RETIREMENT ‑- SIMULTANEOUS COVERAGE UNDER OASI AND STATE EMPLOYEES' RETIREMENT SYSTEM.

RETIREMENT ‑- SIMULTANEOUS COVERAGE UNDER OASI AND STATE EMPLOYEES' RETIREMENT SYSTEM. 

Employees of P.U.D. No. 1 of Clallam County now covered by OASI may also become participants in the State Employees' Retirement System. 

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                                                                February 21, 1956 

Honorable Francis Pearson
State Senator, 24th District
132 W. 14th
Port Angeles, Washington                                                                                                              Cite as:  AGO 55-57 No. 207

 Dear Sir:

             By previously acknowledged letter, you have asked our opinion as to the eligibility of employees of Public Utility District No. 1 of Clallam County to participate in the State Employees' Retirement System.

             The question of eligibility has arisen due to present participation of subject employees in the Old Age and Survivors Insurance program.  Specifically, the problem presented is whether this political subdivision, which has entered into an agreement placing such employees under OASI coverage, can now also participate in the State Employees' Retirement System.

             We conclude that this question may be answered in the affirmative.

                                                                      ANALYSIS

             On September 21, 1953, Attorney General's Opinion No. 53-55-136 [[to S. P. Totten, State Retirement System]]was issued answering this question with an opposite result.  We concur with the conclusions reached in that opinion under the law as it was then written.  However, due to subsequent amendments of the pertinent statutes, it is our opinion that a different conclusion should now be reached.  It appears that before the  [[Orig. Op. Page 2]] Federal amendments to the Social Security Act in 1954, and the amendments to our OASI Enabling Act in 1955 (chapter 4, Laws of 1955, Ex. Sess.), the intent of both Federal and state laws was clearly to prohibit dual coverage.  The amendments to the Social Security Act which were enacted September 1, 1954, and which became effective January 1, 1955, clearly repudiated the previous prohibition and specifically authorized coverage under the OASI program to individuals who were participating in another retirement system.  During the legislative session of 1955 our state legislature, following the authority given it by the Federal amendments, revised the state Enabling Act to allow employees of the state and local governments presently members of retirement systems to become eligible for coverage under OASI.

             Thus, we see a complete turnabout in congressional and legislative thinking since the former opinion was written.  Since both the Federal and state OASI provisions no longer prohibit dual coverage, the remaining factors to consider are the eligibility requirements of our State Employees' Retirement System.

             Among the exceptions to eligibility found in RCW 41.40.120, 1953 Supp., we find the following provision:

             "* * *

             "(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: * * *"  (Emphasis ours.)

             The former opinion quoted the above statute to further support the conclusion reached.  Apparently this was done on the theory that the OASI is a retirement plan operated in part by an agency of the state.  We now believe this to be a faulty premise, although the ultimate conclusion reached in that opinion would necessarily have been negative for reasons previously expressed herein.

              [[Orig. Op. Page 3]]

            It is our present opinion that the OASI program is operated wholly by the Federal government and that the state is merely an instrument used by the Federal agency to receive and transmit the various agreements and contributions.  As an example of complete Federal control, it should be noted that the Federal government has the power to reject any or all of the modifications to the original agreement which are submitted by the state agency.  Therefore, we do not believe the above quoted statute to be controlling in this particular case since the OASI is not operated wholly or in part by an agency of this state or a political subdivision thereof.  With this restriction removed, we see no reason why the political subdivision, which is the subject of this opinion, may not be eligible to participate in the State Employees' Retirement System.

             We trust the foregoing will prove helpful.

 Very truly yours,
DON EASTVOLD
Attorney General

PAUL J. MURPHY
Assistant Attorney General