Retirees elected to Legislature in November can draw pension, thanks to IRS phone call

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Eric J. Shelton, Mississippi Today/ Report for America

A lawmaker walks into the Capitol during a recess in the special session of the Legislature in Jackson Tuesday, August 28, 2018.

Most people do not welcome a phone call from the Internal Revenue Service, but a recent call means that Mississippi’s retired public employees can serve in the Legislature and draw their pension.

The Public Employees Retirement System Board, based on the IRS phone call, voted unanimously Tuesday to change its long-standing regulation that prevented retired public employees from drawing their pension while serving in the Legislature. Early last year the PERS Board had voted to change the regulation by January contingent on a ruling by the IRS that the change would not negatively impact the system’s tax exempt status.

But, it appears, based on preliminary discussions that the IRS was not going to OK the change, which would have meant an estimated seven new retirees elected to the Legislature in November under the assumption that they could draw their retirement would have to not serve or sacrifice their pension, which in general is significantly more than their legislative pay.

But on Tuesday, PERS Executive Director Ray Higgins said IRS officials recently had called and said they “intended to rule in favor of the (change to) the regulation.”

Based on that phone call, the PERS Board voted to change the regulation. The PERS vote comes less than a month before the Jan. 7 start of a new four-year legislative term where the new members were going to have to decide whether to sacrifice their pension or not take the seats they were elected to in November.

The IRS decision was based, at least in part, according to Higgins, on a phone call from the office of Attorney General Jim Hood explaining existing state law. In an official opinion released in late 2018, Hood’s office had said the long-standing regulation of the PERS Board saying retirees could not serve in the Legislature and draw their retirement check conflicted with existing state law.

That AG ruling created excitement with many pro-education groups with the speculation that retired educators might opt to run for the Legislature.

The attorney general’s opinion argued that preventing public employee retirees from serving in the Legislature while drawing their retirement was taking away a right that other citizens had. For instances, public employee retirees can serve in local government and retirees from the private sector can serve in the Legislature without suffering financial repercussions.

“I believe it is a good thing that all the retires who have been disenfranchised will now be able to serve,” said PERS Board member Randy McCoy, the former superintendent of the Tupelo Public School District.

McCoy and other board members expressed concern about what would happen if the official approval from the IRS never came. Attorneys told them there would be time for the Board to rescind the regulatory change without jeopardizing the system’s tax exempt status. In addition, apparently the IRS said the document approving the change already had been written and was going through a vetting process before being released.

Under the change the public employee retirees serving in the Legislature still might have to sacrifice a portion of their legislative pay to be considered part time and draw their retirement.

The change in regulation would not be of benefit for current public employee retirees who are serving in the Legislature. According to PERS staff, they would need a break from the Legislature for 90 days to be eligible.