The Honorable Pat Bond State Representative 2601 T.P. White Drive Jacksonville, AR 72076-2559
Dear Representative Bond:
You have requested an Attorney General opinion in response to the following question:
If a police officer who is covered by A.C.A. § 24-11-432 enters the DROP program, is the officer entitled to enhanced benefits under that statute for service performed while participating in the DROP program? (For example, if a law enforcement officer had twenty-eight years of credited service prior to entering the DROP program and worked five years after entering the DROP program, would the enhanced benefit be calculated by multiplying 1.25% of final salary multiplied by three years or eight years?)
RESPONSE
It is my opinion, as explained more fully below, that because DROP participants are not entitled to accumulate additional years of credited service while they are participating in DROP, a police officer who is covered by A.C.A. § 24-11-432 and who participates in the DROP program is not entitled to enhanced benefits that are available under that statute for service performed while participating in the DROP program.
The provisions of A.C.A. § 24-11-432 provide for enhanced retirement benefits for certain police officers who serve more than twenty-five years. The statute states:
(a) Beginning July 1, 1987, in addition to the monthly pension benefits as set forth in §§ 14-52-106, 24-11-401—24-11-403, 24-11-405—24-11-413, 24-11-416, 24-11-417, 24-11-422, 24-11-423, 24-11-425, 24-11-428—24-11-430, 24-11-801—24-11-807, 24-11-809, 24-11-810, 24-11-813—24-11-815, and 24-11-818—24-11-821, for those police officers hired prior to January 1, 1983, and who continue to work beyond their twenty-fifth year, the member shall receive at age sixty (60) years and thereafter a benefit on the amount equal to one and one-fourth percent (1.25%) of final salary attached to the rank which he may have held in the department preceding the date of retirement multiplied by the number of years of service in excess of twenty-five (25) years, up to a maximum total benefit of seventy-five percent (75%) of final salary, provided that the maximum seventy-five percent (75%) of final salary shall no longer apply to benefits payable on April 30, 1993, and thereafter to persons retiring henceforth and to those persons who retired on or after July 1, 1987.
A.C.A. § 24-11-432(a) (as amended by Acts 2001, No. 1140, § 1).
The question of whether the above-described enhanced benefit is available for years of service in the DROP program is addressed by Sections (d)(3) and (e)(1) of the DROP statute. Those sections state:
(d)(3) The monthly retirement benefits that would have been payable had the member elected to cease employment and receive a service retirement and pension supplement payments made by the Policemen's Pension Supplement Program shall be paid into the Arkansas Police Officers' Deferred Option Plan account.
(e)(1) The member's monthly retirement benefits shall not change, unless the plan receives a benefit increase.
A.C.A. § 24-11-434(d)(3) and (e)(1) (as amended by Acts 2001, No. 1543, § 5).
My predecessor in office opined that the intent of above-quoted sections was to provide that "when a member elects to participate in DROP, his retirement benefits are frozen in time as of that moment. He is not to receive any increased benefits by virtue of salary increases he may receive in the interim, or reap the benefit of additional years of credited service." Op. Att'y Gen. No. 97-435. I have previously concurred with that stated conclusion. Op. Att'y Gen. No. 2000-176.
Because the DROP participant does not accumulate further years of credited service, his enhanced benefit must be calculated on the basis of years served in excess of twenty-five years prior to entry into the DROP program. Thus, to use your hypothetical example: If an officer who is eligible for enhanced benefits under A.C.A. § 24-11-432 has twenty-eight years of credited service prior to entering the DROP program and works five additional years after entering the DROP program, his enhanced benefit would be calculated by multiplying 1.25% of his final salary multiplied by three years.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General