Dear Representatives, Williamson
¶ 0 The Attorney General has received your letter asking for an official opinion addressing, in effect, the following questions:
1. Is the board of education of any Oklahoma school districtauthorized to pay additional retirement allowances to anyemployee? 2. What are the eligibility requirements for receivingadditional retirement compensation from a school district? 3. What are the fiscal year limitations on a school district'sindebtedness which are applicable to payment of additionalretirement compensation by school districts?
I. ¶ 1 Title 70 Ohio St. 17-105(9) (1989) authorizes the governing board of any public school to pay additional retirement compensation to some persons; in its entirety it states:
The governing board of any "public school," as that term is defined in 70 Ohio St. 17-101 of this title, is hereby authorized and empowered to pay additional retirement allowances or compensation to any teacher who was in the employ of such public school for not less than ten (10) school years preceding the date of his retirement. Payments so made shall be a proper charge against the current appropriation or appropriations of any such public school for teaching salaries for the fiscal year in which such payments are made. Such payments shall be made in regular monthly installments in such amounts as the governing board of any such public school, in its judgment, shall determine to be reasonable and appropriate in view of the length and type of service rendered by any such person to such public school by which such teacher was employed at the time of retirement. All such additional payments shall be uniform, based upon the length of tenure and the type of services performed, to teachers formerly employed by such public school who have retired or been retired in accordance with the provisions of this act.
The governing board of any such public school may adopt rules and regulations of general application outlining the terms and conditions under which such additional retirement benefits shall be paid, and all decisions of such board shall be final.
¶ 2 Inasmuch as the term "teacher" is not defined in title 70O.S. 17-101 (1981) et seq., as amended, this term must be construed to determine the legislature's intent as to whom the term teacher is applicable as used in 70 Ohio St. 17-105(9). Title25 Ohio St. 2 (1981) provides:
Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears.
¶ 3 "Teacher" is defined in 70 Ohio St. 1-116(1) (1981):
Any person who is employed to serve as district superintendent, county superintendent, principal, supervisor, counselor, librarian, school nurse or classroom teacher, or in any other instructional, supervisory, or administrative capacity, is defined as a teacher. Such person shall not be deemed qualified unless he or she holds a valid certificate or license, issued by and in accordance with the rules and regulations of the State Board of Education, to perform the particular services for which he or she is employed.
¶ 4 As stated in 70 Ohio St. 17-105(9) payments may be made to any "teacher" who "was in the employ of such public school for not less than ten school years preceding the date of his retirement . . . All such additional payments shall be . . . to teachers formerly employed by such public school who have retired or been retired in accordance with the provisions of this act [70 Ohio St. 17-101 (1981) et seq. as amended]."
¶ 5 Therefore there are essentially three requirements which must be met before a "teacher" may receive additional retirement allowances or contributions from his or her public school. These are:
a) Employment as a teacher for a minimum of ten school years preceding retirement with the public school from which the additional retirement benefits will be paid;
b) Retirement under the provisions of the Teachers' Retirement System, 70 Ohio St. 17-101 (1981) et seq., as amended; and
c) Compliance with the uniform rules and/or regulations adopted by the governing board of any such public school.
II. ¶ 6 Your second question asks if the eligibility for additional retirement compensation is co-extensive or dependent on membership in Teachers' Retirement System and actual retirement, or merely on meeting the criteria for retirement under the Teachers' Retirement System?
¶ 7 The term `teacher' as defined by the Legislature in the Oklahoma School Code, 70 Ohio St. 1-116(1) (1981), includes any district superintendent, county superintendent, principal, supervisor, counselor, librarian, school nurse or classroom teacher, or any other person employed in an instructional, supervisory, or administrative capacity. All persons in these categories are considered "classified personnel" under the provisions of 70 Ohio St. 17-101(3) (1989). All persons in classified personnel positions are required to be members of the Teachers' Retirement System. See, 70 Ohio St. 17-103 (1989).
¶ 8 Furthermore, title 70 Ohio St. 17-105(9) (1989), which authorizes and empowers public schools to make the additional retirement allowances or compensation to its teachers, states:
All such additional payments shall be uniform, based upon the length of tenure and the type of services performed, to teachers formerly employed by such public school who have retired or been retired in accordance with the provisions of this act [70 O.S. 17-101 (1989) et seq.].
(Emphasis added).
¶ 9 Clearly retirement under the provisions of the Oklahoma Teachers' Retirement System is a criterion which must be met before a "teacher" is entitled to additional retirement allowances or compensation.
III. ¶ 10 We turn now to your final question, which asks essentially what, if any, are the fiscal year limitations on a public school's indebtedness which are applicable to the payment of additional retirement allowances or compensation?
¶ 11 The Oklahoma Constitution, Article X, Section 26, provides in relevant part:
[N]o . . . school district . . . shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof[.]
¶ 12 Inasmuch as no vote of the people is involved in the adoption of any plan for additional retirement allowances or benefits between a school board and the retiring members, the fiscal year limitation is applicable. Each school district should consult with its attorney to ensure compliance with the fiscal year expenditure requirements.
¶ 13 It is, therefore, the official opinion of the AttorneyGeneral that 70 Ohio St. 17-105(9) (1989) authorizes thegoverning board of any public school to pay additional retirementallowances to any person who meets the requirements of 70 O.S.1-116(1) (1981); has been employed with the public school fromwhich the additional retirement benefits will be paid for atleast ten years preceding retirement; is a member of the OklahomaTeachers' Retirement System and satisfies the criteria forretirement therein; and satisfies the rules and/or regulations asadopted by the governing board of any such public school.Further, any additional retirement compensation must be payablefrom current fiscal year appropriations for teachers' salariesonly.
ROBERT H. HENRY ATTORNEY GENERAL OF OKLAHOMA
TAMMY M. THOMPSON ASSITANT ATTORNEY GENERAL