STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5988

October 1, 1981

RETIREMENT SYSTEMS:

Credit for service rendered to an employee representative organization

The Legislature has not authorized service credit for public school teachers or administrators employed by school districts other than a school district of the first class for services rendered an employee representative organization.

A public school teacher or administrator rendering part-time service to a teacher representative organization and part-time service to the school district other than a school district of the first class may receive partial service credit for school district service in accordance with 1980 PA 300 and administrative rules in force.

Mr. Norvel A. Hansen

Bureau of Retirement Systems

Stevens T. Mason Building

Lansing, Michigan 48909

You have requested my opinion on the following questions:

You have provided certain details regarding the relationship between the members concerned and their respective school districts. You have advised that the members involved are under contract to their respective school boards in school districts other than those of the first class. In the majority of instances, the contract provides that the member is 'released' from normal duties, classroom or administrative time, in order to serve as an employee organization representative or officer. The amount of 'release time' accorded these employees ranges from a release from all regular teaching or administrative duties to a release for 1/2 day per working week. In all instances, the member receives a full-time salary from the school district. However, by agreement, many of the school districts receive funds from the employee organization in an amount sufficient to partially or fully reimburse the school district for that part of the member's salary attributable to the 'release time.' In one instance, the public school employment contract grants the employee a formal leave of absence from all regular duties while maintaining the member on the school district payroll with the understanding that the employee organization will reimburse the school district for the full salary and cost of all fringe benefits for that member.

The Public School Employees' Retirement Act of 1979, 1980 PA 300; MCLA 38.1301, et seq.; MSA 15.893(111), governs the retirement system for employees of Michigan public schools who are members.

1980 PA 300, supra, Sec. 71(5); MCLA 38.1371(5); MSA 15.893(181)(5), directly addresses the question presented in that it provides:

1980 PA 300, supra, both repeals, and in large part, reenacts 1945 PA 136; MCLA 38.201 et seq; MSA 15.893(1) et seq.; in consolidated form. 1980 PA 300, Sec. 71(5), supra, is the successor provision to section 21 of Chapter II of 1945 PA 136, which had been inserted into the now repealed statute by 1954 PA 170. From 1954 to the present, the expression of legislative intent with regard to the question presented, which intent is now expressed in 1980 PA 300, Sec. 71(5), supra, has remained unchanged in material respects.

Since 1954, only members of the public school employees' retirement system employed by a first-class school district who represent fellow employees in employment matters may be allowed membership service credit for time so engaged. As the Detroit school district is and has been the only district of the first class, only employees of the Detroit Board of Education may qualify under 1980 PA 300, Sec. 71(5), supra. It, therefore, follows that members of the retirement system, who are employees of other than first class school districts and who prompted the question presented here, are not eligible for membership service credit for time spent serving employee organizations.

Any contention that these employees are included in the class of employees entitled to membership credit under the provisions of 1980 PA 300, Sec. 71(5), supra, must be rejected in light of the totality of circumstances. The use of the terminology 'release time' in lieu of 'leave of absence' and the inclusion in the contracts in question of a provision whereby the school districts are reimbursed for that part of the individual's salary attributable to the 'release time' constitute an attempt on the part of school districts and employee organizations to avoid the first class school district limitation of 1980 PA 300, Sec. 71(5), supra, and qualify individuals for retirement service credit for service otherwise not cognizable under 1980 PA 300, supra. While the Public Employee Relations Act, 1947 PA 336; MCLA 423.201 et seq; MSA 17.455(1) et seq., expresses the Legislature's support for the collective bargaining process in the area of public employee/employer relations, it has been held that such negotiations on an employment issue are not to be engaged in if controlled by a specific state law. Detroit Police Officers' Association v City of Detroit, 391 Mich 44; 214 NW2d 803 (1974). 1980 PA 300, supra, is such a controlling statute and section 71(5), supra, expresses the Legislature's will regarding the class of persons eligible to receive retirement service credit for time engaged in employee organization activities. Thus, non first class school districts may not, through the collective bargaining process, qualify time engaged in employee organization activity for retirement service credit under 1980 PA 300, supra, where the Legislature has expressly granted such authority to only first class school districts.

It is my opinion, therefore, that the employees of school districts other than those of the first class are not entitled to receive retirement service credit for any period with respect to which they are engaged in employee organization activities.

In view of my answer to your first question, I shall now proceed to your second question. Employees of school districts other than those of the first class are entitled to retirement service credit for time spent performing personal service for their respective school districts; they are not entitled to service credit for the time they are on 'release time' for employee organization activities. If 'release time' activities are not performed throughout the school fiscal year, they are entitled to service credit in the proportion that their part time service bears to full time service in accordance with 1980 PA 300, Sec. 68; MCLA 38.1368; MSA 15.893(178), 1979 MAC, R 38.230 through R 38.234. These rules, promulgated under 1945 PA 136, continue in effect under 1980 PA 300 pursuant to the Administrative Procedures Act of 1969, 1969 PA 306, Sec. 31(2); MCLA 24.231(2); MSA 3.560(131).

It is my opinion, therefore, that where the 'release time' or leave of absence to engage in employee organization activities is coextensive with a school fiscal year, an employee of a school district not of the first class so engaged would not receive any retirement service credit for that school fiscal year. The Legislature may extend the provisions of 1980 PA 300, Sec. 71(5), supra, to include the persons in question.

Frank J. Kelley