Opinion No. (1988) ( 1988 )

THE ATTORNEY GENERAL HAS RECEIVED YOUR REQUEST FOR AN OPINION REGARDING THE APPLICABILITY OF 47 Ohio St. 2-307.1 (1987) TO SERVICE AS A TEACHER WITH THE OKLAHOMA CITY PUBLIC SCHOOLS. AS THE STATUTORY LANGUAGE IS CLEAR AND UNAMBIGUOUS WE HAVE TAKEN THE LIBERTY OF PROVIDING YOU THIS INFORMAL MEMORANDUM OPINION. THIS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL.

47 Ohio St. 2-307.1 OF TITLE 47 WAS ORIGINALLY PASSED IN 1986. IN ITS ORIGINAL FORM THERE WAS ABSOLUTELY NO QUESTION THAT PUBLIC SCHOOL TEACHING TIME WOULD NOT BE CREDITED UNDER THE STATUTE BECAUSE THE CREDIT ONLY APPLIED TO TIME WHILE THE PERSON WAS EMPLOYED BY A STATE AGENCY AND WAS A MEMBER OF THE OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM. TEACHERS EMPLOYED IN THE SCHOOL DISTRICTS OF THE STATE OF OKLAHOMA HAVE ALWAYS BEEN MEMBERS OF THE TEACHERS RETIREMENT SYSTEM AND NOT OPERS. SEE 70 O.S. 17-101(5) (1987).

IN 1987 THE OKLAHOMA LEGISLATURE DELETED THE LANGUAGE FROM 47 Ohio St. 2-307.1 WHICH REFERRED TO THE MEMBERSHIP IN THE OPERS SYSTEM. HOWEVER, THE LEGISLATURE KEPT THE LANGUAGE WHICH REFERRED TO EMPLOYEES OF STATE AGENCIES. THE CURRENT VERSION OF THIS STATUTE READS, IN PERTINENT PART, AS FOLLOWS:

A MEMBER MAY RECEIVE SERVICE CREDIT FOR NOT TO EXCEED FIVE (5) YEARS OF PARTICIPATING SERVICE ACCUMULATED BY THE MEMBER WHILE AN EMPLOYEE OF A STATE AGENCY IF THE MEMBER IS NOT RECEIVING OR ELIGIBLE TO RECEIVE RETIREMENT BENEFITS OR CREDIT FOR SAID SERVICE FROM THE

THE QUESTION THEN BECOMES WHETHER THE OKLAHOMA CITY PUBLIC SCHOOL SYSTEM IS A "STATE AGENCY". THE ANSWER IS CLEARLY NO. LOCAL SCHOOL DISTRICTS ARE POLITICAL SUBDIVISIONS OF THE STATE OF OKLAHOMA AND NOT AGENCIES OF THE STATE OF OKLAHOMA. THE DIFFERENCE BETWEEN A STATE AGENCY AND A POLITICAL SUBDIVISION OF THE STATE WAS DISCUSSED IN A.G. OPIN. NO. 71-372. THE ATTORNEY GENERAL CONCLUDED AS FOLLOWS:

"THE ATTRIBUTES OF A POLITICAL SUBDIVISION . . . ARE THAT IT PERFORMS A FUNCTION OF LOCAL GOVERNMENT, EXTENDS OVER PRESCRIBED GEOGRAPHICAL AREA, AND EXERCISES AUTHORITY FOR SUBORDINATE SELF-GOVERNMENT THROUGH OFFICERS DULY SELECTED BY IT."

THERE ARE SEVERAL OTHER EXAMPLES WHICH POINT OUT THE DISTINCTION BETWEEN STATE AGENCIES AND POLITICAL SUBDIVISIONS OF THE STATE. FOR INSTANCE, THE STATE BALANCED BUDGET PROVISIONS APPLICABLE TO STATE AGENCIES ARE FOUND IN OKLA. CONST. ARTICLE X, SECTION 23. POLITICAL SUBDIVISIONS SUCH AS SCHOOL DISTRICTS ARE GOVERNED BY OKLA. CONST. ARTICLEX, SECTION 26. UNDER THE GOVERNMENTAL TORT CLAIMS ACT, 51 Ohio St. 151 (1987) ET SEQ., A SCHOOL DISTRICT IS SPECIFICALLY DESIGNATED AS A "POLITICAL SUBDIVISION." 51 O.S. 152(8)(B) (1987). SCHOOL DISTRICTS DO NOT COME UNDER THE DEFINITION OF THE STATE OR AN AGENCY THEREOF. SEE 51 O.S. 152(10) (1987). IT MAY WELL BE THAT TEACHERS AT STATE INSTITUTIONS SUCH AS THE UNIVERSITY OF OKLAHOMA OR OKLAHOMA STATE UNIVERSITY WOULD FALL WITHIN THE CATEGORY OF EMPLOYEES OF STATE AGENCIES. CLEARLY AN EMPLOYEE OF A LOCAL SCHOOL DISTRICT IS NOT AN EMPLOYEE OF A STATE AGENCY.

(THOMAS L. SPENCER)