Attorney General: Steven Weinberger, Director, Office of the State Comptroller, 1993-009 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 3, 1993

Steven Weinberger, Director
Retirement Division
Office of the State Comptroller
55 Elm Street
Hartford, CT 06106

Dear Mr. Weinberger:

This is in response to your letter of April 1, 1993 to this office in which you ask whether an active state employee who is currently a member of the State Employees Retirement System is barred from collecting a pension from the Judge's Retirement System while serving as a state employee.

The particular factual background to your question is as follows: On November 3, 1975, Nicholas Cioffi was appointed a Judge of the Superior Court. He resigned from the bench on January 31, 1991 and commenced service in the executive branch as Commissioner of Public Safety. As Commissioner of Public Safety he is a member of the State Employees Retirement System and receives credit for his time as Commissioner toward a hazardous duty retirement in that System. On the date he resigned from the bench, Commissioner Cioffi had earned a vested right to a benefit from the Judge's Retirement System, which will commence payments to him on November 3, 1995. Your question asks if his active service as an executive branch employee, or membership in the State Employees Retirement System, in any way bars or delays payment to Commissioner Cioffi of his judicial pension. At the outset, we would note that this issue will not become ripe unless Commissioner Cioffi continues employment as an executive branch employee up to and beyond November 3, 1995. With that in mind, for the reasons set forth below, the answer to your question is no.

This office has previously addressed a similar question from the State Employees Retirement Commission. In ___ Conn. Op. Atty. Gen. ___ to J. Edward Caldwell, Secretary, State Employees Retirement Commission (January 30, 1984), this office rendered an opinion that absent a specific statutory prohibition, a state's attorney who retired under the State's Attorneys Retirement System was entitled to collect both his retirement income and his judicial salary once he was appointed a judge. The opinion states:

[T]he statutes governing the State's Attorneys Retirement System do not contain a limitation upon the ability of a retired member to be employed by the State while receiving a pension from the State's Attorneys Retirement System. [C]ertain individuals may continue to collect a pension from the State's Attorneys Retirement System notwithstanding their reentry into State service on a full-time basis, albeit in some capacity other than that of a criminal prosecutor.

In 1985, the General Assembly adopted Connecticut General Statute e 51-287(e) which provides,"[a]ny such [state's] attorney who is retired under this section and who is appointed a judge shall not receive a retirement salary pursuant to this section during the period such retired attorney serves as a judge."

The supreme court had occasion to discuss the effect of the enactment of C.G.S. e 51-287(e) in Gormley v. State Employees Retirement Commission, 216 Conn. 523 (1990). Prior to 1985, "e 51-287(e) was not a part of SARF [State's Attorneys' Retirement Fund] and ... SARF contained no provision for the suspension of pension rights upon a retiree's reemployment with the state." Gormley, at 525-526. "[P]rior to the enactment of e 51-287(e), the [retired SARF member] would have been entitled to collect both his retirement income and a salary upon being appointed a judge." Gormley, at 529.

Thus the inquires which must be made to answer your question are: (1) what rights are established to a judicial retirement income; and (2) is there a specific applicable limitation to those rights in this case.

The Judge's Retirement System is found in Chapter 872 of the Connecticut General Statutes, Connecticut General Statutes ee 51-49 et seq. An examination of these statutes reveals that the system established is unitary and complete. It governs contributions (Connecticut General Statute e 51-50b), retirement age (Connecticut General Statutes ee 51-50 and 51-50a), disability retirement (Connecticut General Statutes ee 51-49 and 51-50), retirement salary (Connecticut General Statutes ee 51-49a and 51-49f), cost of living increases (Connecticut General Statutes ee 51-49b and 51-49c) and funding of the system (Connecticut General Statutes ee 51-49d and 51-49e).

Connecticut General Statute e 51-49a(a) sets forth the vesting requirements and the statutory right to a judicial pension applicable to Commissioner Cioffi. It states in relevant part:

The right to a retirement salary, in accordance with the provisions of this section, of any judge ... who is not eligible to retire under the provisions of section 51-50a, which judge ... has completed ten years of service as such, shall be vested and nonforfeitable.

Connecticut General Statute e 51-50a establishes the eligibility of a judge to retire at age sixty-five, or after twenty years of service as a judge, or after a total of thirty years of state service credit. At the time of his resignation from the bench, Commissioner Cioffi met none of these criteria. However, he had completed over ten years of service as a judge when he resigned. Thus, his "right to a retirement salary ... shall be vested and nonforfeitable." Conn. Gen. Stat. e 51-49a(a).

Connecticut General Statute e 51-49a(b) governs the computation of Commissioner Cioffi's judicial retirement:

Any such judge ... who first commenced service as a judge ... prior to January 1, 1981, and who resigns prior to becoming eligible to retire under section 51-50a and after at least ten years of service, shall receive, at such time as he would have been eligible to so retire if he had continued in such service, as retirement salary, annually, fifty per cent of the retirement salary he would have received had he served until he was so eligible, plus ten per cent of such retirement salary for each year of service beyond ten years but for not more than five years of additional service.

Commissioner Cioffi commenced service as a judge on November 3, 1975, prior to January 1, 1981. He resigned on January 31, 1991, prior to age 65 or twenty years of judicial service, but after ten years of judicial service. He is entitled to receive on November 3, 1995, as judicial retirement salary fifty per cent of the retirement salary he would have received after twenty years of service plus ten per cent of such retirement salary for each year of service beyond ten years, up to a period of five additional years. Since Commissioner Cioffi had over fifteen years of judicial service, on November 3, 1995 he becomes entitled to commence receiving as judicial retirement salary the amount he would have received after twenty years of service as a judge.

There is no statutory provision which provides for the deferral or suspension of this vested and non-forfeitable right to a judicial retirement salary under these circumstances. No provision in Chapter 872 of the General Statutes provides for a deferral or suspension of a judicial retirement income under any circumstances whatsoever.

As set forth at the outset, Commissioner Cioffi, as Commissioner of Public Safety, is now a member of the State Employees Retirement System, Chapter 66 of the General Statutes. There is no provision in Chapter 66 which would act to suspend or defer Commissioner Cioffi's judicial retirement salary because he is now an active state employee who is a member of the State Employees Retirement System.

The language and reasoning of the 1984 Opinion of this office is applicable here. The statutes governing the Judge's Retirement System and the State Employees Retirement System do not contain a limitation upon the ability of a retired, or resigned member to be employed by the State while receiving a pension from the Judge's Retirement System. Commissioner Cioffi may collect a pension from the Judge's Retirement System notwithstanding his reentry into state service on a full time basis, albeit in a non-judicial capacity as Commissioner of Public Safety.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

______________________

Robert A. Whitehead
Assistant Attorney General

RAW:eh


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