B-166475, APR. 11, 1969

B-166475, APR. 11, 1969

TO MR. BARNEY FARBER:

WE REFER TO YOUR LETTER OF MARCH 19, 1969, CONCERNING DEPOSITS TO THE DISTRICT OF COLUMBIA TEACHERS' RETIREMENT AND ANNUITY FUND WHICH DR. JOSEPH M. CARROLL, ASSOCIATE SUPERINTENDENT, DISTRICT OF COLUMBIA PUBLIC SCHOOLS, PROPOSES TO MAKE UNDER THE PROVISIONS OF SECTION 31 728 OF THE DISTRICT OF COLUMBIA CODE.

YOU SAY THAT DR. CARROLL WILL SEPARATE FROM HIS POSITION WITH THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS ON OR SHORTLY AFTER JULY 1, 1969. HAVING MORE THAN 5 YEARS OF SERVICE IN THE PUBLIC SCHOOL SYSTEM, DR. CARROLL INTENDS TO ELECT A DEFERRED ANNUITY TO BECOME EFFECTIVE WHEN HE REACHES AGE 62. HE WISHES TO TAKE ADVANTAGE OF THE PROVISIONS OF SECTION 31-728 WHICH READS IN PART AS FOLLOWS: "IN COMPUTING THE LENGTH OF SERVICE OF RETIRING TEACHERS CREDIT MAY BE GIVEN, YEAR FOR YEAR, FOR (A) PUBLIC- SCHOOL SERVICE OR ITS EQUIVALENT OUTSIDE THE DISTRICT OF COLUMBIA BUT NOT TO EXCEED TEN YEARS; * * * PROVIDED, HOWEVER, THAT THAT PORTION OF THE ANNUITY WHICH RESULTS FROM CREDIT FOR SERVICE ALLOWABLE UNDER (A) AND (C) OF THIS SECTION SHALL BE REDUCED BY THE AMOUNT OF ANY ANNUITY WHICH THE RETIRED TEACHER IS ENTITLED TO RECEIVE UNDER ANY FEDERAL, STATE, OR MUNICIPAL RETIREMENT OR PENSION SYSTEM IN RESPECT TO SUCH SERVICE, EXCEPT THAT SUCH PORTION OF THE ANNUITY AFTER REDUCTION SHALL NOT BE LESS THAN THE ANNUITY PURCHASABLE WITH THE DEPOSIT WHICH THE TEACHER IS REQUIRED TO MAKE UNDER THE PROVISIONS OF THIS SECTION IN ORDER TO OBTAIN CREDIT FOR SUCH SERVICE: PROVIDED FURTHER, THAT NO CREDIT FOR SERVICE PRESCRIBED IN THIS SECTION, * * * SHALL BE GIVEN TO ANY TEACHER ENTERING THE SAID PUBLIC SCHOOLS AFTER JUNE 30, 1926, UNTIL HE SHALL HAVE DEPOSITED TO THE CREDIT OF THE TEACHERS' RETIREMENT AND ANNUITY FUND OF THE DISTRICT OF COLUMBIA A SUM EQUAL TO THE ACCUMULATED CONTRIBUTIONS AND INTEREST WHICH HE WOULD HAVE HAD CREDITED TO HIS INDIVIDUAL ACCOUNT IF SUCH SERVICE HAD BEEN RENDERED ON ACTIVE DUTY IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, SAID CONTRIBUTIONS TO BE BASED ON THE AVERAGE ANNUAL SALARY OF THE CLASS TO WHICH THE TEACHER IS APPOINTED: * * *. IF THE TEACHER SO ELECTS HE MAY DEPOSIT THE REQUIRED SUM IN THE TEACHER'S RETIREMENT AND ANNUITY FUND IN MONTHLY INSTALLMENTS WITH INTEREST AT 3 PER CENTUM PER ANNUM COMPOUNDED ANNUALLY, UPON MAKING A CLAIM WITH THE COMMISSIONER OF THE DISTRICT OF COLUMBIA, OR HIS DESIGNATED AGENT. * * *"

YOU ASK WHETHER DR. CARROLL MAY ELECT A DEFERRED ANNUITY WITH CREDIT FOR UP TO TEN YEARS OF SERVICE IN ANOTHER PUBLIC SCHOOL SYSTEM IF HE HAS NOT MADE THE TOTAL DEPOSIT REQUIRED BY SECTION 31-728 PRIOR TO HIS SEPARATION, BUT CONTINUES TO DEPOSIT MONTHLY INSTALLMENTS AFTER SUCH SEPARATION IN SUFFICIENT AMOUNTS SO THAT THE FULL AMOUNT REQUIRED WILL BE DEPOSITED BEFORE HE BECOMES ELIGIBLE FOR AN ANNUITY.

THE LIMITS ON TIME FOR ELECTING ADDITIONAL COVERAGE AND NUMBER OF INSTALLMENTS PREVIOUSLY APPLICABLE TO MONTHLY DEPOSITS UNDER SECTION 31- 728 WERE REMOVED BY THE AMENDMENT TO THAT SECTION BY THE ACT OF DECEMBER 29, 1967, PUBLIC LAW 90-231, 81 STAT. 748. WE FIND NOTHING IN THE HISTORY OF THE PERTINENT PROVISION WHICH REQUIRES THAT THE DEPOSITS IN QUESTION BE MADE WHILE THE TEACHER CONCERNED IS STILL EMPLOYED BY THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS. FURTHERMORE, THE DEFERRED RETIREMENT PROVISIONS OF SECTION 31-729, D.C. CODE, DO NOT APPEAR TO PREVENT THE COMPUTATION OF THE TEACHER'S ANNUITY AT AGE 62 DEPENDING ON THE EXTENT TO WHICH HE HAS IN FACT MADE DEPOSITS UNDER SECTION 31-728. IN THAT CONNECTION WE NOTE THAT THE ELECTION OF A TEACHER TO RECEIVE A DEFERRED ANNUITY RATHER THAN A REFUND OF RETIREMENT DEDUCTIONS CANNOT BE REVOKED. 27 COMP. GEN. 461, 468.

FOR THE REASONS STATED WE ARE OF THE OPINION THAT DR. CARROLL MAY ELECT TO RECEIVE CREDIT UNDER THE DISTRICT OF COLUMBIA TEACHERS' RETIREMENT AND ANNUITY PROVISIONS FOR UP TO TEN YEARS OF ELIGIBLE SERVICE OUTSIDE THE DISTRICT OF COLUMBIA PUBLIC SCHOOL SYSTEM EVEN THOUGH HE HAS NOT MADE ALL REQUIRED MONTHLY DEPOSITS TO THE RETIREMENT FUND AT THE TIME OF HIS SEPARATION WITH ENTITLEMENT TO A DEFERRED ANNUITY.