Opinion No. (1992)

ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION IN WHICH YOU ASKED, IN EFFECT:

IS THE OKLAHOMA LEGISLATURE AUTHORIZED TO MAKE PAYMENTS TO THE TEACHERS' RETIREMENT SYSTEM FOR THE (1) EMPLOYEE CONTRIBUTION, (2) THE EMPLOYER CONTRIBUTION, OR (3) BOTH THE EMPLOYEE AND EMPLOYER CONTRIBUTIONS ON BEHALF OF A MEMBER OF THE TEACHERS' RETIREMENT SYSTEM WHO HAS BEEN ELECTED TO THE OKLAHOMA LEGISLATURE AND WHO ELECTS TO CONTINUE PARTICIPATION IN THE TEACHERS' RETIREMENT SYSTEM?

BECAUSE YOUR QUESTION INVOLVES ONLY A REVIEW OF THE APPLICABLE STATUTES, THIS OFFICE HAS DETERMINED THAT YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LATTER. 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 TEACHER'S RETIREMENT SYSTEM (THE "SYSTEM") WAS CREATED BY THE OKLAHOMA LEGISLATURE IN 1969 TO PROVIDE A PENSION SYSTEM TO TEACHERS AND OTHER PERSONNEL IN THE STATE'S PUBLIC SCHOOL SYSTEM. 70 Ohio St. 17-101 (1991) ET. TITLE 70 Ohio St. 17-116.2(I) (1992), PROVIDES:

"ANY MEMBER (OF THE SYSTEM) WHO SHALL BE ABSENT FROM THE TEACHING SERVICE BECAUSE OF ELECTION TO THE STATE LEGISLATURE OR APPOINTMENT TO THE EXECUTIVE BRANCH IN AN EDUCATION-RELATED CAPACITY SHALL BE ALLOWED TO RETAIN HIS MEMBERSHIP IN THE TEACHERS' RETIREMENT SYSTEM UPON PAYMENT OF THE CONTRIBUTION REQUIRED OF OTHER MEMBERS AND EMPLOYERS OF SAID MEMBERS AS PROVIDED FOR IN THIS SECTION AND HIS SERVICE CREDITS SHALL CONTINUE TO BE ACCUMULATED DURING SUCH ABSENCE, PROVIDED HE IS NOT RECEIVING AND IS NOT ELIGIBLE TO RECEIVE RETIREMENT CREDITS OR BENEFITS FROM SAID SERVICE BEGINNING AFTER JULY 1, 1992, IN OTHER PUBLIC RETIREMENT SYSTEMS."

EMPLOYERS OF MEMBERS OF THE SYSTEM ARE REQUIRED TO MAKE CONTRIBUTIONS ON BEHALF OF MEMBERS PURSUANT TO 70 Ohio St. 17-108.1 (1992). MEMBERS ARE REQUIRED TO MAKE CONTRIBUTIONS PURSUANT TO 70 Ohio St. 17-116.2 (1992), AND THE EMPLOYER IS RESPONSIBLE TO ENSURE THAT THE NECESSARY MEMBER CONTRIBUTION IS DEDUCTED FROM EACH MEMBER'S PAYCHECK. 70 Ohio St. 17-116.2(G) (1991). "EMPLOYER" IS DEFINED IN 70 Ohio St. 17-101(5) (1992), WHICH PROVIDES:

""EMPLOYER" SHALL MEAN THE STATE AND ANY OF ITS DESIGNATED AGENTS OR AGENCIES WITH RESPONSIBILITY AND AUTHORITY FOR PUBLIC EDUCATION, SUCH AS BOARDS OF EDUCATION OF ELEMENTARY AND INDEPENDENT SCHOOL DISTRICTS, BOARDS OF REGENTS, BOARDS OF CONTROL OR ANY OTHER AGENCY OF AND WITHIN THE STATE BY WHICH A PERSON MAY BE EMPLOYED FOR SERVICE IN PUBLIC EDUCATION." (EMPHASIS ADDED.)

IT IS NECESSARY IN STATUTORY INTERPRETATION TO ASCERTAIN AND GIVE EFFECT TO THE LEGISLATIVE INTENT THEREOF FROM THE WHOLE ACT IN LIGHT OF ITS GENERAL PURPOSE AND OBJECTIVE. WOODY V. INDEPENDENT SCHOOL DISTRICT NO. 141 OF POTTAWATOMIE COUNTY, 661 P.2D 892 (OKLA.1983). WORDS USED IN A STATUTE ARE TO BE CONSTRUED IN THEIR ORDINARY SENSE, UNLESS OTHERWISE DEFINED OR UNLESS THE CONTEXT PLAINLY INDICATES OTHERWISE. 25 Ohio St. 1991, 1. WHEN THE INTENT OF THE LEGISLATURE IS PLAINLY EXPRESSED IN A STATUTE, IT MUST BE FOLLOWED WITHOUT FURTHER INQUIRY. MATTER OF REQUEST OF HAMM PRODUCTION CO. FOR AN EXTENSION OF TIME, 671 P.2D 50 (OKLA.1983).

IN THE SITUATION YOU HAVE DESCRIBED, 70 Ohio St. 17-116.2 EXPRESSLY AUTHORIZES MEMBERS OF THE SYSTEM WHO ARE ELECTED TO THE LEGISLATURE OR ARE APPOINTED TO CERTAIN EXECUTIVE BRANCH POSITIONS TO CONTINUE MEMBERSHIP IN THE SYSTEM SO LONG AS CONTRIBUTIONS ARE PAID. THERE IS NO INDICATION THAT THE LEGISLATURE INTENDED ANY METHOD OF CONTRIBUTION OTHER THAN THAT EXPRESSED IN 70 Ohio St. 17-108.1 AND 70 Ohio St. 17-116.2. THIS WOULD MEAN THAT THE LEGISLATURE IS AUTHORIZED TO PAY THE EMPLOYER CONTRIBUTION ON BEHALF OF A MEMBER OF THE SYSTEM ELECTED TO THE LEGISLATURE WHO ELECTS TO REMAIN IN THE SYSTEM. 70 Ohio St. 17-108.1 (1992).

IN ADDITION, I WOULD NOTE SIMILAR PROVISIONS IN THE OKLAHOMA PUBLIC EMPLOYEES RETIREMENT ACT, 74 Ohio St. 901 (1991) ET SEQ. ("OPERS"). AS WITH THE TEACHERS' RETIREMENT SYSTEM, 74 O.S. 902(14) OF THE OPERS ACT DEFINES "EMPLOYER" TO INCLUDE THE "STATE." SECTION 74 Ohio St. 913.4 OF OPERS, ENACTED IN 1980, SPECIFICALLY AUTHORIZES PARTICIPATING EMPLOYERS TO MAKE EMPLOYER CONTRIBUTIONS ON BEHALF OF ELECTED OFFICIALS. THUS, A MEMBER OF THE SYSTEM WHO IS ELECTED TO THE LEGISLATURE COULD OPT EITHER TO CONTINUE IN THE SYSTEM OR TO JOIN OPERS. THERE WOULD, HOWEVER, BE SUBSTANTIALLY LESS BENEFIT IN 70 Ohio St. 17-116.2 IF A MEMBER OF THE SYSTEM ELECTED TO THE LEGISLATURE WERE REQUIRED TO PAY BOTH THE EMPLOYER CONTRIBUTION TO THE SYSTEM IN ADDITION TO HIS OR HER OWN EMPLOYEE CONTRIBUTION. THE LOGICAL READING, INSTEAD, WOULD BE TO READ 70 Ohio St. 17-116.2, IN THE SAME LIGHT AS 74 Ohio St. 913.4 (1992), IN WHICH THE LEGISLATURE WOULD BE REQUIRED TO MAKE EMPLOYER CONTRIBUTIONS FOR A MEMBER OF THE SYSTEM. HOWEVER, THERE IS NO LEGISLATIVE INTENT EXPRESSED BY WHICH THE LEGISLATIVE OR EXECUTIVE EMPLOYER WOULD BE REQUIRED TO PAY THE EMPLOYEE'S CONTRIBUTION TO THE SYSTEM.

IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT:

A MEMBER OF THE TEACHERS' RETIREMENT SYSTEM WHO IS ELECTED TO THE LEGISLATURE AND WHO CHOOSES TO CONTINUE MEMBERSHIP IN THE SYSTEM MUST MAKE EMPLOYEE CONTRIBUTIONS TO THE SYSTEM, AND

THE LEGISLATURE IS AUTHORIZED TO MAKE EMPLOYER CONTRIBUTIONS ON BEHALF OF SUCH A MEMBER OF THE SYSTEM.

(JAMES ROBERT JOHNSON)