Appeal by petitioner from Preston, Judge. Judgment entered 13 February 1981 in Superior Court, Wake County. Heard in the Court of Appeals 6 January 1982.
Martin (Harry C.), Judge. Judges Arnold and Wells concur.
We are concerned here with a comprehensive statutory scheme encompassing retirement, disability, and death benefits for state employees. Petitioner challenges the constitutionality of this scheme on equal protection grounds. The death benefit provision reads in pertinent part as follows:
(l) Death Benefit. -- Upon receipt of proof, satisfactory to the Board of Trustees, of the death, in service, of a member who had completed at least one full calendar year of membership in the System, there shall be paid to such person . . . if such person is living at the time of the member's death, otherwise to the member's legal representatives, a death benefit.
N.C. Gen. Stat. § 135-5(l) (1974) (amended 1981 & Supp. 1981).*fn1 N.C. G.S. 135-1(23) defines "service" as "service as a teacher." N.C. G.S. 135-1(25)defines "teacher" as
any teacher, helping teacher, librarian, principal, supervisor, superintendent of public schools or any full-time employee, city or county, superintendent of public instruction, or any full-time employee of Department of Public Instruction, president, dean or teacher, or any full-time employee in any educational institution supported by and under the control of the State: Provided, that the term "teacher" shall not include any part-time, temporary, or substitute teacher or employee . . . .
Thus, under this portion of the statute, Mrs. Stanley was in service as a teacher at the time of her death. Her career contract was still in force; her leave of absence status had not been reinstated; she simply had not been assigned to a classroom.
N.C.G.S. 135-5(l)(2) goes on to state, however, that:
For the purposes of this subsection (l), a member shall be deemed to be in service at the date of his death if his last day of actual service occurred not more than 90 days before the date of his death.
(2) Last day of actual service shall be:
a. When employment has been terminated, the last day the member actually worked.
b. When employment has not been terminated, the date on which an absent member's sick and annual leave expire, unless he is on approved leave of absence and is in ...