Jeff Eslinger | County News Editor

The North Dakota Public Employees Retirement System (NDPERS) has notified the 51 participating counties of a policy that may affect an unknown number of individuals collecting their NDPERS pension while serving their county in another capacity. Grand Forks County Commissioner Bob Rost resigned his commission seat because of the notification but later rescinded the resignation pending a final decision from NDPERS.

NDPERS received guidance from its federal compliance consultant regarding a discrepancy between federal law and North Dakota state law. The guidance received by NDPERS in March 2025 addresses Cash or Deferred Arrangements (CODA) and their administration.

Federal vs. State Code

The Internal Revenue Service (IRS) Treasury Regulation addressing CODA prohibits a waiver of participation once an employee has elected to join the retirement plan, on a pre-tax basis, if the employee remains employed with the same employer in an eligible position. However, the North Dakota Century Code and Administrative Code has allowed this type of waiver for elected county officials at the start of a new term.

NDPERS reached out to participating counties April 3, 2025, to alert them of the conflict between federal law and North Dakota state law.

“This issue has been brought to our attention and is extremely concerning,” says Aaron Birst, Executive Director of the ND Association of Counties. “It appears to be a complicated mix of federal and state law which unfortunately puts some hard working community minded county officials in a bad position through no fault of their own. We’ll be monitoring the situation closely and advocating on behalf of those affected individuals as best we can.”

The employer memo, citing the IRS regulations provided by the consultant, clarified that federal law supersedes state law. It also stated that NDPERS and its Board will propose legislation and rules in the future to bring state law into compliance with federal law. However, NDPERS is required to follow federal law immediately upon becoming aware of the discrepancy between federal law and state law.

The memo can be found by clicking on the link for this story at www.ndpers.nd.gov/news.   

Members with questions should contact the NDPERS office regarding their individual record. The NDPERS Board will be discussing options and how to move forward to address the discrepancy at its regular meeting on May 13, 2025.