January 27, 1975

Colonel Dennis Eisnach
Superintendent
South Dakota Highway Patrol
118 West Capitol
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-9

Questions regarding retirement

Dear Col. Eisnach:

You have asked for my opinion based on the following fact situation:

In order to submit our questions, it is necessary to briefly follow Captain Worman's career as it parallels the retirement systems. Captain Worman was employed on February 14, 1944. The 1957 session of the Legislature passed the Law Enforcement Retirement System (3-13). Members' Contributions (3-13-13) allowed a member to contribute until he reached 25 years of service at which time all payments and contributions to his credit in the system ceased. Captain Worman reached 25 years of service in February of 1969. At this time, Captain Worman, feeling certain that the retire­ment law would be amended, went with Colonel Shultz to the Secretary of State and asked to be allowed to continue his contribu­tions. He was advised that this would be impossible because there were no provisions for accepting his contributions beyond the 25 years provided in 3-13-13 S.L. 1957.

The 1973 session amended 3-13-13 to allow contributions and ser­vice credit after 25 years of service, and Captain Worman started making contributions again. However, there had been a 4 1/2 year period in which he was not allowed to contribute and, therefore, did not receive credited service.

You have asked three specific questions:

Question #1. Under SDCL 3-12-83 can Captain Worman elect to purchase the 4 years for which he was not allowed to contribute and pay the member rate of his current compensation which is 6 percent with the Division of Highway Patrol matching his contribution of 6 percent from the Motor Vehicle Funds which furnish the state's matching share?

Question #2. If Captain Worman is allowed to do this, would he have to purchase all 4 1/2 years or could he purchase 26 months with the Division matching his payment of the member rate which would give him 29 years of credited service?

Question #3. If the answer to Question #2 is yes, would the 26 months of service purchased commence at the time he quit con­tributing in 1969 or would it start 26 months prior to the time he started contributing again in 1973?

In answer to Question #1, YES, Captain Worman may elect to purchase any or all of the 4 years for which he was not allowed to contribute. SDCL 3-12-83 provides in part:

A current contributing member of the system may receive credited service by election to make, or have made on his behalf, contribu­tions, based on his current compensation at twice the member rate, for each year of service for which he wishes to receive credit, if: . . . .

(2) The current contributing member was not permitted to establish credit for any South Dakota public service. . . .(Emphasis added.)

Captain Worman was not permitted to establish credit for 4 1/2 years of South Dakota public service. Therefore, he should be able to purchase credit for those years. Since the statute allows the member to have contribu­tions made on his behalf, the division of highway patrol may match his con­tribution.

In answer to Question #2, Captain Worman may purchase credited service in 1 year increments. SDCL 3-12-83 provides in part:

A. . .member. . .may receive credited service. . .for each year of service. . . . (Emphasis added.)

In answer to Question #3, Captain Worman may purchase credit for any 3 years of service he likes. SDCL 3-12-83 provides in part:

A. . .member. . .may receive credited service. . .for each year of service for which he wishes to receive credit. . . . (Emphasis added.)

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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