STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6161

June 30, 1983

RETIREMENT AND PENSIONS:

Public school employees--prior service credit for student employment

STATUTES:

Retroactive effect

Members of the Public School Employees Retirement System may purchase prior service credit for student employment at a reporting unit in accordance with 1980 PA 300, Sec. 64(3), provided that such student employment service was earned on or after October 31, 1980.

Mr. Norvel A. Hansen

Executive Director

Public School Employees Retirement System

Department of Management and Budget

Stevens T. Mason Building

Lansing, Michigan

You have requested my opinion as to the authority of the Public School Employees Retirement Board to permit purchase of service credit pursuant to 1980 PA 300, MCLA 38.1301 et seq; MSA 15.893(111) et seq, Sec. 64(3), where the student employment for which purchase of service credit is requested was rendered prior to October 31, 1980, the effective date 1980 PA 300, supra. You have provided the following specific example with your request:

1980 PA 300, Sec. 64(1) and (3), supra, provide:

In 1980 PA 300, supra, Sec. 5(1)(c), the Legislature has excluded the following persons from membership in the retirement system:

It should be observed that the term 'reporting unit,' as used in 1980 PA 300, Sec. 63(1)(3), supra, and the predecessor provision found in 1945 PA 136, c 1, Sec. 23 referred in each instance to the employer public school district, public community or junior college, college or university whose employees are members of the system.

1980 PA 300, supra, Sec. 107, repealed 1945 PA 136, the predecessor statute providing a retirement system for certain public school and college employees under Chapter I, and a separate system for public school employees of a first class school district under Chapter II. It is noteworthy that 1945 PA 136, c 1, Sec. 23a, as last amended by 1976 PA 104, expressly excluded a person from membership in the Chapter I system who was employed by a reporting unit while enrolled as a full-time student by the reporting unit and barred such prior service credit if the person later became a member of the retirement system. 1945 PA 136, c 2, Sec. 12, as amended by 1976 PA 104, excluded a person from membership in the Chapter II retirement system if a person was employed by a board of education while enrolled as a full-time student in a school operated by the board of education, and provided, further, that if the person was subsequently employed by the board of education, service credit for such prior employment was prohibited. Thereafter, 1978 PA 424 amended 1945 PA 136, c 1, Sec. 23 and 1945 PA 136, c 2, Sec. 12 to permit prior service credit for certain transitional public employment programs only.

While 1980 PA 300, Sec. 5(1)(c), supra, continues to exclude from membership in the Public School Employees Retirement System persons employed by a reporting unit during the time of enrollment as a full-time student in the same reporting unit, 1980 PA 300, Sec. 64(3), supra, did not retain the prohibition upon purchase of prior service as a full-time student at a reporting unit which bars prior service credit for such service upon subsequent employment by a reporting unit or the same board of education previously found in 1945 PA 136, c 1, Sec. 23a and c 2, Sec. 12, the predecessor provisions, and authorized its purchase.

Determination that 1980 PA 300, Sec. 64(3), supra, no longer contains the prohibition against the purchase of service credit for those persons excluded from membership pursuant to section 5(1)(c) who later become members of the retirement system is not controlling of the issue since the question remains whether the Legislature intended the statute to permit persons to purchase prior service credit for student employment by a reporting unit prior to the effective date of 1980 PA 300, Sec. 63(1)(3), in light of the fact that the predecessor provisions, 1945 PA 136, c 1, Sec. 23 and 1945 PA 136, c 2, Sec. 12, expressly prohibited the purchase of such service credit.

It is a general rule of statutory construction that a statute is prospective in operation unless the Legislature clearly and unambiguously manifests an intent to make the statute retrospective. McQueen v Great Northwestern Packing Co, 402 Mich 321; 262 NW2d 82 (1978). There is nothing in the provisions of 1980 PA 300, supra, to indicate a clear legislative intent to authorize the purchase of service credit for prior service earned prior to the effective date of 1980 PA 300, Sec. 63(1)(3), supra.

Moreover, OAG, 1979-1980, No 5789, p 1018 (September 24, 1980), responding to a question involving a provision of the State Employees Retirement Act, 1943 PA 240, Sec. 13, as amended by 1978 PA 423; MCLA 38.13; MSA 3.98(13), which authorized the purchase or prior service credit for transitional public employment under legislative history substantially similar to the question at hand, concluded that there was no indication of any legislative intent to make retrospective the provisions removing the prohibition and authorizing purchase of the prior service to include service performed prior to the effective date of amendatory 1978 PA 423.

It is my opinion, therefore, that service credit may be purchased by a member of the Public School Employees Retirement Service only for the period of time in which work was being performed by the person as a full-time student in a reporting unit subsequent to the effective date of 1980 PA 300, which is October 31, 1980.

Frank J. Kelley