Oregon Advisory Opinions October 24, 1977: OAG 77-133 (October 24, 1977)
Collection: Oregon Attorney General Opinions
Docket: OAG 77-133
Date: Oct. 24, 1977
Advisory Opinion Text
OAG 77-133.
Prior to passage of Oregon Laws 1977, ch 740, ORS 237.155 provided three optional variations from the standard service retirement allowance described by ORS 237.147, i.e., "Option 1. A life annuity (non-refund) payable during the member's life only . . . (b) a life pension (non-refund). . . and (c) an additional non-refund pension for prior service"; or "Option 2. A reduced service allowance payable during his (the retiree's) life, with the provision that it shall continue after his death for the life of the beneficiary he nominates by written designation", or "Option 3. A reduced service retirement allowance payable during his life, with the provision that it continue after his death at one-half the rate paid to him and be paid for the life of the beneficiary which he nominates by written designation." ORS 237.155(1).
Ch 740 amended ORS 237.155 to add a fourth option described as:
". . . a service retirement benefit consisting of:
"(a) A lump sum refund of his accumulated contributions and interest thereon credited to him at the time he retires; and
"(b) A life pension (non-refund) provided by the contributions of his employers as provided in subsection (2) of ORS 237.147, and an additional life pension (non refund) for prior service as provided in subsection (3) of ORS 237.147."
ORS 237.121(1) provides that police officers or firemen who attain the age of 50 or any other employes who attain the age of 55 and who are members of the system may voluntarily apply for ". . . a reduced service retirement allowance which shall be the actuarial equivalent of the service retirement allowance at the compulsory retirement age provided for in ORS 237.147." (Emphasis added). Police officers and firemen who attain the age of 55 and any other employes who are members of the system who attain the age of 60 may voluntarily retire on a service retirement allowance "without actuarial reduction." ORS 237.121(2).
ORS 237.121 on its face authorizes payment to an early retiree only of a service retirement allowance actuarially reduced or equivalent (depending on age) to the ORS 237.147 retirement allowance, and does not specifically make available the options specified in ORS 237.155. It has nevertheless been the practice of the Public Employes Retirement Board to permit persons voluntarily retiring earlier than the compulsory retirement age to select one of the three optional forms of "service retirement allowance" set forth in ORS 237.155, in lieu of the allowance provided by ORS 237.147. This administrative construction adopted by PERS is reasonable, in no way violates any specific language of the statutes, and carries out the probable legislative intent. It is inconceivable the legislature would have intended to deny to early retirees the benefits of the ORS 237.155 options which are designed to afford greater security to their beneficiaries, usually spouses.
Given that the administrative construction discussed in the preceding paragraph is valid, all the options available under ORS 237.155, including the lump sum refund authorized by ch 740, are available to early retirees. There is no way to construe ORS 237.155 to make any distinction in this respect between the options available.
We have reviewed minutes and tapes of the Senate Local Government and Elections Committee, which considered SB 802. We cannot point to any language specifically stating that the measure was intended to provide the additional option to early retirees. However, the general tenor of the testimony convinces us that this result was contemplated by all concerned.
The second question relates to disability retirees. Since Oregon Laws 1977, ch 740 specifically amended only ORS 237.155, and not ORS 237.171 relating to the "disability retirement allowance" or ORS 237.181 relating to the three optional forms of the "disability retirement allowance," we are compelled to conclude that the new "lump sum refund" option is not available to disability retirees.
Employes of the system who elect the new "lump sum refund" option of ORS 237.155(2) should be mindful of requirements of ORS 237.125(2) which provides that a person retiring prior to compulsory retirement age
". . . who has retired for less than six consecutive calendar months, may be reemployed before reaching compulsory retirement age by any public employer
even though such retired member has been receiving retirement benefits, only upon his immediate repayment in a lump sum of the amount of retirement benefits drawn , after which repayment his account shall be reestablished just as it was at the time of this earlier retirement." (Emphasis added)