GARY I. GATES, Secretary Department of Employe Trust Funds

You request my opinion as to whether the repeal of sections61.65 (6), (7) and 62.13 (9), (9a), (10), Stats. (1975), by chapter 182, Laws of 1977, and the amendment of section 41.05, Stats. (1975), by chapter 182 and thereafter by chapter 96, Laws of 1981, deleted the requirement that villages that reach the specified populations and all cities of the second, third and fourth class be mandatorily included in the Wisconsin Retirement System for police and firefighter personnel.

Prior to 1948, cities of the second, third and fourth class and villages having a specified population (5,000 as to police and 5,500 as to firefighters) were required to establish and administer local pension funds for their police and firefighters. Secs. 61.65 (6), (7), and 62.13 (9), (9a), (10), Stats. (1975). On January 1, 1948, these local funds were closed to new members but continued for existing members. Police and firefighter personnel hired by these villages and cities after December 31, 1947, were required to be covered by the Wisconsin Retirement Fund (WRF), the predecessor to the present Wisconsin Retirement System (WRS).

WRF coverage of all employes was not mandatory for cities and villages. A city or village had the right to elect whether it wanted to include its employes in the WRF. Sec. 40.21 (1), Stats. If the cities or villages elected to cover their employes under the WRF, police and firefighters were of course included. If, however, the cities and villages did not elect to cover all their employes, police and firefighter employes were still mandatorily covered by virtue of sections 61.65 (6), (7) or 62.13 (9), (9a), (10), Stats. (1975).

On April 1, 1978, chapter 182, Laws of 1977, terminated local administration of police and firefighter pension funds in these cities and villages and transferred their functions and operation to the *Page 35 WRF Board. Chapter 182 also repealed sections 61.65 (6), (7) and62.13 (9), (9a), (10), Stats. (1975), which require mandatory WRF participation of police and firefighters, notwithstanding lack of an election by the municipality to include all of its employes. However, section 41.05 (1), Stats. (1975), relating to required and elective participation in the WRF, maintained these repealed sections. The last sentence of section 41.05 (1), Stats. (1975), was amended by chapter 182 to include a reference to the 1975 statutes as follows:

A city or village which has not elected to participate but some of whose employes will be included within and subject to this fund on or after January 1, 1948 shall be included within and subject to this fund effective January 1, 1948, as though such employer had elected to participate in the fund, but until such employer does actually so elect and such election becomes effective, its employes included within and subject to this fund shall be only those specified by ss. 61.65 (6) and (7), 62.13 (9) (e), (9a), (10) (f) and (g), 1975 stats.

Retirement Systems Merger Bill, chapter 96, Laws of 1981, repealed section 41.05 and enacted the present section 40.21, which states in part:

(2) Any employer who elected or was required to participate in the Wisconsin retirement fund under s. 41.05, 1979 stats., shall be included in the Wisconsin retirement system on the same basis as the employer was included in the Wisconsin retirement fund.

. . . .

(4) Every city or village subject to ss. 61.65 and 62.13, 1975 stats., except a city of the 1st class, which is not otherwise a participating employer, is a participating employer but only with respect to present and future employes of its police and fire departments specified by ss. 61.65 (6) and (7) and 62.13 (9)(e), (9a) and (10)(f) and (g), 1975 stats.

Based upon this history, you ask which police and firefighter employes are included within the WRS by virtue of the mandatory language of section 40.21 (4).

It is my opinion that the mandatory inclusion of police and firefighters set forth in section 40.21 (4) relates only to those cities and villages which were affected by such mandate up to March 31, 1978, the effective date of repeal of sections 61.65 (6), (7) and *Page 36 62.13 (9), (9a), (10), Stats. (1975). Any police or firefighter personnel hired after March 31, 1978, by a municipality so affected are also mandated under the WRS by the present section40.21 (4). Municipalities not having sufficient population or city status on March 31, 1978, to be mandated under the WRS are not mandated thereunder if they reach that population or city status after March 31, 1978.

Chapter 182, Laws of 1977, which transferred the operation of the sections 61.65 and 62.13, local police and firefighter funds to the WRF, repealed those portions of sections 61.65 and 62.13, Stats. (1975), that mandated WRF coverage of police and firefighters employed after December 31, 1947. The amendment to section 41.05 (1), Stats. (1977), by adding "1975 stats., " simply recognizes this termination while preserving and maintaining the status of those who were previously made participants in the WRF. Thus the amendment requires the city or village to continue under the fund those local police and firefighter personnel already under the fund on April 1, 1978. Had the reference to "1975 stats." not been added, the right to continue those police and firefighters already in the fund would be in question since the cross-referenced sections "61.65 (6) and (7), 62.13 (9)(e), (9a), (10)(f) and (g)" were repealed. This repeal (with the saving language of section 41.05 (1), Stats. (1977)) cancelled all prospective coverage but maintained the obligation and authority in the cities and villages to continue coverage of policemen and firefighters already in place.

Section 41.05 (1), Stats. (1977), was repealed by the Retirement Systems Merger Bill and the last sentence substantially recreated in section 40.21 (4), with the addition of the language "but only with respect to present and future employes." Section 40.21 (4) thus clearly limits the prospective mandatory coverage to present and future police and firefighter employes of cities and villages that had such employes included in the WRF prior to the repeal of sections 61.65 (6) and (7) and62.13 (9)(e), (9a), (10)(f) and (g), Stats. (1975), effective March 31, 1978.

Without section 40.21 (4), mandatory WRF (now WRS) coverage would be limited to police and firefighter personnel employed on March 31, 1978, by those cities and villages having satisfied the statutory population and classification standards on that date. The present section 40.21 (4) provision, however, extends such mandatory WRS coverage to post March 31, 1978 police and firefighter *Page 37 employes of cities and villages who were in the WRS by virtue of mandatory coverage on that date.

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