Advisory Opinion 2000-01A

Dear Ms. Stoll:

This is in response to your request for an advisory opinion concerning the applicability of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA) to the Alaska Public Employees Local 71 Trust Fund (Trust Fund). Specifically, you ask for the Department of Labor's (the Department) view as to whether the status of the Trust Fund as a "governmental plan" under section 3(32) of ERISA would be adversely affected if the Trust Fund were extended to cover employees of Local 71 (Union), all of whom are non-governmental employees.

Your request contains the following facts and representations. The Trust Fund is a welfare benefit plan established through collective bargaining between the Union and the State of Alaska. The Trust Fund currently covers only employees of the State of Alaska. During the 1998 plan year, the number of participants, excluding dependants, numbered between 1382 to 1482. Similar participation is expected during the 1999 plan year; you indicated that for the first 3 months of the 1999 plan year, there have been between 1469 and 1488 participants. The Union currently has 11 employees. Its employees are not considered employees of the State of Alaska. As a result, none of the Union's employees qualify as bargaining unit employees eligible to participate in the Trust Fund. The Union is interested in having its employees participate in the Trust Fund.

Section 4(b)(1) of ERISA excludes from coverage under Title I of ERISA any plan that is a "governmental plan."  Section 3(32) defines the term "governmental plan," in pertinent part, as "a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing."

You represent for the purposes of your request that the Trust Fund is a "governmental plan" under ERISA section 3(32). For the purposes of this opinion, we also assume, without examining or expressing an opinion on the issue, that the Trust Fund as it currently operates constitutes a "governmental plan" within the meaning of section 3(32).

Based on that assumption and the information you submitted, it is the opinion of the Department that the Trust Fund's status as a "governmental plan" would not be adversely affected by the participation of the Union's 11 employees. In our view, it would be consonant with the intended scope and purposes of the "governmental plan" exception to treat the Trust Fund as a governmental plan within the meaning of section 3(32), even though an extremely small number of Union employees will be Trust Fund participants, particularly inasmuch as the activities of these employees relate exclusively to representing the governmental employees in regard to aspects of their employment with their governmental employer. However, if the Trust Fund were to cover more than a de minimis number of non-governmental employees, governmental plan status may be affected.

This letter constitutes an advisory opinion under ERISA Procedure 76-1 and, accordingly, is issued subject to the provisions of that procedure, including section 10 thereof relating to the effect of advisory opinions. This opinion relates solely to the application of the provisions of Title I of ERISA and is not determinative of any particular tax treatment under the Internal Revenue Code.