STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6540

September 22, 1988

RETIREMENT SYSTEMS:

Municipal Employees Retirement System--transfer to system of members of county police department pension system through collective bargaining agreement

A group of deputy sheriffs who are members of a county police department pension system may, pursuant to the public employment relations act, negotiate a collective bargaining agreement with the county board of commissioners and the county sheriff to provide for the transfer of their membership and the transfer of all contributions on their behalf by their employer to the Michigan Municipal Employees Retirement System.

Honorable John Engler

State Senator

The Capitol

Lansing, Michigan 48909

Honorable Joanne G. Emmons

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion concerning the transfer of the Mecosta County sheriff's deputies from the Mecosta County police department pension system established pursuant to the fire and police department pension system act, 1937 PA 345, MCL 38.551 et seq; MSA 5.3375(1) et seq, to the Michigan Municipal Employees' Retirement System established pursuant to the Municipal Employees Retirement Act of 1984, 1984 PA 427, MCL 38.1502 et seq; MSA 5.4001(1) et seq, hereafter MERS. The transfer was in accordance with a collective bargaining agreement between the Mecosta County Board of Commissioners and the Sheriff of Mecosta County and the Police Officers Association of Michigan, on behalf of the deputy sheriffs of Mecosta County.

In pertinent part, the agreement provides:

Your question may be stated as follows:

The public employment relations act (PERA), 1947 PA 336, MCL 423.201 et seq; MSA 17.455(1) et seq, governs collective bargaining between public employers and employees of public agencies, including municipal firefighters, police officers, and county sheriff deputies. MCL 423.215; MSA 17.455(15), provides in relevant part:

In Local 1383, International Ass'n of Firefighters, AFL-CIO v City of Warren, 411 Mich 642; 311 NW2d 702 (1981), the Michigan Supreme Court determined that collective bargaining agreement provisions concerning firefighters' promotions made pursuant to PERA prevail over statutes concerning police and fire civil service, and prevail over conflicting provisions in the city charter. The court observed:

It follows that where there are provisions in a statute which conflict with the terms of the collective bargaining agreement, the terms of the collective bargaining agreement prevail over the conflicting statutory provisions. While the MERS statute contains provisions governing entry and exit from the system, the fire and police department pension system act contains no such provisions. However, this is not a problem in view of the dominance of PERA. In OAG, 1983-1984, No 6244, p 363, 369 (August 31, 1984), it is stated:

Changes in the retirement plans for municipal police officers and firefighters are mandatory subjects of collective bargaining. Detroit Police Officers Ass'n v. Detroit, 391 Mich 44, 63; 214 NW2d 803 (1974); Detroit Firefighters Ass'n v Detroit, 127 Mich App 673, 677-678; 339 NW2d 230 (1983). Thus, under PERA, the substance and procedure of transferring from one retirement system to another may be governed by a collective bargaining agreement if therein so provided.

You have also raised the question whether contributions of the employer on behalf of the deputies to the fire and police department pension system are subject to transfer to the MERS. Your concern appears to be that the transfer of the contributions may jeopardize the ability of that system to meet the county's obligations to the employees and retirees who remain within that system.

Response to this question is controlled by the terms of the collective bargaining agreement here involved. It provides that "all employees of the bargaining unit and the contributions on their behalf in the Mecosta County Act 345 retirement system shall be transfered ...." The agreement makes no distinction between employee and employer contributions. There is nothing in the agreement to suggest any limitation on the basis of the source of the contributions. The agreement speaks for itself in covering contributions made on behalf of the employees in the bargaining unit and on hand at thetime of transfer regardless of either amount or source. It is clear and requires no interpretation. The contributions subject to transfer are all contributions on hand at the time of transfer regardless of the source of those contributions.

Collective bargaining agreements affect only those employees who are covered by the agreement and would, therefore, not affect supervisory personnel or retired employees who do not participate in the collective bargaining process. It is noted that supervisory and executive personnel are separate from the regular employees for collective bargaining purposes. Mich Educational Ass'n v Clare-Gladwin Intermediate Sch Dist, 153 Mich App 792; 396 NW2d 538 (1986). It should also be observed that retired employees have discontinued their employment and have retired from service in order to qualify for pensions and benefits payable under the fire and police department pension system act. MCL 38.556; MSA 5.3375(6).

Const 1963, art 9, Sec. 24, p 1, provides:

Since accrued retirement benefits are constitutionally protected contractual rights, the state and county are constitutionally obligated to pay the beneficiaries their accrued benefits, which may not be diminished or impaired. Thus, if the proposed transfer of funds under the union contract would leave the county police department pension system without sufficient resources to pay the accrued benefits due to the employees and retirees who remain in the system, the county would be obligated to provide the necessary funds to assure payment of those benefits. Employees not covered by the collective bargaining agreement remain in that system and their constitutionally protected contractual rights remain unimpaired. Const 1963, art 9, Sec. 24.

It is my opinion, therefore, that a group of deputy sheriffs who are members of a county police department pension system may, pursuant to the public employment relations act, negotiate a collective bargaining agreement with their employer, through their collective bargaining agent, to provide for the transfer of their membership and the transfer of all contributions made on their behalf by their employer to the Michigan Municipal Employees Retirement System.

Frank J. Kelley

Attorney General