19-20-302. Active membership. (1) Unless otherwise provided by this chapter, the following persons employed by an employer must be active members of the retirement system:

(a) a person who is a teacher, principal, or district superintendent as defined in 20-1-101;

(b) a person who is an administrative officer or a member of the instructional or scientific staff of a unit of the Montana university system and who has not elected or is not required to participate in the university system retirement program under Title 19, chapter 21;

(c) a person employed as a speech-language pathologist, school nurse, professionally qualified person as defined in 20-7-901, paraprofessional who provides instructional support, dean of students, or school psychologist;

(d) a person employed in a teaching or an educational services capacity by the office of a county superintendent, an education cooperative, a public institution of the state of Montana, the Montana state school for the deaf and blind, or a school district;

(e) a person who is an administrative officer or a member of the instructional staff of the board of public education;

(f) the superintendent of public instruction or a person employed as a teacher or in an educational services capacity by the office of public instruction;

(g) except as provided in subsection (2), a person elected to the office of county superintendent of schools;

(h) a person who is an administrative officer or a member of the instructional or scientific staff of a community college; and

(i) a person employed in a nonclerical position and who is reported on an employer's annual data collection report submitted to the office of public instruction.

(2) A retired member elected to the office of county superintendent of schools or appointed to complete the term of an elected county superintendent of schools after July 1, 1995, is not eligible for optional membership in the public employees' retirement system under the provisions of 19-3-412 or 19-3-413 and shall, within 30 days of taking office, file an irrevocable written election to become or to not become an active member of the teachers' retirement system. The retirement system membership of an elected county superintendent of schools as of June 30, 1995, must remain unchanged for as long as the person continues to serve in the capacity of county superintendent of schools.

(3) In order to be eligible for active membership, a person described in subsection (1) or (2) must:

(a) be employed in the capacity prescribed for the person's eligibility for at least 30 days in any fiscal year; and

(b) have the compensation for the person's creditable service totally paid by an employer.

(4) (a) A substitute teacher, part-time teacher's aide, or paraprofessional who is not already an active, inactive, or retired member of the retirement system shall make an irrevocable written election to become an active member of the retirement system on the first day of employment or to defer membership in the retirement system until the individual has completed 210 hours of service in any fiscal year.

(b) Upon completing 210 hours of service in a fiscal year for one employer or in aggregate for two or more employers, the individual shall become an active member of the retirement system. Active membership is effective the first day of the month following the month in which aggregate service reported by all employers equals or exceeds 210 hours. After a substitute teacher, part-time teacher's aide, or paraprofessional becomes a member, the individual shall remain an active or inactive member until the individual meets the requirements to withdraw from the retirement system or become a retired member.

(c) An employer shall provide an election form to an eligible substitute teacher, part-time teacher's aide, or paraprofessional on the first day of employment. The employer shall require submission of the election form back to the employer and shall maintain the election form permanently.

(5) A school district clerk or business official may not become a member of the teachers' retirement system. A school district clerk or business official who is a member of the system on July 1, 2001, is required to remain an active member of the system while employed in that capacity, and any postretirement earnings from employment as a school district clerk or school business official are subject to the limit on earnings provided in 19-20-731.

(6) At any time that a person's eligibility to become a member of the retirement system is in doubt, the retirement board shall determine the person's eligibility for membership. All persons in similar circumstances must be treated alike.

(7) As used in this section, "part-time teacher's aide" or "paraprofessional" means an individual who works less than 7 hours a day.

(8) (a) An active member of the system concurrently employed in a position identified in subsection (1)(b) may not elect to participate in the university system retirement program under Title 19, chapter 21.

(b) An employee of the Montana university system who is a participant in the university system retirement program under Title 19, chapter 21, and who is concurrently employed in a position identified in subsection (1)(a) or subsections (1)(c) through (1)(i) is ineligible to be an active member of the teachers' retirement system.

(9) (a) A position is not reportable to the retirement system if the position is a bona fide volunteer position.

(b) A position is a bona fide volunteer position if all of the following criteria are met:

(i) The individual in the position receives no salary, stipend, remuneration of any kind, reimbursement of expenses, or in-kind benefits or services for service in the position. Employer payments of premiums for required insurance coverage directly related to the volunteer service, such as workers' compensation coverage or personal or professional liability coverage, do not constitute remuneration.

(ii) The position was not a paid position with the employer within the 12 months prior to being designated as a volunteer position by the employer.

(iii) The position does not become a paid position for at least 12 months following the employer's designation of the position as a volunteer position.

(iv) The employer does not have any other individual working as a paid employee in the same position while the position is designated as a volunteer position.

(v) The individual in the position does not perform work in the volunteer position in excess of:

(A) 4 hours in a day, 12 hours in a week, and 312 hours in a fiscal year if the service is performed during regular business days of the employer; or

(B) 312 hours in a fiscal year if the service is performed primarily at times other than during regular business days of the employer.

(c) The retirement system may require the employer to provide information and documentation to verify that a position designated as a volunteer position meets all requirements set forth in this subsection (9).

(10) As used in this section, "educational services capacity" refers to an individual who:

(a) directly instructs students;

(b) provides professional or education-related services that help students participate in or receive the full benefit of an educational program;

(c) evaluates the competencies or proper placement of students, determines or implements student-specific educational programs or plans, or provides direct or indirect support for academic or behavior intervention;

(d) determines the proper curriculum or educational standards applicable to the program, determines the appropriate educational and instructional methodologies, selects or creates the instructional materials, or trains teachers or other staff responsible for implementing the curriculum, standards, and methodologies of the program;

(e) directs, supervises, or oversees the work of other individuals employed in an educational or instructional services capacity; or

(f) is the primary administrator of an employer that provides educational services or is the primary administrator of an educational program of an employer that provides educational services.