Attorney General's Opinion
Attorney General, Richard Blumenthal
May 23, 2003
William J. Sudol
Administrator, State of Connecticut
State Teachers' Retirement Board
21 Grand Street
Hartford, CT 06106-1500
Dear Mr. Sudol:
You have requested advice regarding the Early Retirement Incentive Program (ERIP) enacted in 2003 Conn. Pub. Acts No. 03-02. This retirement program was extended by the legislature to state employees who are members of the State Teachers' Retirement System (TRS or the system) in 2003 Conn. Spec. Acts No. 03-02.
You have posed three specific questions:
A member who was employed from September 1, 1993 through June 30, 2003 would be credited with 10 years of actual state service in the TRS. However, since the provisions of HB 6673 [Pub. Act No. 03-02] do not permit a member to work beyond May 31, 2003, does the [Teachers' Retirement] Board have any discretionary authority to allow credit for the full academic year 2002-2003 if the member has completed his academic responsibilities in May 2003 and makes mandatory contributions for the full school year?
Would the Board have any discretion to permit credit for the month of June 2003 if the member is not serving in a teaching capacity and such month of service is necessary to meet the minimum service requirement of ten years of state service?
In regard to your first question, we conclude that you are correct in your assumption that the same service is required of retiring teachers as is required of other state employees retiring under the ERIP - ten years of actual state service. This cannot include either credited service with other employers purchased pursuant to the Teachers' Retirement Act, Conn. Gen. Stat. §§ 10-183b to 10-183pp [hereinafter the Act or the TRA] or teaching service with other employers which qualifies as actual service under the TRA. See Conn. Gen. Stat. § 10-183e(a). The response to your second and third questions is that exercise of the discretion you indicated is precluded by the statutes governing the Teachers' Retirement System as well as the specific provisions of the ERIP.
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 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.
The language used in Special Act 03-02 to describe the parameters for participation in the ERIP by TRS members makes clear that these members must meet the service requirements described in Public Act 03-02. Section 2 of the Special Act reads, in relevant part, as follows:
Subsection 6(b) of Public Act 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 May 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 provisions of the early retirement program explicitly require ten years of actual state service. 2003 Pub. Acts No. 03-02 §6(b)(A)(2). This prerequisite to participation must be applied to TRS members, based on the language of Special Act 03-02 specifically applying these provisions to TRS members.1
This office has recently issued an opinion interpreting the term "actual state service" in the ERIP legislation to include only the time actually spent in state service, "as opposed to 'the constructive or hypothetical state service acquired by the purchase of "credited" state service.'" Letter to Honorable Senator Kevin B. Sullivan, President Pro Tempore, Connecticut Senate, dated May 22, 2003, (quoting 82 Conn. Op. Atty. Gen. (7/28/82) at 4 (Letter to Secretary Caldwell)); accord, 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 Public Act 03-2.
In personal communications, you have also asked whether ten years of actual service as a teacher2 for employers other than the state can be counted as the qualifying service for the 2003 ERIP. Such service is counted for retirement purposes under the Teachers' Retirement Act. Conn. Gen. Stat. §§ 10-183b(20), (26); 10-183e(a). Public Act 03-02, however, requires ten years of "actual state service." 2003 Pub. Acts No. 03-02 § 6(b)(A)(2) (emphasis added). Special Act 03-02 has no provision altering this prerequisite. We cannot read the term "state" out of the statute, because this would render that word superfluous, contrary to rules of statutory construction.3 See cases cited supra, note 1. Therefore, teachers must have ten years of service to the state in order to qualify for the retirement incentive program.
Your second and third questions concern the power of the Board to award credit for state service for the month of June 2003.4 The 2003 ERIP requires retirement by June 1, 2003. 2003 Conn. Pub. Acts No. 03-02, § 6(b)(A)(1). Pursuant to the Teachers' Retirement Act, teachers must work for ten months, which the Board has counted as September through June, in order to receive one year of retirement credit. Conn. Gen. Stat. § 10-183e(a). They can, however, receive nine-tenths of a year's credit if they complete nine out of the ten months of service. The problem you have identified is that there are teachers who would qualify for the ERIP if they could retire July 1, 2003, who will not have the requisite ten years of state service by June 1, 2003. You have asked if the Board has the discretion to award these teachers an extra month of service. Our answer is that neither the provisions of the statutes governing the ERIP, nor those governing the Teachers' Retirement System, grant the Board the authority to increase the credited service of a member in this manner.
When we are examining government pension systems, we must always keep in mind that these systems are controlled by statute or other law. There is no discretion in the administering body to award benefits in any manner other than within the strict confines of the governing laws. Fennell v. City of Hartford, 238 Conn. 809, 818 (1996).
Section 10-183e(a) of the Connecticut General Statutes prescribes the method for converting an academic year into a year of service under the Teachers' Retirement Act. It reads, in relevant part, as follows:
Conn. Gen. Stat. § 10-183e(a). This statute precludes crediting one year of service if only nine months of the school year have elapsed.
Section 10-183n(a) of the General Statutes directs teachers' employers to deduct retirement contributions from teachers' salaries for ten months. It requires employers to "deduct each month seven percent of one-tenth of such teacher's annual salary rate as directed by [the] . . . Board." For the academic year 2002 to 2003, the Board has previously directed that contributions be collected from September through June. Memo to All MSA Payroll Users Subject to the Teacher's Retirement System, from John W. Coughlin, Accounting Manager, TRB, dated July 24, 2002. This is consistent with the delineation of a school year as ending "June thirtieth of each year", Conn. Gen. Stat. § 10-183b(22).
The Board lacks discretion to ignore the statutory provisions regarding crediting teacher service as previously interpreted by the Board. Therefore, the Board may not give credit for a full year of service if a member terminates his/her employment before the ten-month academic period is over.
This conclusion is buttressed by examination of the statutes governing retirement in the State Employees Retirement System, which is a related statutory scheme. Teachers employed by the state may elect to participate in either the Teachers' Retirement System or SERS, pursuant to Conn. Gen. Stat. § 5-160(g).5
The State Employees Retirement Act which applies only to members of SERS, has a specific provision that addresses the situation raised in your second question - the retirement on June 1 of a teacher whose teaching responsibilities have been concluded by that time. Conn. Gen. Stat. § 5-154(m)(7) provides:
Section 5-154(m)(7) explicitly awards credit to SERS members for an entire year of service to teachers retiring June 16 who have no remaining teaching responsibilities. There is no similar provision in the Teachers' Retirement Act. It is presumed that the differences which are incorporated by the legislature in similar statutory schemes are intentional. State v. McMahon, 257 Conn. 544, 561 (2001); Board of Education v. State Board of Labor Relations, 217 Conn. 110, 118 (1991). If the legislature had intended to provide the same benefits to teachers in the Teachers' Retirement System as it did for those in SERS it would have done so. See Laliberte v. United Security, Inc., 261 Conn. 181, 187 (2002); Connelly v. Commissioner of Correction, 258 Conn. 394, 409 (2001). You are therefore unable to allow any teacher who retires June 1, in the Teachers Retirement System, credit for a full year of service.
The provisions of prior, similar, legislation extending the benefits of a previous statutory early retirement incentive program to the members of the TRS also support the conclusion that the Board lacks discretion to award a full year of service to any teacher who retires June 1. The legislature enacted an early retirement program in 1997 which was similar to the 2003 ERIP. The legislation extending this program to TRS members differed from the provision we are analyzing today in one important respect. The 1997 statute provided for the exercise of some discretion by the Board, which was directed to "develop" a program for TRS members "comparable to" that prescribed by the legislation that created the 1997 ERIP. 1997 Spec. Acts No. 97-21 § 81 Layoffs (C). This language indicates a legislative intent to permit the Board to modify the retirement program to suit the particular circumstances of TRS members. No such intent is manifest in the language or legislative history of the special act which extended the 2003 ERIP to members of the TRS. See discussion supra p. 2. The 2003 act indicates that the requirements of the 2003 ERIP "shall apply" to TRS members. It is presumed that the General Assembly intends differences it enacts in similar statutory schemes. See cases cited supra p. 6. Therefore, the TRS lacks discretion to modify the explicit provisions of Public Act 03-2, which govern the 2003 ERIP.
The history of the legislation regarding the 2003 ERIP also indicates that the General Assembly intended the provisions of the ERIP to apply, without modification, to teachers. During the debate in the House of Representative, Representative McCluskey noted that the ERIP provisions required teachers to retire at the beginning of June, before the end of the academic year. Conn. H. Proc. 2003 Sess., 146-47 (March 19, 2003) (Remarks of Rep. McCluskey). This discussion occurred in the course of enacting provisions extending the ERIP retirement date for certain state employees. 2003 Spec. Acts No. 03-2, § 1. Notably, no state employees who are TRS members were included within this group.7 Furthermore, the legislative bill file regarding Special Act 03-2 contains a fiscal impact statement submitted by the legislature's Office of Fiscal Analysis which also notes that ERIP participants in the TRS will be required to retire before the end of the academic year. The statement estimates that the cost of rehiring these individuals could offset the expected savings from the ERIP's extension to teachers in fiscal year 2003. Although the fiscal impact statement “contains an express caveat that it 'does not represent the intent of the General Assembly'…the statement nevertheless is instructive.” Johnson v. Commissioner of Correction, 258 Conn. 804, 825 n. 22 (2002). Since we must look to legislative history in the course of statutory construction, see cases cited supra p. 2, these statements indicate that the General Assembly intended to apply the restrictions on retirement dates under the ERIP to teachers, regardless of the consequences to the administration of schools and the retirement system.
Based on the above analyses of the legislative history and language of Special Act 03-2 and similar acts, we conclude that the Teachers' Retirement Board lacks authority to give any teachers in the Teachers' Retirement System retirement credit for the month of June 2003 if they retire on June 1. Since this month is required by statute in order to award a full year of service in the Teachers' Retirement System, those members who need the 2002-03 academic year in order to qualify for the ERIP may not retire under its provisions. We thus answer your questions two and three in the negative. With regard to question one, you are correct in concluding that teachers must have ten years of employment by the State of Connecticut in order to qualify for the 2003 ERIP.
Very truly yours,
Assistant Attorney General
1It is not necessary that teachers' ten years of service be service "in the SERS [State Employees Retirement System]" in order to comply with subsection 6(b)(A)(2). This would clearly render the extension of the ERIP to those in the Teachers' Retirement System meaningless, a result which we must eschew. E.g., Connelly v. Commissioner of Correction, 258 Conn. 394, 411; Hartford Hospital v. Department of Consumer Protection, 243 Conn. 709, 718 (1998).
2 Conn. Gen. Stat. § 10-183b(26) includes supervisory and administrative school personnel and members of the professional staffs of the State Board of Education, the Board of Governors of Higher Education, and any of the latter's constituent units as “"eachers" covered by the Teachers' Retirement Act. In this opinion, the term “teachers” includes all such qualified individuals.
3 Unlike the requirement of service "in the SERS," which is also contained in Public Act No. 03-02 § 6(b), we can give effect to the “state” service requirement and accomplish the legislature's purpose of extending the benefits of the ERIP to members of the Teachers' Retirement System. See discussion, supra note 1.
4Although you have specifically inquired concerning those who have no academic responsibilities in June, 2003, there is no statutory basis in the TRA for treating these members differently than those whose teaching or other responsibilities extend into June. Therefore, our conclusion makes no distinction between these two groups.
5Pursuant to Conn. Gen. Stat. § 5-160(g), teachers must make this election within one month after they begin employment. If teachers do not indicate their intent by this time they are automatically included in the State Employees Retirement System.
6The retirement date for SERS members is always on the first day of the month. E.g., Conn. Gen. Stat. §§ 5-162(c)(1), (2), (d)(1), (2), 5-192l(a), (b), (e), 5-192m(a), 5-192n(a). In the Teachers' Retirement System, as well, benefit eligibility commences on the first day of the month after the retirement application is filed. Conn. Gen. Stat. § 10-183g(g). Because of this, the earliest retirement date that would be covered by section 5-154(m)(7) is June 1.
7 State employees who are TRS members were similarly excluded from the section on Public Act 03-02 which allows employees of specified agencies to apply for an extension of their retirement dates until June 1, 2004. 2003 Conn. Pub. Acts No. 03-02, § 6(b)(B). This exclusion of teachers from the specified groups which are permitted to retire after June 1, 2003 must be assured to be purposeful. See cases cited supra p. 6.