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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. 6420

January 16, 1987

RETIREMENT AND RETIREMENT SYSTEMS:

Fire and police pension system--service credit for transitional public employment program service

The Legislature has provided that a member of a city firemen pension and retirement system established pursuant to the firemen and policemen pension system act may not receive service credit for transitional public employment program service rendered to the city if the person is hired by the city fire department more than 12 months after the date of termination as a participant in a transitional public employment program of the city.

Honorable Richard A. Young

State Representative

The Capitol

Lansing, Michigan 48913

You have requested my opinion on the following question:

Whether an individual employed by a city in a transitional public employment program in the firefighting area from January, 1975 to September, 1980 and hired as a "regular firefighter" in February, 1986 is entitled to receive retirement service credit for the time the individual was employed in the transitional public employment program.

The city in question has adopted a firemen pension and retirement benefit system pursuant to the firemen and policemen pension system act, MCL 38.551 et seq; MSA 5.3375(1) et seq.

The Legislature amended the firemen and policemen pension system act by means of 1978 PA 421 to amend MCL 38.557 and 38.562; MSA 5.3375(7) and 5.3375(12), and to add MCL 38.556c; MSA 5.3375(6.3).

MCL 38.557; MSA 5.3375(7), was amended, in pertinent part, to add subsection (c) to read:

"As used in this act:

"(c) 'Transitional public employment program' means a public service employment program in the area of environmental quality, health care, education, public safety, crime prevention and control, prison rehabilitation, transportation, recreation, maintenance of parks, streets and other public facilities, solid waste removal, pollution control, housing and neighborhood improvements, rural development, conservation, beautification, veterans' outreach, or any other area of human betterment and community improvement as part of a program of comprehensive manpower services authorized, undertaken, and financed pursuant to the comprehensive employment and training act of 1973, 29 U.S.C. 801 to 992."

In amending MCL 38.562; MSA 5.3375(12), the Legislature rewrote the section to read:

"(1) The membership of the retirement system created by a municipality affected by this act shall include each police officer and fire fighter employed by a municipality. A police officer or fire fighter, who is a member of the retirement system and who is transferred from the classification of a police officer or fire fighter to a civilian position within the police or fire department or who is transferred from the police or fire department of the municipality to another department of the municipality by an officer or body of the municipality authorized to make the transfer, shall continue as a member of this retirement system covering the police officers and fire fighters, and shall be subject to the provisions of the retirement system. If the officers and employees of the department to which the person is transferred are covered by an annuity pension or retirement system to which the municipality makes contributions and the person transferred becomes entitled to membership in that system, the person shall cease to be a member of this police officer and fire fighter retirement system.

"(2) The membership of the retirement system shall not include a volunteer fire fighter, a privately employed police officer or fire fighter, a person temporarily employed during an emergency, a civilian employee of a police and fire department, or a person participating in a transitional public employment program, except as provided in subsection (1) and section 6c." (Emphasis added.)

Section 6c referenced in MCL 38.562; MSA 5.3375(12), is MCL 38.556c; MSA 5.3375(6.3), added by 1978 PA 421 to read:

"(1) If a person who participated in a transitional public employment program becomes a member of a retirement system established under this act within 12 months after the date of termination as a participant in a transitional public employment program, service credit shall be given for employment in the transitional public employment program for purposes of determining a retirement allowance upon the payment by the person and the person's employer under the transitional public employment program from funds provided under the comprehensive employment and training act, 29 U.S.C. 801 to 992, as funds permit, to the retirement system of the contributions, plus regular interest, the person and the employer would have paid had the employment been rendered in a position covered by this act. During the person's employment in the transitional public employment program, the person's employer shall provide an opportunity by payroll deduction for the person to make his or her employee contribution to the applicable pension system. To provide for the eventual payment of the employer's contribution, the person's employer shall during this same period place in reserve a reasonable but not necessarily an actuarially determined amount equal to the contributions which the employer would have paid to the retirement system for those employees in the transitional public employment program as if they were members under this act, but only for that number of employees which the employer determined would transfer from the transitional public employment program into positions covered by this act. If the funds provided under the comprehensive employment and training act are insufficient, the remainder of the employer contributions shall be paid by the person's current employer.

"(2) The provisions of subsection (1) shall not exclude the participant in a transitional public employment program from the accident, disability or other benefits available to members of the retirement system covered by this act." (Emphasis added.)

If a statute is clear and the meaning of words used is unambiguous, the Legislature must have intended the meaning it has plainly expressed and the statute must be observed as it is written. Hiltz v Phil's Quality Market, 417 Mich 335, 343; 337 NW2d 237 (1983).

Reading MCL 38.556c, 38.557, and 38.562; MSA 5.3375(6.3), 5.3375(7), and 5.3375(12), together, the legislative intent is plain. A person participating in a transitional employment program and paid from funds provided under the comprehensive employment and training act, 29 USC 801-992, is not eligible for membership in a city firemen pension and retirement system pursuant to the firemen and policemen pensions act. If such a person is subsequently employed by a city fire department and is paid with city funds, the person is eligible for membership in the retirement system and may claim service credit for employment in the transitional public employment program, provided that the person "becomes a member of [the] ... retirement system established by this act within 12 months after the date of termination as a participant in a transitional employment program." MCL 38.556c; MSA 5.3375(6.3).

A study of the legislative history of 1978 PA 421 confirms this plain reading as the manifest legislative intent. Luttrell v Department of Corrections, 421 Mich 93, 103-105; 365 NW 74 (1984), reh den, 422 Mich 1201 (1985).

1978 PA 421 was considered by the Legislature as HB 6332. As enacted by the House, HB 6332 did not contain the limitation of employment by the city fire department with 12 months after date of termination as a participant in a transitional public employment program as a condition for award of service credit for transitional public employment program service. 2 HJ 2201 (1978). The Senate amended HB 6332 to insert the condition "WITHIN 12 MONTHS AFTER THE DATE OF TERMINATION AS A PARTICIPANT IN A TRANSITIONAL PUBLIC EMPLOYMENT PROGRAM." 2 SJ 2108-2109 (1978). The Senate enacted HB 6332 without further change. 3 SJ 2169 (1978). The House concurred in the amendment. 3 HJ 3200-3201 (1978).

House Legislative Analysis Section, Second Analysis (1-18-79) of HB 6332 (as enrolled) stated, in pertinent part:

"THE APPARENT PROBLEM:

"State and local governments employ many people with funds provided under the federal Comprehensive Employment and Training Act (CETA). Where these people are employed in positions normally covered by retirement programs, CETA funds have been used to make contributions to the affected retirement systems. The federal government has ruled, however, that retirement contributions are an improper use of CETA funds because they reduce the amount of money available for hiring more workers and because many CETA employees never become vested in the system in which they are temporarily employed and thus derive no benefit from the retirement contributions. A deadline of October 1, 1977, was set, by which time all primary sponsors of CETA employees were to come into compliance with the new regulations or else be compelled to reimburse the federal government for misused funds either by direct repayment or by a commensurate reduction in CETA funds. Michigan, like many other states, obtained a one year extension of this deadline in order to work on the statutory amendments necessary to achieve compliance.

"....

"THE CONTENT OF THE BILLS:

"The bills would provide a means of giving service credit to members of the various state administered retirement systems for years spent in a CETA funded transitional employment program. It would specify that employees, while in such an employment program, would not be subject to the general provisions of the retirement acts but that if the employee becomes a member of the retirement system within 12 months of the termination of CETA employment he or she will be given service credit for the years as a CETA employee. The bills also prescribe regulations for the payment of employee and employer contributions to the retirement systems for those years of service."

If an individual employed by a city in a transitional employment program in the firefighting area from January, 1975 to September, 1980 and hired as a regular firefighter in February, 1986 is to receive service credit for such transitional employment, the Legislature will have to amend MCL 38.556c; MSA 5.3375(6.3), to provide for such service credit.

It is my opinion, therefore, that the Legislature has provided that a member of a city firemen pension and retirement system established pursuant to the firemen and policemen pension system act may not receive service credit for transitional public employment program service rendered to the city if the person is hired by the city fire department more than 12 months after the date of termination as a participant in a transitional public employment program of the city.

Frank J. Kelley

Attorney General


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