STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 26, 1974

Dr. Don Barnhart, State Superintendent
Div. of Elementary and Secondary Education
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 74-14

Mandatory membership in the South Dakota Public Employees Retirement System.

Dear Dr. Barnhart:

You have submitted the following factual situation:

SDCL 13-45-21 reads as follows:

The membership of the retirement system shall include the following teachers:

(1) Any teacher who was employed by a public school employer prior to June 30, 1968, and was a member of the retirement system, shall continue as a member.

(2) Any teacher who was in the employ of a public school employer prior to June 30, 1968, and was not a member of the retirement system, may become a member of the retirement system; provided, that he files his written application for membership with the board of trustees. Nothwithstanding the provisions for service credit as provided in 13-32-26; any such teacher who has been employed by a South Dakota public school employer in the period from July 1, 1964 through June 30, 1968, without becoming a member of the retirement system, shall be granted service credit for teaching rendered prior to the date he becomes a member of the system under this subsection, provided that these years shall not be used in determining the amount of annuity payable.

(3) Any teacher who enters or re-enters the employ of a public school employer after June 30, 1968, shall thereupon become a member of the teachers' retirement system.

All of SDCL 13-45 was repealed by Chapter 35, Session Laws of 1974 (SB 79) effective July 1, 1974.

Chapter 84, Session Laws of 1959 created the present teacher retirement system and Section 15 (SDCL 1960, Supp. 15.3919) thereof reads as follows:

(a) The membership of the retirement system may include the following teachers, except as provided in subsection (b) of this section:

(l) All teachers who are employed by a public school employer as of June 30, 1959, may become members of the retirement system: Provided, that any such teacher may at any time file written notice with the board of trustees to decline membership, in which case such teacher shall thereupon cease to be a member.

(2) All teachers who were in the employ of a public school employer prior to July 1, 1959, but who were not so employed June 30, 1959, and who re-enter the employ of a South Dakota public school employer after June 30, 1959, may thereupon become members of the retirement system.

(3) All teachers who were in the employ of a public employer after June 30, 1959, may thereupon become members of the retirement system.

(b) The membership of the retirement system shall not include any teacher who is normally employed less than 100 days in a school year by a public school employer or is receiving retirement benefits.

(c) In any case of doubt as to the membership status of any teacher, the board of trustees shall have the authority to decide the question.

Under the system as created, teachers had the option of electing not to become members of the system. At present there are some of these who are employed by a public school employer and are not members of the system; such teachers may however, elect to become a member of the system.

Section 19 of Chapter 35, Session Laws of 1974 (SB 79) becomes effective July 1, 1974, and reads as follows:

All of the following permanent full-time employees are included as members of the system:

(1) All state employees;

(2) All teachers;

(3) All justices, judges, and law trained magistraates;

(4) All state cement plant employees;

(5) All policemen and firemen of participating municipalities;

(6) All general employees of participating municipalities.

(7) All employees of participating counties;

(8) All classified employees of school districts that are participating with their classified employees;

(9) All classified employees of the board of regents;

(10) All state law enforcement officers.

Section 20 of Chapter 35, Session Laws of 1974 (SB 79) reads as follows:

Membership in the system shall exclude the following:

(1) All elective officers except justices and judges, unless such person elects and is otherwise qualified to become a member of the system;

(2) All personnel in the division of employment security who are participants in the retirement system provided by Chapter 61-2;

(3) The faculty and administrators employed by the board of regents at the colleges and universities and who are participants in the retirement system provided for in Chapter 13-49, and who are not included in the provisions of Chapter 3-6A;

(4) The governing body of any participating county, municipality or other political subdivision.

You have requested an opinion on the following specific question:

Will those teachers who elected not to become members be required to be a member of the South Dakota Retirement System after July 1, 1974?

It is my opinion that Section 19 of Chapter 39, Session Laws of 1974 (SB 79) requires all permanent full time teachers who are employed by a participating unit to be a member of the South Dakota Public Employees Retirement System as of July 1, 1974, and therefore the answer to your specific question is YES.

Respectfully submitted,

Kermit A. Sande
Attorney General