Honorable John R. Torquato, AGO 680 Formal Opinion No. 680 Pennsylvania Attorney General Opinions Opinions of the Attorney General January 22, 1957 Social security—Extension to State employees—Division of State retirement systems for referendum purposes—Notice of referendum—Constitutional prohibition against modification of existing retirement system without consent of members—Section 6. 1 of the Act of January 5, 1952, P L. (1961) 1883, as amended—Section 218 of the Federal Social Security Act of August 14, 1985, 64 Stat. 514, as amended. Under section 218 of the Social Security Act of August 14, 1935, 64 Stat. 514, as amended, the statutory 90 days' notice period may not commence running prior to the date on which existing retirement systems are divided for referendum purposes and a 90-day period must elapse prior to the date on which that division occurs. That procedure will best satisfy the apparent intention of Congress that employees have sufficient time to determine their rights and liabilities and the intention of the legislature as set forth in section 6.1 of the Act of January 5, 1952, P. L. (1951) 1833, as amended, and will comply with the provision of the Constitution and the case law decided under it which permits existing retirement systems to be modified only with the consent of their members. Honorable John R. Torquato, Secretary of Labor and Industry, Harrisburg, Pennsylvania. Sir: You have asked to be advised as to whether or not the ninety (90) days' notice of referendum as required by Section 218 of the Social Security Act may commence running prior to the date upon which the existing retirement systems are divided for referendum purposes. It is our conclusion that it may not commence running prior to such date. It is our further conclusion that a ninety (90) day period must elapse prior to the date upon which the existing retirement system is divided for referendum purposes in order to insure the proper and adequate dissemination of information concerning social security coverage. Section 218 (d) (3) of the Social Security Act as amended, 42 U.S.C. § 418, sets forth the referendum procedures under which a state may contract for the extension of Old Age and Survivors Insurance coverage "to services performed by individuals as employees of such state or any political subdivision thereof." The Governor of the state must certify to the Secretary of Health, Education and Welfare as a prerequisite to contract, that the following conditions have been met:
"A. A referendum by secret written ballot was held on the question of whether service in position covered by such retirement system should be excluded from or included under an agreement under this section;
"B. An opportunity to vote in such referendum was given to eligible employes;
"C. Not less than ninety days' notice of such referendum was given to all such employes;
"D. Such referendum was conducted under the supervision of the Governor or agency or individual designated by him; and
"E. A majority of the eligible employes voted in favor of including service in such position under an agreement under this section." (Emphasis supplied)
On August 1, 1956, subsequent to the effective date of the above subsection, Section 218 (d) (6) of the Social Security Act was amended permitting in certain named states, including Pennsylvania, a division of existing retirement systems for referendum purposes into two divisions or parts; one composed of those contributors who expressed the desire to be covered under Old Age or Survivors Insurance and the other composed of those contributors who expressed the...
