STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 15, 1971

Dr. Don Barnhart
State Superintendent of Public Instruction
Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-26

Amendments affecting South Dakota Teachers Retirement System

Dear Dr. Barnhart:

You have requested an official opinion as follows:

SDCL 13-45-30 reads as follows:

The contributions of a member to the retirement system shall be three and five-tenths per cent of his compensation, defined in subdivision (13) of section 13-45-6.

SDCL 13-45-36 reads as follows:

The current service contributions to the retirement system to be paid by each public school employer in any school year shall be three and five-tenths per cent of the compensations, defined in subdivision (13) of section 13-45-6, for said school year paid members in the employ of said public school employer.

The above two sections were amended by Ch. 128, SL 1971 (HB 708) to read as follows:

13-45-30. The contributions of a member to the retirement system shall be five per cent of his compensation after June 30, 1972, defined in subdivision (13) of section 13-45-6.

13-45-36. The current service contributions to the retirement system to be paid by each public school employer in any school year shall be five per cent of the compensations after June 30, 1972, defined in subdivision (13) of section 1345-6, for said school year paid members in the employ of said public school employer.

The above statute also added a new subsection reading as follows:

13-45-56(4). One and forty-five one hundredths per cent (.0145%) of his final average salary, not to exceed seven thousand eight hundred dollars, multiplied by the number of years, and fraction of a year, of his credited service rendered after June 30,1971.

You will note that the above section shows the date "June 30, 1971." However, HB 708 came out of the Senate Education Committee with amendments, and these amendments are shown on page 766 and 767 of the Journal of the Senate, 46th Session, and you will note that as a result of the amendments, the above statute should read "June 30, 1972."

Based on the above factual situation, I would appreciate an official opinion on the following questions:

1. Is there authority for the teachers to contribute and the school districts to match such contribution at the rate of 3 1/2 per cent on the first six-thousand dollars for the period July 1, 1971, through June 30, 1972?

(See SDCL 13-45-6(13))

2. Do the increased benefits under SDCL 13-45-56(4) start after June 30, 1971 or after June 30, 1972?

In addition to the statutes cited above, SDCL 13-45-8 reads in part as follows:

There is hereby created a board of trustees in whom is vested the power and authority to administer, manage and operate the retirement system, and to construe and make effective the provisions of sections 1345-6 to 1345-72, inclusive...

SDCL 13-45-31 reads as follows:

The officer or officers responsible for making the payroll for each public school employer shall cause the contributions provided for in section 13-45-30 to be deducted from the compensations of each and every member employed by the public employer. The said deductions shall be made on each and every payroll, for each and every payroll period, from the date of the member's entrance in the retirement system to the date his membership terminates. The contributions provided for in section 13-45-30 shall be made notwithstanding that the minimum salary or wages provided by law for any member shall be thereby changed. Each member shall be deemed to consent and agree to the deductions made and provided for herein. Payment of his compensation less said deductions shall be a full and complete discharge and acquittance of all claims and demands whatsoever for services rendered to a public school employer by said member, except as to benefits provided by this chapter.

SDCL 13-45-21 sets forth the qualifications for those persons who are eligible for the retirement system.

In answer to your question No. 1, it is my opinion that based upon the wording of the above statutes and the rest of the South Dakota Teachers Retirement Systems Act, it was not the in ten t of the Legislature to exclude teachers eligible for membership from participating in the retirement system by making contributions for the period of January 1, 1971, through June 30, 1972.

Therefore, it is my opinion that the members of the Teachers Retirement System should contribute and the public school employer should match such contribution at the rate of 3 1/2 per cent on the first $6,000.00 of salary paid to such member for the period July 1, 1971 through June 30, 1972.

In answer to your question No.2, the Supreme Court said in Narregang v. Brown County et al, 14 S.D. 357, that there were two lines of decision upon such a question-the first holding that the court may go behind the enrolled bill and examine the journals of the two houses, and the second holding that the enrolled bill, certified to by the presiding officers, approved by the Governor, and filed with the Secretary of State is conclusive and that it is not competent for the court to go behind such record, and the court then adopted the second procedure.

The Supreme Court also said in State v. Schmidt, 42 S.D. 267, that the enrolled bill as signed by the presiding officer of each house of the Legislature, approved by the Governor, and filed with the Secretary of State is conclusive as to contents of the enactment. Also see Minnehaha County v. South Dakota State Board of Equalization, 84 S.D. 640. .

It is therefore my opinion that SDCL 13-45-56(4) as amended by HB 708 (Ch. 128, SL 1971) and as enrolled, is a valid law effective July 1, 1971.

Respectfully submitted,

Gordon Mydland
Attorney General