ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION IN WHICH YOU ASKED, IN EFFECT:
WHAT IS THE EFFECT OF USE OF THE WORD "OFFICER" IN TITLE 47 O.S. 2-305.2(C) (1991) IN REGARD TO THE ABILITY OF A MEMBER OF THE OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM TO BE EMPLOYED BY THE STATE FOLLOWING RETIREMENT FROM THE SYSTEM?
BECAUSE YOUR QUESTION CAN BE ANSWERED BY A REVIEW OF THE OPERATIVE STATUTES, THIS OFFICE HAS DETERMINED THAT YOUR REQUEST SHOULD BE ANSWERED WITH THIS INFORMAL LETTER. THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE ANALYSIS AND CONCLUSIONS WHICH FOLLOW, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE RAISED.
THE OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM, 47 O.S. 2-300 (1991) ET SEQ. ("OLERS"), WAS CREATED BY THE LEGISLATURE TO PROVIDE A RETIREMENT SYSTEM FOR VARIOUS LAW ENFORCEMENT PERSONNEL IN THE STATE, ADMINISTERED BY THE OKLAHOMA LAW ENFORCEMENT RETIREMENT BOARD. 47 O.S. 2-305.2 THEREIN CREATES AN OPTION FOR MEMBERS OF OLERS WHO DO NOT WISH TO RETIRE AFTER THE STANDARD TWENTY YEARS OF EMPLOYMENT. THAT SECTION PROVIDES, IN PART:
"A. IN LIEU OF TERMINATING EMPLOYMENT AND ACCEPTING A SERVICE RETIREMENT PENSION PURSUANT TO 47 O.S. 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.
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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(.)"
MEMBERSHIP IN OLERS IS SET FORTH BY THE PROVISIONS OF 47 O.S. 2-300(5) (1992), WHICH PROVIDES:
""MEMBER" MEANS ALL LAW ENFORCEMENT OFFICERS OF THE OKLAHOMA HIGHWAY PATROL, THE OKLAHOMA STATE BUREAU OF INVESTIGATION, THE OKLAHOMA STATE BUREAU OF NARCOTICS AND DANGEROUS DRUGS CONTROL AND THE OKLAHOMA ALCOHOL BEVERAGE CONTROL BOARD DESIGNATED TO PERFORM DUTIES IN THE INVESTIGATION AND PREVENTION OF CRIME AND THE ENFORCEMENT OF THE CRIMINAL LAWS OF THIS STATE, AND THE MEMBERS OF THE COMMUNICATIONS DIVISION TO INCLUDE RADIO TECHNICIANS, TOWER TECHNICIANS AND COMMISSIONED OFFICERS OF THE LAKE PATROL DIVISION OF THE OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, PARK RANGERS OF THE OKLAHOMA TOURISM AND RECREATION DEPARTMENT AND INSPECTORS OF THE OKLAHOMA STATE BOARD OF PHARMACY, PROVIDED THAT ALL PERSONS WHO SHALL BE OFFERED A POSITION OF LAW ENFORCEMENT OFFICER SHALL PARTICIPATE IN THE SYSTEM UPON THE PERSON MEETING THE REQUISITE POST OFFER — PRE-EMPLOYMENT PHYSICAL EXAMINATION STANDARDS(.)"
"LAW ENFORCEMENT OFFICER" AND "OFFICER" ARE NOT DEFINED IN THE ACT.
WORDS NOT DEFINED BY THE LEGISLATURE ARE TO BE UNDERSTOOD IN THEIR ORDINARY SENSE, EXCEPT WHERE A CONTRARY INTENTION PLAINLY APPEARS. 25 O.S. 1 (1991). OF COURSE, AS ALWAYS, IT IS NECESSARY TO SEEK AND GIVE EFFECT TO THE LEGISLATIVE INTENT OF A STATUTE. HESS V. EXCISE BOARD OF MCCURTAIN COUNTY, 698 P.2D 930 (OKLA.1985.) FURTHER, A STATUTE SHOULD BE CONSTRUED TO PRODUCE A REASONABLE RESULT AND TO PROMOTE, RATHER THAN DEFEAT, THE GENERAL PURPOSE AND POLICY OF THE LAW. PHELPS. V. STATE, 598 P.2D 254 (OKL.CR.1979).
THE GENERAL PURPOSE AND POLICY OF THE ACT IS TO PROVIDE A RETIREMENT SYSTEM FOR THOSE MEMBERS DEFINED IN 47 O.S. 2-300(5) OF THE ACT. TITLE 47 O.S. 2-305.2 ALLOWS FOR A DEFERRED OPTION PLAN (THE "PLAN") FOR MEMBERS WHO WISH TO CONTINUE TO WORK AND SO ENJOY A LARGER RETIREMENT BENEFIT. HOWEVER, THAT SECTION REQUIRES THAT AT THE END OF THE DEFERRAL PERIOD, THE MEMBER MUST TERMINATE EMPLOYMENT WITH STATE LAW ENFORCEMENT AGENCIES AS AN OFFICER AND BEGIN TO DRAW HIS OR HER RETIREMENT PENSION. WHILE THAT SECTION PROVIDES THAT THE MEMBER CANNOT WORK THEREAFTER FOR "STATE LAW ENFORCEMENT AGENCIES AS AN OFFICER," THE BROADER LANGUAGE USED IN 47 O.S. 2-300(5) AS TO WHO MAY BE A MEMBER OF OLERS INDICATES AN INTENT BY THE LEGISLATURE TO REQUIRE THAT THE PROHIBITION BE BROADLY CONSTRUED TO MEAN ANY OF THE POSITIONS COVERED BY OLERS.
INDEED, "MEMBER" INCLUDES MORE THAN OFFICERS. A MEMBER OF OLERS IS AUTHORIZED TO ENROLL IN THE PLAN FOR A MAXIMUM OF FIVE (5) YEARS. THUS, AT THE CONCLUSION OF THE MAXIMUM TERM IN THE PLAN, THE MEMBER, NO MATTER HIS OR HER POSITION, MUST TERMINATE EMPLOYMENT IN THE OLERS-COVERED POSITION. THE LEGISLATURE HAS ENUMERATED NO AUTHORITY FOR A MEMBER OF OLERS WHO IS NOT A LAW ENFORCEMENT OFFICER TO MAINTAIN EMPLOYMENT PAST THE MAXIMUM TERM IN THE PLAN.
THE ONLY REASONABLE INTERPRETATION OF 47 O.S. 2-305.2 IS TO HAVE THE LIMITATION AS TO TERMINATION OF EMPLOYMENT APPLY TO ALL MEMBERS OF OLERS EQUALLY. THERE IS NO INDICATION THAT THE LEGISLATURE INTENDED SOME MEMBERS OF THE PLAN TO CONTINUE THEREIN INDEFINITELY WHILE OTHERS WERE REQUIRED TO TERMINATE EMPLOYMENT. IN FACT, THE LEGISLATURE MANDATES THAT AT THE CONCLUSION OF A MEMBER'S PARTICIPATION IN THE PLAN, THE MEMBER "SHALL START RECEIVING THE MEMBER'S ACCRUED MONTHLY BENEFIT FROM THE SYSTEM." 47 O.S. 2-305.2(C).
BY THIS INTERPRETATION, A MEMBER OF OLERS, REGARDLESS OF HIS OR HER LAW ENFORCEMENT STATUS, WHO PARTICIPATES IN THE DEFERRED OPTION PLAN CANNOT RETIRE FROM OLERS AND THEN BE HIRED IN ANY OTHER POSITION COVERED BY OLERS, REGARDLESS OF WHICH AGENCY WOULD HIRE THE RETIRED MEMBER.
IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT THE WORD "OFFICER" IN TITLE 47 O.S. 2-305.2(C) IS TO BE BROADLY CONSTRUED TO MEAN ANY MEMBER OF THE OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM SO AS TO PROHIBIT A MEMBER OF THE OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM FROM BEING EMPLOYED BY THE STATE IN A POSITION COVERED BY OLERS FOLLOWING RETIREMENT FROM THE SYSTEM.
(JAMES ROBERT JOHNSON)