Attorney General: Steven Weinberger, State Employees Retirement Commission, 2000-003 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 31, 2000

Steven Weinberger
Director, Retirement and Benefits Services Division
State Employees Retirement Commission
55 Elm Street
Hartford, Connecticut 06106-1775

Dear Mr. Weinberger:

In your letter of September 9, 1999, you asked us whether an active judge participating in the Judges, Family Support Magistrates, and Compensation Commissioners Retirement System (hereinafter referred to as the judges retirement system) may concurrently receive a benefit from the State Employees Retirement Fund (SERF). We conclude that an individual who is eligible to receive a SERF pension may not collect it while he or she holds a salaried position as a judge. We further advise you that if such an individual retires as a judge, he or she may receive a pension from either SERF or the judges retirement fund and may receive credit for all of his or her state employment with either system. That person, however, may not collect benefits from both pension funds.

You explained that a superior court judge has asked to receive a SERF benefit while contributing to the judges retirement fund. That judge was a Tier I member of the state employees retirement system from December 5, 1962 through September 7, 1973. When he left state employment at age 42, he had accrued 12 years and 3 months of Tier I credit (including purchased military service) and had established a vested right to a SERF pension. He began collecting a SERF benefit in March, 1986, the month after he turned fifty-five. When he was appointed to the bench in 1994, the State Employees Retirement Commission stopped paying him his SERF benefit. The judge has now requested reinstatement of his SERF pension as well as payments of that benefit retroactive to the date of his judicial appointment.

Subsection 5-164a(c) of the Connecticut General Statutes specifically prohibits a retired state employee, who resumes permanent employment with the State, from drawing a pension benefit while he or she remains employed. That statute provides, in pertinent part: "No member [of the state employees retirement system] reemployed ... or otherwise reentering state service shall receive a retirement income during his reemployment or other state service...." "State service" is defined in Conn. Gen. Stat. 5-154(m) as "service with the state, either appointive or elective, for which a salary is paid...." "Salary", in turn, includes "any payment ... for state service made from a payroll submitted to the Comptroller...." Conn. Gen. Stat. 5-154(h). A superior court judge's paychecks are issued on the basis of a payroll prepared by the Judicial Department and forwarded to the Comptroller. Consequently, such pay constitutes a "salary," and employment as a judge constitutes "state service". Section 5-164a(c) of the Connecticut General Statutes therefore prohibits a superior court judge from drawing a SERF pension while remaining an active member of the bench. Compare Murphy v. State Employees Retirement Commission, 218 Conn. 729 (1991)(a retired state employee who was appointed to be a magistrate could continue to receive his SERF pension, because the per diem fees which he received as a magistrate were not a "salary".)

It is important to note that the circumstances of the superior court judge described in your letter are distinguishable from those of the plaintiff in Gormley v. State Employees Retirement Commission, 216 Conn. 523 (1990). The plaintiff in that case was a retired state's attorney who was receiving a pension from the State's Attorney's Retirement Fund (SARF) at the time he was appointed as a judge. The Connecticut Supreme Court held that the plaintiff could continue to receive his pension even after becoming a judge, because at the time he retired as a state's attorney, there was no statute prohibiting a retired state's attorney from receiving a retirement benefit from SARF while serving as a judge. The court, however, explicitly distinguished SARF from SERF. It noted that "SERF has contained a provision since 1965 preventing its participants who have retired from a state position and who are receiving a pension from collecting both a salary and pension benefits upon securing another state position....Until...[1985] no comparable provision existed in SARF." Id. at 526, n. 5.

Upon retirement, a superior court judge who has contributed to both SERF and the judges retirement fund may receive a benefit from only one pension plan, although he or she may receive full credit with either plan for his or her years of service as a state employee and as a judge. Subsection 5-160(c) of the Connecticut General Statutes expressly prohibits dual membership in the state employees retirement system and the judges retirement system. That statute provides: "Except for such members as elected to remain or be reinstated as members of the state employees retirement system under section 5-166a, members of the judiciary eligible for retirement under the provisions of section 51-50 or 51-50a ... are not eligible for membership in the state retirement system."

At the time of retirement, or within twelve years after being appointed to the bench, whichever occurs first, a judge who has a vested right to receive a SERF pension benefit must choose either to remain in the state employees retirement system or to belong instead to the judges retirement system. Conn. Gen. Stat. 5-166a. If the judge decides to stay in the state employees retirement system and he is not yet ready to retire, he may resume contributing to SERF. Any contributions he previously made to the judges retirement fund will be transferred to SERF, and he will receive credit in the state employees retirement system for the period of his service as a judge. Id. Conversely, if the judge elects to be a member of the judges retirement system, his prior contributions to SERF may be transferred to the judges retirement fund, and he may receive credit in that system for all his years of state service. Conn. Gen. Stat. 51-50(a).1

If the judge fails to choose a pension plan within the requisite twelve-year period, he will be made a member of the judges retirement system and his contributions to SERF will be refunded to him. Conn. Gen. Stat. 5-166a. In that case, he will not receive credit for his service to the State prior to his judicial appointment. At any time prior to his retirement, however, he may repurchase credit for his previous years of state service by repaying the refunded amount, with interest, to the judges retirement fund. Conn. Gen. Stat. 51-50a(a)(2).

In conclusion, pension benefits for the judge who is the subject of your inquiry cannot resume until he retires from the bench. Because he is over the age of sixty-five, he is already eligible to retire, with a reduced benefit, from the judges retirement system. Conn. Gen. Stat. 51-50a. He may remain a member of either that system or the state employees retirement system, but not both. He must choose one of the two systems before he either retires or completes the twelfth year of his appointment.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Heather J. Wilson
Assistant Attorney General

RB/HJW/hjw


1 For further analysis and discussion of the statutes pertaining to retirement benefits for judges who have formerly participated in SERF, see 1988 Conn. Op. Atty. Gen. 193 (advising that judges may not collect pensions from both the state employees retirement fund and the judges retirement fund).


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