Opinion No. 75-307

OPINION — AG — **** DEPARTMENT OF INSTITUTIONS, SOCIAL AND REHABILITATIVE SERVICES — EMPLOYEE RETIREMENT **** PURSUANT TO 74 O.S. 1971 913 [74-913](1)(E) THE EMPLOYEES OF THE DEPARTMENT OF INSTITUTIONS, SOCIAL AND REHABILITATIVE SERVICES HIRED ON OR AFTER JULY 1, 1965, MUST JOIN THE PUBLIC EMPLOYEES RETIREMENT SYSTEM, UNLESS THEY PERFORM TEACHING SERVICES IN THE OKLAHOMA SCHOOL FOR THE DEAF OR THE OKLAHOMA SCHOOL FOR THE BLIND, IN WHICH CASE THEY HAVE AN OPTION AT THE TIME OF THEIR EMPLOYMENT TO PARTICIPATE IN THE TEACHER'S RETIREMENT SYSTEM IN LIEU OF THE PUBLIC EMPLOYEES RETIREMENT SYSTEM, OR UNLESS THEY ARE DIRIS EMPLOYEES PARTICIPATING IN THE TEACHER'S RETIREMENT SYSTEM, IN WHICH CASE THEY MAN CONTINUE TO PARTICIPATE IN SUCH SYSTEM IN LIEU OF THE PUBLIC EMPLOYEES RETIREMENT SYSTEM. CITE: 74 O.S. 1971 911 [74-911], 74 O.S. 1971 925 [74-925] (JAMES H. GRAY) DEPARTMENT OF INSTITUTIONS, SOCIAL AND REHABILITATIVE SERVICES — EMPLOYEE RETIREMENT Pursuant to 74 O.S. 913 [74-913](1)(e) (1971) the employees of the Department of Institutions, Social and Rehabilitative Services hired on or after July 1, 1965, must join the Public Employees Retirement System, unless they perform teaching services in the Oklahoma School for the Deaf or the Oklahoma School for the Blind, in which case they have an option at the time of their employment to participate in the Teachers' Retirement System in lieu of the Public Employees Retirement System, or unless they are DISRS employees participating in the Teachers' Retirement System, in which case they may continue to participate in such system in lieu of the Public Employees Retirement System. This office is in receipt of your opinion request wherein you ask, in effect, the following question: Do all employees of the Department of Institutions, Social and Rehabilitative Services hired on or after July 1, 1965, have a choice of joining either the Public Employees Retirement System or the Teacher Retirement System upon their employment date? The Public Employees Retirement System was created in 1963 by statute, 74 O.S. 901 [74-901] (1963), et seq. Two general provisions originally enacted in 1963 relate to state employees joining the System. Title 74 O.S. 911 [74-911] (1971) provides: "(1) Any employee of a participating employer on the entry date of such employer shall be a member of the system on the entry date. "(2) Any employee other than an elected official who is employed by a participating employer after the entry date of such employer and who has not attained age fifty-nine (59) at date of employment shall be a member of the system on the first day of the month immediately following employment. Any employee employed after the entry date of his employer who had attained age fifty-nine (59) at date of employment shall not be a member of the system. "(3) Any employee who is in military service or on leave of absence on the entry date of his employer shall become a member of the System upon his return to active employment." Title 74 O.S. 925 [74-925] (1971) provides: "All employees of participating employers who are eligible or may hereafter become eligible to be members of the system as provided by this act shall, as a condition of continuing employment or as a condition of obtaining employment with a participating employer, become members of the system." Taken together these general statutes require state employees to join the Public Employees Retirement System. However, employees of the Department of Institutions, Social and Rehabilitative Services, formerly the Department of Public Welfare, were specifically mentioned in 1965 legislation now codified at 74 O.S. 913 [74-913](1)(e), to wit: "Beginning July 1, 1965, all employees of the Department of Public Welfare shall participate in the Oklahoma Public Employees Retirement System to the same extent as other employees of participating employers in such System. Provided, that any employee performing teaching services in the Oklahoma School for the Deaf or the Oklahoma School for the Blind may elect to participate in the Teachers' Retirement System of Oklahoma in lieu of the Oklahoma Public Employees Retirement System; and any other employee at each such institution or any other institution under the jurisdiction of the Oklahoma Department of Public Welfare, participating in the Teachers' Retirement System of Oklahoma, may elect to continue to participate in such System in lieu of the Oklahoma Public Employees Retirement System. All employees who shall have participated in the Teachers' Retirement System of Oklahoma and not continuing therein shall have the right to withdraw their membership from the Teachers' Retirement System of Oklahoma on the same terms as other members withdrawing from such System for retirement. Provided, all persons employed at the Oklahoma School for the Blind and Oklahoma School for the Deaf on June 30, 1965, who became subject to the Oklahoma Public Employees Retirement System, on July 1, 1965, shall receive credit for prior service and be eligible for participation, regardless of age." Section 74 O.S. 913 [74-913](1)(e) accomplishes three things. First, it reiterates the general principle that all DISRS employees are covered under the Public Employees Retirement System. Second, it carves out a specific exception for employees performing teaching services in the Oklahoma School for the Deaf or the Oklahoma School for the Blind, granting them an option to participate in the Teachers' Retirement System in lieu of the Public Employees Retirement System. Third, it carves out a specific exception for other DISRS employees participating in the Teachers' Retirement System to continue to participate in such System in lieu of the Public Employees Retirement System. Section 74 O.S. 913 [74-913](1)(e) reads in the present tense and therefore, pursuant to rules of statutory construction, is construed to apply prospectively. The Supreme Court of Oklahoma stated twice: "Under a general rule of construction, where a statute is expressed in general terms and in words of the present tense, it will be construed to apply not only to things and conditions existing at the time of its passage but it will be also given a prospective interpretation by which it will apply to such things and conditions as come into existence thereafter." Acme Oil Gas v. Cooper, Okl., 33 P.2d 191, 193 (1934); Baker Strawn v. Magnolia Petroleum Co., Okl., 254 P. 26, 28 (1927). Because the language of Section 74 O.S. 913 [74-913](1)(e) is not limited to apply only to the persons so situated when it was enacted, it must be read prospectively. It is a well-settled rule of statutory construction that a later and more specific statute will control over an earlier, more general statute. Parks v. Smith, 204 Okl. 625,232 P.2d 614; Brown v. Manker, Okl., 410 P.2d 61. For this reason the specific legislative exception in Section 913(1)(e) must be made effective despite earlier, more general legislation. It is, therefore, the opinion of the Attorney General that your question be answered as follows: Pursuant to 74 O.S. 913 [74-913](1)(e) (1971) the employees of the Department of Institutions, Social and Rehabilitative Services hired on or after July 1, 1965, must join the Public Employees Retirement System, unless they perform teaching services in the Oklahoma School for the Deaf or the Oklahoma School for the Blind, in which case they have an option at the time of their employment to participate in the Teachers' Retirement System in lieu of the Public Employees Retirement System, or unless they are DISRS employees participating in the Teachers' Retirement System, in which case they may continue to participate in such system in lieu of the Public Employees Retirement System. (James H. Gray)