In the Matter of the Eligibility of

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0206

In the Matter of the Eligibility of

Ted Johnson for MSRS General Employees Retirement Plan Coverage.

Filed October 25, 2021
Affirmed
Jesson, Judge

Minnesota State Retirement System
File No. 520822117

Ted A. Johnson, Falcon Heights, Minnesota (self-represented relator)

Keith Ellison, Attorney General, Kristine K. Nogosek, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

Considered and decide d by Jesson, Presiding J udge; Larkin, Judge; and
Bratvold, Judge.
SYLLABUS
Under the plain language of Minnesota Statutes section 352.01, subdivision
2b(6)(iii) (2020), which excludes certain temporary employees from the definition of “state
employee” for purposes of eligibility for the Minnesota State Retirement System General
Plan, the phrase “for a definite period no t to exceed six months” does not apply to
temporary employees in the classified service in the executive branch.
OPINION
JESSON, Judge
After his employment as a temporary cl assified worker for the state extended
beyond six months, relator Ted Johnson as ked respondent Minnesota State Retirement
2
System (MSRS) if he was now eligible for the state’s general retirement plan. He was not
eligible, the MSRS replied, interpreting the state’s retirement statute to exclude Johnson’s
type of employment. Johnson appealed, argui ng that the governing statute should be
interpreted to include all employees for th e state who work longer than six months.
Following a final determination by the MSRS board that he was not eligible for the general
retirement plan, Johnson seeks our review by writ of certiorari. We affirm.
FACTS
Relator Ted Johnson was hired as a full- time, classified, temporary employee for
the Minnesota Department of Education. 1 Johnson’s term was from September 10, 2018
to March 30, 2019. His employment was later extended through July 2, 2019.
A month before his employment was sche duled to end, Johnson contacted MSRS to
ask whether he should have been eligible to contribute to the MSRS General Employees
Retirement Plan (general retir ement plan), the defined-benef it pension plan administered
by MSRS. 2 MSRS informed Johnson that temp orary classified employees—including
Johnson—were not eligible for the general retirement plan b ecause they did not meet the

1 The primary differences between classified and unclassified employees are in hiring and
firing. Classified employees are hired through a competitive examination process and can
be dismissed only for just cause. Minn. St at. § 43A.33 (2020). Unclassified employees
are generally elected or appointed individuals in professional, supervisory, or managerial
positions. See Minn. Stat. § 43A.07-08 (2020) (def ining classified and unclassified
positions).
2 A defined-benefit pension plan is a retirement plan that provides a specific monthly
amount at retirement that is “defined” by a formula based on a contributor’s salary. Minn.
Stat. § 352.04 (2020).
3
statutory definition of “state employees” in Minnesota Statutes section 352.01, subdivision
2b(6)(iii).
Johnson appealed,3 and the MSRS Board of Trustees (MSRS board) referred the
matter to the Minnesota Office of Administra tive Hearings for a fact-finding conference
before an administrative-law judge (ALJ). On cross-motions for summary disposition, the
ALJ recommended that the MS RS board uphold the execu tive director’s decision,
concluding that Johnson was not eligible from the general retirement plan. At their
following meeting, the MSRS board consider ed the ALJ’s recommendation, and it heard
presentations from MSRS staff and Johns on. The MSRS board, as the final
decision-maker, adopted the ALJ’s recommendation and denied Johnson’s appeal.
Johnson filed a petition for a writ of certiorari with this court.
ISSUE
Was the MSRS board’s determination that Johnson was not eligible for the general
retirement plan based upon an improper inte rpretation of the exceptions in Minnesota
Statutes section 352.01, subdivision 2b(6)(iii)?

3 Johnson appealed the staff decision to the MSRS Executive Director, arguing that because
his position was extended beyond six months, he should be considered a “state employee”
under Minnesota Statutes section 352.01 (2020), and not a te mporary employee. But the
executive director determined that Johnson did not meet the definition of “state employee”
based on the exceptions listed in Minn. Stat. § 352.01, subdivision 2b(6)(iii). Johnson then
appealed the executive director’s determination to the MSRS board.
4
ANALYSIS
Johnson challenges the MSRS board’s decision as based on an erroneous
interpretation of the state retirement statutes. Statutory interpretation is a question of law
that we review de novo. City of Oronoco v. Fitzpatrick Real Est., LLC, 883 N.W.2d 592,
595 (Minn. 2016). And our objective in statutor y interpretation is to determine the intent
of the legislature. State v. Riggs , 865 N.W.2d 679, 68 2 (Minn. 2015). The first step in
statutory interpretation is to determine whet her the statute’s language is ambiguous.
State v. Thonesavanh, 904 N.W.2d 432, 435 (Minn. 2017). If the legislature’s intent is
clearly discernible from plain and unambiguo us language, statutory construction is not
necessary, and we instead apply the statute’s plain meaning. Am. Tower, L.P. v. City of
Grant, 636 N.W.2d 309, 312 (Minn. 2001). When determining whether a statute is
ambiguous, we construe words and phrases according to accepted rules of grammar. Minn.
Stat. § 645.08(1) (2020). But where a statut e is ambiguous, we defer to a reasonable
interpretation by an agency charged with administering that statute. A.A.A. v. Minn. Dep’t
of Hum. Servs., 832 N.W.2d 816, 823 (Minn. 2013).
To examine whether the disputed language is , indeed, plain, we turn to the language
of the retirement statutes. The general retirement plan is available to every person who is
a “state employee as defined in [Minnesota Statutes] section 352.01.” Minn. Stat. § 352.02,
subd. 2 (2020). The definition of “state employee” in section 352.01 sets up two categories
of people: those included in the retirement plan (subdivision 2a), and those excluded from
it (subdivision 2b). As relevant here, subdivision 2b(6)(iii) excludes from the definition of
state employees eligible for plan participation
5
persons who are employed . . . by the executive branch as a
temporary employee in the classified service or as an executive
branch temporary employee in the unclassified service if
appointed for a definite period not to exceed six months, and if
employment is less than six mo nths, then in any 12-month
period[.]

(Emphasis added.)

Here, it is undisputed that Johnson was hi red as a temporary classified employee.
And the statute excludes such “temporary empl oyee[s] in the classified service” from the
definition of a “state employee” qualifying for the general retirement plan unless the phrase
“if appointed for a definite period not to exce ed six months” applies to these individuals.
Which brings us to the crux of this case: does the six-month limitation apply only to the
group of temporary employees in the unclassified service (the set of employees described
immediately before the phrase in question), or does it appl y to temporary employees in
both the classified and unclassified service?
To answer this question, we look to the plain language of the statute, construing the
words according to accepted rules of gramma r. One such rule pr ovides that a limiting
phrase “ordinarily modifies only the noun or phrase that it immediately follows.”
4
State v. Stay, 935 N.W.2d 428, 432 (Mi nn. 2019). This rule “r eflects the basic intuition
that when a modifier appears at the end of a list, it is easier to apply that modifier only to
the item directly before it.” Ryan Contracting Co. v. O’Neill & Murphy, LLP ,
883 N.W.2d 236, 244 (Minn. 20 16) (quotation omitted). Utiliz ing this rule of grammar
here, the “six months” limiting phrase modifies only the se cond half of the

4 In grammatical terms, we refer to this as the last-antecedent rule.
6
excepted-employee phrase, or “executive branch temporary employee[s] in the unclassified
service.” Thus, under this grammatical rule , the plain language of this statute is
unambiguous. And the “six months” phrase is not meant to apply to classified employees,
such as Johnson.
This plain-language interpretation is bolstered by the us e of the word “appointed”
in the critical phrase “if appointed for a definite period not to exceed six months.” Minn.
Stat. § 352.01, subd. 2b(6)(iii) (emphasis added). Appointment—as opposed to gaining a
position through a competitive pr ocess—is a hallmark of the unclassified service. See
Minn. Stat. § 43A.08 (defining unclassi fied employees as including those “ appointed to
fill an elective office” (emphasis added)). Unlike unclassified employees, who are either
elected or appointed, a classified empl oyee like Johnson would not be appointed.
Accordingly, applying the plain language of the statute, the MSRS board did not err in
determining that Johnson is not eligible for the general retirement plan.
To convince us otherwise, Johnson argue s that we should view the statutory
language through the lens of a different grammatical rule —one designed to clarify the
understanding of listed words or phrases in a statute.5 This rule provides that “when there
is a straightforward, parallel construction that involves all nou ns or verbs in a series, a
prepositive or postpositive modifier norma lly applies to the entire series.” In re Est. of
Pawlik, 845 N.W.2d. 249, 252 (Minn. App. 20 14) (quoting Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpre tation of Legal Texts 147 (2012)), rev. denied (Minn.

5 In grammatical terms, this is referred to as the series-qualifier rule.
7
June 25, 2014). Johnson asserts that the phras e “if appointed for a definite period not to
exceed six months,” is a “postpositive modifier” that applies to both classes of employees.
We disagree. Here, subdivision 2b(6)(iii) does not include a list of parallel nouns or verbs.
There is no “series” to be found. Rather, the statute incl udes two distinct descriptive
clauses. See Pawlik, 845 N.W.2d at 251-52 (utilizing this rule in analyzing a list of possible
beneficiaries in the statutory definition of “interested person” for probate matters).
Comparing the rule as Johnson proposes si de by side with our statutory analysis
further demonstrates the statute’s plain lang uage. Using brackets , our application is
illustrated as:
“State employee” does not include: . . . (6) persons who
are employed: . . .
(iii) [by the executive branch as a temporary employee
in the classified service] or [as an executive branch temporary
employee in the unclassified service if appointed for a definite
period not to exceed six months, and if employment is less than
six months, then in any 12-month period][.]

Minn. Stat. § 352.01, subd. 2b(6)(iii) (internal brackets added).
In contrast, Johnson’s interpretation is demonstrated as follows:
“State employee” does not include: . . . (6) persons who
are employed: . . .
(iii) [by the executive branch as a temporary employee
in the classified service or as an executive br anch temporary
employee in the unclassified service] [if appointed for a
definite period not to exceed six months, and if employment is
less than six months, then in any 12-month period][.]

8
Id. (internal brackets added). Because it naturally divides the clauses around the
conjunction “or,” applying the “six months” language to only unclassified employees is the
more natural—indeed, plain—reading of the statute.6
Johnson also argues that the statute is ambiguous because there is no distinction
between a “state employee” eligible for the general retirement plan in section 352.01 and
an “employee of the state” e ligible for deferred compensation benefits under Minnesota
Statutes section 352.965, subdivision 2 (20 20). While these terms may appear to be
contradictory, these phrases are from different statutes and are applied to different benefits.
These separate definitions have no bearing on one another.7
Finally, Johnson challenges the MSRS board’s interpretation as violating legislative
intent, which Johnson asserts, is to allow al l state employees to participate in the state
retirement system. But we n eed not address legislative history where the statutory
language is plain. State v. Asfeld, 662 N.W.2d 534, 541 (Minn. 2003). And we observe
that Johnson’s summary of legislative intent is inconsistent with the legislature’s decision
to specifically exclude some of those empl oyed by the state from the general retirement
plan.

6 Notably, there is no comma se parating any of the phrases. In the presence of a comma,
the qualifying phrase—here the “six months” phrase—would apply to all preceding
phrases. State v. Khalil , 956 N.W.2d 627, 635 (Minn. 2 021). Without the comma, we
would not read the first phr ase—the “temporary employee in the classified service”
phrase—as modifying the “six month” phrase . This means that temporary classified
employees are exempt, regardless of how many months they worked.
7 Johnson also contends that the MSRS board should not be afforded deference because
they have never explai ned an interpretation of this spec ific statute in any other written
memo or letter, meaning they are not educated on the topic. Because subdivision 2b(6)(iii)
is unambiguous, we do not need to reach this argument. See A.A.A., 832 N.W.2d at 823.
9
DECISION
Because the plain language of the phrase “f or a definite period not to exceed six
months” in Minnesota Statutes section 352.01, subdivision 2b(6)(iii), shows that it does
not apply to persons employed by the executiv e branch who are classified as temporary
employees, Johnson is not eligible to participate in the general retirement plan.
Affirmed.