March 29, 1990

Steven Weinberger, Director
Retirement Division
Office of the State Comptroller
55 Elm Street, 3rd Floor
Hartford, CT 06106

Dear Mr. Weinberger:

By letter dated December 1, 1989 on behalf of the State Employees Retirement Commission, you asked whether the arbitration award between the state and the State Employees Bargaining Agent Coalition (SEBAC), which was approved by the General Assembly on October 12, 1989, extends the retirement incentive provisions of Public Act No. 89-323 (“Act”) to certain categories of employees in hazardous duty job classifications who had twenty years of such service on or before July 1, 1989 and became eligible for retirement as of that date as a result of provisions in the arbitration award which had an effective date of July 1, 1988. We conclude that the arbitration award does not operate to change the provisions of the Act which impose the eligibility requirements for retirement at the time the Act was passed.

On August 16, 1989, the Attorney General responded to an inquiry of the State Comptroller as to whether members of the State Employees Retirement System (SERS) serving in hazardous duty job classifications were eligible for the supplemental retirement benefits provided by the Act if they had twenty years of service but had not attained the age of forty-seven as of July 1, 1989. Noting that Conn. Gen. Stat. e 5-173(a) sets forth retirement qualifications for SERS members in hazardous duty job classifications and provides a minimum age requirement of forty-seven, the Attorney General advised that the Act did not alter existing retirement requirements and therefore it did not extend to such members since they did not qualify for retirement under Conn. Gen. Stat. e 5-173(a) on or before July 1, 1989 as expressly required by the Act. ______ Conn. Op. Atty. Gen. ____ 1989 (letter to Honorable J. Edward Caldwell, August 16, 1989). The validity of that conclusion is not affected by the arbitration award.

Section 1 of the Act provides in pertinent part:

[A]ny member of the state employees’ retirement system (1) who is in active state service or receiving workers’ compensation payments, and who has ten or more years of credited state service and is eligible to retire on or before July 1, 1989 … shall be eligible for a supplemental retirement benefit, provided such member submits a written application for retirement to the retirement division of the office of the comptroller on or after June 1, 1989, but before October 1, 1989. Such retirement shall become effective the first day of the month following receipt of such application. No member whose application for retirement is received on or after October 1, 1989, shall be eligible for such benefit.

The members of SERS to whom the Act potentially applies are limited by the specific qualifications stated in the Act. Among the qualifications imposed by the plain language of the Act is that the SERS member “is eligible to retire on or before July 1, 1989.” Where the language of a statute is clear, the statute must be applied as written. Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 642, 474 A.2d 752 (1984); State v. Beauton, 170 Conn. 234, 241, 365 A.2d 1105 (1976). If there is no ambiguity in the statutory language, there is no room for construction. Connecticut National Bank v. Commissioner, 209 Conn. 429, 433, 551 A.2d 417 (1988); State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 721, 546 A.2d 830 (1988). Accordingly, the Attorney General concluded in the August 16, 1989 opinion that SERS members in hazardous duty job classifications must meet the eligibility requirements for retirement set forth in Conn. Gen. Stat. e 5-173(a) in order to apply for the supplemental benefits provided by the Act.

Not only must an SERS member be eligible to retire in accordance with Conn. Gen. Stat. e 5-173(a) on or before July 1, 1989, he must meet the retirement requirements of that statute existing at the time the Act was passed. When the Act was passed and approved in June, 1989, Conn. Gen. Stat. e 5-173(a) included a minimum age requirement of forty-seven for retirement. Where a statute is incorporated into another statute by specific or descriptive reference, the statute which is incorporated is taken as it existed at the time of incorporation. Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 154, 285 A.2d 352 (1971); Simmons v. State, 160 Conn. 492, 499, 280 A.2d 351 (1971). It is presumed that the General Assembly does not intend that a modification or a repeal of the incorporated statute will affect the other statutory provision. Simmons v. State, supra, 498; Weigel v. Planning and Zoning Commission, 160 Conn. 239, 248, 278 A.2d 766 (1971). Although the language of a statute may expressly or implicitly indicate that subsequent modifications are to be considered, there is no such language in the Act.

The legislative history of the Act as well as its language indicates that the General Assembly intended to limit the retirement incentive program to an existing group of SERS members. In identifying those members who qualify for the supplemental benefits, the General Assembly applied the statutory retirement requirements as in effect. Describing the provisions of the Act, Representative Mulready stated that the retirement incentive program is available to “employees with ten years of state service and otherwise meeting the normal requirements of retirement … .” 32 Conn. H.R. Proc., pt. ___, 1989 Sess. 13386 (June 6, 1989). When asked how many SERS members are eligible for the program, Representative Mulready indicated 6,151 members and later noted that a list had been prepared which identified those 6,151 members. 32 Conn. H.R. Proc., pt. ___, 1989 Sess. 13388-13389 and 13421 (June 6, 1989). The fiscal note prepared in connection with the Act and the calculations made to determine potential savings to the state are based on that identified pool of members. 32 Conn. H.R. Proc., pt. ___, 1989 Sess. 13388-13392 (June 6, 1989).

You indicate in your letter that the September 25, 1989 arbitration award which resulted from interest arbitration under Conn. Gen. Stat. e 5-276a involving the state and SEBAC, accepted the last best offers of SEBAC as to an increase in the number of job classifications covered by the hazardous duty retirement provisions and an elimination of the age forty-seven eligibility requirement. You state that the award has an effective date of July 1, 1988 and based on that fact, you ask whether the award operates to make the retirement incentive program established by the Act available to SERS members eligible to retire under the award. You also indicate that the award was approved by the General Assembly on October 12, 1989.

As already indicated, the Act applies to SERS members who are eligible to retire on or before July 1, 1989, based on the retirement requirements existing at the Act’s passage and operation of the Act is not affected by any change in eligibility requirements under the award. Moreover, the Act expressly sets apart its retirement incentive program from the bargaining process between the state and SEBAC by providing in Section 1 that those particular benefits are established “notwithstanding any provision of chapter 66 of the general statutes and subsection (f) of section 5-278 of the general statutes to the contrary.” In moving for approval of the amendment which added the reference to Conn. Gen. Stat. e 5-278(f), Representative Adamo stated that the amendment:

[A]ccepts [sic] this particular one-time change in benefits from collective bargaining process until October 1, 1989. It does not …and will not prevent the unions that are involved in collective bargaining process for pensions from going forward on early retirement matters, other than this particular benefit. (Emphasis added.)

32 Conn. H.R. Proc., pt. ___, 1989 Sess. 13395 (June 6, 1989).

Not only does the award not address the provisions of the Act, the General Assembly removed this statutory retirement incentive program from collective bargaining, insulating its statutory provisions from any change in Conn. Gen. Stat. Chapter 66 resulting from the collective bargaining process between the state and SEBAC. The Act is characterized by Representative Adamo as an exception to collective bargaining and a one-time situation which disappears on October 1, 1989. 32 Conn. H.R. Proc., pt. ___ 1989 Sess. 13393 (June 6, 1989). It is clear from both the legislative history and the plain language of the Act that the retirement incentive program is intended to operate without regard to the collective bargaining provisions of Conn. Gen. Stat. e 5-278(f) and Chapter 66. Consequently, the award does not affect the terms of the Act or its application.

It should also be noted that the award was not binding until there was “approval” or a failure to reject under Conn. Gen. Stat. e 5-278(b)(2). You indicate that the General Assembly approved the award on October 12, 1989. At that time the retirement incentive program had ended. Even if the award operated to increase the number of SERS members eligible to retire under Conn. Gen. Stat. e 5-173(a) on or before July 1, 1989, the award was not binding and effective until after October 1 and it did not include any language which would waive or modify the other requirements of the Act such as the mandatory filing period of “on or after June 1, 1989, but before October 1, 1989.”

An administrative body must act strictly within its statutory authority. Waterbury v. Commission on Human Rights and Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). The agency also may not modify or abridge statutory provisions unless the statute expressly grants that power. Lundy Electronics and Systems, Inc. v. Tax Commissioner, 189 Conn. 690, 695, 458 A.2d 387 (1983); Ziomek v. Bartimole, 156 Conn. 604, 609, 244 A.2d 380 (1968). As with the courts, an administrative body may not take action which is counter to statutory provisions even if supported by claimed equities. Olszewski v. State Employees Retirement Commission, 144 Conn. 322, 326, 130 A.2d 801 (1957). For these reasons, the State Employees Retirement Commission is required to apply the provisions of the Act as written to the members of SERS serving in hazardous duty job classifications. The arbitration award does not operate to change or expand the provisions of the Act.

Very truly yours,

CLARINE NARDI RIDDLE
ATTORNEY GENERAL

Judith M. Hecker
Assistant Attorney General

CNR/JMH/dh

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