RETENTION OF MEMBERSHIP IN TEACHERS' RETIREMENT SYSTEM OR TRANSFER TO PUBLIC EMPLOYEES' RETIREMENT SYSTEM UPON CHANGE IN EMPLOYMENT STATUS

RETIREMENT ‑- PENSIONS ‑- TEACHERS ‑- STATE EMPLOYEES ‑- RETENTION OF MEMBERSHIP IN TEACHERS' RETIREMENT SYSTEM OR TRANSFER TO PUBLIC EMPLOYEES' RETIREMENT SYSTEM UPON CHANGE IN EMPLOYMENT STATUS 

(1) A person who has properly established membership in the Washington Teachers' Retirement System (TRS) through employment as a public school teacher in accordance with RCW 41.32.240 or RCW 41.32.780 may thereafter continue to participate in TRS and receive TRS service credit in connection with later periods of employment with the same or another school district or a state agency even though that person is not still employed as a teacher. 

(2) Such continuing active participation in the Washington Teachers' Retirement System, however, is only permitted and not required under the specified circumstances; accordingly, the person in question (by not returning to or continuing in active TRS membership upon his or her change in employment status) may, if employed in an eligible position under the Washington Public Employees' Retirement System (PERS), thereafter be covered as a member of that retirement system unless he or she is personally ineligible, under RCW 41.40.120, for some other reason.

                                                              - - - - - - - - - - - - - 

                                                                   March 7, 1980 

Honorable Robert L. Hollister
Director
Department of Retirement Systems
1025 E. Union
Olympia, Washington 98504

Cite as:  AGO 1980 No. 8                                                                                                                  

 Dear Sir: 

            This is written in response to your request for our opinion on certain questions regarding creditable service for members of the Washington Teachers' Retirement System (TRS).  We paraphrase your questions as follows: 

             [[Orig. Op. Page 2]]

            (1) May a person who has properly established membership in TRS through employment as a public school teacher in accordance with RCW 41.32.240 or RCW 41.32.780 thereafter continue to participate in TRS and receive TRS service credit in connection with later periods of employment with the same or another school district or a state agency even though that person is not still employed as a teacher?
 

            (2) If question (1) is answered in the affirmative but the subsequent employment position is one ordinarily covered by the Washington Public Employees' Retirement System (PERS), does the individual involved then nevertheless have the option of terminating his or her active participation in TRS and thereafter, instead, participating in PERS? 

            We answer question (1) in the affirmative in the absence of a termination of active TRS participation along the lines indicated in our response to question (2) as set forth below. 

                                                                     ANALYSIS 

            Both the Washington Public Employees' Retirement System (PERS) and the Washington Teachers' Retirement System (TRS) are now administered by the State Department of Retirement Systems pursuant to chapter 41.50 RCW.  See, RCW 41.50.030.  Strictly speaking, PERS covers all full-time employmentpositions with the state of Washington and its various agencies and departments and, in addition, all such full-time employmentpositions with most political subdivisions including (under RCW 41.40.410) all public school districts.  See, RCW 41.40.120.  Whether the particular individuals who occupy those positions actually participate in PERS, however, it is dependent upon what is commonly referred to as their "personal eligibility" under the subsections of that latter statute.  And, notably, one of those subsections thereof provides, in essence, that even though he or she occupies an eligible position, an employee may not participate in PERS if, instead, he or she is by reason of the same employment actively participating in some other publicly funded and administered retirement system.  See, RCW 41.40.120(4), quoted at page 7 below. 

             [[Orig. Op. Page 3]]

            The Washington Teachers' Retirement System is, of course, one of those "other" public retirement systems.  We further should note that (as is also true of PERS) it now encompasses two separate pension plans.  Plan I covers all "teachers" employed full time in the "public schools" (as those two terms are defined in RCW 41.32.010(30) and (23), respectively) whose membership was initially established prior to October 1, 1977, on the basis of employment on or before July 1, 1977.  Accord, RCW 41.32.240. Plan II, in turn, covers all "teachers" employed by an "employer" (as defined in RCW 41.32.010(12)) who initially established membership on or after October 1, 1977.1/   RCW 41.32.780.  And, under RCW 41.40.120(4), supra, those individuals thus are, by reason of their participation in TRS, excluded from membership in PERS.2/ 

             [[Orig. Op. Page 4]]

            The factual circumstances to which your questions relate involve those persons who, upon being employed as public school teachers at some time in the past became members of TRS in accordance with RCW 41.32.240 or RCW 41.32.780,supra. Thereafter, however, either while still working for the same employer or, upon transferring to some other school district or to a state agency, they ceased teaching and began to work instead in some nonteaching capacity.  Quaere:  Do those persons nevertheless still continue to participate in TRS?  Or, simply because they are no longer employed as teachers, must they (or may they) at that point be transferred from TRS to PERS insofar as any subsequent pension coverage and service credit factors are concerned? 

            In view of the personal ineligibility of an active TRS participant for membership in PERS under RCW 41.40.120(4), supra, one point in the analysis necessary to answer these questions seems clear.  So long as the person in question is properly participating in TRS, regardless of the position he or she occupies, that person cannot become a member of PERS by virtue of the same employment.  And, by the same token, if for any reason that same person ceases to be an active member of TRS, he or she must, if occupying an eligible position under PERS, then become a member of that latter retirement system unless disqualified for membership under some other subsection of RCW 41.40.120.  Thus, the precise issue here to be explored is that of the propriety and/or necessity of continued active participation in TRS, in lieu of coverage by PERS, in the case of a person such as you have described; i.e., one who (in your words) ". . . has properly established membership in TRS through employment as a public school teacher . . ." but who, thereafter, ceases working as a teacher and becomes employed in some other capacity either for the same or some other school district or for a state agency. 

            Question (1): 

            This question involves the legal propriety of such continuing TRS participation and, in the case of Plan I TRS members, it is answerable in the affirmative on the basis of RCW 41.32.340.  That statute, which delineates what constitutes "creditable service" for such a member of TRS, states in part that: 

            "Creditable service of a member at retirement shall consist of the membership service rendered by him for which credit has been allowed, . . ." 

             [[Orig. Op. Page 5]]

            "Membership service," in turn, is defined by RCW 41.32.010(17) to mean, 

            ". . . service rendered subsequent to the first day of eligibility of a person to membership in the retirement system: . . ." 

            "Service" is then defined in RCW 41.32.010(28) to mean, 

            ". . . the time during which a member has been employed by an employer for compensation . . ." 

            And, finally, "employer" is defined by RCW 41.32.010(12) to mean, 

            ". . . the state of Washington, the school district, or any agency of the state of Washington by which the member is paid." 

            Significantly, this last term is broader than the term "public school" which, as defined in RCW 41.32.010(23), means, 

            ". . . any institution or activity operated by the state of Washington or any instrumentality or political subdivision thereof employing teachers, except the University of Washington and Washington State University."  (Emphasis supplied) 

            Likewise, the term "member," while it encompasses teachers, is not synonymous with that latter term.  Compare, RCW 41.32.010(16) and (30) which read, respectively, as follows: 

            "(16) 'Member' means any teacher included in the membership of the retirement system.  Also, any other employee of the public schools who, on July 1, 1947, had not elected to be exempt from membership and who, prior to that date, had by an authorized payroll deduction, contributed to the annuity fund.
 

            ". . .

            "(30) 'Teacher' means any person qualified to teach who is engaged by a public school in an  [[Orig. Op. Page 6]] instructional, administrative, or supervisory capacity, including state, educational service district, city superintendents and their assistants and certificated employees; and in addition thereto any qualified school librarian, any registered nurse or any full time school doctor who is employed by a public school and renders service of an instructional or educational nature." 

            What all of that means, in our opinion, is this:  At the outset (in accordance with footnote 1, supra) one must have been employed as a "teacher" by a "public school" on or before July 1, 1979, in order to obtain Plan I TRS membership pursuant to RCW 41.32.240, supra.  However, once that membership status has been acquired, the individual in question, so long as he or she retains that status and is employed by ". . . the state of Washington, the school district, or any agency of the State of Washington . . .,"3/ may continue to receive creditable membership service pursuant to RCW 41.32.340.  The mere fact that the particular employment would not have qualified the person for membership in TRS in the first place, under RCW 41.32.240,supra, is beside the point.  And, since the service in question is thus creditable for TRS purposes, it necessarily follows that continuing active participation in TRS is legally proper. 

            We also reach the same conclusion in the case of Plan II members of TRS even though RCW 41.32.340 is inapplicable to them.  In the case of these members, RCW 41.32.780 says, simply, that: 

            ". . . all teachers who become employed by an employer on or after October 1, 1977, shall be members of the retirement system . . ."

            But the same definitions of both "service" and "employer" as pertain to Plan I members4/ apply to Plan II members as well.  Therefore, again, even though a particular individual covered by that plan ceases being employed as a "teacher" he or she may continue to participate in TRS so long as he or she is still working in some employment capacity for either a school district or a state agency.

             [[Orig. Op. Page 7]]

            Question (2): 

            We turn now to your second question, which assumes the foregoing answer to question (1) and then asks: 

            If question (1) is answered in the affirmative but the subsequent employment position is one ordinarily covered by the Washington Public Employees' Retirement System (PERS), does the individual involved then nevertheless have the option of terminating his or her active participation in TRS and thereafter, instead, participating in PERS?

            At the outset, we must once again distinguish between position and individual eligibility in the context of the Public Employees' Retirement System.  All full-time employment positions with a state agency or a school district constitute eligible positions for the purpose of PERS coverage; however, a given individual occupying one of those positions may be personally ineligible for membership in PERS because he or she is actively participating in another public retirement system such as TRS.  Accord, RCW 41.40.120(4),supra, which, together with the opening paragraph of that section, reads in full as follows: 

            "Membership in the retirement system shall consist of all regularly compensated employees and appointive and elective officials of employers as defined in this chapter who have served at least six months without interruption or who are employed, appointed or elected on or after July 1, 1965, with the following exceptions:

             ". . .

             "(4) Employees holding membership in, or receiving pension benefits under, any retirement plan operated wholly or in part by an agency of the state or political subdivision thereof, or who are by reason of their current employment contributing to or otherwise establishing the right to receive benefits from any such retirement plan:  PROVIDED, HOWEVER, In any case  [[Orig. Op. Page 8]] where the state employees' retirement system has in existence an agreement with another retirement system in connection with exchange of service credit or an agreement whereby members can retain service credit in more than one system, such an employee shall be allowed membership rights should the agreement so provide:  AND PROVIDED FURTHER, That an employee shall be allowed membership if otherwise eligible while receiving survivor's benefits as secondary payee under the optional retirement allowances as provided by RCW 41.40.190 or 41.40.185;

            ". . ." 

            In responding to your first question, above, we were concerned with the legalpropriety of continuing TRS membership (and thus, nonparticipation in PERS) in the case of a person such as is contemplated by your request.  Here, on the other hand, the issue is whether such continuing active participation in TRS isrequired‑-as opposed to being merely permitted.  If it were required, your second question would then have to be answered in the negative since, being required to continue in TRS, the individual involved would of necessity be personally ineligible for membership in PERS because of RCW 41.40.130(4),supra.  But if, to the contrary, such a person can, and does, discontinue his or heractive TRS membership status upon ceasing to be employed in a teaching capacity, that bar to membership in PERS may be rendered inoperative and, thereupon, PERS membership will result in PERS (instead of TRS) service credit will be earned for "service" (as defined in RCW 41.40.010(9)) thereafter rendered.  The critical point here to be noted and understood is that RCW 41.40.120(4) does not exclude a person from membership in PERS merely because that person iseligible for membership in another public pension system.  Rather, it only operates to exclude those who, in fact, do hold membership in, or are receiving benefits under, any such "other" system or who are, by reason of their employment, actually contributing to or otherwise establishing the right to receive benefits from such "other" retirement plan.

            Once again, as with question (1), it is necessary at this point to consider separately those persons who became members of the Teachers' Retirement System prior to October 1, 1977, and those who established membership on or after that  [[Orig. Op. Page 9]] date.5/   In addition, within those two classes of members (above referred to as Plan I and Plan II members, respectively) it is further necessary to deal separately with those who, upon ceasing to be employed as public school teachers, withdraw their members' contributions to the Teachers' Retirement Fund and those who do not. 

            (1)Plan I Members of TRS: 

            In the case of these members of TRS, the pertinent statutes are RCW 41.32.500 and 41.32.510, the first of which reads, in material part, as follows: 

            "Membership in the retirement system is terminated when a member retires for service or disability, dies, withdraws his accumulated contributions or does not establish service credit with the retirement system for five consecutive years; however, a member may retain membership in the teachers' retirement system by leaving his accumulated contributions in the teachers' retirement fund under one of the following conditions:
 

            "(1) If he is eligible for retirement;

            "(2) If he is a member of another public retirement system in the state of Washington by reason of change in employment and has arranged to have membership extended during the period of such employment;

            "(3) If he is not eligible for retirement but has established five or more years of Washington membership service credit.

            ". . ." 

            RCW 41.32.510 (also quoted only in material part) then provides that: 

            "Should a member cease to be employed in the public schools of this state and request upon a form provided by the board of trustees a refund of his accumulated contributions with interest to  [[Orig. Op. Page 10]] the June 30th next preceding, this amount shall be paid to him less any withdrawal fee which may be assessed by the board of trustees which shall be deposited to the expense fund.  The amount withdrawn, together with interest must be paid if he desires to reestablish his former service credits.  Upon termination of membership, interest on accumulated contributions in the annuity fund shall cease and all accumulated contributions unclaimed after the expiration of ten years thereafter become an integral part of the income fund.  Termination of employment with one employer for the specific purpose of accepting employment with another employer or termination with one employer and reemployment with the same employer, whether for the same school year or for the ensuing school year, shall not qualify a member for a refund of his accumulated contributions . . ."

            (a)Those Who Withdraw: 

            Under these two statutes a Plan I TRS member who ceases to be employed ". . . in the public schools of this state . . ." under circumstances entitling him or her to a refund of contributions, by actually requesting and obtaining such a refund, terminates all ties with the Teachers' Retirement System.  Thereafter, upon gaining other employment covered by PERS, that person will then be personally eligible for membership therein on the same basis as any other employee occupying the same position unless he or she then elects, instead, to restore those withdrawn contributions as is also permitted by RCW 42.32.510,supra.  The mere fact that the person happens to hold a state teaching certificate will be beside the point unless he or she is actually employed as a "teacher" in a "public school" under circumstances which would have required TRS membership in the first instance.  See, RCW 41.32.240,supra.6/ 

             [[Orig. Op. Page 11]]

            (b)Those Who Do Not Withdraw: 

            Even though a former public school teacher who was a Plan I TRS member does not withdraw his or her member's contributions upon ceasing to be employed in that capacity, that person's subsequent employment with a school district or a state agency (i.e., an "employer" as defined in RCW 41.32.010(12),supra, will not necessarily require a return to active TRS coverage so as to preclude entry into PERS under RCW 41.40.120(4).  Although, as indicated in our answer to question (1), such continuing TRS coverage ispermissible if employed by an "employer" it is onlyrequired if the person in question is employed as a "teacher" in a "public school."  RCW 41.40.240,supra.  And, once again, the criteria under RCW 41.40.120(4), supra, is not mere eligibility for "other" public pension coverage but, rather, it is only actual "other" pension coverage which will render the person ineligible for membership in PERS. 

            Moreover, although a form of TRS membership is retained under RCW 41.32.500,supra, in the case of those who have not withdrawn their members' contributions upon changing employment, that same statute also acknowledges the possibility of a change in active pension system participation when, in subsection (2), it allows a person to become (in effect) an inactive member of TRS: 

            "(2) If he is a member of another public retirement system in the state of Washington by reason of change in employment and has arranged to have membership extended during the period of such employment." 

            Likewise, subsections (1) and (3) of RCW 41.32.500 permit a person to remain in TRS membership without actively participating on the basis of his or her current employment (private or public) if that person is either eligible for retirement or, although not eligible for retirement, ". . . has established five or more years of Washington membership service credit."  Yet such a person does not automatically return to active TRS participation merely by entering the service of an employer in a nonteaching capacity without first opting to do so and thereafter again making members' contributions to the Teachers' Retirement Fund.  Otherwise, notably, a recent legislative amendment to RCW 41.32.010(28)(b) (a part of the statutory definition of TRS "service") would be meaningless.  That  [[Orig. Op. Page 12]] amendment7/ reads as follows:

            ". . .

            "Any person who is a member of the teachers' retirement system and who is elected or appointed to a state elective position may continue to be a member of the retirement system and continue to receive service credit for the time spent in a state elective position by making the required member contributions.

            ". . ." 

            We are not, however, to attribute to the legislature an intent to enact useless or meaningless legislation.  Accord,Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973) and cases cited therein. 

            But if such a person who has left a public school teaching position does not automatically revert to active TRS participation upon later entering the service of an employer in a nonteaching capacity, the result must be where that new position is an eligible position under PERS, this person will thereby become a member of PERS unless, under some other provision of RCW 41.40.120,supra, a different basis for personal ineligibility is present. 

            (2)Plan II Members of TRS: 

Here, instead of RCW 41.32.500 and 41.32.510, supra, the applicable statutes are RCW 41.32.815 and 41.32.820.  Accord, RCW 41.32.755, supra. 

            (a)Those Who Withdraw: 

            The second of these two statutes, like RCW 41.32.510, supra, provides that: 

            "A member who ceases to be an employee of an employer may request a refund of the members accumulated contributions . . . The refund of accumulated contributions shall terminate all benefits under the provisions of RCW 41.32.755 through 41.32.825." 

             [[Orig. Op. Page 13]]

            Thus, just as in the case of a Plan I member who withdraws his or her employees' contributions under RCW 41.32.510, a subsequent entry into PERS may be obtained by a Plan II member who withdraws under this similar provision.  Accord, our earlier reasoning at page 10, supra.  As with a Plan I member, while a return to service as a teacher will require a return to active TRS membership,teacher will require a return to active TRS membership, it is not also required that a former active participant in TRS Plan II return to membership in that system upon becoming employed by an "employer" in some other capacity. 

            It is true that RCW 41.32.780, supra, reads differently in that respect than does RCW 41.32.240,supra.  While RCW 41.32.240 speaks only of Plan I TRS membership in the case of ". . . teachers employed full time in thepublic schools. . ." (emphasis supplied), RCW 41.32.780, relating to Plan II, provides that: 

            ". . . all teachers who become employed by an employer on or after October 1, 1977, shall be members of the retirement system . . ."  (Emphasis supplied) 

            Thus, read literally, this provision could be taken as barring any person who happens to be a qualified teacher from ever being a member of any public retirement system other than TRS so long as he or she is employed by an "employer"‑-which term, as defined in RCW 41.32.010(12), encompasses all school districts and state agencies.  We do not, however, so construe the statute.  Rather, as we view it, its purpose is simply to establish, in effect, a line of demarcation between TRS Plan I and TRS Plan II.  Those persons who became employed as teachers after October 1, 1977,8/ are to belong to TRS Plan II instead of being covered under TRS Plan I.  But they are not thereby also required to remain members of TRS Plan II to the exclusion of someother public pension system (such as PERS) for which they may be eligible by reason of a later change in employment.  In short, we do not regard RCW 41.32.780, supra, as locking all persons at one time covered as "teachers" by TRS Plan II permanently into  [[Orig. Op. Page 14]] that particular retirement system no matter what they may later do by way of employment with a school district or state agency.  Any other reading of the statute, in our opinion, would be unjust and incongruous and should, for that reason, be rejected.  Accord,Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968) and cases cited therein. 

            (b)Those Who Do Not Withdraw: 

            Here, the pertinent statute for Plan II members is RCW 41.32.815 which reads as follows: 

            "A member who separates or has separated after having completed at least five years of service may remain a member during the period of such member's absence from service for the exclusive purpose only of receiving a retirement allowance under the provisions of RCW 41.32.765 if such member maintains the member's accumulated contributions intact." 

            This section is comparable to RCW 41.32.500(3), supra.  Therefore, in the case of those Plan II TRS members to whom it applies, a transfer from TRS to PERS membership may also be accomplished, if desired, whenever such a vested member of TRS ceases to be employed as a teacher and moves, instead, into a nonteaching position with either a school district or a state agency.  Accord, our earlier reasoning in support of the same conclusion with respect to Plan I members.

             There is, however, nothing in RCW 41.32.815, supra, or any other section of the law governing Plan II TRS members which is analogous to RCW 41.32.500(2), supra.  Therefore, in the case of such a member who has completed less than five years of service as a teacher in the public schools, a slightly different analysis (leading, however, to the same result) is required. 

            Clearly, in the event that such a person, upon being employed in a nonteaching capacity with either a school district or a state agency, chooses to remain an active member of the Teachers' Retirement System, he or she may do so in accordance with our answer to question (1), above.  But if, instead, this person wants to become a member of the Public Employees' Retirement System (without an intervening break in employment accompanied by a withdrawal of employee's contributions pursuant to RCW 41.32.820, supra) the proper basis for allowing him or her to do so would be as follows: 

             [[Orig. Op. Page 15]]

            Both RCW 41.40.120(4),supra, and the general provisions of two other statutes, RCW 41.04.020 and 41.04.080, contemplate (on the one hand) and authorize (on the other) the formation and execution of agreements between retirement systems to provide for the preservation of service credit upon transfer (by reason of a change in employment) from one public pension system to another.  The pertinent language of RCW 41.40.120(4) reads: 

            ". . . PROVIDED, HOWEVER, In any case where the state employees' retirement system has in existence an agreement with another retirement system in connection with exchange of service credit or an agreement whereby members can retain service credit in more than one system, such an employee shall be allowed membership rights should the agreement so provide: . . ."

            And, in conjunction therewith, in order to effectuate the statement of legislative policy set forth in RCW 41.04.070, RCW 41.04.080 provides that: 

            "Any officer or employee of the state or of any political subdivision thereof who is a member of any pension or retirement system thereof may upon acceptance of any other public employment or office, retain credit for service in his or her previous office or employment toward eventual retirement upon such terms and conditions as may be prescribed by the governing body or bodies of any such political subdivisions and by the pension board or authority concerned in the case of the state; and such like privilege shall be extended to any such officer or employee whose employment or office is changed as the result of any amalgamation of any public service agency in this state with another." 

             [[Orig. Op. Page 16]]

            Thus, given the existence of such an enabling agreement,9/ even a Plan II TRS member with less than five years of service may, upon changing employment as contemplated by your question, move from TRS to PERS if he or she desires to.  By reason of the agreement, the person in question would (a) be personally eligible for membership in PERS (insofar as RCW 41.40.120(4) is concerned, and (b) at the same time be able to preserve his or her previous TRS service credit so long as the TRS member's contributions were not withdrawn under RCW 41.32.820,supra. 

            Summary:

             Let us now summarize.  In response to question (1), it is our opinion that a person who has established membership in TRS through employment as a public school teacher in accordance with RCW 41.32.240 or 41.32.780 may thereafter continue to participate in TRS and receive TRS credit in connection with later periods of employment with the same or another school district or state agency even though that person is not still employed as a teacher.  But, in response to your second inquiry, such continued participation in TRS is not required under those circumstances.  Instead, the person in question‑-by not returning to or continuing in active TRS membership upon his or her change in employment status‑-will, if employed in an eligible position under PERS, thereafter be covered as a member of that retirement system unless he or she is personally ineligible, under RCW 41.40.120,supra, for some other reason. 

            There is, in short, aright but not a requirement to remain in or return to TRS under the circumstances contemplated by your opinion request.  In the case of one who actually remains in the service of a given employer and merely changes from a teaching to a nonteaching employment position, there will, as a practical matter, be no affirmative action  [[Orig. Op. Page 17]] to be taken in order to exercise that right; and in fact, it would seemingly be necessary for such an individual to do something other than remain silent in order to effectuate a change in his or her retirement system coverage.  However, where the individual in question not only changes jobs but also separates from one "employer" and (either immediately or later) signs on with another school district or a state agency, it is our opinion that the right to remain in, or return to, TRS must be asserted in some appropriate manner at the time of reemployment.  Otherwise, the personal ineligibility (for PERS) criteria in RCW 41.40.120(4), supra, will not apply and, instead, the general rule of that statute will govern.  And, once again, under that rule all employees of a state agency or school district (cf., RCW 41.40.410, supra) in eligible positions are to be members of PERS unless otherwise personally ineligible.