STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 17, 1975

Mr. Clyde E. Saukerson
Deputy State's Attorney
Davison County Courthouse
Mitchell, South Dakota 57301

OFFICIAL OPINION NO. 75-175

Matching retirement payments of employee who reached 65 and three months later became eligible again for participation in state retirement program

Dear Mr. Saukerson:

You have requested an official opinion from this office on behalf of the Davison County Commissioners with respect to the following facts and circumstances:

The County employed John Doe in their Highway Department in November, 1950, and he participated in the retirement plan that was in effect at that time. The employee turned 65 in April, 1969, at which time the deductions for retirement were terminated. Pursuant to legislative amendments effective July 1, 1974, the employee again became eligible for participation in the state retirement program. However, no deductions from the employee were made in July, August, and September, 1974, nor did the County make any matching contributions. At this time the employee desires to contribute the payments which would have been made during the three months indicated.

Based on the above facts you ask:

Can the County make the required matching contributions for the three months in 1974, during which time no contributions were made?

Presuming that John Doe is a permanent, full-time employee, as defined in subdivision 38 of SDCL 3-12-47, and is also included under the provisions of SDCL 3-12-62, it is my opinion that the participating unit is required to deduct the 5070 member contribution and to make an equal contribution to the system. If the participating unit does not make the required deduction from the employee's salary, it is my judgment that the employee would be permitted to correct this error at a later date by contributing the required sum. The participating unit is also required to make their contributing payment and, in the event they do not do so, SDCL 3-12-74 provides that the state treasurer is authorized and directed, upon certification by the administrator, to withhold and deduct the amount of such delinquencies, plus interest, from the next succeeding payment or payments of any monies in the hands of the state treasurer due and payable to said participating unit.

The answer to your question, therefore, is YES. The county is obligated to make required matching contributions as well as to deduct the 5% member contribution. Inasmuch as this was not done, the county now is certainly authorized to make the required matching contributions.

Respectfully submitted,

William Janklow
Attorney General

WJJ:DOC:dh