[ Previous Page] [ Home Page ]
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. 6088 July 30, 1982 RETIREMENT AND PENSIONS: Police and fire retirement system--benefits for disabled members and spouses Upon the death of a member of a police and fire retirement system who, although disabled, retired under a regular service retirement benefit, the surviving spouse may receive a pension equal to 60% of the straight life pension received by the member at the time of death as provided in 1937 PA 345, Sec. 6(1)(h). A police or fire officer receiving a disability pension under the terms of 1937 PA 345, Sec. 6(2), may not thereafter, regardless of age or length of service, elect a regular service pension under 1937 PA 345, Sec. 6(1). Honorable Joseph Forbes State Representative State Capitol Lansing, Michigan 48909 You have requested my opinion on three questions concerning OAG, 1981-1982, No 5976, p 364 (September 11, 1981), and its interpretation of 1937 PA 345; MCLA 38.551 et seq; MSA 5.3375(1) et seq, which provides for the establishment, maintenance, and administration of a system of pensions for the personnel of municipal fire and police departments upon a favorable vote of the municipality's electors. The retirement system in question is administered by a five member retirement board. 1937 PA 345, supra, Sec. 1. The retirement board is a creature authorized by the Legislature and its powers have been ennumerated by the Legislature. OAG, 1973-1974, No 4811, p 126 (February 12, 1974). In the event that a deceased retirant who had been receiving a disability pension failed to elect an option in favor of his or her spouse, OAG No 5976, supra, concluded that the surviving spouse, under 1937 PA 345, supra, is not entitled to receive a benefit equalling 60% of the pension received by the deceased spouse. The payment of pension benefits to members and their beneficiaries is governed by 1937 PA 345, supra, Sec. 6. The 60% spouse benefit appears in the regular retirement based upon age and length of service subdivision contained therein. Specifically, 1937 PA 345, Sec. 6(1)(h), supra, 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 retirant if the member elected to receive his pension under either option I or II provided for in this subdivision. . . .' (Emphasis added.) Duty disability benefits are provided for in 1937 PA 345, Sec. 6(2)(d), supra, which states: '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. (2)(e), supra, provides nonduty related disability retirement benefits based on the number of years of service and the age of the retirant. Benefits under that subparagraph are also 'subject to subparagraphs (f) and (g).' In 1937 PA 345, Sec. 6(2)(g), supra, the Legislature has directed: '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. . . .' 1937 PA 345, Sec. 6(2)(g), supra, which applies to both duty and nonduty disability pension benefits, has no provision granting a surviving spouse 60% of the retirant's disability pension, unlike 1937 PA 345, Sec. 6(1), supra, which provides the benefit for regular age and service 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 a reference to a 60% surviving spouse benefit for disability retirants in subsection (2)(g) is determinative as held in OAG No 5976, supra. The significance of that omission is clear in view of 1937 PA 345, Sec. 6(2)(g), supra, which adopts by reference 'option I and II provided in subdivision (1)(h).' You pose the three following situations and ask my opinion with respect to each: Situation 1--Officer A starts with the police department at age 21 and at age 46 becomes duty disabled with 25 years of service credit. Officer A takes a job as a librarian and applies for his regular retirement at age 50. (1) Is the officer's spouse entitled to the 60% surviving spouse benefit of 1937 PA 345, Sec. (1)(h), supra? Situation 2--Officer B starts with the fire department at age 21 and at age 46 becomes duty disabled with 25 years of service credit. Officer B applies for and receives a duty disability pension, and prior to reaching age 50, applies for a regular service pension. Does being on the disability pension disqualify Officer B from receiving a regular service retirement? Situation 3--Officer C starts with the police department at age 21 and at age 45 becomes duty disabled with 24 years of service credit. Officer C applies for and receives a duty disability pension, and prior to age 50, applies for a regular service pension. Is Officer C entitled to a regular pension? Under the facts in Situation 1, Officer A elects not to accept disability retirement benefits provided by 1937 PA 345, Sec. 6(2), supra. Rather, the officer exercises the right to a deferred regular service retirement pursuant to 1937 PA 345, Sec. 6(1)(d), supra. Since the officer in Situation 1 will only receive a regular service retirement under 1937 PA 345, Sec. 6(1), his or her spouse, if living, may receive a pension equal to 60% of the straight life pension received by the member at the time of death pursuant to 1937 PA 345, Sec. 6(1)(h), supra. In Situation 2, Officer B (as opposed to the officer in Situation 1) elected a duty disability pension pursuant to 1937 PA 345, Sec. 6(2), supra. As a duty disability retirant, the officer will immediately receive a pension of 50% of his or her average final compensation. 1937 PA 345, Sec. 6(2)(d), supra. 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.' 1937 PA 345, Sec. 6(2)(d), supra. (2) Thereafter, a member's rights are determined by 1937 PA 345, Sec. 6(2)(g), supra, which provides: (3) '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).' As emphasized in OAG 5976, supra, it is a cardinal rule that the Legislature must be held to intend a meaning which it has clearly expressed, and in such case there is no basis for construction or attempted interpretation to vary such meaning. Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971). Moreover, the express mention in a statute of one thing implies exclusion of other similar things. Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530; 60 NW2d 444 (1953). 1937 PA 345, Sec. 6(2)(d) and (g), supra, enable an officer, who receives a disability retirement pension to choose at age 55 either a 'regular disability pension' or the actuarily reduced disability pension available under options I and II. Thus, the surviving spouse benefit provision of 1937 PA 345, Sec. 6(1)(h), supra, is not applicable to a surviving spouse of a member with a disability retirement pension. It is my opinion, therefore, that once a police or fire officer receives a disability pension under the terms of 1937 PA 345, Sec. 6(2), supra, he or she may not elect a regular service pension under 1937 PA 345, Sec. 6(1), supra. The same conclusion holds in Situation 3. Since Officer C is receiving a disability retirement pension, it is my opinion that he or she is not free to later switch to a regular service pension provided under 1937 PA 345, Sec. 6(1), supra. Frank J. Kelley Attorney General (1)
(2)
The formula contained in 1937 PA 345, Sec. 6(1). supra, provides that the retirement is computed by multiplying 2% of the members average final compensation by the first 25 years of service credited to the member plus 1% of the members average final compensation multiplied by the number of years, and fraction of a year, of service rendered by the member in excess of 25 years. The municipality may on approval of the legislative body or electors increase the percentage of the payment from 2% up to a maximum of 2.5%.(3)
Except for the medical examination requirements of 1937 PA 345, Sec. 6(2)(f), supra.
[ Previous Page] [ Home Page ]