Opinion
No. 75-078
Decided September 16, 1975. Rehearing denied October 9, 1975. Certiorari denied November 24, 1975.
Employer sought to garnishee state pension fund to recover funds allegedly owed it by its former employee who had contributed to the pension fund. Trial court permitted the garnishment and pension fund appealed.
Reversed
1. GARNISHMENT — Public Employees Retirement Association — Accumulated Deductions — Terminated Employee — Protected by Statute. The right to receive the refund of his accumulated deductions on termination of his employment is one of the statutory benefits accorded a member of the Public Employee's Retirement Association, and the fact that he is no longer an employee does not alter that right; therefore, under the clear and unambiguous terms of applicable statute, employer who attempted to garnishee the accumulated deductions in terminated employee's retirement association account takes nothing under its writ.
Appeal from the District Court in and for the County of Pueblo, Honorable Richard D. Robb, Judge.
Alan N. Jensen, for plaintiff-appellee.
J.D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Charles A. Kelley, Assistant Attorney General, Mary A. Rashman, Assistant Attorney General, for garnishee-appellant.
From a judgment entered in favor of the Pueblo Regional Planning Commission (Commission) on its writ of garnishment issued to the Public Employees' Retirement Association, the PERA appeals. We reverse.
Defendant Spytek had been an employee of the Commission and, as such, was a member of PERA. He was terminated by the Commission on January 23, 1974. At that time Spytek owed the Commission $1,000, which the Commission sued to recover. The writ of garnishment was issued as a corollary to that action.
On February 13, 1974, Spytek demanded payment from PERA of the full amount of the accumulated deductions standing to his credit on the date of his termination. This demand was timely under the provisions of § 24-51-109, C.R.S. 1973. On March 19, 1974, PERA was served with the writ of garnishment. PERA answered the writ on March 22, 1974, stating that it was not indebted to the defendant, but that it did have in its possession, or under its control, funds of the defendant; however, citing what is now § 24-51-219, C.R.S. 1973, it asserted that such funds were not "subject to process." The funds so held totaled $1,210.02. On May 15, 1974, a check in that amount was mailed to Spytek, who cashed it on receipt.
Section 24-51-219, C.R.S. 1973, provides:
"Funds not subject to process-taxation. None of the moneys, annuities, or other benefits mentioned in this Part 2 shall be assignable either in law or in equity or be subject to execution, levy, attachment, garnishment, or other legal process, and they shall be exempted from any state income tax."
The Commission contends that the above statute is inapplicable to the facts of this case because Spytek was no longer a member of PERA and, therefore, only a creditor-debtor relationship existed between him and PERA. In its judgment the trial court held that, "as the Defendant had terminated his employment and had requested a refund of his PERA account, said funds were, therefore, not exempt from attachment."
In accordance with § 24-51-215, C.R.S. 1973, Spytek's right to a refund arises under § 24-51-109, C.R.S. 1973, which provides:
"Whenever any member of the retirement association ceases to be an employee for any reason other than death or retirement, he shall be paid within ninety days subsequent to the certified date of termination of such employment, upon notice in writing thereof, the full amount of the accumulated deductions standing to the credit of his individual account without interest."
The language of § 24-51-219, C.R.S. 1973, is clear and unambiguous, and therefore construction is unnecessary. Lassner v. Civil Service Commission, 177 Colo. 257, 493 P.2d 1087. The issue is, therefore, one of the applicability of the statute.
[1] The statute is addressed to the funds held by the association, and their disbursement. It is not the relationship of the parties, but rather the status of the funds, which controls. It is the "moneys" and the "benefits" which are protected, not the individuals. The right to receive the refund of his accumulated deductions on termination of his employment is one of the statutory benefits, and as such, is protected. See Public Employees' Retirement Ass'n v. Johnson, 153 Colo. 239, 385 P.2d 415; and Boronat v. Boronat, 13 Wash. App. 671, 537 P.2d 1050.
If the fact that the recipient was no longer an employee were controlling, § 24-51-219, C.R.S. 1973, would be rendered meaningless because all benefits arise, and can be paid, only after the employee's termination of employment, whether by retirement or disability, § 24-51-210 to 213, C.R.S. 1973, by death, § 24-51-217, C.R.S. 1973, or by separation, as here. The funds held by PERA are exempt from garnishment, and other process as set forth in § 24-51-219, C.R.S. 1973. Therefore, the Commission takes nothing under its writ.
The judgment is reversed.
JUDGE RULAND and JUDGE KELLY concur.