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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. 6539 September 20, 1988 RETIREMENT SYSTEMS: Legislative Retirement System--eligibility for longevity benefits A former member of the Legislature, being otherwise eligible, qualifies for the longevity allowance set forth in MCL 38.1023(5); MSA 2.169(23)(5), if the member left office on January 1, 1987 and did not become a retirant until after that time. Honorable Phil Arthurhultz State Senator The Capitol Lansing, MI 48909 Honorable Perry Bullard State Representative The Capitol Lansing, MI 48913 You have each requested my opinion as to whether a former member of the Legislature qualifies for the longevity allowance set forth in the Michigan Legislative Retirement System Act, Sec. 23(5), MCL 38.1023(5); MSA 2.169(23)(5), if that member was not re-elected in November, 1986 and left office on January 1, 1987, but otherwise satisfies the requirements for the longevity allowance. As noted in your letters, Const 1963, art 11, Sec. 2 provides, in pertinent part: "The terms of office of ... members of the legislature ... shall begin at twelve o'clock noon on the first day of January next succeeding their election ...." MCL 38.1023(5); MSA 2.169(23)(5), as amended by 1987 PA 58, effective June 23, 1987, provides for a longevity allowance as follows: "A member who retires after December 31, 1986, or a deferred vested member who leaves service after December 31, 1986, and becomes a retirant, shall be entitled to an annual retirement allowance of 20% of the salary stated in his or her application for the first 5 years of service plus 4% for each of the next 11 years of service. A fraction of a year of service in excess of 5 years shall be prorated. Years of service listed in the application need not be consecutive, but shall have been rendered before payment of the retirement allowance. Except as provided in section 23c, a retirement allowance shall not exceed 64% of the salary stated in the application. Effective January 1, 1987, however, a member who has 16 or more years of service shall also be entitled to a longevity allowance of 1.0% of the member's salary for each year of service beyond 16 years but not to exceed 20 years. Except as provided in section 23c, the retirement allowance of a member entitled to a longevity allowance shall not exceed 68% of the salary stated in the application." (Emphasis added.) In Hughes v. Judges' Retirement Bd, 407 Mich 75, 90; 282 NW2d 160 (1979), it was noted by the Michigan Supreme Court that "when the Legislature wish[es] to confer newly enacted retirement benefits upon retirant-beneficiaries, it [does] so explicitly." Thus, even though 1987 PA 58, which included the longevity allowance set forth in MCL 38.1023(5); MSA 2.169(23)(5), was not enacted into law until June 23, 1987, the Legislature explicitly indicated its intent to include as eligible for such allowance persons who were members of the Legislature on or after January 1, 1987. Since the word "member" is defined by MCL 38.1006(a); MSA 2.169(6)(a), to include "legislator[s] of this state" other than those electing not to participate in the legislative retirement system, a member of the Legislature who left office at noon on January 1, 1987 would meet the statutory requirement of being a member of the retirement system on that date. Because the Legislature did not explicitly make the longevity benefit available to retirants, a member of the Legislature, being otherwise qualified, and who retired prior to January 1, 1987, would not be eligible for the longevity benefit. In answer to your question, it is my opinion that a former member of the Legislature, being otherwise eligible, qualifies for the longevity allowance set forth in MCL 38.1023(5); MSA 2.169(23)(5), even if that member was not re-elected in November, 1986, provided that the member left office on January 1, 1987, and did not become a retirant until after that time. Frank J. Kelley Attorney General
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