Opinion No.

Ms. Cathyrn E. Hinshaw Executive Director Arkansas Fire Police Pension Review Board P.O. Drawer 34164 Little Rock, AR 72203

Dear Ms. Hinshaw:

I am writing in response to your request for an opinion on the following question:

Is it possible to receive service credit under a local fire pension fund for service prior to the establishment of the pension fund?

You state that this question pertains to a city with a local pension fund, for which the fire department was established in January of 1969. You state further that some members of the pension fund are showing pension fund enrollment dates prior to the establishment of both the pension fund and the fire department.

RESPONSE

It is my opinion that service credit may be received for service in the fire department prior to the creation of the pension fund as long as the member was serving at the time of the creation of the fund and continued to serve thereafter. In my opinion, however, there can be no service credit for any period of time prior to establishment of the fire department.

Please note that I have enclosed a previous Attorney General Opinion (No. 88-299), which addresses this question regarding service in a fire department prior to the establishment of a pension fund. In that case, the fire department was established in 1969, four years before the pension fund. The question was whether fire fighters who had served from 1969 to 1989 were eligible to receive retirement benefits in 1989, assuming that they met all other conditions and requirements of eligibility. The answer was "yes," because eligibility is to be determined from actual time of service and not in relation to passage of the pension laws. This conclusion followed from language in Act 389 of 1987, which, although not codified, appeared expressly in that act. Seealso Op. Att'y Gen. 92-345 at n. 1 (noting that Act 389 of 1987 specifically addressed this question of whether fire fighters who were already serving at the time of the creation of the pension fund could count the service occurring prior to creation of the fund for purposes of satisfying the twenty year service requirement).

My research has disclosed no new acts or amendments compelling modification of these opinions. Particularly given the courts' inclination to construe pension acts liberally in favor of those to the benefited, (see generally Looper v. Gordon, 201 Ark. 841, 147 S.W.2d 24 (1941)), I conclude that service prior to creation of the fund may be credited. I have found no support, however, for the proposition that there can be any service credit for time prior to the establishment of the fire department. Clearly, the required period of service must be time served in a fire department. See A.C.A. § 24-11-818 (a) (2) (Supp. 2001) (providing that "[a]ny pension fund member who has served in a firedepartment in the State of Arkansas for a period of twenty (20) years or more, the last five (5) years of which shall have been consecutive, shall be entitled to be retired. . . .") (Emphasis added).

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:EAW/cyh