ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION IN WHICH YOU ASKED, IN EFFECT:
MAY ACCRUED SICK LEAVE BENEFITS BE CREDITED TO A STATE EMPLOYEE WHO ELECTS TO ENTER THE OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN PURSUANT TO 47 Ohio St. 2-305.2 (1991)?
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 OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN (THE "OPTION PLAN") IS PART OF THE OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM ("OLERS"), 47 Ohio St. 2-300 (1991), ET SEQ. IN GENERAL, "MEMBERS" OF OLERS ARE DEFINED AS:
"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 ALCOHOLIC BEVERAGE CONTROL BOARD . . . AND MEMBERS OF THE COMMUNICATIONS DIVISIONS AND 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(.)" 47 Ohio St. 2-300(5)
THAT SECTION FURTHER DEFINES "NORMAL RETIREMENT DATE" FOR ITS MEMBERS AS FOR A MEMBER WHO "COMPLETES TWENTY (20) YEARS OF VESTING SERVICE).)" 47 Ohio St. 2-300(6) (1991). HOWEVER, NO MEMBER WHO HAS COMPLETED TWENTY YEARS OF SERVICE IS REQUIRED TO RETIRE UNLESS THAT MEMBER HAS REACHED SIXTY (60) YEARS OF AGE OR MORE. 47 Ohio St. 2-305 (1991).
IN 1990, THE OKLAHOMA LEGISLATURE ADDED AN OPTION FOR MEMBERS WHO CHOSE NOT TO RETIRE BUT WHO HAD ENOUGH SERVICE TIME TO RETIRE. TITLE 47 Ohio St. 2-305.2 PROVIDES, IN PART:
"A. IN LIEU OF TERMINATING EMPLOYMENT AND ACCEPTING A SERVICE RETIREMENT PENSION PURSUANT TO SECTION 2305 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 RETIREMENT SERVICE PENSION MAY ELECT TO PARTICIPATE IN THE OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN AND DEFER THE RECEIPT OF BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
B. FOR PURPOSES OF THIS SECTION, CREDITABLE SERVICE SHALL INCLUDE SERVICE CREDIT RECIPROCALLY RECOGNIZED PURSUANT TO 47 Ohio St. 2-300 THROUGH 47 Ohio St. 2-305.1 OF TITLE 47 OF THE OKLAHOMA STATUTES BUT FOR ELIGIBILITY PURPOSES ONLY.
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.
D. WHEN A MEMBER BEGINS PARTICIPATION IN THE OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN, THE CONTRIBUTION OF THE EMPLOYEE SHALL CEASE. THE EMPLOYER CONTRIBUTIONS SHALL CONTINUE TO BE PAID IN ACCORDANCE WITH SECTION 2-304 OF TITLE 47 OF THE OKLAHOMA STATUTES. EMPLOYER CONTRIBUTIONS FOR EMPLOYEES WHO ELECT THE OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN SHALL BE CREDITED EQUALLY TO THE OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM AND THE OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN. THE MONTHLY RETIREMENT BENEFITS THAT WOULD HAVE BEEN PAYABLE HAD THE MEMBER ELECTED TO CEASE EMPLOYMENT AND RECEIVE A SERVICE RETIREMENT SHALL BE PAID INTO THE OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN ACCOUNT.
E. 1. A MEMBER WHO PARTICIPATES IN THIS PLAN SHALL BE ELIGIBLE TO RECEIVE COST OF LIVING INCREASES.
2. A MEMBER WHO PARTICIPATES IN THIS PLAN SHALL EARN INTEREST AT A RATE OF TWO PERCENTAGE POINTS BELOW THE RATE OF RETURN OF THE INVESTMENT PORTFOLIO OF THE SYSTEM, BUT NO LESS THAT THE ACTUARIAL ASSUMED INTEREST RATE AS CERTIFIED NU THE ACTUARY IN THE YEARLY REPORT OF THE ACTUARY. THE INTEREST SHALL BE CREDITED TO THE INDIVIDUAL ACCOUNT BALANCE OF THE MEMBER ON AN ANNUAL BASIS.
F. A PARTICIPANT IN THE OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN SHALL RECEIVE, AT THE OPTION OF THE PARTICIPANT, A LUMP SUM PAYMENT FROM THE ACCOUNT EQUAL TO THE PAYMENTS TO THE ACCOUNT, OR A TRUE ANNUITY BASED UPON THE ACCOUNT OF THE PARTICIPANT OR MAY ELECT ANY OTHER METHOD OF PAYMENT IF APPROVED BY THE BOARD."
YOUR QUESTION RELATES TO THE APPLICABILITY OF 47 Ohio St. 2-307.2 TO THE OPTION PLAN. SECTION 2-307.2 PROVIDES:
"THE TOTAL SERVICE CREDIT OF A MEMBER WHO RETIRES OR TERMINATES EMPLOYMENT AND ELECTS A VESTED BENEFIT SHALL INCLUDE NOT TO EXCEED ONE HUNDRED THIRTY (130) DAYS OF UNUSED SICK LEAVE ACCUMULATED WHILE A MEMBER OF THE SYSTEM. SUCH CREDIT SHALL BE ADDED IN TERMS OF WHOLE MONTHS. TWENTY (20) DAYS OF UNUSED SICK LEAVE SHALL EQUAL ONE (1) MONTH FOR PURPOSES OF SERVICE CREDIT. IF UNUSED SICK LEAVE ENTITLES A MEMBER TO AN ADDITIONAL YEAR OR FRACTION THEREOF OF SERVICE CREDIT, THE MEMBER'S EMPLOYER SHALL REIMBURSE THE SYSTEM FOR THE COST OF FUNDING THE ADDITIONAL RESERVE BY PAYING THE AMOUNT DETERMINED BY THE BOARD PURSUANT TO SECTION (47 Ohio St. 2-307.5). EACH EMPLOYER SHALL PROVIDE THE SYSTEM WITH ADEQUATE AND TIMELY INFORMATION NECESSARY TO DETERMINE ADDITIONAL BENEFITS AND ITS COST UNDER THIS SECTION. THIS SECTION SHALL APPLY TO MEMBERS RETIRING OR VESTING ON OR AFTER JULY 1, 1985, AND SHALL NOT BE RETROACTIVE."
IN ORDER TO DETERMINE THE EFFECT, IF ANY, OF 47 Ohio St. 2-307.2 ON 47 Ohio St. 2-305.2, IT IS ABOVE ALL ELSE NECESSARY TO ASCERTAIN THE INTENT OF THE LEGISLATURE AND GIVE EFFECT THERETO. STATE EX REL. CARTWRIGHT V. GEORGIA-PACIFIC CORP. 663 P.2D 718 (OKLA.1982). WORDS ARE TO BE CONSTRUED IN THEIR ORDINARY SENSE UNLESS DEFINED BY THE LEGISLATURE OR IF ANOTHER DEFINITION IS PLAINLY EVIDENT. HESS V. EXCISE BOARD OF MCCURTAIN COUNTY, 698 P.2D 930 (OKLA.1985). THIS MUST ALSO BE DONE BY READING AN ACT AS A WHOLE AND TO GIVE EFFECT TO EVERY PART, IF POSSIBLE. COWART V. PIPER AIRCRAFT CORP., 665 P.2D 315 (OKLA. 1983). 47 Ohio St. 2-305.2 INDICATES THAT A PERSON WHO CHOOSES TO TAKE PART IN THE OPTION PLAN DOES NOT RETIRE. INDEED, 47 Ohio St. 2-305.2(A) PROVIDES THAT THE OPTION PLAN IS "IN LIEU OF TERMINATING EMPLOYMENT." THUS, THE MEMBER'S EMPLOYMENT STATUS DOES NOT CHANGE. THE ONLY CHANGE IS THAT THE MEMBER CEASES TO CONTRIBUTE TO OLERS. 47 Ohio St. 2-305.2(D). THE MEMBER'S MONTHLY RETIREMENT BENEFIT IS PAID INTO OPTION PLAN WHILE THE MEMBER CONTINUES TO WORK AND RECEIVE A PAYCHECK. ID. AFTER FIVE YEARS THE MEMBER IS REQUIRED TO RETIRE AND WILL THEN RECEIVE BOTH THE MONTHLY RETIREMENT PENSION AND THE MONTHLY PENSION PAID INTO THE OPTION PLAN. 47 Ohio St. 2-305.2(C).
A PLAIN READING OF 47 Ohio St. 2-307.2 WOULD REFLECT THAT THIS SECTION HAS APPLICATION TO ANY MEMBER WHO "RETIRES OR TERMINATES EMPLOYMENT" ONLY. 47 Ohio St. 2-307.2. THUS, SINCE THE OPTION PLAN IS IN LIEU OF RETIREMENT, 2-307.2 CREDIT WOULD HAVE NO BEARING ON THE SERVICE CREDIT NECESSARY TO JOIN THE OPTION PLAN. INSTEAD, IT APPEARS TO BE APPLICABLE TO "CREDITED SERVICE" AS DEFINED BY 47 Ohio St. 2-300(9), WHICH PROVIDES, IN PART:
""CREDITED SERVICE" MEANS THE PERIOD OF SERVICE USED TO DETERMINE THE AMOUNT OF BENEFITS PAYABLE TO A MEMBER."
IN ADDITION, 47 Ohio St. 2-305.2(B) SPECIFICALLY PROVIDES THAT CREDITABLE SERVICE FOR THE OPTION PLAN SHALL INCLUDE CREDIT PURSUANT TO 2300 THROUGH 2-305.1 OF TITLE 47, BUT FOR ELIGIBILITY PURPOSES ONLY. THIS WOULD INDICATE A LEGISLATIVE INTENT TO EXCLUDE SICK LEAVE CREDIT UNDER 47 Ohio St. 2-307.2.
THUS, WHILE A MEMBER WHO WISHES TO TAKE ADVANTAGE OF THE OPTION PLAN MUST HAVE 20 YEARS OF CREDITED SERVICE PURSUANT TO 2-300 THROUGH 2-305.1 AND EXCLUDING SICK LEAVE CREDIT, AFTER THE MEMBER IS ELIGIBLE FOR THE OPTION PLAN, SICK LEAVE CREDIT MAY BE INCLUDED IN THE CALCULATION OF THE IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT SICK LEAVE BENEFITS UNDER 47 Ohio St. 2-307.2, SHALL NOT BE CREDITED TO A STATE EMPLOYEE WHO ELECTS TO ENTER THE OKLAHOMA LAW ENFORCEMENT DEFERRED OPTION PLAN PURSUANT TO 47 Ohio St. 2-305.2. MEMBER S RETIREMENT PENSION PURSUANT TO 47 Ohio St. 2-307.2.
(JAMES ROBERT JOHNSON)