STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5751

August 1, 1980

COUNTIES:

Credit for prior service with the county department of social services

RETIREMENT SYSTEM:

Credit for prior service with the county department of social services

A person employed by a county department of social services at the time of the merger of the county department with the state department of social services who thereafter became a member of the State Employee's Retirement System may claim prior service credit with the county department of social services even though the member may have left state employment following such merger and subsequently returned to state employment prior to the date of his or her retirement, provided that the member must give up all claims to a county pension for the same services rendered to the county department of social services prior to the merger, and pays into the state system a contribution of $600 for each year of service claimed.

Michael J. Hackett

Prosecuting Attorney

County of Cheboygan

County Building

Cheboygan, Michigan 49721

You have requested my opinion with respect to the following question:

1943 PA 240, Sec. 17c, as added by 1976 PA 227; MCLA 38.17c; MSA 3.981(17c), which authorizes the purchase of state employees' retirement system service credit for periods of service under a county department of social services, provides as follows:

This section authorizes any member of the state employees' retirement system who retires on or after January 1, 1975 to purchase the service credits in question, if the other requirements of the section are satisfied. All of the provisions of this section appear to be clear and unambiguous, with the exception of the clause 'who is an employee of a county department of social services.'

A literal interpretation of that clause, our of context, would require that a member of the state employees' retirement system be an employee of a county department of social services at that point in time when he or she retires in order to be eligible to purchase such credits. Such an interpretation would prevent the exercise of the option provided and the payment of the contributions required until such time as an application for retirement is being processed. This interpretation must be rejected as unreasonable in light of the legislative history of amendatory 1976 PA 227, supra.

Where ambiguity exists in a statute, legislative history may be considered in determining legislative intent. Wayne County Republican Committee v Wayne County Board of Commissioners, 70 Mich App 620; 247 NW2d 571 (1976).

1976 PA 227 was introduced on March 25, 1975 as HB 4716, and proposed section 17c (as introduced, section 17b) read:

While the House made certain changes in the language of HB 4716, the introductory phrase 'An employee of a county department of social services who was merged and placed . . .' was not altered. HB 4716 passed the House on June 17, 1976. 2 House Journal, 1976, p 2120.

The Senate Committee on Health, Social Services and Retirement on June 23, 1976 reported out HB 4716 with a recommended amendment that the following introductory language to section 17c be inserted: 'Any member retired on or after January 1, 1975 who is' 'an employee of a county department of social services who was merged and placed. . . .' [underscored language original introductory language of HB 4716.] 2 Senate Journal, 1976, p 1390. HB 4716 as amended was referred to the Committee of the Whole, which recommended passage. 2 Senate Journal, 1976, p. 1551. On July 2, 1976, HB 4716 as amended was passed by the Senate. 2 Senate Journal, 1976, p 1696.

HB 4716, as amended by the Senate, received House concurrence on July 2, 1976, 3 House Journal, 1976, p 2556, and was approved by the Governor on August 4, 1976, becoming 1976 PA 227, a two-section act.

When the introductory clause in question is considered in context, together with its companion dependent clause 'who was merged and placed under the employment of the state Department of Social Services pursuant to Act No. 280 of the Public Acts of 1939, as amended,' and in light of its legislative history, it becomes apparent that 1943 PA 240, Sec. 17c, supra, must be interpreted to refer to persons who were employees of county departments of social service on the date when such county departments were merged with the state department of social service and, as a consequence thereof, were required to become members of the state civil service system, at which point they ceased to be county employees and became state employees.

All of the other provisions of 1943 PA 240, supra, which authorize the purchase of out-of-system service credits contemplate that the purchase of out-of-system service credits may be made at any time prior to the effective date of retirement, at the option of the member purchasing such credits. MCLA 38.17, 38.17d, 38.18; MSA 3.981(17), 3.981(17d), 3.981(18). None of these provisions requires that a member remain an employee of any agency or department until his or her retirement in order to be eligible to purchase the retirement credits in question.

We must next consider whether all employees of county departments were placed under the employment of the state department of social services at the time of the merger of county departments with the state Department of Social Services.

The Social Welfare Act, 1939 PA 280, Sec. 45(5), as last amended by 1978 PA 224, MCLA 400.45(5); MSA 16.445(5), set forth below in pertinent part, has not been changed since the enactment of 1965 PA 401, Sec. 101, MCLA 400.101; MSA 16.490(11), which latter statute provided for the merger of county and state departments of social services:

Did the above-quoted provision mandate that on and after the effective date of 1965 PA 401, supra, (October 27, 1965) all employees of county departments of social service would become state employees? As discussed in OAG, 1967-1968, No 4607, p 174 (February 6, 1968), the merger of county and state departments of social services resulting from 1965 PA 401, supra, was incomplete; county departments retained some exclusive county functions with respect to which they operated as separate legal entities. It follows that employees of county departments who performed services only with respect to exclusively county programs remained county employees until July 1, 1967, at which time all employees of county departments were required to become members of the state civil service system. 1965 PA 401, Sec. 101, supra. Since July 1, 1967, all persons performing services for county departments of social service have been required to be state employees and not employees of the county for which such services are performed.

It is my opinion that in order to exercise the option provided in 1943 PA 240, Sec. 17c, supra, a member of the state employees' retirement system is not required to be an employee of a county department of social service at the time of his or her retirement. What is required is that the affected member was an employee of a county department of social services at the time of its merger with the state Department of Social Services and, as a result thereof, became an employee in the classified civil service of this state and a member of the state employees' retirement system. A person who became a member of the state employees' retirement system as outlined above, and who thereafter left state employment, may upon his or her return to state employment, purchase service credits under 1943 PA 240, Sec. 17c, supra, upon satisfying the provisions of section 16 of 1943 PA 240, as amended, supra, MCLA 38.16; MCLA 3.981(16). That section provides that a member who separates or is separated from state service without leave of absence before becoming eligible to retire shall cease to be a member and shall forfeit credit for all services rendered prior to the date he or she last separated from state service. If an individual so separated from state service again becomes employed by the state, he or she shall again become a member and if the re-entry into state service occurs within 5 years of the last separation, or he or she accumulates 5 or more years of continuous service credit as a member of the system after re-entering state service, the forfeited service credit shall be restored, if he or she has not withdrawn accumulated contributions or returns to the fund all amounts previously withdrawn, together with regular interest thereon computed from the date of withdrawal to the date of repayment.

It must be emphasized that before the member may purchase such service credit, the member must give up all claims to a county pension for the same service rendered to the county department of social services prior to the merger, and pay into the state employees' retirement system a contribution of $600 for each year of service claimed. 1943 PA 240, Sec. 17c, supra.

It is, therefore, my opinion that a person employed by a county department of social services at the time of its merger with the State Department of Social Services, and who thereafter left state service but returned to state service prior to his or her retirement, may as a member of the State Employees' Retirement System purchase service credit for services rendered the county department of social services prior to its merger with the State, subject to 1943 PA 240, Sec. 17c, supra, provided that any county pension claims for pre-merger services must be given up, and a contribution of $600 for each year of service claimed by paid the state system.

Frank J. Kelley