Oregon Advisory Opinions April 11, 1967: OAG 67-63 (April 11, 1967)

OAG 67-63.

A district attorney who elects to become a member of the State Employes' Retirement System is required to contribute on salary paid by county and by state.

District attorney who receives salary from county and from state is employe of two public employers and State Employes' Retirement Board can require Secretary of State to pay contributions not withheld from pay of district attorney who had elected to become member of Public Employes' Retirement System.

You advise that Mr. Avery W. Thompson was appointed District Attorney of Douglas County on May 1, 1957. On November 1, 1957, he exercised his option to become a member of the Public Employes' Retirement System by giving notice to the county and to the Public Employes' Retirement System. At all times since his appointment and subsequent elections, Mr. Thompson has been paid a salary by both Douglas County and the State of Oregon.

You further advise that Douglas County has withheld Mr. Thompson's contributions from the salary paid by the county and has paid into the Public Employes' Retirement Fund both Mr. Thompson's contribution and its contribution as an employer but that since no notice was given to the Secretary of State of Mr. Thompson's election to become a member of the Public Employes' Retirement System, no deductions have been made from the salary of Mr. Thompson which was paid by the state, nor has the state paid any employer contributions based on Mr. Thompson's salary.

Mr. Thompson's term of office ended in January 1967. In February he applied for disability retirement benefits.

You have asked:

"[1] May the [Retirement] Board consider Mr. Thompson to have been an employe of Douglas County only, establish his disability account and pay him the minimum disability retirement benefits required by law; or

"[2] * * * should Mr. Thompson be required to make payment to the Retirement Board for the amount that he would have paid had he notified the Secretary of State of his desire to participate in the System; or

"[3] * * * should he be notified that his account was established in error and he is entitled to no benefits other than a refund of his contribution."

ORS 237.011 (6) provides:

"If he has not reached the age of 65 years, a person holding an elective office or an

appointive office with a fixed term or an office as head of a department to which he is appointed by the Governor may become a member of the system by giving the board written notice of his desire to do so within 30 days after he takes the office or, in the event that he is not eligible to become a member of the system at the time he takes the office, within 30 days after he becomes so eligible. Membership so established shall not be discontinued during the appointive or elective term of the officer except upon his separation from service."

Therefore, having made the election to become a member of the Public Employes' Retirement System, as provided by the statute, Mr. Thompson's account may not be said to have been established in error and we answer your third question in the negative.

Nor is there any basis for holding that Mr. Thompson was an employe of Douglas County only. As pointed out in Opinions of the Attorney General, 1958-1960, p. 88, the district attorney is a state officer and ORS 8.801 provides for a salary from the state. It is probable, from figures you have furnished, that the salary paid by Douglas County was the minor salary attached to the office. ORS 237.071 (8) provides:

"An employe who is concurrently employed by more than one participating public employer, and who is a member of or entitled to membership in the system, shall make contributions to the retirement fund on the basis of salary paid by each employer as though he is not paid by any other employer, except that his contribution rate shall be the same in all concurrent employment. * * *" (Emphasis supplied)

It is clear, under this provision, that Mr. Thompson, as a member of the Public Employes' Retirement System, should have been making contributions based upon both salaries and must be considered as being an employe of two public employers. Your first question must also be answered in the negative.

"The objective of the Public Employes' Retirement Act of 1953 with reference to service after January 1, 1956, shall be to provide each employe, * * * who is a member of the system and who is eligible to participate in the Old Age and Survivors Insurance program and who contributes the maximum amount permitted by this law, a disability retirement allowance of the amount hereinafter provided for and a total service retirement allowance at age 65 which, together with the Old Age and Survivors Insurance primary benefit, will equal from 50 to 60 percent of his average salary earned while a member of the system for employes with 30 or more years of membership in the system. For any such employe entering the system after the age of 35 years, the objective shall be to provide an allowance for service after January 1, 1956, proportionately reduced on the basis of his age at the time he first becomes a member of the system. Contributions shall be withheld from one-half of the first $4,800 per calendar year of each employe's compensation. A member whose salary exceeds $4,800 per year may elect to contribute on all salary in excess of $4,800 at the same percentage rate as are his other retirement contributions computed. Such contributions will purchase at retirement additional benefits which will be matched by the employer. Such election must be filed in writing with the employer and with the Public Employes' Retirement Board at least 30 days prior to the date in the calendar year of election on which the employe's gross earnings as a member of the system have totaled $4,800. The election to contribute on full salary in excess of $4,800 may only be canceled by the employe's filing written notice of cancellation with his employer and with the Retirement Board within the first 60 days of a calendar year." (Emphasis supplied)

We interpret this section of the statutes as requiring the participation of all members of the Public Employes' Retirement System to the extent of making contributions on half of the first $4,800 of annual salary. No provision is made for waiving such contributions. On the contrary, where such contributions are not made, provision is contained in ORS 237.300 to 237.311 for enforcement of the payment of contributions by the employer to the Public Employes' Retirement System. ORS 237.301 provides:

"(1) All state officers and departments * * * shall promptly and regularly remit to the Public Employes' Retirement Board all contributions required of them by law and furnish all reports required by rules of the board.

"(2) If any such officer or department shall fail or refuse to remit any contribution required by law, the Public Employes' Retirement Board, within 30 days after the date the request therefor has been made by it by registered mail, may certify to the Director of the Department of Finance and Administration and to the Secretary of State the fact of such failure or refusal and the amount of the delinquent contribution or contributions, together with its request that such amount be set over from funds of the delinquent officer or department, to the credit of the Public Employes' Retirement Fund. A copy of such certification and request shall be furnished the delinquent officer or agency.

"(3) The Director of the Department of Finance and Administration shall, within 10 days after receipt of request, then approve the payment of such amount by the delinquent officer or department from funds allocated to him or it for the current biennium and certify such approval to the Secretary of State, who shall draw his warrant for payment of the amount of contributions due out of funds in the State Treasury allocated to the use of such delinquent state officer or department."

In a previous opinion, No. 6103, dated April 4, 1966, we reached the conclusion that the employer agency is responsible

for contributions required by the retirement system and we said:

"Notwithstanding that the Public Employes' Retirement Board may enforce payment of delinquent contributions from the employer, ORS 237.301, supra, the obligation remains that of the employe and is for his benefit. * * *"

In answer to your second question, it is our opinion that the board can request and require the Secretary of State to pay the appropriate contributions. The Secretary of State can, in turn, look to Mr. Thompson for his contributions on such conditions as are appropriate.