Opinion No. (1991) Ag ( 1991 )

ATTORNEY GENERAL HENRY HAS ASKED THAT I RESPOND TO YOUR REQUEST FOR ADVICE REGARDING THE FOLLOWING QUESTIONS:

DOES THE EXECUTIVE SECRETARY OF A STATE RETIREMENT SYSTEM HAVE THE AUTHORITY TO INTERPRET AND/OR MAKE CHANGES IN THE RULES AND PROCEDURES OF THE RETIREMENT SYSTEM? ARE THOSE INTERPRETATIONS BINDING UPON THE MEMBERSHIP?

IT IS WELL SETTLED THAT WHERE RULES AND REGULATION, PROMULGATED BY A STATE AGENCY PURSUANT TO STATUTORY AUTHORITY, DO NOT CONFLICT WITH THE LAW, SUCH RULES ARE GIVEN THE FORCE AND EFFECT OF LAW. HOWEVER, WHEN MORE THAN ONE MEANING MAY BE ATTRIBUTABLE TO THE TERMS OF A REGULATION, WE THE COURT LOOK TO THE INTERPRETATION G IVEN TO THE REGULATION BY THOSE CHARGED WITH THE DUTY OF EXECUTING IT. WHEN CHOOSING BETWEEN TWO OR MORE POSSIBLE MEANINGS, CONTROLLING WEIGHT MAY BE GIVEN TO THE LONG-CONTINUED ADMINISTRATIVE USAGE UNLESS IT IS PLAINLY ERRONEOUS OR INCONSISTENT WITH THE LANGUAGE. ?DEFERENCE TO AN AGENCY'S INTERPRETATION IS EVEN ORE CLEARLY IN ORDER WHEN THE CONSTRUCTION IS THAT OF AN ADMINISTRATIVE REGULATION RATHER THAN A STATUTE.

BELL V. PHILLIPS PETROLEUM CO., 641 P.2D 1115, 1121-22 (OKLA. 1982); BOWLES V. SEMINOLE ROCK AND SAND CO.,325 U.S. 410, 414, 65 S.CT. 1215, 1217, 89 L.ED. 1700 (1945). (EMPHASIS ADDED.) SEE ALSO JONES V. FEDERAL DEPOSIT INS. CORP., 748 F.2D 1400 (10TH CIR. 1984); HOOVER BRACKEN ENERGIES. INC. V. U.S. DEPARTMENT OF INTERIOR, 723 F.2D 1488, CERT. DEN. 105 S.CT. 93, 469 U.S. 821, 83 L.ED.2D 39 (1983).

THEREFORE AN EXECUTIVE DIRECTOR WHO IS CHARGED WITH THE ADMINISTRATION OF A RETIREMENT SYSTEM MAY INTERPRET THE LEGALLY AUTHORIZED AND PROMULGATED RULES OF THE AGENCY AND SUCH INTERPRETATION IS BINDING UPON THE MEMBERSHIP UNLESS AND UNTIL SUCH INTERPRETATION IS HELD TO BE PLAINLY ERRONEOUS OR INCONSISTENT WITH THE LANGUAGE OF THE RULE BY A COURT OF LAW.

BECAUSE YOUR INQUIRY COULD BE ADDRESSED WITH A REVIEW OF ESTABLISHED LEGAL PRECEDENT YOUR REQUEST IS BEING ANSWERED INFORMALLY. PLEASE NOTE THAT THE LEGAL OPINIONS EXPRESSED HEREIN ARE THOSE OF THE UNDERSIGNED ASSISTANT ONLY. IF YOU HAVE ANY QUESTIONS PLEASE FEEL FREE TO CONTACT ME.

(TAMMY M. THOMPSON)