November 6, 1978

Mr. Thomas Todd 
State Superintendent 
Elementary and Secondary Education 
Kneip Building 
Pierre, South Dakota 57501

Official Opinion No. 78-52

Partial suspension of retirement benefits

Dear Mr. Todd:

You have requested an opinion from this office based on the following factual situation:

FACTS: 

“X,” a former schoolteacher and member of the South Dakota Retirement System, took early retirement prior to the age of 60, effective July 1, 1978.  “X” has been notified by the retirement system that if she substitute teaches for a participating employer for one day in a month, she will have 1/30th of her monthly benefits suspended.

Based on the above facts, you ask the following questions:

QUESTIONS: 

1.  Is the position of the retirement system a proper application of the provisions of SDCL 3-12-111?
    
2.  What effect do SDCL 3-12-127 and former SDCL 13-45-67 as last amended by Section 3, Chapter 104, Sessions Laws of 1972, have on this matter?

SDCL 3-12-111 provides: 
    
In the event a retirant becomes employed by a participating unit prior to normal retirement age, the payment of his annuity shall be suspended during such employment.

IN RE QUESTION NO. 1:

SDCL 3-12-47(35) provides:
    
“Normal retirement age,” age sixty-five for all members of the system, except for law enforcement officers, municipal policemen, or municipal firemen for whom the normal retirement age is fifty-five. . . .

Based on the above statutory provisions, it appears to me that the law does provide that since “X” has not reached normal retirement age, the retirement system's interpretation of SDCL 3-12-111 is appropriate and fair.  Arguably, the provisions of 3-12-111 could place a retirant in the position that if he worked one day, he would lose his entire annuity during that month.  That interpretation would be harsh, however, and in my view, the position taken by the retirement system in interpreting this deduction on a daily basis is proper and appropriate.

IN RE QUESTION NO. 2:

SDCL 3-12-127 provides: 
    
Notwithstanding the repeal on July 1, 1974, of chapters 3-12; 3-13; 9-15; 13-45; certain provisions of chapter 16-8; chapter 16-11A; and certain provisions of chapter 33-13, all members of systems established thereunder shall be entitled to retire at the age, with the length of service and the benefits available to them under those provisions or the provisions of this chapter.  For the purposes of this section, the administrator shall retain as part of the permanent files of his office all volumes of the South Dakota Compiled Laws, together with the 1973 pocket supplements thereto.

SDCL 13-45-67, as amended in 1972, provides: 
    
In the event a retirant becomes employed by a public school employer in this state and earns during such employment, the gross amount of two thousand dollars in a fiscal year, the payment of his annuity shall be suspended for the balance of such fiscal year. Except as otherwise provided in this chapter, a retirant who returns to teaching service shall not again become a member of the retirement system.

SDCL 3-12-127 was amended in 1975 to provide in part that the members of the previous systems have the option of retiring under the new system or under the old system.  This being the case, it is my view that if “X” retires under the new retirement system, as I presume she has done, the provisions of SDCL 13-45-67 do not apply to the fact situation you present. Under this interpretation, SDCL 3-12-111 applies instead.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:jo