Opinion No. 68-218 (1968) Ag

Teachers Retirement System — Vocational Rehabilitation — Transfers Employees of the Division of Vocational Rehabilitation and Section of Services to the Blind transferred to the Oklahoma Public Welfare Commission under 56 O.S. 328 [56-328] — 56 O.S. 331 [56-331] (1968), who are members of the Teachers' Retirement System may retain such membership or withdraw same and join the Public Employees Retirement System on the entry date of July 1, 1968. Employees joining the Public Employees Retirement System are entitled to credit for service prior to the entry date according to 74 O.S. 913 [74-913] (1968). Employees being transferred to the Public Welfare Commission who aren't members of Teachers' Retirement would become members of the Public Employees Retirement System and would be entitled to prior service credit according to 74 O.S. 913 [74-913] (1968). The Attorney General has had under consideration your letter of May 29, 1968, wherein you ask: "1. Will the employees of the Division of Vocational Rehabilitation and the Section of the Services to the Blind, who were transferred from the State Board for Vocational Education to the Oklahoma Public Welfare Commission under the provisions of Senate Bill No. 639, dated March 15, 1968, have the alternative to withdraw from the State Teachers' Retirement System and join the Oklahoma Public Employees Retirement System, if they so desire? "2. If the opinion is in the affirmative, will the employees withdrawing from the Teachers' Retirement System and joining this System receive credit for all prior service with the State of Oklahoma? "3. Will those employees who have never been members of the Teachers' Retirement System and who will become members of the Public Employees Retirement System on July 1, 1968, be allowed credit for all prior service with the State of Oklahoma?" Senate Bill No. 639, Thirty-first Legislature, Second Session, provides in relevant part as follows: "Section 1. The Division of Vocational Rehabilitation of the State Board for Vocational Education, or of the State Board of Education, including all personnel thereof and all property and assets belonging to such Division, is hereby transferred to, and shall be a division of the Oklahoma Public Welfare Commission; and all powers, duties and responsibilities of the State Board for Vocational Education relating to vocational rehabilitation shall hereafter be exercised by the Oklahoma Public. Welfare Commission. Employees o the Division who are members of the Teachers' Retirement System of Oklahoma and who continue as employees of the Division after such transfer may retain their membership in such Teachers' Retirement System. . . . "Section 2. (a) The Section of Services to the Blind of the State Board for Vocational Education, including all personnel thereof and all property and assets belonging to such Section, is hereby transferred to, and shall be a section of, the Oklahoma Public Welfare Commission; and all powers, duties and responsibilities of the State Board for Vocational Education relating to services to the blind shall hereafter be exercised by the Oklahoma Public Welfare Commission. Employees of the Section who are members of the Teachers' Retirement System of Oklahoma and who continue as employees of the Section after such transfer may retain their membership in such Teachers' Retirement System. . . ." (Emphasis added) 74 O.S. 902 [74-902](15) (1967), as amended by House Bill No. 594, Thirty First Legislature, Second Session, defines "employees" eligible for the Oklahoma Public Employees Retirement System as follows: " `Employee', any officer or employee of a participating employer, including those classes described in subsection 15(b), whose employment is not seasonal or temporary and whose employment requires at least one thousand hours of work per year and whose salary or wages is at least 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. . . ." The above quoted language from Section 902 became effective July 9, 1965, and was not altered by House Bill No. 594. It is fundamental in statutory construction that an express or particular statute controls over a general statute and that the latest enactment governs over an earlier enactment. Parks v. Smith, 204 Okl. 625, 232 P.2d 614; Brown v. Manker, Okl., 410 P.2d 61. Senate Bill No. 639 expressly provides that the employees of the Division of Vocational Rehabilitation and Section of Services to the Blind who are members of the Teachers' Retirement System "may" retain such membership. The term "may" indicates an alternative. It would appear that such an employee could elect to retain his membership in the Teachers' Retirement in lieu of joining the Oklahoma Public Employees Retirement System on the effective date of the transfer of such employees which is July 1, 1968. Conversely, said employees may join the Oklahoma Public Employees Retirement System and withdraw from the Teachers' Retirement System. 74 O.S. 913 [74-913](1) (1967), provides, in part: "(1) Prior service shall be credited as follows: (a) A member shall receive full credit for continuous employment prior to the entry date with his employer on the entry date. Provided, that if the employee was employed on or before the fifteenth day of March, 1963, continuously by the employer who is his employer on his entry date, then all previous employment with any participating employer whether or not continuous shall be credited, otherwise no credit shall be granted for employment prior to a break in continuous employment. . . . . "(e) Beginning July 1, 1965, all employees of the Department of Public Welfare shall participate in the Oklahoma Public Employees Retirement System to the same extent as other employees of participating employers in such system. Provided, that any employee performing teaching services in the Oklahoma School for the Deaf or the Oklahoma School for the Blind may elect to participate in the Teachers' Retirement System of Oklahoma in lieu of the Oklahoma Public Employees Retirement System; and any other employee at each such institution or any other institution under the jurisdiction of the Oklahoma Department of Public Welfare, participating in the Teachers' Retirement System of Oklahoma, may elect to continue to participate in such System in lieu of the Oklahoma Public Employees Retirement System. All employees who shall have participated in the Teachers' Retirement System of Oklahoma and not continuing therein shall have the right to withdraw their membership from the Teachers' Retirement System of Oklahoma on the same terms as other members withdrawing from such System before retirement. Provided, all persons employed at the Oklahoma School for the Blind and Oklahoma School for the Deaf on June 30, 1965, who become subject to the Oklahoma Public Employees Retirement System, on July 1, 1965, shall receive credit for their service and be eligible for participation, regardless of age." 74 O.S. 902 [74-902](16) (1967), provides: "(16) `Entry Date,' the date as of which an eligible employer joins the system. The first entry date pursuant to this act shall be January 1, 1964; . . . ." Accordingly, an employee of the Division of Vocational Rehabilitation or Section of Services to the Blind who withdraws from Teachers' Retirement System to join the Oklahoma Public Employees Retirement System should receive credit for all service with the State of Oklahoma prior to the entry date of July 1, 1968, according to the terms of Section 913, supra. An employee who has never been a member of the Teachers' Retirement System transferred to the Public Welfare Commission under Senate Bill No. 639 would also be entitled to credit for service prior to the entry date of July 1, 1968. Therefore, it is the opinion of the Attorney General that your questions be answered as follows: 1. The employees of the Division of Vocational Rehabilitation and Section of Services to the Blind transferred to the Oklahoma Public Welfare Commission under Senate Bill No. 639, Thirty First Legislature, Second Session, who are members of the Teachers' Retirement System may retain such membership or withdraw same and join the Oklahoma Public Employees Retirement System on the entry date of July 1, 1968. 2. Said employees joining the Oklahoma Public Employees Retirement System are entitled to credit for service with State of Oklahoma prior to the entry date of July 1, 1968, according to the provisions of 74 O.S. 913 [74-913] (1967). 3. Employees being transferred to the Oklahoma Public Welfare Commission under Senate Bill No. 639, supra, who are not members of Teachers' Retirement would become members of the Oklahoma Public Employees Retirement System and would be entitled to credit for prior service according to the provisions of 74 O.S. 913 [74-913] (1967). (Penn Lerblance)