December 11, 1997

ATTORNEY GENERAL OPINION NO. 97- 98

The Honorable Rocky Nichols

State Representative, 58th District

2329 Southeast Virginia

Topeka, Kansas 66605

The Honorable Vaughn Flora

State Representative, 59th District

431 Southeast Woodland

Topeka, Kansas 66607

The Honorable Anthony Hensley

Senate Minority Leader

State Senator, 19th District

2226 S.E. Virginia

Topeka, Kansas 66605

Re:	State Boards, Commissions and Authorities--Public Employees Retirement Systems; Kansas Police and Firemen's Retirement System--Definitions; Eligible Employers; Applications to Affiliate, Resolution, Employees Covered

Synopsis:	Because Shawnee County has already affiliated with the Kansas Police and Firemen's Retirement System (KP&F) for its eligible policemen, employees of the Shawnee County Department of Corrections could become KP&F members only if the Board of County Commissioners adds them to the County's group of participating policemen by officially designating them as being in support of law enforcement. The statutes do not provide for the ability of the County to make a separate application for affiliation to bring employees of its Department of Corrections under KP&F. Cited herein: K.S.A. 1996 Supp. 74-4952; K.S.A. 74-4954.

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Dear Representative Nichols, Representative Flora and Senator Hensley:

You ask whether Shawnee County may make a separate application for affiliation with the Kansas Police and Firemen's Retirement System (KP&F) to bring the employees of the Shawnee County Department of Corrections under KP&F, or whether those correctional employees can be certified as "in support" of the county's law enforcement officers and come into KP&F as part of that already existing affiliation. You also ask what process the correctional employees should use to receive certification as employees "in support" of law enforcement.

You state that Shawnee County has elected to participate in KP&F for the Sheriff and his deputies, but that the civilian employees of the Sheriff's Department are covered under the Kansas Public Employees Retirement System (KPERS). You advise that employees of the Shawnee County Department of Corrections have been covered under KPERS along with other Shawnee County employees. The Shawnee County correctional employees would now like to be covered under KP&F.

K.S.A. 74-4954 sets out the procedure for affiliation with KP&F as follows:

"(1) Any eligible employer may join the system on January 1 of any year on or after January 1, 1967. Application for affiliation shall be by resolution approved by the governing body of the eligible employer and shall be submitted to the board of trustees in such form as the board shall determine. . . . Such application may be for participation with regard to: (a) All policemen or firemen, or both, employed by the participating employer. . . . The application shall include a statement of the group or groups to be covered. Any such application, upon approval by the board of trustees, shall be irrevocable, except that extension of coverage to any of the above named employee groups not covered in the employer's initial application may be obtained by supplemental application to the board, in such form as may be provided by the board, with such coverage to be effective on January 1 of any succeeding year. . . ."

K.S.A. 1996 Supp. 74-4952 defines "eligible employer" as "any city, county, township or other political subdivision of the state employing one or more employees as firemen or policemen." "Employee" is defined as "any policeman or fireman employed by a participating employer whose employment for police or fireman purposes in not seasonal or temporary and requires at least 1,000 hours of work per year." K.S.A. 1996 Supp. 74-4952. "Police," "policeman" and "policemen" are defined as follows:

"[A]n employee assigned to the police department and engaged in the enforcement of law and maintenance of order within the state and its political subdivisions, including sheriffs and sheriffs'deputies, or in support thereof and who is specifically designated, appointed, commissioned or styled as such by the governing body or city manager of the participating employer and certified to the retirement system as such." K.S.A. 1996 Supp. 74-4952. (Emphasis added).

The Affiliation and Transfer Resolution No. 85-1212 adopted by Shawnee County on November 1, 1985, made application for Shawnee County "to become a participating employer in the KP&F system to provide for the inclusion of all its future eligible policemen. . . ." KPERS has informed us that Shawnee County is an eligible employer who joined the KP&F system effective January 1, 1986.

Correctional employees are not specifically included in the definition of "policemen," however K.S.A. 1996 Supp. 74-4952 allows the governing body of a participating employer to designate, appoint, commission or style other employees as "in support" of employees who are engaged in the enforcement of law as defined by the statute. The statutes do not describe what constitutes a "designation, appointment, commission or styling" of employees as in support of law enforcement. KPERS has informed us that Shawnee County could simply furnish KPERS with a list of names and social security numbers of the employees it wishes to cover under KP&F, with a formal written statement or resolution of the Board of County Commissioners, attested by the County Clerk, that the employees are officially designated as being in support of law enforcement in Shawnee County, and requesting that a KP&F file be opened in each of their names. Thereafter, for annual reporting purposes, these employees would be reported as part of Shawnee County's KP&F annual report, and the current KP&F employer contributions and employee withholding rates would be regularly remitted to KPERS along with the rest of the County's law enforcement personnel who are KP&F members.

K.S.A. 74-4954 allows an eligible employer to apply for participation in KP&F for only two groups of employees, police and firemen. The provision for a supplemental application applies to an employer who has not applied for membership of both its police and fireman, and who wishes to add one of those groups after it's initial application. Because Shawnee County has already affiliated with KP&F to cover all its future eligible policemen, the statutes do not provide for the County to make a separate application for affiliation to bring employees of its Department of Corrections under KP&F. In our opinion, employees of the Department of Corrections could become KP&F members only if the Board of County Commissioners designates them as being in support of law enforcement, which would add the designated correctional employees to the County's group of policemen who are already KP&F members.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Donna M. Voth

Assistant Attorney General

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