Opinion No. (1976) Ag ( 1976 )

DUAL RETIREMENT BENEFITS A vocational rehabilitation employee who has paid into the Teachers' Retirement System for twenty (20) years or more and has a vested guaranteed retirement income, can terminate annual contributions to the System and remain eligible for retirement benefits and thereafter exercise the option under the provisions of House Bill No. 1304 of the First Regular Session of the Thirty-fifth Oklahoma Legislature (1975) and after otherwise meeting requirements of the Oklahoma Public Employees Retirement System, can receive benefits from both Systems at retirement age. The Attorney General has considered your request for an opinion wherein you ask the following question: "Can a vocational rehabilitation employee who has paid into the Teachers' Retirement System for twenty years or more cease to make annual contributions to the System, but remain eligible for retirement benefits, and during the period he is employed by the Welfare Department, join and make payments into the Public Employees Retirement System and thereby, at eligible retirement age, receive benefits from both the Public Employees Retirement System and the Teachers' Retirement System?" House Bill No. 1304 of the First Regular Session of the Thirty-fifth Oklahoma Legislature (1975) provides as follows: "Any state employee of the Department of Institutions, Social and Rehabilitative Services who is a member of the Teachers' Retirement System on the effective date of this act shall have the option, for thirty (30) days only after said effective date, of remaining within the Teachers' Retirement System or changing to membership in the Oklahoma Public Employees Retirement System upon compliance with such reasonable conditions as shall be imposed by the Board of Trustees of the Oklahoma Public Employees Retirement System." Title 74 Ohio St. 902 [74-902](15) (1971) defines "employees" eligible for participation in the benefits provided for by the Oklahoma Public Employees Retirement System: "(15) 'Employee,' any officer or employee of a participating employer, whose employment is not seasonal or temporary and whose employment requires at least one thousand (1,000) hours of work per year and whose salary or wages is at least Ninety Dollars ($90.00) per month or a salary established by statute to be more than Ninety Dollars ($90.00) per month, but not including: "(a) any employee who is covered by or eligible for or who will become eligible for another retirement plan authorized under any other law of this state in operation on the entry date, except that this definition shall not exclude any person as defined herein who is covered only by Social Security; or who prior to being employed in employment subject to this act was covered by the Teachers' Retirement System and still retains eligibility under said system or Social Security or both; provided that any employee of the County Superintendent not a member of the Teachers' Retirement System shall have the option of being a member of this System; . . ." (Emphasis added) Thus, it appears clear that the vocational rehabilitation employee alluded to in your letter would be eligible for participation under the provision of Section 902, as it is clear that the Legislature intended and created an exception for those who "prior to being employed in employment subject to this act was covered by the Teachers' Retirement System and still retains eligibility under said System or Social Security or both". House Bill No. 1304 expressly provides that any state employee of the Department of Institutions, Social and Rehabilitative Services who has membership in the Teachers' Retirement System on the effective date of this Act (September 1, 1975) shall have the option, for thirty (30) days only after said effective date, of remaining with the Teachers' Retirement System or changing to membership in the Oklahoma Public Employees Retirement System. The word "option" indicates an alternative or election. Thus, a vocational rehabilitation employee who has paid into the Teachers' Retirement System for twenty (20) years or more could elect to retain his membership in the Teachers' Retirement System or join the Oklahoma Public Employees Retirement System. Moreover, under the Rules and Procedures for Operation of Teachers' Retirement System of Oklahoma (August 2, 1973) provision is made that if a member has twenty (20) or more years of creditable service toward retirement, he has a vested guaranteed retirement income at age sixty (60) or older upon making proper application. Thus, in construing Section 902 and House Bill No. 1304, it is apparent that as relates to your question, there is no fundamental conflict between the two statutes, and they may be read together to complement and with a view to giving effect to a consistent legislative policy. 82 C.J.S. Statutes, 347. It is, therefore, the opinion of the Attorney General that your question be answered in the affirmative and in this manner: A vocational rehabilitation employee who has paid into the Teachers' Retirement System for twenty (20) years or more and has a vested guaranteed retirement income, can terminate annual contributions to the System and remain eligible for retirement benefits and thereafter, exercise the option under the provisions of House Bill No. 1304 of the First Regular Session of the Thirty-fifth Oklahoma Legislature (1975) and after otherwise meeting requirements of the Oklahoma Public Employees Retirement System, can receive benefits from both Systems at retirement age. (Nathan J. Gigger) (Double Dipping, Dual Compensation)