Request By:
Mr. Vic Hellard, Jr., Director
Legislative Research Commission
State Capitol Building
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 request of this office for an opinion pertaining to state legislators who are teachers in the public schools of Kentucky and wish to retain their membership in the Kentucky Teachers Retirement System (KTRS) rather than participate in the Kentucky Employes Retirement System (KERS), as provided by KRS 61.680(4)(c) and KRS 161.607(2). Specifically, you ask that if such a legislator elects to continue participating in the KTRS, on what amount is his contribution to the system based, and whether that legislator may contribute to the KTRS on an assumed salary of $18,000 a year?
Under KRS 161.540 each member of the KTRS must contribute to that system seven and seven tenths percent (7.7%) of his annual compensation to the teachers retirement system. The term "annual compensation" is defined as ". . . the contractual salary and additions thereto received by a member as compensation for services as a teacher in the public schools of Kentucky during a fiscal year before any deductions." KRS 161.220(10). (Emphasis ours). Accordingly, KRS 61.680(4)(c) constitutes an anomaly under the law because the salary this individual earns as a state legislator does not fall within the statutory definition under KTRS law as "annual compensation" which is subject to employe contributions in the KTRS. Since KTRS law does not provide for contributions to be made to that system on any annual compensation not otherwise defined under KRS 161.220(10), such a legislator who retains membership in the KTRS cannot legally make contributions to the KTRS or acquire credit in the KTRS.
The practical result of the foregoing means that a state legislator who is a member of the KTRS must, in effect, relinquish his participation in the KTRS and participate in the KERS in order to acquire any service credit in a public retirement system - in this case, the KERS. Necessarily, the answer to your questions must be that there is no legal contribution such a legislator can make if he retains membership in the KTRS. His only alternative is to participate in the KERS where his contribution is predicated upon an assumed salary of $18,000 a year as provided under KRS 61.510(13). 1
Footnotes
Footnotes
1 The 1978 session of the Kentucky General Assembly attempted to remedy the issue which you now present for our consideration by amending KRS 161.607(2) in House Bill 638, but that Bill was vetoed, for other reasons, by the Governor on March 30, 1978.