Ronorabls John F. Rudd
Aotlng Dlreotor
Teeoher Retirement System of Texas
Austin, Texas
Dear sr :                  O~lhion No. O-3152
                           Rer Status of teechcr on learo
                               of sbsenw.
          We have reoeived your letter of AufSust 12, 19bl,
and alao your supplementary letter thereto of September 20,
19bL   In your supplementary letter you set out oertein
roots relating to three iudlvlduala, and you are mm
oonoerned nfth their stetua. We quote from suoh letter
a6 follmar
          "1. Pm. hTyrtle Gray WEM re-el~eetedas
    a teacher In the Fort Worth Public Schools ior
    the sehool year 1937-38 st a regulsr aeet~ng
    of the Board oi Education of the Fort Worth
    Independent %haol Distriot held ou June 4,
    1937. Em amtraet was for a term of apt)
     g;tar&-g:      E;   :::&+za,:n%%?
    de& &ring   the early pert of June, 1937, end
    wea tumble to ramme her sohool work. Under
    the xegalstlous gwemfng   the Fort Worth
    Indep#ndent School Dlstriet, the SuperLntendent
    of Schools has been authorized to grant leave
    of absence on aooount of serious illness. The
    Fort Worth F?uperintendentstates that he had
    hoped that she would reamer an8 resume h6r
    uork some time during the 1937-38 iaoh.001 year,
    and that e oubstltute teaoher was asalgned   to
    hex poaltlon end the poeltion held ror her in
    case ahe was able to teaoh letor. The Port Worth
    Superintendent advised us further aa tallows:
            'At the be+#nIlingof 1938-39, m-8. Gray
            was still unable to resume her school
            work. ??owever, under the regol8tion3
            authorixlw tho superintandent to pant
            lame of absence to e tesoher because of
            serious illness, Km. Qrrnywac considered
.   .

                as a lesve of absenae teacher. In CBS8 of
                prolonged Illness, it has bean customary
                to aontinue the grant of laave of absence
                for a pd0a   of more than one ycsr, if
                there Is a probability that .ateacher may
                ;;;;r=return to eerviae~within the school
                         Since Mrs. Gray was unable to
                wr%te Loause of the nature of her injury,
                applioatlon ror leave of absance was not
                required in her oase. Beaause of my
                D~rsonal knowledge of her physioul aondi-
                tion, lrnve of ebscpnaeWES extended.'
        L&a, Gray wns employed in the Fort 'Corth~ohools in
        the 1339-13&O ond the 19bO-19Ll school yesrs as a
        rttsiorve
                teacher at a salary of $631.80 per year.

              "2. Haa Bartha Graham waa given a taaahar*a
         contract for the school.term 1937-38 a8 a teacher
         in the publio schools of Delhart under d,r:teof
        ‘by 4, 1937. Under date of Kay 14, 1937, i&se
         Graham acoepted and signed the oontraot. At a
         meetlny,of the Board of Truetees of tCe Dalhart
         Tub110 rahools held on irumet 20, 1937, MEies Gsim
         was granta? a leave of absence for one year. *
         Graham advises UB:
                '1 had no oontrect for later years, as 1,
                was uneble to return to work on eoaount of
                my health. Bowaver, I was aerrlcd as a
                teaoher on leave of absenoe and could'have
                returned to work at any time, had i been able.*
                "3. Gn Septambar lb, 1937, the Dallas Board
        of   Eau08ti0n  paasea the r0n0wing lnotiont
                *that Was Anne Kagser ba re-eleoted as e
                teacher in,the elemantarg schools at a
                salary of @!,OOO.OO par school year of nina
                months, and that ahe be allowed a leave of
                abaenee for the session 1937-38 on eocount
                of har health.'
        Under date of septambar 29, 1937, #ins hnne Kayser
        exaouted e aontract, oopy of whlah is attached
        hereto. Under date ~of August 30, 1938, the Dellas
        Board of Education pessad tha tollowlug motion:

                'The election of the followinK teachers
                was held up at the regular election in
                June, on aocount .of failure to nest oer-
                teln requfrements. These requirements
                have now been met, end I reoomen8 that
                they be re-elected.
                                      Falary    Inoreasa
                I:hl.te
                      'Jlemantaq      1937-38   1938-39
                           . . . .        . ..
                         Yeyser, Anne   $2000.00   ":   '
        Under date of C:eptembar13 1938, the Dallas Board
        Of T..du.ontion         foiloY.4nf?
                     psz.sebtit-0         motion:
    *that the resignation of Anne Kagser be ao-
    ueptecl,am3 thet S special teacher be :
    authorized for City i'arkrchool at a
    salary of $100.00 per sahool month.'"
    We how return to your first letter to get the
    whhlchthe Teaaher Retirement tbstrUdesires
     ?uch questions read as followet
     "1. In the event the individual furnished
sstisfsatory Fvldence to the effect that such
individual waa prevented from returniug to
active smvlae beceuse of physioel oohditiou,
would the Boerd of Trustees be oarryihg out
the intent of the Retirement Law and would they
be aotlri within the llmitetions imposed by
the law on the Board of Trustees ti they ruled
that the individual hsd established nxmbership
In the Teaaher Retirement ~yntars,was entitled
to oredit for prior servioe, and ~8 eligible
to reeelve benafits in aoaordanoa with end
subjeot to the provisions of Eectlon 5 of the
Teeoher Rstiremant IRW?

     “2.  In the event the individual furnished
satisfaatory evidence to the effect that such
lndlvldoal was prevented from returning to
aotive aerviae beoauss of p47ysic81condition,
would the Board of Trustees be carrying out
the intent of the Retirement Iaw and would they
be eating v&thin the limitetiona imposed by t&e
law on the Board of Puatees if they ruled that
the meaber had not establlahed oredit for prior
seniee and refused to fasue a prior service
aertifioate to the indiri&alO

     “3. In the event the individual cannot
furnish satistaotory evidenoe to the effect
thet saeh indlvldual wa8 prevented from re-
turning to,aative E6rVi06 because of phyS%O.oSl
oondltion, would the Board of Trustees be
oarrging out the Intent of the fietlrementLew
and *wouldthey be aotinp within the ~bitetions
imposed by the law on the Board of Trustees %f
they ruled that the indivitluslhad established
membership in the Teacher Iietirelaent
                                     system, wae
entitled to aredtt for prior service, snd wae
ellglble to receive benefits in accosdanoe with
and subject to ths provieiomi of Section 5 of the
Teacher Ratirement Law?

     “4. In the event tt;eindividual o~nnot
furnish sstisfaotory evidence to the effsat
that suoh individual WRB prevented from return-
ing to ective service beosuse of physinal aondi-~
tion, woultithe Hoard of Trustees be carrying
out the intent of the Retirement LBw and would
they be aoting within the lirai?.etionaimposed
by the law on the board of Trustees if they ruled
that the member had uot established credit for
prior service and refused to Issue B prior
serviae oertificate to the individualY'1
.   .
                  "Teeaher" la defined 3y t7ectfon1 of the Teacher
        Retirwnt   Act (4rtiCle 2?22-1, Vernon's Imnotated.Citil
        Ct;fitutes)
                  IJSfolloEs:
                  “(3) 'Teticher'shall mean a person employe&
            ~OLIa ruin time, regular salary bar%- by SoarC?
            of OQLQEIOLI
                       sohoG dlstriets, boards of independent
            sahool distrlotti,county sohoG boards, Retire+
            sent Boerd of Trustees, Ftate kxrd of rXiuostlon
            end State Department of Rduoation, bosrds of
            regents of colleges nnd unlversitle6, and any
            other legally COn8titUted board or cX3?nCyOf an
            educational institution or organization supported
            vrhollyor pertly 3y the Yxte.    In all cases of
            doubt, :he Retirement hard of Trusteer, herein-
            after defined, shall determine whether 5 person
            is 6 teether 88 tiefinedin this Act. A teacher
            ahall mean a person renc:er& service to organized
            putl.iceducation in professional a:~?buslneas
            admfnistration ane supcrvlsion~and in instruction,
            l.npublic SOhoolS a5 E,efincdin C'ubsectiOn(2)
            of thin %ction."
                    Zubseotlon 1 of Pection 3 of the Aot reads as
        fclloW!4:
                  "(I) All personr who are teachers on the date
             as of whioh the Retirement bystem ir established
             s&13. beoomc members 86 of that date as a
             condition of their employment unl,e.~swithin
             a period of ninety (90) deys :~:fterrentamber 1,
             1937, any suoh teeoher shell file rith the
             F?tateRosrd of Trtieteeson a form preecribed
             by such Boerd, e notice of hie el-cctlonnot
             to be covered In the membership of the zgmtem
             and a duly exsouted. waiver of all present end
             nrospeotive benefits whloh would otherwise
             hir8  ,to him on aOOOMt of his pHrtiCipatiQn
             in the Retirement Gystem."
                    We quote Suboeotion 1 of ?eotion 4?
                  **(l)Under such ruler and regukttions
             OS the ftete Board of T'rur,tees       s1;alladopt eaoh
             person who wes a teaoher, ad defined in this net,
             et any tLsledurioe the year Lmmcdlatelg pre-
                    the ent8blieha\ent
             oedi.n,c                        of  the ~yctern,and who
             beaonen 8 menrbfzr      during the first year of opera-
             tion of the RetireEtent!$X'tem,Or Wh.GIS R member
             at the beginning of the Eohool yaar 1937-1938,
             shall file a detailed nthtement         of all Texas
             service, ac a teacher, rendered by him prior to
             the date of establishment of the Retirement
             ?y:rtemfor xhioh he cleiFi5        oredit."
                           se@ under the terms of the statute that
                  Thue, x'f?
        those persons who were tsaohers on !;hedate of eatebU.shmemt
        of the Teaoher Retirement System became mambers thereof (IS
        of that date, unls::sthcspeoifled notice snd waiver Were
        rile. liemust therefore determine who were teaohers on
        the date Gf establishxent of the Teacher 1:etirementSystWlL
        _    .._.,.~_       .   .,_-_.   __“_   _

.
              The Teacher Retirement System WSS establlahsd oa
    July 1, 1937. ?<<ction2 of urtic1e,2922-1; opinion No. o-&+4.
              ReferrinK to 5eetlon l(3); we see that there ara
    two requirements in the.definitl.onof '%eachern: namely,
    (1)          "employed on a full tlm, regular salary
    bs*& y;ya     person Venderill;:service to organized
    publia education in :::ofesslonalSIX?buSineSs ad&n-
    istration and supervision andin iastruation, in pob-
    lie soh001s. . . "
               7x3 do no: believe that the second reqtiiremeat
     mekel:it noccsSerg i&t a person be "rendering:service"
     on July 1, 1737, for e.erbershlpin tte ry:.temas of that
     date. TV*pre cf the oninlonthnt tt& requirement is
    'aothlnp:r:larethen e ~enerallzetion of tl?etype of work
     whleh rmuet be done before a person mey qualify es a
     "teacher" under th e Act. ".'ereeahed thi::Same conola-
     sion in Opinion Xc. o-61+6,rendered on Nay 17, 1939,
     to Honorable Mortimer Ffrown,Exeoutive Zeoretary,
     Tescher Retirement Cysten of Terss. .-equotefron that
     opinion ss follo~Is:
                        n
                      . Ve do not think that 'rendering
            aen&    io or,fenizbdFublio eduaatio& * eta.,
            was intended to man that in order to'lm a
            teacher, a8 defined in this ket, thet the
            person would necessarily have to ?S at that
            tima eatually engegnd in suoh servloe, but
            rather that this q-ovislon in descriptive of
            the ty?ieCC'work necessary tc ti ptrfommd to
            cual.ifyas a teacher. This construotloa
            beoomas more evident whenvarious motions ai
            the Aot are vonsMered, suoh as Section 3,
            %baeotloa 1, *.&lchprovides that al.1persons
            who are taachers on the date aa of wbloh the
            Retirement Eystum is astablished ahall beaoma
            m&bers, bee&use it is evident that it wss
            intended by such section to reaoh every person
            en&aged in the profession of a tcaoher, when,
            in foot, the date upon whloh the Frystemwas
            esteblisbed wvs Tuly 1, anfies s mottc? of
            oonxnonknowledre iew teaohers were aotuallg
            engegtd in rend.erincthe Servioe defined at
            that time."
              It !'ollovsthat those persons engaged in the
    prcfession of ttecblng end enployr:don a full time,reg-
    ular Salary basis to render service to Rorganized
    pubUo oduestion in professional, end bosfness sdminis-
    tration end suparviaion and in instruction, in publlo
    schools* on the fate thet the Fystbm WSS establishad
    became members thereor 8s oi thr;tdflteregzrdlt:s~S
                                                      of
    whether they were actually **rbni6;rin~
                                          5ervice."
              i:c;
                 d.11 noLr turn 50 t::t,
                                       S!~eoiZicr
                                                fact situa-
    tions presented in your letter of :-&i:.terr,ber
                                                 20, 1941.
              1. On UTuneI+,1937, ti:eBoard of Educotlon of
    the Fort ;;!orth
                   Indeendent khooi Ulztrict z-e-electedMrs.
    i:yrtleGray rs F;tevoker. Her contract wau ror a tam
    :-ion.   ;ohr :,.tttiua
                          - ~'tiga
                                 0
-
    of on6 year baginnIng JUlY 1, 1937, md we assume rmfti
    the aonted 0::both your letters:thtitShe WaS 8mplOyR% *
    on c full tln~ regular selury. 7.hi-r.2not hrOrmd
    aaather ohe wes aatually teachin-,tit.
                                         tht tlmaor the aon-
    tre&, but In vlow of our holdln(:that "randering servloa*
    is merely descriptive of the ty$a of L$ork%O be performed,
    it %&es no dlfierenac whether ahheWAS teaching July 1,
    1937. i7eziraof the opln!.on",hetshe beceme a member of
    the Tesoher Rztfremant sgstey on thsf d!3te,
              I&S. Gray X%S st;riously   Injured Irkan automobile
    acaldent b&ore sciioolopened, unilWBS p$ant%d a leave of
    ebsence. A substltuta teacher yeas ssuigned    to her position,
    but it wna hoped that she ilouldrscover %nd raaune her
    work durln thtatyear. ..f$t   tha bf$:lnnlnr:
                                                a~ tha next sahool.
    year, l&o. Gray was still unable to :~aturnto her poaftlon,
    end w%s aonsldered a leave of sbsence taechsr. The was
    employed In the Fort '.~;orth ;:choclu1~:the lgjg-1940 and
    19&O-19941sahool yeera %s a rasarve tescher at e ealery
    or $631.80 per ywr,
              The Teaaher Retirement Board reel.lzadthat e
    number of teeahara would be on leave of absence during the
    sahool yeer 1937-1438. It, the,refCZe,passed th% following,
    regulation:
                      "1x. Ch%ver moved that In VIEW cf the
              feat thet subseotlon~l of %otiCn     3 stipUht8S
              that '811 persons who arc teachers on the date
              es or whlah the Xetlrement System is established
              shall baaome nwmbers’ end in vlaw of the faat
              that subseotfon    3, ::ectlon1 ocyo that 'tsaoher
              shall mean e person employed cs a full-time
              regular salary b%sls by boerb::of school
              ulstrlat%, etc.', aerteln 8~~ealrlaraqulre-
             ments %+hell ka mede of 8 taecher on lrevs of
              ebseaoe Uurln~ the schocl year 1937-38 If he
             ,ls to be included in the mwib,erst?&of the
             Retirement System and not lmp~lr hle right%
              to prlor-servfae credit by being on leeve or
              abaenae during the school yeur 1931-38, %e
              r0ii01a   : A statement sunt be received rrom
              the euperlntendent of schools or from the ares-
              ldent ai the boord of aducM,ion of the employing
              dfatrlut stating    that tha teaaher was-an employee
              or the system durlny:thb SO?lOGl gear 1934-37,
              that the tcechar is considered a member of the
              raoulty for ths yr-ar’1937-38xlth H leave of
              tlbsenoefrom ciotiVe Work imi!tt:f!t the tescher
              h8s e deflnlte ngreement with thf Board to
              return to work in the erasexyrter:for the per
              1938-1939. K&ion P'IG~    r.e:ondedby Er. Xillc and
              aerrled,H
              :'c:2ra Informed that the stetement requlrad by
    the above c:uotedregulation wiinreceived for ?'Jlr;.
                                                       Gr%y,
    and slso for the persons lnvolvad ir,tileothar t-o factual
    setups. Xe ire &is0   lnforrxd th;;t011 tnxxe ol'the persons
    were eligible for benerits under the Act if they mm'0 JZBI+
    bers 0: the Retirement :~g~tem,
          Rid tiheTeaoher Retirement Rocrd in the exerelse
0:'the rule making ponsrn granted by Article 2922-1, ,hare
euthority to pass 13reglilationcovering teaohers on leave
of sbsenoe? If 60, then under the above quoted regulation
end Eeotion .!+(l!
                 0:'the Act, t&a. Gray is antitled to.
prior-service credit.
          On September 22, 1937, this departxnentruled in
a letter opidon~ addressed to Honorable MortAmar Brown
that onoe a teaaher beooslese member of the Teaoher          .
Retirement c.yctem,he annnot withdraw from nembershl
except (1) to ceasa belnr!e teacher, (2) or uie, or P 3?
to be retlrcd w;itha disability benefit or on acaount
of 6~e with mob annuity  or othtr benefit na 1:;selected
by the teacher. This boldinV was affir:::&in Opinion
lUo.O-1930, rendered on Oatober ij, 193?. Zo lionorable
J. C. Patterson, County I:ttorney,Betnjamln,:'axas.
           Era. Gray ~a!6under oontrsct, but wss panted
a leave cf'abaenoe beoause of her injury. ;. s~ubstltutb
teacher was assigned to her place, but Kra. Gray, if
she had recovered safficiently, would hrve:returned to
work.  She was under duty end had e right to resume
her duties  upon reoovery. ::aare of the opinion thst
she did not oease beiN: u teaaher.
                         l


          In the uese of People I. Lynch, 149 N. Y. 6.
895, plaintiff instituted proaecdincs for E mandacpueto
oo&pel the labor Conariasionerof the 3,?te of New 'Pork
to reinstate her as an employee. Yhe had been manted
8 leave of absence because of poor haalth. Upon re-
0oVery i'romher i1lIleaS6h0 wrote to the Commissioner
requesting that her leave of absence be terminated and
that she be aseigntd to'duty, .Aotlon on her request ~8s
delayed, and she instituted these proceedings. The
Ccetsnlssioner's
               defense we8 that si.naethe plaintiff
had been separated fran~her work for mora than a yeer,
ehe oould not be reinsteted withont another civil aerviue
exaainetlon. He relied on that part of Rule 16 of the
State Clvfl Seniae ColrBisslon,which read as follows:
          "Any person who has held a position by
     appointxent under the oiVi.1 swviee rules, and
     who has been separeted from the service through
     no delinquency or I-asoonduoton his pert, may
     be reinstated without re-examinetion in a vacant
     position in the sa.meofflco and in the snme group,
     subdivision anfigrni:e,within on3 y'i:*r
                                            from
     the data of such separation. .'X *"
          The oourt overruled&is   contention and issued
a urit of liaandainus
                   cc1~3palling~
                              the Conanissionarto rsin-
                      The court held that since the plein-
stete the ?,,lainti.ff.
tiff had been granted a leave of absence she had not been
sopnrot=3dfrom sarvioe. -e quote from the o~&niou or the
oourt 85 follows:
          "Rut St is hljrdlyneceusary to resort to
     the stetute for an interpretation of thaoondi-
     tfons here. The hnguege 02 the com&:sioner to ths
     relator in his letter WHS plain and unambiguous.
     Eis words CU.IG~
                    be given their ordinary mening in
      RlPgliSb. Fe stated to the relptor: 'You have
      bmn franted an indefinite leave of absence with-
      out pap.* These :+ordscould have but one moaning.
      The comn&ss',onerhad intended at first to diaalse
      the rsl?t.orcbsolutelg from the service. He re-
      tr8dXK? when the relator scquelnted h:lawith.the
      clraumstances and informed him of her illness.
      It'is idle to say thst he did not intend to eifeat
      a ahanca by his neoond letter. He thou&t better
     of hia purpose to absolutely dieoharge the rrla-
      tor and thw 'sepnrete her from the service'.
     Insteadof that disposition of her rnattar,he
     granted her '8~ Indefinite leave of absence*;
      that is to say, a right to ?:caway from her work
     indefinitely, ein therefore, by corollary, a right
     to come back whenever she plaasaa. Che was clvan
     the absolute pcx:erto Caaido when she would return;
     the option rested with her alone. ::fcourse, this
     depended upon her Kood fnith. Zhe yjouldnot be
     permitted to sbust!the aourtesy Alch had been ax-
     tended to her. I,E soon as her health returned,
     It  beoame hor duty to return to the sarviae. And
     she did 80; that iri,  indicr:teda desire et least
     to a0 80. If there were no limitation or lntar-
     pratstlon in the statute,   the wordn* sepfmstion
     from the mrviaev aould never be held to inelcde
     a loava of absenoe from the acrvice. Ii the re-
     lator bed a ri@t at any minute to return to the
     servlos, she was no more separated from It then
     an amploge is when on an ordinary two weeks veca-
     tlon. The right to return in the latter oeae 2s
     fixed and definite; in the former aase it is not
     fixed and is indsfinite; but in eeoh oaso there
     is the &&     to return, and therefore tha employe
     is not saparated from, but connected with, the
     aervLae.*
           y!'ie
              are of the opinion that this same reasoning
appUea with equal forca to the situation at hand, an4
that l&a. @r8g was not separated from her position es i
tseohor, We are, therefore, of the opinion thet the
Teacher Hetirament Board had the authority to pase raw-
latlona oovering teaahare on leave of absenoa during the
sahool year 1937-1938. 'i'he terns of He:;ulotlon190,f+
were oompU.ed with when the aohool superintendent sent to
the Eoard the required statement. Thus, it folloptcthef
Mrs. Gray became entitled to credit for prior service.
          We gather from your letter that s contract wan
not entered into for the mhool year 193 8-1939 shoe h&s.
Gray was atill ill and unable to return to work. Bow-
ever, the leave of obaence was extended.
          We do not think that the Saot that a 1938-1939
contraat was not entered into arrected the status@ Mrs.
Gray as a teacher. \.,aheve heretofore said that the only
way a member could rvithdrarv
                            from the Teacher hetiremant
Cystem is to oease belnc a teechcr, to die, or to be re-
tired. Zhen we speak of a person?8 ceasing to be a
teacher, we mean the terntinetlonor ending of the pro-
iession of teaohlng.
        __-.-.   .--.--   -   ----,--   -.-U-   ,




I   .




                  Therefore, a person who becoraesa menbsr 01~the
        Teacher F;etlremsnt:Syatemwfthdrcws hia AmbersDfp it he
        texmimtes or emis his profession as a teacher. n teacher
        who is temporarily prevented by ill heaith or serious
        Injury frm teaah.iAqand who is 0A leave of ebaenoe does
        AOt Se1380to be a teacher, If such a pexcon inteods to
        resume his duties ss 6 teaoher ti8A he is able to do 90,
        CaA it be said that he has endee his profession as a
        $eaoter. Cleerlg not. It was oortalnly not the leglala-
        tire intent to penalize a person for being ill.
                   AS we hole thnt %ra. Gray hecanc e mmber of the
        SycteA zuiy 1, 1937, and did not lose her umbership by
        virtue of bar lcove of absance, then it follows that she
        ia ,still c oextcr of the Estlrment ?yr-tern.
                    %I have not been uAe5ndful of t&t part nt
        aubsectlon (3) of Fretion 3 of the ,:ct~-:Nchi;rovidea
        in srfsct that a Amber who is absent I'ormm     thsn five
        yearn in any period of six consecutive yccrs after beoos&Ag
        a mmber ~&illlcae his meAbersh$p. On the other hand, we
        take the ponltion thzctthla i;rovlaionshowc the legisletlv~
        intent thet E! bona Side leave of ebsmee was to bs rocog-
        Aized. We arc here notconoerned vriththe provision re
        let&q to the sbsence of inom than rivflyeflrsin anp
        period of sfx aoneeoutive years. Ejsithersix car ewkn
        rive years hsve passed since the eotablishlsentof tti
        System, and we are ooncern%d in this opinfon with the rights
        of the lndivl~u~l   an of this date.
                  ~Eowever,on ::eptembarL, 1941, %*ire rendered to
        you Opinion Ho.   O-35l2,  whlah #OAO~~PG the cttxtua of per-
        80~6 employed as raserve teaohers by the Fort Worth &de-
        peAdaRt Cab001 I)ifitriOt.  Mrs. Grsy w%a eAployed 66 s re-
        serve teacher in the 1939-19l+Oand 1940-1941 eohool years.
        atstns after ehe became a reserve teeoher.
        this opinton is appliaable to her up to the tlnwr thst'eho
        beoam a reserve temher.
                  In view of the foregoine:you are respeativqJr
        advised that under the Tea&or Xet;irenentilctanalRegula-
        tion No. 4 of the Teaaher Retir~zent hoklnrdyour first
        question LY answered 112the sffirmtive if the other eo~dl-
        tifm8 Yeqltired by the Act as t0 ye:xs Of E+?xv~c%, sta., sz~
        present; and your moonCr question, in the negative,
                  Ye enwmr ycur third ati r0m.h
                                             .    quastiona as
        follows: If the Tzaahar Retirensnt board la satisfied
        that the leave a? 63senoe ia bona fide, then the Board
        must give f&s. Gr8y credit for prior r,ersiocand issue
        to Wrs. Grsy 8 prior mrvlce r;ertificste.
                   Of cource, If a leave of nbc;onceIs in isct a
        subterfuge  and a Aeam of d.ecel~t,than the %ard should
        not reooguize it. The ti~~~,h.~rto '.&ORrueh rraudulant
        leava was issued would cee:iebefng a taaoher, and, there-
        fore, would aeane belq s member or the Cystem.
                  2% wish to point out t.hstunder Yeotion l+(2)of
        the Teaohor fiet&rement.4ct :.hatthe Board of tiueteea is
-       .
    .
            ~utkorizedto *fix Pm3 &t.mmzno   by appropriate rules sad
            regulstions ho% mxk service in 6ng year iE equivalent to
            one:yr:arof service". It wul% cxwtainlg be \rultMntke
            powa- and atithorityof the bourd to c;etnrrAnctkat a
            teeckex on leave who ren6ered no servioe Is not entitled
            to ereditahle service for the period of tine that tke
            teeeker was absent.. Upon cuoh doternination, therefore,
            the period oi time ~Anrs& would!not be counted in lpaklng
            u@ the zer,ulred*years ci'credit-ble aerviaa" under SW-
            tlon 5 of the Aot.
                      2. I.:r 6. Fkxtha Cirdm~ xcs under contraot a6 e
            taaoher for the public r:cf:oc~lsof'Giilkertat the t&e of
            the ectablinhment of Teacher Iietiremnt YyPtem. ?ke,
            therefore, t:eca~~a mmber of the C'yr-ten.iihutwe have
            aaid viithmimeroe     to !Yo. Gray is equally applicable
            to l&a. Graham. Therefore, as to IrrciGraham we answer
            your four quastfons   in the same manner.

                       3. Tour third:fact nituetfon ia aonowhet dii-
            ferent from the prc?cedin~r two. Under data of September
            29, 1937. Has Anne Kaysex exfm:tod a teacher.8 contraof.
            Thus, this oontraot was made at a later data than July 1,
            1937. Flowerer,on reptemher 14, 1937, the Dallas Board
            oS Education pesed a notion in which was seld wthat Mlse          '
            Anne Kayser ba re-eleated es a teacherv. (I&phasis
            supplIed) Thfs notion indicates      that she was a teaoher
            for tke pxevlouc y~.sx.   Ykerefore.   she was a teeoktr on
            Sev tke date of establishment of the Teacher I?etiremsnt
            System Andybeoama a member nf the System as of thet date.
            It follovastt!atwhet 716have eeid re.gardinga leave or ab-
            senee applies to k?iss?%y88r.
                      On August 30, 1?3t3,the Dallaa Doard ef Sduee
            tlon psased a motion stating that certain teaahers, smsmg
            wkom was Miss Kaysar, bed been m-elected es teachers.
            Bowever, on Saptember 13, 193E, the Dellor Board of Edu-
            oetlon passed tke i"ollowlngmotion:
                      "L'kstthe resignation oS inne Eaysar be
                 aosepted, and that a s~pecoisl
                                              teecker bc suthor-
                 ized~for City Pa* Fob001 at e salary of $100.00
                 pan ac~hoolm.onth.'*
                        &t first glance it r-toclde::peerfrom the lmi&taal#
            usdl that Miss Kayssr he6 ended her relat:onshi~ with tka
            public s&ool nyrten:of LUlas.       i&t the motion !:rovfdes
            that  a vsi~~Joie1~teacher bc authorized to teaok. It apd
            peers thnt the 'Qpscial" teacher wcs'employed to fill Xiss
            Keyserrs ponltion due to her absence. :'e,therefore,
            belleve that tNs was nothing more than an extension of the
            orl&u31   leave  oi f3Ssence. If in zact tbo motioc was sn
            extension of the leave of absence, then the ma-zterchereto-
            fore dieou:.;aed i:?tkis o:?Inion-re applicabla.
                      If tha rer:gncition~?a rc81, and Bliss Xeysrr thereby
            en&ad her career WR a teach.sr, then she would no lonr+erbe a
            member oi the Retirement :'yoten.Tit if in fa2t :zissKeyser
            resigned beceuze cf pcor health l;itt;Ke lntontlon to re-
            sume her dntins when she sufficiently rec(vc?re6?,then she
            has not,ceased be$.nga teacher, anc?she i3 a m%beI! Of the
~yEtX3lll.A per&-riwho is ab8eQt ir%m to%%h~   even %ft%r
,Jresign&ion does not theSeby ceece to be a teacher ii
such absence 1s temporery end if such persoo intends to
ra'iurnI;0 the J;rofessionafter suoh temporary absanoe,
           Ye believe that Section 3(3) of the Act (wbioh
provid6h t&it a member who is any ;;ericdof 83.xconse%ut2v8
yesm aiter     b@orniu&    e member, LO absent from sexvice a~
than ilve'yeurs, shall thereupon ceme to te a asmber) i8
%:?~;a?      to the type of absences .prenentedin this opinion.
             sit&r pssaeae oi sufficient tins froz the dnte
of eetablishnent or the Teeohcr Retirement Cystem, if a
lnembel-~1s absent from servIae, on leave 01'otherwIse, Im
88 low a pwioli of t1Eieas 1: specified in !k3tion j(J),
he shall tbL?J-6X&K,Jl  Cet3Se to bF3 D ~lCIZte3’.


          :iev&h to enphs.~i::etliutit.is the power and duty
of the .Bosrdof Trustees of tte Teacher h'etlremnt System
to pasn upon mefterr:lXke the OI;C pr&ented ir.this oplaian.
It must sstisfy it&e1r the-tthe leavt:or absa&ce is born
flclti,
      that the abcencc is to be only for H tempoxsry perid
or t5.m, C%C.
           '3ialzo wish to amphssizo l.hotthis opinion ia
 llmIt,edto the fucta Int'olv~CI
                               herein. %e hsve mde eertdn
 aostamptlon%'onsedon +A0 various fsct situations, but ii
 'theseessmptions ere not we1 in feat,   then, of ootmm,  thm
~prineiples sunounced 8~ to thornwould not bc appZiusb3.e.
                                      very truly yours
                                  I~':?cmri-Tr:Y
                                           G'mYRAL OF z&As
