Opinion Number

Dear Ms. Williams:

This office received your request for an opinion of the Attorney General in regard to participation in the Deferred Retirement Option Plan. You indicated a member, after only three months participation in the plan, was allowed to withdraw because he felt his benefits were not fully explained to him when he entered. He repaid his employee contributions for that three months, and resumed active membership in Harbor Police Employees' Retirement System. After four years he applied to participate again in the Deferred Retirement Option Plan.

Since a member may participate in the plan only once, you asked if the present application would be considered as a second participation.

We cited R.S. 11:447, but the pertinent statute is R.S.11:3685(B) which provides as follows:

(1) In lieu of terminating employment and accepting a service retirement under this sub-part, any member of this system who has not less than twenty years of credible service and who is eligible to receive a service retirement allowance may elect to participate in a deferred retirement option plan as provided for below and defer the receipt of benefits in accordance with the provisions of this Section.

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(3) The duration of participation in the plan shall be specified and shall not exceed five years.

(4) A member may participate in the plan only once.

We reach the same conclusion.

By reading the provisions as a whole, we would find that the first participation under the facts indicated would not constitute a participation which would now preclude the present participation. The participation was not terminated because of completion of the specified term, but because the decision to enter was not intelligently made. Additionally, the membership in the retirement system was reimbursed, and in accordance with paragraph B(5) upon commencement of participation in the plan "active membership in the system shall terminate", and "payment of employee contributions shall cease".

We find it significant that withdrawal was permitted before the specified term, and must conclude it was because it was found that there had not been an intelligent and informed selection to enter the plan.

Thus, under these limited circumstances where there was insufficient information and explanation resulting in the consent not having been knowingly and intelligently made, we would conclude this did not constitute participation in the plan so as to preclude the present application.

We hope this sufficiently answers your question, but if we can be of further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

BY: BARBARA B. RUTLEDGE Assistant Attorney General

BBR