AGO 1950 No. 192 - Jan 9 1950
A teacher retired for permanent disability who subsequently becomes employed by a public educational institution, ceases to draw a pension but continues to draw his annuity unless he elects to resume membership in the Teachers' Retirement System, in which case, annuity as well as pension payments are terminated.
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January 9, 1950
Mr. L. B. Burrus
Teachers' Retirement System
Olympia, Washington Cite as: AGO 49-51 No. 192
Receipt is acknowledged of your letter of November 18, 1949, in which you state that a former teacher retired for disability in 1947 under § 55, chapter 80, Laws of 1947 [Rem. 1947 Supp. 4995-74] has recovered from disability and returned to service as a non-certificated employee in a Washington public school. You inquire whether the State Teachers' Retirement System should pay this man his monthly annuity while he is so employed at some future date when he leaves public school employment restore his monthly pension, even though he may not be disabled at that time.
It is our conclusion that his annuity payments should continue but that his pension payments should be suspended so long as he remains in public school employment but may be resumed, when he leaves that employment, even though he may not actually be disabled at that time, but he may elect to drop his retirement and resume membership in the Teachers' Retirement System.
Section 55, chapter 80, Laws of 1947 [Rem. 1947 Supp. 4995-74], provides for the method of retiring a member of the system for disability determined to be permanent. This section first gives the member an option not material to this discussion and then provides:
[[Orig. Op. Page 2]]
"* * * If the member elects to receive a retirement allowance because of disability he shall be paid an annuity which shall be the actuarial equivalent of his accumulated contributions at his age of retirement and a pension which shall be the actuarial equivalent of the pension to which he would be entitled at age sixty (60) according to his years of service credit, but in no event shall the total allowance for disability be less than sixty dollars ($60) per month."
There is no express provision in the statute for terminating a permanent disability retirement allowance once granted. However, section 57, chapter 80, Laws of 1947 [Rem. 1947 Supp. 4995-76], provides:
"Any retired teacher who enters service in any public educational institution shall cease to receive pension payments while engaged in such service."
It will be noted that this section mentions only pension payments and does not mention annuity payments. Likewise, the section is not contingent upon the retired teacher entering service as a teacher. It is, therefore, applicable to one becoming employed as a non-certificated employee of a public educational institution. Thus, under the specific terms of section 57, the retired teacher referred to in your letter would cease to receive pension payments during his period of employment as a non-certificated employee in a public school but would continue to receive his annuity payments. Since the statute does not provide for setting aside the determination of permanent disability he would continue to be regarded as a permanently disabled teacher and when the bar to pension payments created by section 57 is removed by his ceasing to be employed in a public educational institution, pension payments should be resumed.
Section 58, chapter 70, Laws of 1947 [Rem. 1947 Supp. 4995-77], provides:
"A retired teacher upon returning to service in the public schools of Washington may elect to again become a member of the retirement system."
[[Orig. Op. Page 3]]
It will be noted that this section refers only to returning to service, and does not specify service as a teacher. Consequently, a former teacher who returns to employment in a public school, whether in the capacity of a teacher or not, may elect to again become a member of the Retirement System. Such election would be inconsistent with continuance of retirement since under section 50, chapter 80, Laws of 1947, one who retires on permanent disability terminates his membership. Therefore, one who elects to again become a member under section 58 would, in our opinion, thereby terminate his retirement and he would thereafter not draw either annuity or pension payments and his status would be the same as though his disability retirement had never taken place.
Very truly yours,
LYLE L. IVERSEN
Assistant Attorney General