965, ch. 432, Section 5; O.S.L. 1968, ch. 400, Section 3 (74 O.S. 915 [74-915] (1968)) states as follows: "(1) Any member who shall retire on or after his normal retirement date shall be entitled to receive an annual retirement benefit equal to the sum obtained by adding an amount for participating service and an amount for prior service determined as herein provided. The amount for prior service shall be equal to the sum of Sixty Dollars ($60.00) per annum multiplied by the number of years of prior service entitled to credit as provided in Section 13 of this Act. The amount for participating service shall be equal to one and one-fourth percent (1 1/4%) of the member's final average salary multiplied by the number of years of participating service entitled to credit as provided in Section 13 of this Act." "(2) Any member who shall retire before the normal retirement date shall receive an annual retirement benefit equal to the actuarial equivalent of but not exceeding the benefit payable had the member retired on the normal retirement date but based upon the member's final average salary and years of participating and prior service to date of actual retirement." Section 74 O.S. 915 [74-915](1) and 74 O.S. 915 [74-915](2) clearly provides the formula for determining the amount to be paid concerning a vested benefit. There is no provision for reducing the percentage of such benefit by virtue of a credit for the same service being given from any other source. It is therefore the opinion of the Attorney General that under O.S.L. 1963, ch. 50, as amended O.S.L. 1965, ch. 432, Section 6 (74 O.S. 917 [74-917](2) (1968)) that the State Retirement System must allow those technicians who are eligible the option of selecting a vested deferred retirement benefit in lieu of withdrawing their accumulated contributions. It is further the opinion of the Attorney General that the State's Retirement System must allow those technicians who are eligible and select the option of a vested deferred retirement benefit, the full amount of said vested deferred benefit as provided in O.S.L. 1963, ch. 50, Section 15 as amended O.S.L. 1965, ch. 432, Section 5; O.S.L. 1968, ch. 400, Section 3 (74 O.S. 915 [74-915] (1968)). (W. Howard O'Bryan Jr.)