Request By:
Mr. George R. Arvin
General Manager
Kentucky Retirement Systems
226 West Second Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Patrick B. Kimberlin, III, Assistant Attorney General
This is in response to your recent letter wherein you ask our advice as to the following matter:
"A member of the Kentucky Employees Retirement System (KERS) took early retirement effective November 1, 1969 and received benefits until February, 1972, at which time he was reemployed in a full time position. As of April 1, 1974 he began contributing to the KERS pursuant to KRS 61.637(4)(c)5. During this period of reemployment he contributed a previously withdrawn account to the County Employees Retirement System (CERS). KRS 61.552. He is now planning to terminate his period of reemployment and wishes to consolidate his retirement benefit combining his service under the CERS in addition to the service gained upon reemployment. You inquire as to whether consolidation under these circumstances is permissible."
As you are aware, the particular statutory provision in KRS 61.680 which authorizes consolidation of state retirement accounts to determine eligibility and amount of benefits did not become effective until March 26, 1974. See House Bill 581, § 29. Consolidation of state retirement accounts under that statutory provision, KRS 61.680(2)(a), are to occur "upon death, disability, or service retirement" of the member. Here, we are dealing with a member who initially retired under early retirement provisions in November, 1969, several years prior to the enactment of the consolidation provisions. Thus, the pivotal issue is whether this individual's initial early retirement forecloses him from now consolidating his various state retirement accounts under KRS 61.680 after an intervening period of reemployment as permitted by KRS 61.637?
In analyzing this question we note that when this particular individual retired in November, 1969 his membership in the system was automatically terminated under KRS 61.535(1)(c) and because of his retirement, he was no longer an "employee" or a "member" as those terms are defined in KRS 61.510(5) and (8). However, when this individual became reemployed on a full time basis and made contributions to the KERS under KRS 61.637(4)(c)5, it is our opinion that he once again assumed the status of both a "member" and an "employee" as those terms are statutorily defined. KRS 61.510(8) defines a "member" as "any employe who is included in the membership of the system or any former employe whose membership has not been terminated under KRS 61.535." (emphasis ours). Here, once this individual was reemployed in a full time position it is our opinion that he is no longer a former employe terminated under KRS 61.535, but is a current employe who is included in the membership of the system.
Accordingly, this individual, with certain limitations, 1 has many of the same rights and privileges of any other "member" and "employee" who has not previously taken service retirement or otherwise had his membership terminated pursuant to KRS 61.535. For example, this office has previously held that an individual retired pursuant to KRS 61.535 who is reemployed and making contributions to the retirement system under the authority of KRS 61.637 has the right - as any other member otherwise so qualified - to purchase military service under KRS 61.555. OAG 74-373.
We believe that a similar analysis should be made in the instant case. After all, pension and retirement laws should be examined in their entirety and are to be given a liberal construction when attempting to determine legislative intent.
Mayberry v. Coyne, Ky., 312 S.W.2d 455 (1958).
Here, this individual, reemployed in a full time capacity in a position covered by the KERS and who is making contributions to the system, is eligible to consolidate his various state retirement accounts under KRS 61.680.
Footnotes
Footnotes
1 One of the obvious limitations on an individual such as this is that he may not select a different retirement plan from that chosen at the time of his initial retirement. See OAG 77-319 (involving disability retirement) .