Opinion No. Oag 20-75, (1975) , 64 Op. Att'y Gen. 61 ( 1975 )

DENNIS J. FLYNN, Corporation Counsel Racine County

You request my opinion whether the prior service credit for elected officials authorized by ch. 288, Laws of 1973, may be paid in whole or in part by the governmental employer of officials eligible for that credit.

Chapter 288, Laws of 1973, amended sec. 41.02 (12) (i), Stats., to provide that an elected official participating in the Wisconsin Retirement Fund could receive credit for his service performed before he was a member of the Fund. Such prior service credit is contingent upon him making all of the required contributions to the Fund which he would have made had he been a participating employe during the time of such service plus interest.

You inform me that as of January 1, 1968, Racine County, by county board resolution, assumed the responsibility for paying the employes' required contribution to the Retirement Fund in addition to the employer's payment. You ask whether Racine County, as the employer, may pay the employe share of that contribution for the period after January 1, 1968, for those eligible elected county officials who obtained the right to retroactive participation in the Wisconsin Retirement Fund and retroactive credit for earlier years pursuant to ch. 288, Laws of 1973.

Section 41.02 (12) (i) as amended by ch. 288, Laws of 1973, reads:

"(12) The definition of employe shall not include persons:

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"(i) Who before January 1, 1974, are elected to office by vote of the people unless any such elected person requests the board in writing to be included within this fund. Any elected person included at his request shall be included during any subsequent term or part thereof which he may serve in the same office or in any other elective office while serving any participating employer. Persons so electing to participate shall be considered employes on the effective date of participation of the employer, but only if such election is received by the board within 90 days of such effective date and if such person was in the service of such employer on such effective date. In all other cases any person so electing to participate shall become an employe as of the first day of the month following the receipt by the board of notice of such election, but creditable service shall be granted for service as an official elected by vote of the people which has not been granted previously if the person, before July 1, 1974, makes all required contributions which he would have made had he been a participating employe in a position meeting the requirements of sub. (6) during such service plus the compounded interest which would have accrued on said contributions at the effective rate if such official had been a participating employe during such service. The Wisconsin retirement fund board may accept the certification of the 600-hour requirement for prior local elective service by a state senator or representative to the assembly upon his certification of 600 hours of local elective service for a maximum of 8 years' service." (Emphasis upon amended portion.)

Counties are authorized to pay the employes' required contribution to the Retirement Fund on behalf of the employe under sec. 41.07 (2) (c), Stats., which provides:

"For participating employes other than state employes, in lieu of the contributions required by par. (a) or (am), all or part of such contributions may be paid by the employer; but all such payments shall be reported to the board as though contributed by participating employes, and all such payments shall be available for all retirement fund benefit purposes to the same extent as normal contributions which were deducted from the earnings of such participating employes. Action to assume employe contributions as provided herein shall be taken at such time and in such form as is determined by the governing body of the participating employer."

Subparagraphs (a) and (am), determine the amount of the employe contribution which subpar. (c), quoted above, authorizes employers other than the state to pay in lieu of payment by the employe. The prior service credit authorized by sec. 41.02 (12) (i), Stats., as amended, is defined as "all required contributions which . . . would have been made had [the eligible elected official] been a participating employe . . . ." This is clearly a reference to the employe contributions provided for in sec. 41.07 (2) (a) and (am), Stats. Since the employe contributions required under those provisions may be paid by the employer, it follows that the employe contributions for the prior service credit under sec. 41.02 (12) (i), Stats., may likewise be paid by the employer at its option.

Section 41.07 (2) (a) and (am), Stats., does not contemplate employe contributions in the nature of interest, however. Nevertheless, no provisions in ch 41, Stats., relating to the Wisconsin Retirement Fund, would prohibit employers from also making that part of the employes' contribution for prior service credit attributable to interest. Because such contributions are not in conflict with the plain language of any provision of the statutes regulating the Wisconsin Retirement Fund, the employer is not precluded from paying any part of the employes' contribution for prior service credit including the interest thereon. 59 OAG 186, 189-191 (1970).

In the event that the county makes the payments for all or part of the prior service credit authorized by sec. 41.02 (12) (i), Stats., for presently employed elected officials, you ask whether the county must also make such payments for those formerly so employed. Such payments can be made only for those elected officials employed by the county on or after June 16, 1974, the effective date of ch. 288, Laws of 1973. In this regard, I call your attention to the enclosed copy of an opinion by my predecessor to Mr. C. M. Sullivan, Secretary of the Department of Employe Trust Funds, dated November 25, 1974. In such opinion he stated that a claim for additional credits was properly denied where the elected official was no longer employed on the effective date of ch. 288, Laws of 1973.

BCL:DJH