Opinion Number ( 2009 )

Dear Mr. Dupuy:

You have asked this office to advise whether a retiree currently receiving a benefit from the Assessors' Retirement Fund can be reemployed by an assessor's office on a full time permanent basis, reenter the Fund as an active member with the appropriate employee and employer contributions being made, and earn additional service credit. Your question has been assigned to me for research and reply.

La.R.S. 11:1401 creates the Assessors' Retirement Fund. La.R.S.11:1410 defines the membership of the Assessors' Retirement Fund and provides:

A. Membership in the Assessors' Retirement Fund and eligibility for retirement benefits shall be determined as set forth hereunder:

(1) Any assessor who was serving in office on July 26, 1950, or who is elected or appointed to office after July 26, 1950, shall be a member of this fund.

(2) Any assessor's employee who was employed in an assessor's office on July 26, 1950, or who is employed in an assessor's office after July 26, 1950, shall be a member of this fund.

(3) The secretary and regular employees of the Assessors' Retirement Fund and permanent employees of the Louisiana Assessors' Association and the Louisiana Assessors' Insurance Fund shall be members of this fund, provided that the Louisiana Assessors' Association and the Louisiana Assessors' Insurance Fund each pay the employer contributions for their employees who become members of this fund.

B. (1) Membership shall not be allowed on a part-time, temporary, or intermittent basis. Membership in the fund shall be allowed only to assessors, full-time permanent employees of assessors, the secretary and regular employees of the Assessors' Retirement Fund, and permanent employees of the Louisiana Assessors' Association and the Louisiana Assessors' Insurance Fund. Each member shall start paying into the fund the first regular payroll period after employment begins. Full-time, permanent employees as used herein, shall mean those employed on a full twelve-month basis within each calendar year; provided, however, that members may be granted leaves of absence, with no creditable service to be allowed for time on leave.

(2) Any person who is not an employee of an assessor or of one of the entities listed in Paragraph (3) of Subsection A of this Section, who has performed services for and under the primary direction and control of an assessor or one of the entities listed in Paragraph (3) of Subsection A of this Section or any related person determined in accordance with Section 414(n)(6) of the Internal Revenue Code, on a substantially full-time basis for a period of at least a year pursuant to an agreement between the person's employer and assessor or one of the entities listed in Paragraph

(3) of Subsection A of this Section shall not be a member of the fund. (Emphasis added).

Act 96 of the 2001 Regular Session of the Louisiana Legislature enacted La.R.S. 11:1413, which governs the reemployment of a retiree from the membership. La.R.S. 11:1413 provides:

A retiree receiving retirement benefits from the system may be temporarily reemployed by an assessor but the retiree shall not be or become a member of the system during such reemployment. If the retiree is reemployed in any capacity for more than one hundred working days during any calendar year, or the equivalent thereof, during any calendar year, the benefits payable to the retiree shall be reduced by the amount he earned after thirty working days, or the equivalent thereof. The retiree and the assessor shall immediately notify the board of the date of reemployment, the amount of salary paid, any changes in salary, the number of hours employed per week, the estimated duration of reemployment, and the date of the termination of the reemployment. If the retiree dies during reemployment, benefits shall be paid to any other person as if death occurred regardless of reemployment pursuant to any option which may have been selected by the retiree at the time of retirement. (Emphasis added).

Act 96 of the 2001 Regular Session of the Louisiana Legislature also amended and reenacted La.R.S. 11:1454. Prior to the 2001 amendments, La.R.S. 11:1454 stated that "[n]o member shall be eligible to draw any retirement benefits from this fund as long as he or she is employed in an assessor's office of Louisiana or by the Assessor's Retirement Fund, except that a surviving spouse may receive surviving spouse benefits and at the same time be employed in an assessor's office of by the Assessor's Retirement Fund . . ." La.R.S. 11:1454 now states "[n]o member of this fund shall be eligible to draw more than one retirement from this fund at the same time, except that a surviving spouse of a member may draw retirement benefits and also surviving spouse benefits from this fund at the same time."

In light of the above referenced legislative history, it is the opinion of this office that the legislature had an opportunity to allow a retiree receiving benefits from the Assessors' Retirement Fund to be reemployed by an assessor's office on a full time, permanent basis and chose not to. The legislature instead created a procedure which only allows for a retiree to be reemployed on a temporary basis. The effect of reading La.R.S. 11:1413 as allowing a retiree to return as a full time permanent employee to an assessor's office would essentially permit the retiree to become a member of the Assessors' Retirement Fund and continue to earn additional service credit while receiving both a public retirement benefit and a public salary. This result is not supported by the statutory provisions and legislative history discussed above. By choosing to enact the reemployment of a retiree procedure outlined in La.R.S. 11:1413, the legislature chose to allow retirees to only be reemployed by an assessor's office on a temporary basis.

In conclusion, we are of the opinion that a retiree currently receiving benefits from the Assessors' Retirement Fund cannot be reemployed in an assessor's office on a full time permanent basis. A retiree can be reemployed in an assessor's office on a temporary basis only. The retiree may be reemployed for more than one hundred working days during any calendar year, or the equivalent thereof, during any calendar year, but the benefits payable to the retiree shall be reduced by the amount he earned after thirty working days, or the equivalent thereof. La.R.S.11:1413. Additionally, the retiree and the assessor shall immediately notify the board of the date of reemployment, the amount of salary paid, any changes in salary, the number of hours employed per week, the estimated duration of reemployment, and the date of the termination of the reemployment. Id.

We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL

BY:__________________________ ERIN C. DAY ASSISTANT ATTORNEY GENERAL

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