May 14, 1975
Colonel Dennis Eisnach
Superintendent of Highway Patrol
118 West Capitol
Pierre, South Dakota 5750]
OFFICIAL OPINION NO. 75-85
3-12-105, 1974 Session Laws
Dear Colonel Eisnach:
You have asked whether an employee who elects to pay for the additional survivor protection under SDCL 3-12-104 and 3-12-105 loses his option to retire at the age, length of service and benefits available under the prior law enforcement officers retirement system.
SDCL 3-12-127 provides in part:
Notwithstanding the repeal on July 1, 1974 of [chapter] . . .3-13 . . ., all members of systems established thereunder shall be entitled to retire at the age, length of service and the benefits available to them under those provisions and the provisions of this chapter. . .
SDCL 3-12-127 is clear. The member can retire under either system.
SDCL 3-12-104 provides:
Within ninety days of becoming a member, marriage, or attaining age thirty-five, a member may elect to provide his spouse with additional survivor protection by increasing his member contribution by an additonal one per cent of compensation which additional contribution will not be matched by his employer. The additional contribution shall commence with the first payroll period following the date of the election and shall continue until the earlier of the member's attaining his normal retirement age, the death or disability of the member, the death of the spouse, or the termination of the marriage as defined in the rules and regulations of the board and shall be treated as a member contribution for purposes of determining the amount of refund of member contributions.
SDCL 3-12-105 provides:
The additional survivor protection payable under § 3-12-104, shall on the death of the member or expiration of benefits that may have been paid pursuant to § 3-12-103 because there is no eligible child, entitle the surviving spouse to an annual amount, payable in monthly installments equal to forty per cent of the highest annual compensation earned by the member during anyone of the last three years of service multiplied by the improvement factor for each full twelve-month period between the earlier of the date of death or disability of the member and the date the payment of the benefit is due to commence. The additional survivor protection allowance shall continue until the spouse dies or attains age sixty-five, whichever is earlier.
Nothing in either of the foregoing sections modifies the options available under SDCL 3-12-127. Therefore, it is my opinion that an employee who elects to pay for the additional survivor protection does not lose his option to retire at the age, length of service and benefits available under the prior law enforcement officers retirement system.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:MAG:rw
