AGO 85-04.

• Court: North Dakota

North Dakota Attorney General Opinions 1985. AGO 85-04. OPINION 85-4Date Issued: January 24, 1985 (AGO 85-4) Requested by: Alan Person, Executive Director North Dakota Public Employees Retirement System- QUESTION PRESENTED - Whether N.D.C.C. section 54-52-05 and N.D.C.C. section 15-10-01, require Lake Region Community College to pay its employees' four percent retirement contribution to the Public Employees Retirement System.- ATTORNEY GENERAL'S OPINION - It is my opinion that N.D.C.C. section 54-52-05, and N.D.C.C. section 15-10-01, do not require Lake Region Community College to pay its employees' four percent retirement contribution to the Public Employees Retirement System. - ANALYSIS - Prior to July 1, 1983, employees in state government covered by the Public Employees Retirement System (PERS) contributed four percent of their gross salary to PERS. The 1983 North Dakota Legislature, in lieu of appropriating money for general salary increases, appropriated enough money in agency budgets for the employers to pick up two percent of the employees retirement contribution after July 1, 1983, and an additional two percent after July 1, 1984. On July 1, 1984, pursuant to 1983 N.D. Session Laws 192, jurisdiction over Lake Region Community College was transferred from the Devils Lake School District to the North Dakota State Board of Higher Education. Thus, Lake Region Community College is now a state agency. The question is whether in view of N.D.C.C. section 54-52-05, and the May 1983 guidelines from the Office of Management and Budget, Lake Region Community College is not now required to pay the four percent retirement contribution for their employees. Currently, Lake Region Community College is only contributing the 5.12 percent employer contribution. N.D.C.C. section 54-52-05(3), specifically makes payment of the employee's contribution optional. That section begins as follows:

54-52-05. MEMBERSHIP AND ASSESSMENTS - EMPLOYER PAYMENT OF EMPLOYEE CONTRIBUTIONS.

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3. Each employer, at its option, may pay the employee contributions required by subsection 2 . . .

The section continues with numerous sentences that begin "if contributions are paid . . . ." The express language of N.D.C.C. section 54-52-05, compels the conclusion that payment of the employee's contribution is not mandatory. Certainly state employees have...