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Show MONDAY, APRIL 16, 1973 THE DAILY RECOKD PAGE Office of the Attorney General OPINION NO. Prepared by: 'Question: is reinforced by the difference between the requirements for the governor's pension and those for the legislators' pension. In the case of the governor the statute says nothing about service credit. It simply says "...each former governor of the state of Utah shall be eligible,...". For the legislators, on the other hand, there is a clear requirement for service credit. The conclusion seems inescapable that if the legislature had intended to make all of its former members eligible for a legislative pension, regardless of service credit, it would have said that such a pension shall be paid to "each former prior service credit for the legislative service qualify for a legislative pension under the provisions of UCA 49-10-- 36, 1953, as amended? Answer: In 1961 the legislature enacted the Utah Public Employees1 Retirement Act , one of the features of which was the inclusion, for the first time, of legislators as members of the State retirement system, in order to qualify for a retirement pension, a legislator had only to make contributions to the retirement system at the same rate as other public employees . Since most legislators were paid only for the time they were in session, the contributions were very modest and the benefits were insig- did in the case of the governor, rather than legislator," as a itmember more who saying "... to of service as a nificant. service statute was amended again in 19674. The requirement for service credit was increased to four or more years, and the benefits were increased from $5.00 per month to $10.00 month for each year of service as a member of the legislature. The funding appropriation was also increased. In 1971 the legislature amended the statute again. Among other changes, a gubernatorial pension was added, and benefits to per were granted a deceased on certain former governor or former legislator The present question is prompted by the claim of a former legislator who also has retirement system credit for service as a State employee outside of the legislature. His claim is that his legislative service from 1941 to 1945 qualifies him for the pension established in the 1971 act. At the time he served in the legislature, its members were not included in the retirement system, and he made no contributions to 49-10-- service credit Thus, when he redeposited, the prior service credit he had relinquished was restored to him, but only that service credit earned when he was a member of the retirement system and which As was earned in a period during which he paid contributions. members as were not included has been pointed out, legislators of the retirement system at the time of his legislative service, and they therefore received no service credit for such prior There are only two ways in which an officer or employee of the State can establish service credit for retirement purposes. The first is to be an officer or employee of the State, performing services which by the provisions of the applicable retirement statute make him a member of the retirement system, and during such period of employment to pay contributions from his salary to the retirement system. The second is to come within the provisions of a retirement statute, enacted subsequent to the time of service, which vouches in or includes the subsequent act. prior service within the provisiohs of the which is the first The 1961 Public Employees' Retirement Act, statute subsequent to the former legislator's service as such, contained the following provision for granting prior service creel 25 ment, he does not qualify. Service credit is an important concept in retirement In the establishing, funding, and actuarial planlegislation. new a retirement system it is a fundamental requirement ning of that the number of persons to be benefited be known in advance, or be very closely approximated. The service credit requirement (including prior service credit) enables the administrators of the system to know the future payment exposure and to plan accord- -' ingly. For this reason, the service credit requirement or its equivalent is a part of substantially all retirement legislation. That it was important to the legislature in the enactment of the instant statute appears from 5, 6(18), 10, 17 and 18 of the act. An examination of those sections shows that the question of service credit was carefully considered by the statu- tory draftsmen. is significant that although the 1971 legislature substantial changes in amending 36, it reenacted without change the requirement for service credit. The language used must be assumed to have been chosen advisedly by the legisla2 3 49-10-- 36, 1971, 6 all Chap. 75, Laws 4 5 words should be given their normal meaning.7 This Chap. 100, Laws of Utah, 1961. Chap. 100, Laws of Utah, 1961, 21. The contributions under this statute were 4 of monthly compensation. and of Utah, 1963, 1 Ill, 49-10- -6, 49-6a- -ll, -1 of Utah the Utah Judges' Retirement Act, See. for example, r. 13? the Utah Firemen's Retirement Act, 12; and the Utah Public Safety Retirement 19, 20. Act, 49-7a- 49-11-- 18, 7 : "Credit for prior service shall be granted to the following menbers of the retirement system: 1. Each menber of the retirement system who was engaged in performing covered services for an employing unit subject to this act on Julyl, 1961, and who performed the services for at least ninety days during the period commencing July 1, 1960, and ending June 30, 1961, for a department or political subdivision eligible for coverage under this act shall receive credit for all prior services cottonwood city Electors v. Salt Lake County Board of Commissioners , 28 U.2d 121, 499 P.2d 270 (1972) et seq., performed bv him. of the retirement system who in engaged performing covered services after July 1, 1961, but prior to July 1, 1962, for an employer provided that such menber was performing services for at least ninety days during the period commencing July 1, 1960, and ending June 30, 1961, for a department or political subdivision eligible for coverage under the. provisions of this act." The former legislator with whom we are concerned here does not qualify under either of the foregoing subsections, because he was not employed in public employment on July 1, 1961, and had not performed covered services for at least ninety days ar period. during the prior 2. Each member . i one-ye- cannot be successfully maintained that this interpretation of the language of 36 is discriminatory. In retirement legislation, as in mary other types of legislation, lines must be drawn somewhere. If more benefits are to be conferred on more persons, then more money must be appropriated or paid in so as to provide a fund for the We think it the line must be drawn somewhere, the that it legislature would draw the line logical a service credit concept, that is, by saying that by using where thre has been no prior contribution, there is no benInasmuch as seems The Utah Supreme Court highlighted the problem of drawing the line in Hansen v. Public Employees' Retirement Fvstem Board of Administration, 122 U. 44, 246 P.2d 591, in efit. this lanquaqe: "No matter where the line is drawn, whether it be fifteen years, ten years, eight years, or ny other place, the classification will undoubtedly seem , harsh and 4. Chap. 106, Laws of Utah, 1967, codified as UCA 1953. Laws UCA 1953 as amended by Chap. 6. it ' payments. It that portion of the member's made, compensation received shall be restored to his account providing total payment is made prior to retirement,..." a The theory underlying his claim for a legislative pension is that the 1971 legislature intended to benefit all of its prior members who had served four or more years, and no other qualification is required. If that was in fact the intention of the legislature, then of course the 1971 act grants him a pension. On the other hand, if "service credit" is a require- ture, is not restore to The relevant upon which contributions were made and which the menber had made contributions on during ment Act. made a redeposit states: 1953, UCA 49-10-- 25, "If the system from his salary. He entered public employment State employee and came into the system as such on July 17, 1961. No prior service credit was claimed at that time for legislative service or otherwise. In June 1965 he applied for a refund of his contributions (which forfeits all benefits) , and his contributions were refunded to him on June 30, 1965. In June 1969 he reentered public employment, became a member of the system once again, and under the provisions of the statute then in force, he redeposited the contributions refunded to him in 1965. His prior service credit was thus restored to him under the provisions of of the 1967 Utah State Retireas--- that by redepositing his credit for all prior public ulated contributions, but such a redeposit could him that which he never had in the first place. service. The requirement for four a as service credit years' legislator were carried forward in new a as act the necessary qualification for a pension conditions. years was thereby restored to him. There is no question but the that redeposit restored to him all prior service credit which he had standing to his name at the time he withdrew his accum- a The legislator...". withdrawn contributions., service The 1963 legislature made some important changes. The statute was amended to provide that legislators could excludo themselves from membership in the retirement system by filing written election to that effect with the Retirement Office. It also provided for increased benefits, funded in part by a $25,000.00 appropriation, and it required a minimum of two years' service credit for legislative service in order to make the member eligible for the increased benefit. has credit for four or The argument has been advanced statute, the spouse of State of Utah 73-0- 07 Leonard W. McDonald, Executive Director Utah State Retirement Board Vernon B. Romney, Attorney General K. Roger Bean, Assistant Attorney General Does a former legislator who has no Requested by: THREE just and unreasonable below the line." to tnose the foregoing suggests, correct interpretation of As 49-lU-- 36, it who are pvniuded is our opinion that the as amended, is that only those former legislators who have four or more yea rr of service credit for legislative service qualify for the pension there provided. 8 1961, Chap. 100, Laws of Utah, 18. submitted, Respectfully VERNON B. ROMNEY Attorney General |