Number 9. September 27, 1968

Number 9. September 27, 1968 HONORABLE ROBERT Q. CRANE Treasurer and Receiver General State House Boston, Massachusetts 02133 Dear Mr. Treasurer: You have requested my opinion as to whether the voluntary retirement from state service of the "second member" of the State Board of Retirement forecloses him from serving out the balance of his three-year term on the Board, to which he had been elected as of February 16, 1968. I conclude that he may serve out his three-year term. 44 P.D. 12 It is provided by G.L. c. 10, § 18 that the second member of the State Board of Retirement: ". . . shall be elected by the members in service of such system from among their number in such manner and for such term, not exceeding three years, as the commissioner of insurance shall determine. . . ." Section 18 further provides: "Each member of such retirement board shall continue to hold office until the expiration of his term and until the qualification of his successor. Upon the expiration of the term of office of any elected, chosen or appointed member or in case of a vacancy in either of said offices, his successor shall be elected, chosen or appointed as aforesaid for a three-year term or for the unexpired portion thereof. . . ." Identical language is found in statutes relating to the Teachers' Retirement Board (G.L. c. 15, § 16) and the retirement boards established for counties, cities and towns (G.L. c. 32, § 20(4) ). I have found no cases, opinions of an Attorney General or legislative history which clearly establishes whether the retirement from service of the second member of a Board disqualifies him from continuing on the Board. Neither has the insurance commissioner formulated any written guidelines, pursuant to G.L. c. 10, § 18, which would assist in the determination of the question you have posed. I must therefore rely upon the language of § 18 and the general policy of the Massachusetts retirement laws. In requiring that the second member of the Board be elected "by the members in service of such system from among their number," § 18 does not specifically command that such member continue to be a "member in service" throughout his term. That the General Court knew how to express a requirement that the second member be a member in service during his entire term is illustrated by a predecessor of § 18, which declared that: "the second member shall be a member of the association elected by the latter." (St. 191 1, c. 532, § 4, cl. (1) ). It is significant that the language employed in the 1911 statute was changed to language substantially similar to that in § 18 by St. 1927, c. 325. Moreover, the provision in § 18 that each member of the Board shall continue in office until the expiration of his term further emphasizes the legislative intention to permit a retired Board member to serve out his elected term. The continuance in an elected office by a member of the state retirement system who has retired from his state position is consistent with other provisions of the state retirement law. For example, § 5(d) of G.L. c. 32 states that a member of the state retirement system "holding office by popular election" at the time of reaching maximum age shall continue to hold his elected office. Although I cannot conclude that the second member of the Board is in office by virtue of a "popular election," § 5(d) illustrates a policy of the General Court to permit elected officials to continue in office despite their retirement from state service. There is nothing in the information furnished us to suggest that any "member in service" point of view might be lost by the retirement of the "second member" from state service. Nor do I discern in the pertinent statutes any indication of any legislative purpose which would be frustrated by -such retirement. P.D. 12 45 I therefore conclude that the current "second member" of the Board of Retirement may serve out his three-year term despite his retirement from state service. Very truly yours, ELLIOT L. RICHARDSON Attorney General