Request By:
Mr. Pat N. Miller
Executive Secretary
Kentucky Teachers' Retirement Systems
216 West Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens Attorney General; By: John F. Zink, Assistant Attorney General
Please allow this letter to serve as a response to your request for an opinion made to this office on September 13, 1978. As you may know, I have recently been assigned the responsibility of covering matters involving the Kentucky Teachers' Retirement System (KTRS); the delay in answering your request resulted from the change in assignments and the fact that I was only recently sworn-in before the Kentucky Supreme Court. In your letter you have asked:
May an employee who, pursuant to KRS 161.607(1), elected to retain membership in the KTRS upon taking employment covered under the county employees retirement system cancel such election and gain membership in the system which normally covers the position in which he is currently employed?
In answer to your question, it is necessary to examine the pertinent provisions of KRS 161.607:
(1) Any member of the teachers' retirement system who enters employment covered by the Kentucky employes retirement system, the state police retirement system, or the county employes retirement system, prior to July 1, 1976, may retain membership in the teachers' retirement system instead of joining the new system.
(5) Any person who has elected an option provided in the above section may cancel such election and gain membership in the system which normally covers the position in which currently employed, provided that such cancellation of option election must be completed prior to January 1, 1977.
This statute provides that KTRS members who have taken employment with a state agency covered under either the Kentucky Employees' Retirement System, State Police Retirement System, or the County Employees' Retirement System, may retain membership in the KTRS by executing an option to remain covered by the KTRS within ninety (90) days of beginning such employment. This election or option provision is available only to KTRS members who took such above described employment prior to July 1, 1976.
The statute, as amended, also provides that those KTRS members who did elect to remain covered by KTRS could cancel such coverage prior to January 1, 1977. Upon such cancellation, the member employee would thereby gain membership in the system which normally covers the position in which he or she is currently employed. In addition to KRS 161.670, KRS 61.680(4)(a) also provides that a person entering employment covered by the Kentucky Employees' Retirement System or the County Employees' Retirement System with service credit in the KTRS may retain membership in the KTRS, exempting them from participation in the systems covering their new positions. KRS 61.680(4)(b) states:
Any person who has elected to retain membership in the teachers' retirement system as provided in subsection (a) of this section may cancel his election and participate in the system under which his position would normally participate, provided he elects to cancel his option prior to January 1, 1977. (Emphasis added).
It is clear from the language of these two statutes that they are complimentary and may be read together to produce the same effect.
In OAG 69-501, this office dealt with the two statutes cited above prior to their present amended form. At the time, these statutes did not specifically deal with a subsequent change after an election had been made by the employee. However, it was the opinion of this office in OAG 69-501 that it was not the intent of the legislature to give an employee the right to shift back and forth from one system to another at will. As such, we stated at the time, that after an employee has made an initial election, he is not given by the statutes the unqualified right to make a subsequent change.
When construing a statute, the primary objective is to determine the legislative intent and purpose as ascertained from the language of the statute. City of Covington v. Sohio Petroleum Co., Ky. 297 S.W.2d 746 (1955). Where a statute is unambiguous, it should be given effect according to its literal meaning. Hilliard v. United States, 310 F.2d 631 (6th Cir. 1962). In the present situation, the language of KRS 161.607(5) and 61.680(4)(b) is clear and unambiguous. While these statutes provide that an employee may retain KTRS membership upon transfer to another agency covered by other government retirement systems, and that such an employee may cancel his election to retain KTRS membership, it specifically provides that any cancellation of option election must be made prior to January 1, 1977. In view of our opinion that under the pre-amended versions of these statutes an employee should not have an unqualified right to make a subsequent change after an election is made, and in view of the clear and unambiguous language of KRS 161.607(5) and 61.680(4)(b), it is the opinion of this office that an employee who elected to retain coverage under the KTRS may not cancel that election after January 1, 1977.