Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma.
Filed Date: 9/15/2003
Status: Precedential
Modified Date: 7/6/2016
Dear Representative Roan,
¶ 0 This office has received your requests for an official Attorney General Opinion in which you ask, in effect, the following questions:
1. Are Directors of the Oklahoma State Bureau of Investigation ("OSBI") and the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control ("OBNDD") covered positions under the Oklahoma Law Enforcement Retirement System ("OLERS"), 47 O.S. 2001 and Supp. 2002, §§ 2-300 through 2-314, such that they are required to be a part of OLERS rather than OPERS if reemployed by the OSBI or OBNDD on or after July 1, 2003?
2. May an individual who has retired after having participated in the Deferred Option Plan ("DROP") of OLERS pursuant to 47 O.S. 2001, § 2-305.2[
47-2-305.2 ],1 be reemployed in an OLERS-covered position, or is he or she required to terminate employment upon retirement and begin collecting in-service distributions?3. Pursuant to 2003 Okla. Sess. Laws ch.
199 , §§ 13 and 14, (amending 63 O.S. 2001, § 2-103[63-2-103 ] and 74 O.S. 2001, § 150.6), may a Director of the OSBI or the OBNDD who is appointed on or after July 1, 2003, who participated in OLERS and retired after having participated in DROP pursuant to 47 O.S. 2001, § 2-305.2, be able to participate in the OLERS system again after such retirement, or is he or she required to terminate employment and begin collecting in-service distributions?4. If a Director of the OSBI or the OBNDD appointed on or after July 1, 2003, who was a member of OLERS but retired without participating in DROP, becomes reemployed in a position covered under OLERS, does that reemployment require the suspension of the individual's monthly retirement benefit payment by OLERS until the individual is not reemployed in a position covered under OLERS?
5. Is OLERS required to suspend the monthly retirement benefit payments of a Director of the OSBI or the OBNDD, who was a member of OLERS but retired after having participated in DROP, if that Director becomes reemployed as Director on or after July 1, 2003, and elects in writing to participate in the Oklahoma Public Employees Retirement System ("OPERS")?
¶ 2 To answer your questions we must examine the effect of recent legislative amendments to the statutes governing OLERS, as well as the amendments to the specific provisions governing the appointment of Directors of the Oklahoma State Bureau of Investigation ("OSBI") and the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control ("OBNDD"). 2003 Okla. Sess. Laws ch.
"Member" means all law enforcement officers of the Oklahoma Highway Patrol and the State Capitol Division of the Department of Public Safety who have obtained certification from the Council on Law Enforcement Education and Training, the Oklahoma State Bureau of Investigation, the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control and the Oklahoma Alcoholic Beverage Laws Enforcement Commission designated to perform duties in the investigation and prevention of crime and the enforcement of the criminal laws of this state.
Id. § 2-300(6) (emphasis added). At 2003 Okla. Sess. Laws ch.
¶ 4 The Legislature established a date, known as the "normal retirement date" by which members may retire, and during the remainder of the member's lifetime, receive annual retirement pay. 2003 Okla. Sess. Laws ch.
¶ 5 By the plain language of Section 2-302(A) of Title 47, it is apparent that the Legislature intended mandatory membership in OLERS for all those who qualify as members. The portion of the statute dealing with applications for membership reads:
(A) Any person eligible to become a member of the System shall file a written application therefor with the Board, and shall continue thereafter as a member of the System so long as the employee meets membership requirements.
Id. (emphasis added). The administrative rules of OLERS also denote mandatory membership, providing at OAC
¶ 6 Upon retirement, benefits are to be paid in accordance with the provisions of Section 2-305.4 of Title 47, which subjects the benefits to the limitations of Section
¶ 8 Prior to the recent amendments in 2003, which will be discussed below, Section 2-305.2(A) of Title 47, governing participation in DROP, provided in part:
In lieu of terminating employment and accepting a service retirement pension pursuant to Section 2-305 of Title 47 of the Oklahoma Statutes, any member of the Oklahoma Law Enforcement Retirement System who has not less than twenty (20) years of creditable service and who is eligible to receive a service retirement pension may elect to participate in the Oklahoma Law Enforcement Deferred Option Plan and defer the receipts of benefits in accordance with the provisions of this section.
Id. Regarding retirement, the pre-amended DROP statute at Section 2-305.2(C), provided: The duration of participation in the Oklahoma Law Enforcement Deferred Option Plan for a member shall not exceed five (5) years. At the conclusion of a member's participation in the Oklahoma Law Enforcement Deferred Option Plan, the member shall terminate employment with all state law enforcement agencies as an officer, and shall start receiving the member's accrued monthly retirement benefit from the System.
Id.
¶ 9 Upon retirement, a member who has participated in DROP may receive, at the option of the participant, a lump sum payment equal to the account balance of the participant, a lump sum payment payable to an annuity provided selected by the participant, or "[a]ny other method of payment if approved by the Board." 2003 Okla. Sess. Laws ch.
(a) If a class or several classes of employees of any above-defined employers are covered by Social Security and are not covered by or eligible for and will not become eligible for another retirement plan authorized under the laws of this state, which is in operation on the effective date, such employer shall be deemed an eligible employer, but only with respect to that class or those classes of employees as defined in this section.
Id. Thus, membership in OPERS is intended for those employees who are not eligible to participate in other retirement plans authorized under Oklahoma law.
¶ 11 OPERS is governed by a Board of Trustees who are responsible for the policies and rules for the general administration of the system. 74 O.S. Supp. 2002, § 909[
¶ 12 During the 2003 legislative session, the Legislature enacted several significant amendments to the statutes governing participation in and payment of benefits by OLERS, both as to OLERS in general and as to participation in DROP. The Legislature also amended two specific statutes regarding the eligibility of any Director of the OSBI or the OBNDD appointed on or after July 1, 2003, to participate in either OLERS or OPERS.
A. Expect as otherwise provided in this title, at any time after attaining normal retirement date, any member of the System upon application for unreduced retirement benefits made and approved, may retire, and, during the remainder of the member's lifetime, receive annual retirement pay, payable in equal monthly payments, equal to two and one-half percent (2½%) of the final average salary times years of credited service. If such retired member is reemployed by a state agency in a position which is not covered by the System, such retired member shall continue to receive in-service distributions from the System. Prior to September 19, 2002, if such retired member was reemployed by a state agency in a position which is covered by the System, such member shall continue to receive in-service distributions from the System and shall not accrue any further credited service. If such a member is reemployed by a state agency in a position which is covered by the System on or after September 19, 2002, such member's monthly retirement payments shall be suspended until such member retires and is not reemployed by a state agency in a position which is covered by the System.
2003 Okla. Sess. Laws ch.
(5) Retirement pursuant to 47 O.S. § 2-305[
47-2-305 ], has at all times included reemployment of a member by a state agency in a position which is not covered by OLERS. Thus, in-service distributions from OLERS to such a member are permitted. Prior to September 19, 2002, if such member was reemployed by a state agency in a position which is covered by OLERS, such member will continue to receive in-service distributions from OLERS and will not accrue any further credited service. On and after September 19, 2002, if a retired member is reemployed by a state agency in a position which is covered by OLERS, such member's monthly retirement payments shall be suspended until such member retires and is not reemployed by a state agency in a position which is covered by OLERS.
OAC
¶ 15 The Legislature amended Section 2-305.2(C) in 2003 Okla. Sess. Laws ch.
C. The duration of participation in the Oklahoma Law Enforcement Deferred Option Plan for a member shall not exceed five (5) years. Participation in the Oklahoma Law EnforcementDeferred Option Plan must begin the first day of a month and endon the last day of the month. At the conclusion of a member's participation in the Oklahoma Law Enforcement Deferred Option Plan, the member shall terminate employment with all state law enforcement agencies as an officer; and shall start receiving the member's accrued monthly retirement benefit from the System.Such a member may continue to receive in-service distributionsof such member's accrued monthly retirement benefit from theSystem if the member is reemployed by a state agency only if suchreemployment is in a position not covered under the System. Id. (underlined language new, strikeout language removed).
¶ 16 This provision was also amended during the 2003 legislative session in 2003 Okla. Sess. Laws ch.
C. The duration of participation in the Oklahoma Law Enforcement Deferred Option Plan for a member shall not exceed five (5) years. At the conclusion of a member's participation in the Oklahoma Law Enforcement Deferred Option Plan, the member shall terminate employment with all state law enforcement agencies as an officer, and shall start receiving the member's accrued monthly retirement benefit from the System. Such amember may continue to receive in-service distributions of suchmember's accrued monthly retirement benefit from the System ifthe member is reemployed by a state agency only if suchreemployment is in a position not covered under the System. Id. (underlined language new, strikeout language removed).
¶ 17 Section 2-305.2(C), was amended a third time in 2003 Okla. Sess. Laws ch.
C. The duration of participation in the Oklahoma Law Enforcement Deferred Option Plan for a member shall not exceed five (5) years. At the conclusion of a member's participation in the Oklahoma Law Enforcement Deferred Option Plan, the member shall terminate employment with all state law enforcement agencies as an officer a member of the Oklahoma Law EnforcementRetirement System, and shall start receiving the member's accrued monthly retirement benefit from the System.
Id. (underlined language new, strikeout language removed).
¶ 18 Each bill contains an emergency clause, and Senate Bill 668 and House Bill 1647 state they shall become effective July 1, 2003. 2003 Okla. Sess. Laws ch.
¶ 19 Amendments were also enacted to Section 2-305.2 in 2003 that allow members to participate in an alternative DROP. 2003 Okla. Sess. Laws ch.
¶ 21 The Legislature amended 63 O.S. 2001, § 2-103[
¶ 22 The Legislature also amended 74 O.S. 2001, § 150.6[
¶ 23 One may question whether such laws constitute special legislation in violation of Oklahoma Constitution Article
1. Are Directors of the Oklahoma State Bureau of Investigation ("OSBI") and the Oklahoma Bureau of Narcotics and Dangerous Drugs Control ("OBNDD") "covered positions" under the Oklahoma Law Enforcement Retirement System ("OLERS") pursuant to 47 O.S. 2001, and Supp. 2002, §§ 2-300 through 2-314, such that these Directors are required to be a part of OLERS if reemployed by the OSBI or OBNDD on or after July 1, 2003 ?
¶ 25 You first ask whether Directors of the OSBI and the OBNDD appointed on or after July 1, 2003, are "covered positions" under the statutes governing membership in OLERS. The phrase "covered position under the System" is significant as it is referenced in two provisions amending the OLERS statutes. In the statute governing participation in DROP, Section 2-305.2(C), the amendment states that a member of OLERS who has participated in DROP "may continue to receive in-service distributions of such member's accrued monthly retirement benefit . . . if the member is reemployed by a state agency only if such reemployment is in a position not covered under the System." 2003 Okla. Sess. Laws ch.
¶ 26 Generally, State employees are eligible to be covered by only one retirement plan. Individuals who are covered by or eligible for another retirement plan may not be a part of OPERS, as an "eligible employer" under OPERS is defined to include an employer whose employees or classes of employees are not covered by or eligible for another retirement plan authorized under State law. 2003 Okla. Sess. Laws ch.
¶ 27 The 2003 amendments to the OSBI and OBNDD statutes provide that any Director of these agencies appointed on or after July 1, 2003, shall be eligible to participate in either OLERS or OPERS. 2003 Okla. Sess. Laws ch.
¶ 28 While membership in OLERS by eligible employees is mandatory under Section 2-300(6), through the amendments to Titles 63 and 74, the Legislature clearly intended that newly-appointed Directors to the OSBI and the OBNDD be allowed to be a part of either OLERS or OPERS. Therefore, in answer to your first question, because of the specific statutory amendments, Directors of the OSBI and the OBNDD, appointed on or after July 1, 2003, are not required to be members of OLERS, but may, as the amended statutes state, participate in either OPERS or OLERS. These Directors are only covered by the System in which they irrevocably choose in writing to participate.
2. May an individual who has retired after having participated in the Deferred Option Plan ("DROP") of OLERS pursuant to 47 O.S. 2001, § 2-305.2, be reemployed in an OLERS-covered position, or is he or she required to terminate employment upon retirement and begin collecting accrued retirement benefits?
¶ 29 You next ask whether an individual who has retired after having participated in the DROP of OLERS may be reemployed in an OLERS-covered position, or if he or she is required to terminate employment and begin collecting accrued retirement benefits. The statute governing your question, 47 O.S. 2001, § 2-305.2[
¶ 30 Although the rules of statutory construction governing the situation where two acts covering the same subject matter are amended during a legislative session are clear, there is limited case law authority addressing the proper rule of construction when the same statute is amended more than once during the same legislative session. We begin with the acknowledgment that the overriding rule of statutory construction is to ascertain and give intent to the will of the Legislature. Kratz v. Kratz,
¶ 31 The Oklahoma Supreme Court recently discussed the specific issue of the same statute being amended twice in the same session. Tubbs v. State ex rel. Teachers' Ret. Sys.,
¶ 32 Other states have also held that absent a conflict, two statutes which have been amended by separate acts of the Legislature during the same session are to be construed together, if possible, so as to give effect to each. Copeland Lumber Co.v. Wilkins,
¶ 33 Applying this authority, we harmonize the three amendments to ascertain the intent of the Legislature. The amendment to Senate Bill 281 provides that "the member shall terminate employment with all state law enforcement agencies as a memberof the Oklahoma Law Enforcement Retirement System, and shall start receiving the member's accrued monthly retirement benefit from the System." 2003 Okla. Sess. Laws ch.
¶ 34 The other two amendments, Senate Bill 668 and House Bill 1647, provide that the member "shall terminate employment and shall start receiving the member's accrued monthly retirement benefit from the System." 2003 Okla. Sess. Laws ch.
¶ 35 Although the three amendments contain different language, they are not inconsistent and may be easily harmonized by finding that a member who has participated in DROP must terminate employment with OLERS, and may not be reemployed in an OLERS-covered position. A member may receive in-service distributions of the member's accrued monthly retirement benefit from OLERS only if the member is reemployed in a position not covered under OLERS. This interpretation takes into account the intent of the Legislature in enacting Senate Bill 281, by requiring that a member who has participated in DROP may not return to an OLERS-covered position. It also recognizes the intent of the Legislature in enacting House Bill 1647 and Senate Bill 668 that DROP participants must terminate employment, and that the only members who may continue to receive in-service distributions of their monthly accrued retirement benefits are those who return to employment in positions not covered by OLERS.
¶ 36 Each of the amended provisions governing retirement after the DROP participation contains an express provision that, "the member shall terminate employment [with all state law enforcement agencies as a member of the Oklahoma Law Enforcement Retirement System] and shall start receiving the member's accrued monthly retirement benefit from the System." 2003 Okla. Sess. Laws ch.
¶ 37 The administrative rules passed by the Board effective May 12, 2003, reflect this same principle. OAC
(7) At the conclusion of a member's participation in the OLERS Deferred Option Plan, the member must terminate employment and shall start receiving the member's accrued monthly retirement benefit from OLERS. Such termination has at all times included reemployment of a member by a state agency but only in a position not covered under OLERS. Thus, such a member would receive in-service distributions of such member's accrued monthly retirement benefit from OLERS.
Id.
¶ 38 The OLERS Board passed a resolution on June 19, 2003, reaffirming its position that an employee who terminates employment pursuant to DROP or the new alternative "Back DROP" shall not be eligible for active participation in the System.8
¶ 39 This interpretation is also consistent with contracts entered into by DROP participants which provide that at the conclusion of participation in the plan, the employee shall "terminate employment with all participating agencies as an officer" and shall begin accruing monthly retirement benefits.See footnote 7. The language in the contracts is taken from the pre-amended version of 47 O.S. 2001, § 2-305.2[
¶ 40 Therefore, in answer to your second question, a member of OLERS who has participated in DROP may not be reemployed in an OLERS-covered position.
3. Pursuant to 2003 Okla. Sess. Laws ch.199 , §§ 13 and 14, may a Director of the OSBI or the OBNDD who is appointed on or after July 1, 2003, who previously retired after having participated in DROP, be reemployed in an OLERS-covered position and participate in the OLERS system again after such retirement?
¶ 41 Next, you ask whether a Director of the OSBI or the OBNDD who had participated in OLERS and retired after participating in DROP may be reemployed in an OLERS-covered position and be able to participate in OLERS again if reemployed. As discussed above, the general law is that those who have retired from OLERS, after having participated in DROP, may not be reemployed in an OLERS-covered position. Your question requires a determination of whether the Legislature, by its 2003 amendments, intended for an exception to be made with regard to Directors of the OSBI and the OBNDD who are appointed on or after July 1, 2003. 2003 Okla. Sess. Laws ch.
¶ 42 The Legislature specifically provided by the amendments to Titles 63 and 74 that Directors of the OSBI and the OBNDD appointed on or after July 1, 2003, shall be eligible to participate in either OLERS or OPERS upon reemployment. These Directors may fall into several categories. They may be persons who have participated in OLERS, but not in DROP, persons who have participated in DROP, persons who have participated in another State retirement system such as OPERS or the Oklahoma Police Pension or Retirement system, or persons who do not have prior State service and have not participated in any State retirement system.
¶ 43 These statutes should not be considered in isolation, but must be considered in conjunction with other relevant statutes to determine legislative intent. See Naylor v. Petuskey,
¶ 44 Had the Legislature intended for the Directors of the OSBI and the OBNDD who are appointed on or after July 1, 2003, to be reemployed in an OLERS-covered position after participation in DROP, an amendment could have been enacted which said just that. "[L]egislative silence, when it has authority to speak, may be considered as giving rise to an implication of legislative intent." City of Duncan v. Bingham,
¶ 45 You asked whether the reemployment in an OLERS-covered position of a Director of the OSBI or the OBNDD appointed on or after July 1, 2003, who was a member of OLERS but retired after participating in DROP, requires the suspension of the individual's monthly retirement benefit payment until such time as the Director is not reemployed in a position covered under OLERS. As we have determined that these Directors may not be reemployed in an OLERS-covered position, this question becomes moot. These Directors must elect to participate in OPERS upon reemployment, and there is no requirement that OLERS benefits be suspended when a member participates in OPERS upon reemployment.
¶ 46 Your question of whether these individuals forfeit their lump-sum payments paid upon retirement from DROP if reemployed in an OLERS-covered position also becomes moot, as individuals who have participated in DROP may not be reemployed in an OLERS-covered position. Directors who choose to participate in OPERS upon reemployment are not required to forfeit any lump-sum distributions they may have received upon retirement after participating in DROP.
4. If a Director of the OSBI or the OBNDD appointed on or after July 1, 2003, who was a member of OLERS but retired without participating in DROP, becomes reemployed by the OSBI or the OBNDD and elects to participate in OLERS, does that reemployment require the suspension of the individual's monthly retirement benefit payment by OLERS until such time as the individual is not reemployed in a position covered under OLERS?
¶ 47 You also ask whether Directors of the OSBI or the OBNDD who become reemployed in positions covered under OLERS on or after July 1, 2003, but who did not participate in DROP, may be reemployed and be allowed to participate in OLERS upon their reemployment, and whether suspension of their monthly retirement benefit payments is required. The controlling statute is Section 2-305(A)) of Title 47, which governs participation in OLERS in general and provides for three classes of retirees: (1) those reemployed by a state agency in a position which is not covered by OLERS; (2) those who, prior to September 19, 2002, were reemployed by a State agency in a position which is covered by OLERS; and (3) those who were reemployed on or after September 19, 2002, in a position covered by OLERS. 2003 Okla. Sess. Laws ch.
¶ 48 As we discussed above, Directors of the OSBI and the OBNDD appointed on or after July 1, 2003, may elect to participate in either OLERS or OPERS, and are covered only by the position in which they elect in writing to participate. Thus, to answer your question, if a Director of the OSBI or OBNDD, who retires from OLERS without participating in DROP, becomes reemployed and chooses to participate in OLERS, his or her monthly retirement benefits shall be suspended until such time as he or she retires and is not reemployed by a State agency in a position which is covered by OLERS.
5. If a Director of the OSBI or the OBNDD who was a member of OLERS but retired without participating in DROP, becomes reemployed by the OSBI or the OBNDD and elects to participate in OPERS, does that reemployment require the suspension of the individual's monthly retirement benefit payment by OLERS?
¶ 49 You last ask whether a Director of the OSBI or the OBNDD who retires without having participated in DROP, becomes reemployed by the OSBI or the OBNDD on or after July 1, 2003, and elects to participate in OPERS upon reemployment may continue to receive in-service distributions of his or her monthly retirement payments. The controlling statute is Section 2-305(A) of Title 47. As discussed above, that statute provides that members who are reemployed by a State agency in a position which is not covered by the System shall continue to receive in-service distributions from the System. 2003 Okla. Sess. Laws ch.
¶ 50 Therefore, if a Director of the OSBI or the OBNDD appointed on or after July 1, 2003, who had retired from OLERS and not participated in DROP becomes reemployed and chooses to participate in OPERS, he or she may continue to receive monthly retirement payments from OLERS, because he or she is not in a position covered by the System.
¶ 51 It is, therefore, the official Opinion of the AttorneyGeneral that:
1. Directors of the Oklahoma State Bureau of Investigation ("OSBI") and the Oklahoma Bureau of Narcotics and Dangerous Drugs Control ("OBNDD") appointed on or after July 1, 2003, are covered positions under the Oklahoma Law Enforcement Retirement System ("OLERS"), 47 O.S. 2001 and Supp. 2002, §§ 2-300 through 2-314, as amended, only if these Directors elect to participate in OLERS upon reemployment.2. An individual who has retired after having participated in the Deferred Option Plan ("DROP") of OLERS pursuant to Section 2-305.2, as amended,12 may not be reemployed in an OLERS-covered position after terminating employment and collecting in-service distributions.
3. A Director of the OSBI or the OBNDD appointed on or after July 1, 2003, who had previously participated in OLERS and retired after having participated in DROP pursuant to Section 2-305.2, as amended,13 may not elect to participate in OLERS after terminating employment and collecting in-service distributions, but may be reemployed and participate in OPERS.
4. If a Director of the OSBI or the OBNDD appointed on or after July 1, 2003, who was a member of OLERS but retired without participating in DROP in accordance with Section 2-305.2, as amended,14 elects to participate in OLERS upon reemployment, that reemployment requires the suspension of the individual's monthly retirement benefit payment by OLERS.
5. If a Director of the OSBI or the OBNDD appointed on or after July 1, 2003, who was a member of OLERS but retired without participating in DROP, becomes reemployed and elects to participate in OPERS pursuant to Section 2-305(A), as amended,15 that reemployment does not require the suspension of the individual's monthly retirement benefit payment by OLERS, as he or she is not in a position covered by OLERS.
W.A. DREW EDMONDSON Attorney General of Oklahoma
SANDRA D. RINEHART Senior Assistant Attorney General