WITHDRAWAL BY INDIVIDUAL DISTRICTS

DISTRICTS ‑- SCHOOL ‑- EMPLOYEES ‑- RETIREMENT ‑- PENSIONS ‑- SOCIAL SECURITY ‑- WITHDRAWAL BY INDIVIDUAL DISTRICTS

 Because of the requirements of federal social security coverage for school district employees under RCW 41.40.411 and RCW 41.33.010, et seq., an individual school district may not withdraw from OASI.

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                                                                   March 23, 1983

 Honorable Ray Moore
St. Sen., 36th District
431 Public Lands Building
Olympia, Washington 98504

Cite as:  AGO 1983 No. 5                                                                                                                  

 Dear Sir

             By recent letter you requested our opinion on the following question:

             "Can a single school district pull out of social security?"

             We answer this question in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS                                                                          

             A public school district in this state is a form of political subdivision.  And, generally speaking, individual political subdivisions which earlier elected to provide social security coverage for their employees may subsequently terminate such coverage.  See, our letter opinion of April 3, 1968, to the Commissioner of the State Employment Security Department, copy enclosed, in which the procedures for such termination were also outlined.

             Having said that, however, we must nevertheless answer your present question in the negative.  For, in addition to the general provisions of chapter 41.48 RCW there also exist certain other statutes which come into play when the social security termination issue is raised in the context of a school district.  Those other statutes are RCW 41.40.411 and chapter 41.33 RCW, in general.  They apply, respectively, to noncertificated school district personnel  [[Orig. Op. Page 2]] who are members of the Washington Public Employees' Retirement System (PERS) and to those school district personnel (mainly classroom teachers) who are members of the Washington Teachers' Retirement System (TRS).

             RCW 41.40.411:

             This first statute codifies the provisions of § 2, chapter 84, Laws of 1965.  What it says, in essence, is that social security coverage is mandatory for all noncertificated school district personnel who are also members of the Washington Public Employees' Retirement System.  The full text of the statute reads as follows:

             "Every school district which has become an employer under this chapter prior to the effective date of this 1965 amendatory act or which becomes an employer after such effective date, shall immediately take such administrative action as may be necessary to extend to its employee members of the retirement system and their survivors the protection and benefits of the old-age and survivors insurance system embodied in the federal social security act."

             Thus, whereas other political subdivisions initially had an option to provide social security coverage in the first place, and thus now likewise have an option to terminate such coverage in the manner described in our 1968 opinion,supra, the initial coverage of those school district noncertificated employees was mandated by the legislature.

             In our opinion it would, however, be a somewhat hollow mandate if, notwithstanding the foregoing 1965 enactment, an individual school district could, at any time thereafter, terminate such coverage.  We therefore must conclude that in the case of noncertificated school district personnel, any termination of social security coverage by an individual school district should be deemed to be barred, implicitly, by RCW 41.40.411, supra.

             Chapter 41.33 RCW:

             Chapter 41.33 RCW, which codifies a 1957 legislative enactment (chapter 183, Laws of 1957) together with subsequent amendments thereto, relates to social security coverage for those school district employees who are also members of the State Teachers' Retirement System (TRS).  And, like RCW 41.40.411,supra, what that enactment basically did was to eliminate the discretion of  [[Orig. Op. Page 3]] individual school districts or other employers and, instead, to cause all TRS members to be covered by the federal social security program as a statewide retirement system coverage system group.  Cf., 42 U.S.C. § 418 (d)(4).

             We are aware, of course, that a different federal statutory definition of the term "coverage group" applies for purposes of termination.  See, 42 U.S.C. § 418 (b)(5) which,inter alia, makes the employees of each political subdivision of a state (with a limited exception not here applicable) a separate coverage group.  But under that definition, all employees of a given school district, and not merely those who are members of TRS, would constitute a single coverage group‑-and any attempt to withdraw that coverage group from OASI would be stymied by the mandatory coverage requirement of RCW 41.40.411, supra.

 Moreover, although worded somewhat different than RCW 41.40.411, supra, we believe that chapter 41.33 RCW itself also constitutes a mandate of much the same legal significance.  That law, likewise, requires that a certain class of school district employees (in this instance, those covered by TRS) be covered by federal social security.  Thus, what we said earlier, on that count, about the withdrawal of noncertificated employees of a given school district is equally applicable here‑-so long as chapter 41.33 RCW (like RCW 41.40.411) remains in effect.

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Senior Deputy Attorney General