Untitled Texas Attorney General Opinion

R-663 ml OFE’ICE OP ,mE kFTOR% &-NER& AUSTIN. TEXAS PRICEDANIEL GENERAL *TTO*NEY August 13,.. 1947 '. Major Genera1.K. L. Berry Opinion No. V-336 The Adjutant General of Texas Austin.t.Texaa $8: ~Eligibllityof ac- aounting and cua- .'todialclerks in 1 the,office of the U.,6. Property and Disbursing.Orricer for Texas toqbene- fita under the Em- ployees~Retirement System or Texas. Dear Sir: Your request for an'opinionon .thaa.bovesub- ject is as followa:~ ~.- ~' "H. B. 168, Fiftieth LegislatureIof Texas, providesfor certain retirement benefits, State employees.:,Paragraph 1,. Ciroular No. A, 7 May 1946, office of the Chief, National Guard Bureau authorizes the Adjutant General of the State to em- ploy and/or disoharge,civilian ticcount- ing clerks to assist the U. 6. Property and Disbursing Officers insthe perform- ante of theirduties. Paragraph 6 of t&s same circular authorizes the Adjutant Gen- eral to determine the rate of pay of the, above mentioned accounting~olerkswithin limitations. Paragraph 7 of this circu- lar authorizes the State Adjutant General to determine the hours of work' 'the ac- counting clerks thus employe~d, u speci- f not be fies that said hours of work wil leas than those set for other employees of the State engaged 'insimilar work. "Althoughthe subject accounting clerks a'repaid from~Federal.funds,,they are in effect State employees, sincethey a.reemployed by the Adjutant General, who sets their rate of pay, and determines the Major General K. L. Berry, Pa&e 2, v-336. number of hours they shall work. The Ad- jutantGenera1 also may discharge said em- ployees. In view or this your opinion is requested on the following question: "Are accountingandcystodial clerks employed in the off300 or the u..S. Prop- erty and DisbursingMficer for Texas,. under the provisions of N. 0. B. Circular No. 4, 7 May i9 6, subject ~tothe provia-, ions of H. D. 1ii 8; Fiftieth Legislature of Texas, and are they eligible for retire- me&under said ~bill? "If the opinion of the Attorney Gen- eral on-this question is not in the ar- .fi?znativa,then informationis desired as to whether subject employees oan become eligible for retirement,under the provis- ions of H. B. 168, while they are perform- ing services for the State of Texas, and receiving their pay from Federal funds." ~':. ' The eligibilityof the described employees depends solely upon whether they are withinthe con: ~~~_ templationof House Bill No. 168. From examination.of.the.~cotnplete Aat, .we donolude that such employees a.renot contemplated~by the Act. The.%embership.annuityvdefined i.nSubseo- tion Q of Section l,,whia,his one of the elements of the benefits,provided~for, is made up.Of %%3erve funds contributedby a megber~*'an eq\al~amount,~ of reserve funds contributed& --the.%%e.' -- While the State mightcontribute~to t&h a reserve fund on a basis of 'somepercgntage.~of.~the, ai mountspaid such~employees.by.the,Fedara,lGovernment, the Act does not so~.aontemplats:..QubseotionA Of.Sec- tion 8 provides that "all contributions.madeby the State shall be~fromand:charged.tothe respeotiva, funds appropriated,allocated,~andprovidad,t,o,paythe sal- ary or oompensation,of,~,ths amploya~efor .whosabenefit the oontribut1on.i~mad~e.n,The fund,,oreated by aon- tributionsby the.State of Texasaa part of the total funds of the Systemis oalled the Wtat,e Membership AccumulationPund." Contributionsby the state as set Major Caneral K. L. Berry5 Page ,3, V-336. 203 out in Subparagrapha~.ofParagraph 2 of $ubaeotlon A of Section 8 ia~.,under,a~plan'ivhereby the State oon- tributes funds neoeasaryto make up ita.allooate'por- tlon of the fund'savailable for benefits to members. The meohanics for oolleationof the State's oontribu- tions is contained inParagraph Z.of.,Subaeotion B of seation 8.which contemplatesatthe outset that funds appropriated to the payment'.of salaries shall be,re- appropriatedto the exte.ntneoesaary to make up,the initial.oontribution,by the~~state.This Procedure is oarried out by oertifioa,tlon bythesSta.teBoard of Trustees for the.Retirehient'System to the State Comp- troller of Publio Accounts and the State.,Treaaurer of the total aompenaationpaid to members and upon whioh the necessary amounta..are computed~and transferred by the Ctiptrollertomthe 'StateEmployees Retirement Fund rromthe reapeotive funds appropriatedto departments. Thereafter,similar certificationsare made before eaoh session of the Legislature in order tha,tproper appro- priations may be made. Obviously from the.abwe, it appears that this law oould not be oanplied.wd.th in rea- peot to,the employees named Sn your inquiry, if for no other reason than that the~initial contributionsby the State~are taken from appropriationsby the State Legia- lature setting up the normal funds'ror~thenpayment of -employeesof the State. The ,employeesabout whiah you inquire are.not @aid-from State apprspriations,and therefore,no manhinery is prOvidedfor a contribution by the State in their behalf. Further evidenoe of the faot that such em- ployeesas you inquire about are not oontemplatedby the Act, is disclosed by the method provided for ef- fecting the employee's contributionto the fund. .Sub- paragraph a Of:Paragraph1 of Subsection B Of Section 8 dealing with the golleotion of member's contributions preaoribea that "each department of the State shallcause to be deduoted on each and every pay roll of a member for each.end every pay roll period beginning on the date of thenestablishmentof the membership.and full opera- tion or the Retirement System the contributionspayable by'such member, as provided in this Act . . ." Subpara- grtiph'b'maikes further provisionsdealing with payroll deduations; The provisions of the Aot further provide that payrollsdeauationsand membership shall be auto- matio. Obviously,the State of Texas is in no pOSitiOn to enforce nor to effect payroll deductions from a Fed- eral payroll. , b¶ajorGeneral K. L. Berry, Page A, V-336. 2134 Therefore,under the_circumstancesoutlined in your letter, it is the opinion of,thla departments that such accounting clerks are not contemplatedby House Bill No. 168. As to your final inquitiyand ~requeatfor ink' formation as to whether auch.employees,oanbecome elig- ible for retirement,we have zead the entire Act-and find no provision for the acoeptanoe of members other than those employedand paid by the State. We might suggest that should the funds from whioh such etiploy- eea are paid be contributeddirectly to the4tate iron the Federal Governmentand thereafterappropriated.by legislative~enactment.forthe payment of the salaries of such persor+sas employees of the Adjutant General*s Department,all subject of course to enabling legiala- tion by the.TexasLegislature,audh employeea'mightbeg eligible. However, these:are matters for the Legisla- ture and the appropriateFederal authority. .STJMMARY', .Accountingclerks employed, supervised and'aubjeotto discharge by the'Adjutant Gen- eral of Texaa~,and whose rate of pay %s set by him, under authority 'ofthe United States Govermnent,'~hoaeaalarisa a'repaidto theme by the United States Government,are not with- in the provisionsnor eligible,for benefits of the law creatiugthe %nployeea Retirement System of Texas." Yours very truly A’l?‘l!ORNEY GENRlUL'OF TRXAS NM0 : jmc Bea~MaDaniel ,Asaiatant APPROVED: izz 22 ATTORNRY GENERAL.