Were Colorado metropolitan sewage disposal districts required to participate in the CCOERA public-employee retirement system?

Plain-English summary

The Attorney General concluded that metropolitan sewage disposal districts and other qualifying public employers were allowed, but not required, to participate in retirement plans administered through the Colorado County Officials' and Employees' Retirement Association.

The question followed repeal of a subsection that districts had used to explain why participation was optional when they already had pension plans. The AG found that the remaining statute still used permissive terms such as "authorized" and "may," rather than mandatory language.

The legislative history pointed in the same direction. Senate Bill 05-010 responded to a State Auditor report by expanding and clarifying which public employers could lawfully participate, not by forcing newly eligible employers to join.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the opinion applied in 2006

Metropolitan sewage disposal districts

Districts qualified as political subdivisions authorized to establish or join a CCOERA plan, but the statute did not compel participation.

Other public employers

The same permissive conclusion applied to other qualifying entities identified in the retirement-system law.

Retirement administrators and auditors

The 2005 amendments addressed employers that had participated without clear statutory authority. They broadened eligibility and allowed existing participants to remain, rather than creating a participation mandate.

Common questions

Did repeal of § 24-54-101(2) make participation mandatory?

No. The remaining provisions continued to use permissive language.

Could a metropolitan sewage district still participate?

Yes. It was included as a political subdivision authorized to establish a plan.

What was Senate Bill 05-010 intended to do?

The opinion read it as expanding and clarifying the category of eligible public employers.

Background and statutory framework

The State Auditor's 2004 performance audit found that some public employers had participated in CCOERA without legal authorization and recommended statutory clarification. The General Assembly responded with Senate Bill 05-010 and repealed the subsection that had referred to districts without another pension fund.

Section 24-54-101 nevertheless described eligible entities with terms such as "authorized," "may," and "shall also have the authority." The AG applied those words according to their ordinary permissive meaning.

Citations and references

Statutes: § 24-54-101(1), C.R.S. (2005); § 24-54-101(2), C.R.S. (2004).

Cases: Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004); Mortgage Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176, 1183 (Colo. 2003).

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-06-3-Whether-a-Metropolitan-Sewage-Disposal-District-is-Mandated-to-Participate-in-the-County-Municipal-and-Political-Subdivision-Officers-and-Employees-Retirement-System.pdf

Original opinion text

St a t e S e r v ic e s B u il d in g

STATE OF COLORADO

J ohn W. S uthers

Attorney General

1525 Sherman Street - 5th Floor
Denver, Colorado 80203
Phone (303) 866-4500

DEPARTMENT OF LAW

C y n t h ia H . C o f f m a n

Chief Deputy Attorney General
Acting Solicitor General

O f f ic e o f t h e A t t o r n e y G e n e r a l

FORMAL
No. 06-03
OPINION
AG Alpha No. LE AU AGBBQ
OF
March 30, 2006
JOHN W. SUTHERS
Attorney General

This opinion concerns the application o f the County, Municipal, and Political Subdivision Officers’ and Employees’ Retirement Systems, § 24-54-101, e ts e q . C.R.S. (2005) to metropolitan sewage disposal districts. The opinion is issued at the request o f Colorado State Auditor Joanne Hill.

QUESTION PRESENTED AND CONCLUSION
Q u estion : Are metropolitan sewage disposal districts mandated to participate in the

County, Municipal, and Political Subdivision Officers’ and Employees’ Retirement Systems pursuant to § 24-54-101, et seq. C.R.S. (2005)? A n sw er. No. Participation by metropolitan sewage disposal districts and other qualifying public employers is permitted, but not mandatory.

BACKGROUND
The Colorado County O fficials’ and Employees’ Retirement Association, (“CCOERA”) provides retirement plans to participating counties, special districts, metropolitan sewage disposal districts, municipalities and other public employers in Colorado pursuant to § 24-54-101(1), C.R.S. (2005), In May 2004, the State Auditor completed a Performance Audit regarding CCOERA’s retirement plans and made recommendations to the General Assembly. See Report o f the State Auditor, C o lo ra d o C ou nty O fficials a n d E m p lo yees R etirem en t A sso c ia tio n P erfo rm a n ce A udit, (May 2004)(“Report”). In particular, the Auditor suggested statutory clarification, “regarding what entities are permitted to participate in the plans and establish and document a process for ensuring that potential new member employers are statutorily eligible to participate.” S ee Report, at 8. The Auditor concluded that only a narrow category o f employers were eligible to participate in CCOERA. Id. at 64; see § 24-54-101(2), C.R.S. (2004). The Auditor’s Report

determined that certain public employers had been participating in CCOERA without legal authorization. Id. at 65. As a remedy, the Auditor suggested the General Assembly clarify and expand the category o f employers permitted to participate. Id. at 8, 64. The Report prompted the General Assembly to amend CCOERA’s statutes. See Administration o f Retirement Plans Created by Local Governments: Hearing on S.B. 05-010 before the S. Comm, on Local G ov’t, 2005 Leg., 65lh 1st Reg. Sess. (Colo. 2005); Administration o f Retirement Plans Created by Local Governments: Hearing on S.B. 05-010 before the H. Comm, on Local Gov't, 2005 Leg., 65th Ist Reg. Sess. (Colo. 2005). The change most pertinent to this opinion is the General Assem bly’s repeal o f § 24-54-101(2). This paragraph provided: (2) Any district organized or existing pursuant to part 2 o f article 20 o f title 30, part 5 or 6 o f article 25 o f title 31, or title 32, except article 8, C.R.S., referred to in this article as a “district”, and not otherwise having a pension fund may, by itself or in conjunction with any other district organized pursuant to said part 2 o f article 20 o f title 30, part 5 or 6 o f article 25 o f title 31, or title 32, except article 8, C.R.S., or in conjunction with any county covered by this article, authorize, establish, and maintain a general plan or system o f retirement benefits for its employees, or any class thereof, subject to appropriations available therefor.
§ 24-54-101(2), C.R.S. (2004)(emphasis added). Metropolitan sewage disposal districts had relied on the “and not otherwise having a pension fund” language in subsection 2 to support their conclusion that they were not required to participate in CCOERA because they already had a pension fund in effect. The issue presented is whether the repeal o f subsection 2 requires metropolitan sewage disposal districts and other public employers to participate in CCOERA.

DISCUSSION
Clear statutory provisions should be applied in a manner consistent with their plain and ordinary meaning. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004). Statutes should be read as a whole, giving sensible effect to all o f its parts whenever possible. Mortgage Invs. Corp. v. Battle Mountain Corp., 70 P.3d 1176, 1183, (Colo. 2003). In construing a statute, courts must effectuate the intent and purpose o f the General Assembly. See Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550, 554 (Colo. 1998). Section 24-54-101 details the entities permitted to establish retirement systems pursuant to the statutory scheme. Specifically, § 24-54-101(1) lists entities that are “authorized” to join; subsection (3) states that certain entities who have already established plans pursuant to title 31, C.R.S., “may” affiliate with a retirement plan established pursuant to § 24-54-101, et seq.; subsection (5) pronounces that certain entities not participating in social security pursuant to title 53, C.R.S., “shall also have the authority” to establish a plan pursuant to § 24-54-101, et seq.; subsection (6) provides that the board o f any retirement plan “may” participate; and subsection (7) states that entities already providing retirement system pursuant to § 24-54-101, et seq., even though previously not authorized to do so, “shall be allowed to remain in the plan or system.” Metropolitan sewage disposal districts are included among those “authorized” to establish a

Page 3
CCOERA plan as a political subdivision. See § 24-54-101(1), C.R.S. (2005). The plain and ordinary meaning o f the above-highlighted terms o f § 24-54-101(1) through (7) are permissive and not mandatory in nature. Thus, while the legislature repealed § 24-54-101(2), C.R.S. (2004) on which the metropolitan sewage disposal districts relied to support their conclusion that they were not required to participate in CCOERA, the language o f SB 05-010 makes clear that their participation is permitted, but not mandatory. The legislative history also indicates that the changes to CCOERA’s statutes were not intended to require public employers to participate, but rather to expand the categories o f employers who may participate. Specifically, during the hearing on SB 05-010 before the House Committee on Local Government, Representative Fran Coleman stated that changes to CCOERA were necessary to expand it to more members, and to allow any political subdivision to be a part o f CCOERA at their discretion. S ee Administration o f Retirement Plans Created by Local Governments: Hearing on S.B. 05-010 before the H. Comm, on Local Gov’t, 2005 Leg., 65th 1st Reg. Sess. (Colo. 2005) (statement o f Representative Fran Coleman, Member, House Comm, on Local Gov’t). Representative Coleman also commented that changes were needed to clarify who may be members o f CCOERA. Id. These comments, coupled with the permissive language o f the statute and the fact that the Auditor’s recommendations prompted the changes, substantially support the conclusion that the General Assembly intended to provide legal authority for public employers to participate in CCOERA if they so desired, not to mandate that they join.

CONCLUSION
For the reasons indicated above, I conclude that the repeal o f section 24-54-101(2), C.R.S. (2004) does not require metropolitan sewage disposal districts and other public employers to participate in CCOERA. However, the public entities authorized by statute may chose to participate in CCOERA at their discretion. Issued this 30lh day o f March, 2006.

JOHNW . S L n * ^ x w
Cqlq/ado Attorney General