TRUSTS — "ELIGIBLE EMPLOYER" Trusts created pursuant to 60 O.S. 176 [60-176] (1971) et seq as amended 1973 Session, with municipal beneficiaries, may be such trusts as are contemplated within the meaning of "eligible employer" as defined in 74 O.S. 902 [74-902](14) (1973), but whether or not any particular trust thus created is in fact an "eligible employer" must be determined as a question of fact in each case. The Attorney General is in receipt of your opinion request wherein you ask in essence the following question: Is a trust created under the provisions of 60 O.S. 176 [60-176] (1971) et seq as amended 1973 Session an eligible employer within the meaning of the Oklahoma Public Employees Retirement System ? Title 74 O.S. 902 [74-902](14) (1973) provides in part as follows: "Express trusts may be created in real or personal property, or either or both, or in any estate or interest in either or both, with the state, or any county, municipality, political or governmental subdivision, or governmental agency of the state as the beneficiary thereof . . ." Title 74 O.S. 902 [74-902](14) (1973) provides in part as follows: " 'Eligible employer,' the State of Oklahoma and any county, county hospital, city or town, and any public or private trust in which a city or town participates and is the primary beneficiary is to be an eligible employer for the purpose of this act only, whose employees are covered by Social Security and are not covered by or eligible for another retirement plan authorized under the laws of the State of Oklahoma which is in operation on the initial entry date." It would appear from comparing the above statutes that a trust can be created in real or personal property with a municipality as the beneficiary thereof under 60 O.S. 176 [60-176](a) (1971), quoted in part above. Such a trust might be an "eligible employer" under that definition as cited in 74 O.S. 902 [74-902](14) (1973). By statutory definition such trust would be eligible for consideration as an eligible employer. This issue, however, cannot be determined as a matter of law for the following fact questions must be determined in each case: (1) Is the city or town the primary beneficiary of the trust; (2) Does the city or town participate in the trust; (3) Are the employees of the trust covered by Social Security; (4) Are the employees of the trust covered by or eligible for another retirement plan authorized under the laws of the State of Oklahoma which is in operation on the initial entry date. It is, therefore, the opinion of the Attorney General that your question be answered as follows: Trusts created pursuant to 60 O.S. 176 [60-176] (1971) et seq as amended 1973 Session, with municipal beneficiaries, may be such trusts as are contemplated within the meaning of "eligible employer" as defined in 74 O.S. 902 [74-902](14) (1973), but whether or not any particular trust thus created is in fact an "eligible employer" must be determined as a question of fact in each case. (James H. Gray)
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