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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5976 September 11, 1981 RETIREMENT SYSTEMS: Surviving spouse of member of firemen/policemen pension system receiving disability pension The surviving spouse of a member receiving a disability pension from a firemen/policemen pension system who failed to elect an option in favor of the spouse is not entitled to receive a pension equal to 60% of the disability pension the deceased retirant was receiving. Honorable David Plawecki State Senator The Capitol Lansing, Michigan You have requested my opinion on the following question: Under 1937 PA 345, when a member has retired after July 1, 1975 with a disability pension, is has pension recomputed at age 55, regardless of his years of service, with the 60% spouse survivor benefit applicable? 1937 PA 345; MCLA 38.551 et seq; MSA 5.3375(1) et seq, provides for the establishment, maintenance, and administration of a system of pensions for the personnel of municipal fire and police department upon favorable vote of the electors of a municipality. The retirement system is administered by a retirement board composed of five members. 1937 PA 345, supra, Sec. 1. The retirement board is a creature of the Legislature and its powers have been enumerated by the Legislature. OAG, 1973-1974, No 4811, p 126 (February 12, 1974). The provisions governing the payment of pension benefits to members and their beneficiaries are contained in 1937 PA 345, supra, Sec. 6(1)(h), which, in pertinent part, provides: 'Before the effective date of his retirement as provided in this subdivision, but not thereafter, a member may elect to receive his benefit in a pension payable throughout his life called a regular retirement pension, or the member may elect to receive the actuarial equivalent, computed as of the effective date of retirement, of his regular retirement pension in a reduced retirement pension payable throughout his life, and nominate a survivor beneficiary, in accordance with option I or II as hereinafter set forth. Upon the death of a retirant who retires on or after July 1, 1975, and who is receiving a regular retirement pension, his or her spouse, if living, shall receive a pension equal to 60% of the straight life pension the deceased retirant was receiving. Benefits shall not be paid under this subdivision on account of the death of a retirement if the member elected to receive his pension under either option I or II provided for in this subdivision. . . .' Duty disability benefits are provided for in 1937 PA 345, Sec. 6(2)(d), supra, which states, in relevant part: 'Upon retirement for [duty] disability as provided in the subparagraph, a member who has not attained age 55 years shall receive a disability retirement pension of 50% of his average final compensation; the average final compensation to be determined according to subdivision (1)(f), and shall be payable to his attainment of age 55 years. Upon attaining age 55 years, the disabled member shall receive a disability pension computed according to subdivision (1)(e). In computing the pension the member shall be given service credit for the period of receipt of a disability pension before attainment of age 55 years. . . . The disability pension provided for in this subparagraph shall be subject to subparagraphs (f) and (g).' 1937 PA 345, Sec. 6(2)(e), supra, provides nonduty related disability retirement benefits based on the number of years of service and the age of the retirant. It should be noted that the benefits under this subparagraph are also 'subject to subparagraphs (f) and (g).' In 1937 PA 345, Sec. 6(2)(f), supra, the Legislature has, in part, provided: 'Within 60 days before attainment of age 55 years, or before retirement from service if retirement occurs after attainment of age 55 years, a disabled member who is retired as provided in subparagraph (d) or (e) may elect to continue to receive a disability retirement pension as a benefit terminating at death, to be known as a regular disability pension, or may elect to receive the actuarial equivalent, at that time, of a regular disability retirement pension in a reduced disability retirement pension payable throughout life in accordance with option I or II provided in subdivision (1)(h). If a disabled member fails to elect an option, as herein provided, before attainment of age 55 years or before retirement, his retirement pension shall be paid to him as a regular disability pension terminating at death. If a disabled member who has not elected option I or II dies before the total of his regular disability pension payments received equals or exceeds the total of his contributions made to the retirement system, the remainder, if any, shall be paid in a single sum to the person or persons nominated by the member by written designation duly executed and filed with the board. . . .' It is a cardinal rule of construction that the Legislature must be held to intend the meaning which it has plainly expressed, and in such cases there is no room for construction or attempted interpretation to vary such meaning. Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971). 1937 PA 345, Sec. 6(2)(g), supra, which applies to both duty and nonduty disability pension benefits, contains no provision granting a surviving spouse 60% of a retirant's disability pension, as does subsection (1) thereof as it relates to regular retirement pensions. In light of the careful distinctions drawn in 1937 PA 345, Sec. 6, supra, between 'regular age and service retirement' in subsection (1) and 'disability and service connected death benefits' in subsection (2), the omission of the 60% surviving spouse benefit is significant. (1) The significance of that omission is heightended by the fact that 1937 PA 345, Sec. 6(2)(9), supra, specifically adopts by reference 'option I and II provided in subdivision (1)(h).' The Legislature must be presumed to have knowledge of existing statutes and laws when amending a statute. Skidmore v Czapiga, 82 Mich App 689; 267 NW2d 150 (1978), lv den, 403 Mich 810 (1978). When 1975 PA 147 added the three sentences to the present 1937 PA 345, Sec. 6(1)(h), supra, to provide for the 60% of the retirant's benefit for surviving spouses, it made only minor grammatical changes to 1937 PA 345, Sec. 6(2)(g), supra. The Legislature has since twice amended 1937 PA 345, Sec. 6, supra, making only grammatical changes in both subsections (1)(h) and (2)(g) without inserting any language carrying over the surviving spouse's 60% retirement benefit to (2)(g). It is my opinion, therefore, that the surviving spouse benefit provision of 1937 PA 345, Sec. 6(1)(h), supra, is not applicable to a surviving spouse of a member retiring after July 1, 1975 with a disability retirement pension. Frank J. Kelley Attorney General (1)
'Within 60 days before attainment of age 55 years, or before retirement from service if retirement occurs after attainment of age 55 years, a disabled member who is retired as provided in subparagraph (d) or (e) may elect to continue to receive a disability retirement pension as a benefit termining at death, to be known as a regular disability pension, or may elect to receive the actuarial equivalent, at that time, of a regular disability retirement pension in a reduced disability retirement pension payable throughout life in accordance with option I or II provided in subdivision (1)(h). . . .' (Emphasis added.)
MCLA 38.556(2)(d); MSA 5.3375(6)(2)(d) provides:
'. . . Upon attaining age 55 years, the disabled member shall receive a disability pension computed according to subdivision (1)(e) . . . The disability pension provided for in this subparagraph shall be subject to subparagraphs (f) and (g).'
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