Attorney General's Opinion
Attorney General, Richard Blumenthal
May 22, 2003
Senator Kevin B. Sullivan
President Pro Tempore
State of Connecticut Senate
State Capitol
Hartford, Connecticut 06106-1591
Dear Mr. Sullivan:
You have requested a formal opinion as to whether employees of state-aided institutions, as defined in Conn. Gen. Stat. § 5-175, are authorized to participate in the Early Retirement Incentive Program (ERIP) created in 2003 by Conn. Pub. Act No. 03-02. If the answer to this question is in the affirmative, you have also inquired as to whether such employees are bound by the reemployment provisions contained in the State Employees Retirement Act, Conn. Gen. Stat. §§ 5-152 to 5-192x (hereinafter SERA or the Retirement Act).
Our response to your first inquiry is that the employees of the Newington Children's Hospital,1 the American School at Hartford for the Deaf, and the Connecticut Institute for the Blind (the state-aided institutions) are covered by the provisions of the 2003 ERIP. These employees are "state employees" covered by Pub. Act No. 03-02, who are entitled to the retirement benefits provided by that act. Our response to your second question is in the negative. Employees of the state-aided institutions who retire on or after January 1, 1993 are not covered by the reemployment restrictions of SERS set forth in Conn. Gen. Stat. § 5-164a(c), since upon reemployment with the state aided institutions they are no longer members of SERS. This is a loophole in the law allowing employees of state-aided institutions to retire and return to full time position at the state-aided institution while continuing to receive their SERS retirement benefits. The legislature should consider closing this loophole through an amendment to Conn. Gen. Stat. § 5-164a(c).
The questions presented are ones of statutory interpretation. In interpreting a statute:
State v. Courchesne, 262 Conn. 537, 544 (2003) [hereinafter Courchesne] (citation omitted); Mytech v. May Department Stores Co., 260 Conn. 152, 159 (2002). The application of these and other principles of statutory construction to the retirement provisions in Public Act 03-02, makes clear that the General Assembly did include the employees of state-aided institutions in the act implementing the 2003 retirement incentive plan.
The language of the statutory provision in question is the starting point when engaging in the process of statutory construction. In fact, the language of the statute is the most important factor to be considered. Courchesne, 262 Conn. at 563-64. Section 6(b) of Conn. Pub. Act No. 03-02, reads, in relevant part, as follows:
A. Eligibility Rules.
The following members of the State Employees Retirement System (SERS) shall be eligible to participate in the program:
1. All state employees who will be at least fifty-two years of age on or before May 31, 2003, and who retire directly from employment and begin immediately receiving normal or early retirement benefits under Tier I, Tier II or Tier IIA and whose effective date of retirement is from March 1, 2003, to June 1, 2003, inclusive;
2. Who have at least ten years of actual state service in the SERS; and
3. In the case of hazardous duty employees, a minimum of twenty years of actual state service in the SERS.
The public act contains no definition of the terms used to describe the qualifications for the incentive program. We must therefore look to related statutory provisions regarding the State Employees Retirement System (SERS) to discern the meaning of these terms.2
Sections 6(b) and 6(b)(A)(1) of the public act limit participation in the ERIP to "state employees." Sections 5-154(l), (m), and 5-192f(g) of SERA explicitly include employees of the state-aided institutions within the definition of "state employee[s]" under the act. Section 5-154(l) defines "state employee" as "a person in state service." Section 5-154(m)(8) states that "'state service' includes service as an employee of a state-aided institution as defined in section 5-175." Section 5-175(a) reads, "Employees of each of the following-named private corporations, herein called state-aided institutions, shall be covered by the retirement system: The American School at Hartford for the Deaf, The Connecticut Institute for the Blind and Newington Children's Hospital." Section 5-192f(g) includes "employment with state-aided institutions" within the definition of "state employment." Employees of the state-aided institutions, therefore, may be considered to be "state employees" within the meaning of the ERIP provisions.
However, although an employee of a state-aided institution may be considered a "state employee" for purposes of the ERIP, we must examine another provision of the ERIP legislation to determine the eligibility of employees of state-aided institutions for the ERIP program. Section 6(b) (A) (2) of the public act requires participating employees to "have at least ten years of actual state service in the SERS." Employees of state-aided institutions, therefore, must have at least ten years of "actual state service" to qualify for the program. Because the term "actual state service" is not defined in the public act, we must look to related provisions of the retirement act to determine its meaning. See State v. Ehlers, 252 Conn. 579, 590-91 (2000); Connecticut National Bank v. Giacomi, 242 Conn. 17, 25 (1997).
Two provisions of the State Employees' Retirement Act use the term "actual state service" in a manner that would include service with the state-aided institutions. Conn. Gen. Stat. §§ 5-162(d)(3) and 5-163a(d) provide formulas for the calculation of retirement benefits for SERS members who belong to Tier I3 of the retirement system. Section 5-162(d)(3) provides, "Between the ages of fifty-five and sixty, the minimum service requirement is ten years of actual state service." (Emphasis added). Section 5-163a(d), which applies to certain SERS members who retired prior to June 30, 1980 provides, "Between the ages of fifty and fifty-five, the minimum service requirement is ten years of actual state service." (Emphasis added).
This office has previously issued two formal opinions in which we interpreted the term "actual state service" in section 5-162(d)(3) to refer to time actually spent in the employment defined as "state service" under the retirement act, as opposed to "the constructive or hypothetical state service acquired by the purchase of 'credited' state service under statutes such as Conn. Gen. Stat. §5-174(a)".4 82 Conn. Op. Atty. Gen. (7/28/82) at 4 (Letter to Secretary Caldwell); 84 Conn. Op Atty. Gen. 272 (6/20/84) (Letter to Chief Mogensen). These opinions preclude consideration of purchased credit as "actual state service" under the Retirement Act.
It is a general principle of statutory construction that the same words used in related sections of a statutory scheme have the same meaning. State v. Ehlers, 252 Conn. at 591; State v. Rivera, 250 Conn. 188, 201 (1999). "Ordinarily, where the legislature uses the same phrase it intends the same meaning.” Schiano v. Bliss Exterminating Co., 260 Conn. 21, 41 (2002) (quoting Link v. Shelton, 186 Conn. 623, 627 (1982)).
Application of these principles to the 2003 ERIP legislation demonstrates that the term "actual state service" in Public Act No. 03-02 includes employment by the state-aided institutions. Such employment automatically entitles an individual employed before January 1, 19935 to participate in the Retirement system. There is no need to purchase credit for such service. It is explicitly defined as "state service" pursuant to Conn. Gen. Stat. § 5-154(m)(8). Therefore, in accordance with our previous interpretation of the term "actual state service" in the opinions discussed supra, and statutory construction principles which require interpretation of the retirement act as a consistent whole, the term "actual state service" in Public Act No. 03-02 includes employment by the state-aided institutions.
This conclusion is also consistent with the Supreme Court's analyses of the State Employees' Retirement Act in Lopresto v. State Employee's Retirement Commission, 234 Conn. 424 (1995). In Lopresto the court ruled that a hazardous duty retiree could obtain a retirement benefit that included credit for purchased service with a municipality. In so ruling, the court distinguished between "actual state service" and service which can be purchased for retirement purposes under the retirement act. Id., at 447-52. Therefore, the court has indicated that the term "actual state service" excludes only the latter, "credited" service. This interpretation of "actual state service" is consistent with the one we adopt today because it includes all periods in which an individual is actually in state service including employees of state-aided institutions who have been statutorily deemed to be in state service and covered by the retirement act.
You have also inquired as to whether retired employees of the state-aided institutions are subject to the reemployment provisions of SERA contained in Conn. Gen. Stat. § 5-164a. Section 5-164a contains limitations on receipt of retirement income if reemployed "in state service". It also provides for continuing to accrue years of "state service" upon reemployment, thereby increasing future retirement benefits.
Section 5-164a reads, in relevant part, as follows:
(c) No member reemployed under this section or under section 5-164 . . . or otherwise reentering state service shall receive a retirement income during such member's reemployment or other state service except (1) if such member's services as an employee are rendered for not more than ninety working days in any one calendar year, provided that any member reemployed for a period of more than ninety working days in one calendar year shall reimburse the state retirement fund for retirement income payments received during such ninety working days . . . .
(d) Upon the subsequent retirement of a member who has made an election under subsection (a) . . . his retirement income shall be recomputed on the basis of his total period of credited state service, excluding any period for which retirement salary was paid under (1) or (2) of subsection (c), and with his base salary recomputed on the basis of his three highest-paid years of his total state service.
You note in your letter, this section appears to apply to retired employees of the state-aided institutions, because it relates to reentering "state service." As discussed, supra, we are required to apply the definition of "state service" contained in section 5-154(m) of SERA, which includes service at the state-aided institutions. This definition has been modified, however, by Conn. Gen. Stat. § 5-192nn explicitly precludes individuals who are "employed or reemployed by Newington Children's Hospital, the American School for the Deaf or the Connecticut Institute for the Blind on or after January 1, 1993" from becoming members of SERS. It also provides:
(Emphasis added).
The provisions of section 5-164a concern "reemployment" of SERS members who retire. Section 5-192nn precludes all employees of the state-aided institutions who are "reemployed" by these institutions after December 31, 1992 including those who retire and subsequently are reemployed there, from membership in the retirement system. Section 5-192nn also prohibits counting as service for retirement purposes all service at state-aided institutions rendered after December 31, 1992, if there is a break in employment after that date. These provisions must be read together to create a consistent whole. See cases cited supra. We are also compelled to give meaning to all words, phrases and sentences in a statute. Nizzardo v. State Traffic Commission, 259 Conn. 131, 163 (2002). Despite the questions about the public policy merits of this statutory scheme, if we were to apply to employees of the state-aided institutions section 5-164a's prohibitions on reemployment of members, and its award of additional years of service to those reemployed retired employees who make contributions, we would be rendering the above-discussed provisions of section 5-192nn superfluous. For these reasons, section 5-164a does not apply to any employees of the state-aided institutions who retire after December 31, 1992. This would include employees who retire pursuant to the 2003 ERIP and return to their employment with the state-aided institutions.
In summary, we conclude that the employees of Newington Children's Hospital, the American School at Hartford for the Deaf, and the Connecticut Institute for the Blind may participate in the 2003 Early Retirement Incentive Program established in Conn. Pub. Act No. 03-02. These individuals constitute "state employees" under the state retirement act and the ERIP provisions, pursuant to Conn. Gen. Stat. §§ 5-154(l) and (m). Principles of statutory construction, which require interpretation of all provisions of a statutory scheme as a consistent whole, also establish that service at the state-aided institutions constitutes "actual state service". This is the other relevant requirement for participation in the ERIP, pursuant to Pub. Act No. 03-02 § 6(b)(A)(2). Therefore, the employees of the state-aided institutions are covered by the 2003 ERIP and are entitled to benefits in accordance with its provisions.
These same employees, however, may not add to their years of service by becoming reemployed after retirement pursuant to Conn. Gen. Stat. § 5-164d. Similarly, they are not covered by section 5-164a's ban on reemployment with the state-aided institutions during retirement. If there are reservations about these conclusions on public policy grounds, the legislature may consider amending Section 5-164a(c) to make the reemployment restrictions currently applicable to state employees, directly applicable to employees of state-aided institutions who are members of SERS and who are reemployed after December 31, 1992.
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
1Newington Children's Hospital has become part of the Connecticut Children's Medical Center. Therefore, all references in this opinion to employees of Newington Children's Hospital are to those individuals formerly employed by Newington Children's Hospital who have continued their employment with the Children's Medical Center.
2In using a statutory term the General Assembly is presumed to act with knowledge of the use of the term in other related statutes and with the intention to create a consistent body of law. Lopresto v. State Employees' Retirement Commission, 234 Conn. 424, 436 (1995); see Seymour v. Elections Enforcement Commission, 255 Conn. 78, 95 (2000).
3 Tier I members are those whose service commenced before July 1, 1984. See Conn. Gen. Stat. § 5-192e.
4Conn. Gen. Stat. § 5-174(a), and related statutes, permit retirement system members to purchase retirement credit for time spent in service to employers whose employees are not covered by the retirement act and in other pursuits specified by the retirement act.
5Conn. Gen. Stat. § 5-193nn(a) prohibits those who are employed or reemployed by the state-aided institutions on or after January 1, 1993 from membership in SERS.