Oregon Advisory Opinions April 12, 1967: OAG 67-64 (April 12, 1967)
Collection: Oregon Attorney General Opinions
Docket: OAG 67-64
Date: April 12, 1967
Advisory Opinion Text
OAG 67-64.
ORS 237.133 (4) does not permit employment of retired employe by Legislative Assembly in any position requiring 600 hours of service in a calendar year.
State Senator
You state in substance that several employes of the Fifty-fourth Legislative Assembly are retired state employes, members of the Public Employes' Retirement System, and are receiving pensions under this system.
You have asked whether the statutory provision limiting rehiring or retention to a maximum of 600 hours per year is applicable to these persons.
ORS chapter 237 is the Act governing the retirement of public employes. It is to be noted that under ORS 237.003 (7) the term "public employer" means the state which, by its own connotation, would include employes of the Legislative Assembly; while ORS 237.003 (4) sets up certain exclusions, employes of the Legislative Assembly are not among those to be excluded from the law.
Recognizing that the Legislative Assembly falls within the above definition of "public employer" we now turn to ORS 237.133 (4), which provides:
"Except as otherwise specifically provided by ORS 237.001 to 237.315, no person who has attained compulsory retirement age can be retained by any public employer other than the one in the employment of which he attained compulsory retirement age or be employed by any participating employer in a position which normally requires 600 hours of service per calendar year."
The exceptions to this section are to elected officers, offices to which persons are appointed for a definite term (that is, a term of office specified by statute or by the Constitution) or persons who are teaching or are school superintendents. Legislative employes are not within the excepted categories.
It has been suggested that employment beyond 600 hours by the legislature is not prohibited because (1) such employment is not in the classified service, and (2) is excluded by the provisions of ORS 657.065 (2)(e).
ORS chapter 237 provides for coverage for all employes of the state whether in the classified, unclassified or exempt status, subject to certain elections to be made by the "exempt" employes. ORS 237.011 to 237.051.
ORS 657.065 (2) (e) is a part of the unemployment compensation law. As it pertains to employes of the Legislative Assembly, it first appeared in our law in 1961. Chapter 452, Oregon Laws 1961. Its purpose was to remove legislative employes from the operating force of the unemployment compensation law and had no reference to the state retirement system.
Chapter 452 is an Act "Relating to unemployment compensation." This Act is clear in its purpose and discloses no intention that it should apply to other laws governing state employes.
"* * * when the language of an act is unambiguous the intent of the legislature must be gained from the language used." State v. Buck, (1953) 200 Or. 87, 93, 262 P. (2d) 495.
A related rule of construction is that "* * * repeals, amendments or modifications of previous statutes by implication are not favored, nor are they frowned upon in a proper case. * * *"
It is evident that the later rule is inapplicable to the case at hand. This is not a "proper case" in that the retirement Act and the unemployment compensation law treat two different and distinct subjects. They are unrelated in purpose and do not conflict in any degree.
It is our opinion that retired members of the Public Employes' Retirement System may not be employed by any participating employer in a position that normally requires 600 hours of service per calendar year, which includes retired members employed by the Legislative Assembly.