Oregon Advisory Opinions March 05, 1946: OAG 46-48 (March 5, 1946)
Collection: Oregon Attorney General Opinions
Docket: OAG 46-48
Date: March 5, 1946
Advisory Opinion Text
OAG 46-48.
Retirement annuity contributions for its county school superintendent can not be made under chapter 401, Oregon Laws 1945, by a county that elects not to participate in the public employes' retirement system.
Gentlemen: The only possible answer to the question contained in your letter of March 1, 1946, is that the Attorney General can not "rule that County School funds shall be responsible for retirement costs of County Superintendents." To do so would be to legislate.
A county school superintendent is primarily a county administrative officer, although he is required by law to hold a valid certificate as a school teacher and to have had certain teaching experience, at the time he becomes a candidate for such office: Title 111, chapter 3, O. C. L. A. In other respects he does not differ from other elective county officers. The county is to be regarded as his employer. The salary it pays him is fixed by statute, and the county can not pay him anything in addition, by way of providing retirement benefits for him, unless it does so in compliance with chapter 401, Oregon Laws 1945. To comply with that act the county would have to contribute for all its employes alike. Therefore, if it elects not to participate in the retirement plan, it can not legally single out one of its administrative officers, the county school superintendent, and make contributions to the retirement fund for him alone.
The retirement system was planned to benefit public employes primarily, rather than elective officers, and the latter may become members of the system only by affirmative action on their part. When a question arises requiring a construction of the act to determine whether a particular elective officer is deemed to forego, by taking office, benefits of the act otherwise available to him, or is deemed to retain his right to such benefits, to the detriment of a fair administration of the act, the answer is obvious. The act must be so construed as to render it fair and impartial.