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03/17/95 JAMES WILFRED TUCKER v. EMPLOYEES'

March 17, 1995

JAMES WILFRED TUCKER
v.
EMPLOYEES' RETIREMENT SYSTEM BOARD OF CONTROL, ET AL.



Appeal from Employees' Retirement System Board of Control.

Released for Publication June 27, 1995.

Maddox, Shores, Houston, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

This is an appeal from a decision of the Employees' Retirement System Board of Control holding that a district Judge could not purchase additional credit in the Judicial Retirement Fund (JRF) for prior service as a county solicitor. The cause is before this Court for a hearing de novo pursuant to the provisions of the Judicial Retirement Fund Law, Ala. Code 1975, § 12-18-2(c).

Judge James Winfred Tucker served as a solicitor of Cullman County from 1963 to 1971. In 1981, he was elected district Judge for Cullman County, and served in that capacity for 12 years, from 1981 to 1993. He was not re-elected in 1992. When Judge Tucker left office, he had 12 years of service credited toward judicial retirement and was 62 years of age.

Judge Tucker claims that he was entitled to purchase at least three years of prior service credit pursuant to the provisions of Act No. 93-715, Ala. Acts 1993, which is codified as § 36-27-56.1, Ala. Code 1975. The ERS contends that under the provisions of § 12-18-55, Judge Tucker was not eligible for immediate retirement but had a vested retirement interest and was entitled to begin receiving retirement benefits upon his reaching 65 years of age.

Section 36-27-56.1 (Act No. 93-715) reads as follows:

"Purchase of credit for prior service as county solicitor.

"(a) Any vested member of any component system or fund of the Employees' Retirement System may claim and purchase up to three years' credit in his or her system or fund for up to three years of prior service which he or she rendered to any county government as a county solicitor.

"(b) Any vested member eligible to claim and purchase credit for prior service as a county solicitor under subsection (a), shall be awarded credit under the appropriate system or fund provided he or she pays into his or her respective retirement system or fund prior to the member's date of retirement, a sum of money equal to a percentage of the member's highest annual compensation or final average salary during the period of prior service, whichever is higher; the applicable percentage of the highest annual compensation or the final average salary, whichever is higher, shall be the sum of the prevailing percentage rates of employer and member contributions as required by the most recent actuarial valuation for each year of service purchased, not to exceed three years."

Judge Tucker contends that § 36-27-56.1 allows a vested member of any component system or fund, including the JRF, to claim and purchase up to three years' credit for prior service as a county solicitor. In fact, he says that § 36-27-56.1 was drafted specifically to cover his specific situation. *fn1 Judge Tucker argues that he was a "vested member of [a] component system or fund of the Employees' Retirement System."

The Board of Control held, by a split vote, that § 36-27-56.1 does not apply to the JRF, because, by its explicit terms, it applies only to a vested member of a "component system or fund" of the ERS, and that the JRF is not a "component system or fund" of the ERS. The ERS bases its argument upon a simple assertion: "The Judicial Retirement Fund is not a component of the Employees' Retirement System." We agree.

In Borom v. Employees' Retirement System Board of Control, 427 So. 2d 142 (Ala. 1983), this Court upheld the Board of Control's denial of requests by two district court Judges for permission to purchase military service credit in the JRF pursuant to ...


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