Ms. Cathyrn E. Hinshaw, Executive Director Arkansas Fire Police Pension Review Board P.O. Drawer 34164 Little Rock, Arkansas 72203
Dear Ms. Hinshaw:
This is in response to your request for an opinion concerning the retirement benefits of a retired Beebe firefighter who is retired from the local fire pension fund. You have attached with your request a letter from a CPA detailing the facts concerning this individual's retirement. I have summarized the relevant facts as follows:
The individual became a member of the Beebe Voluntary Fire Department on May 1, 1955. He was retired on August 1, 1975, after twenty years of service. He began receiving retirement benefits on that date and continued to receive benefits through August 31, 1990. It is unclear from the facts presented whether he continued to receive benefits past this date. The individual, beginning on January 1, 1990, assumed duties as a full time paid fire chief for the City of Beebe. He held this position until December 31, 1994. Even though he became a full time employee in 1990, the City continued to collect the twelve dollar volunteer contribution from him until 1994 when the Division of Legislative Audit discovered the error. In September, 1994, the individual elected participation in the local pension fund as a full time employee by paying a lump sum payment equal to 6% of his earnings from 1990 through September 1994, and the City matched this contribution. He continued to have the 6% deducted from his pay from that time until his employment terminated in December, 1994.
Your questions with regard to these facts are: 1) whether the firefighter in question should get service credit from the time he first retired in 1975 and began drawing a pension, and 1994, when he actually left service with the department; and 2) if so, whether he should be retired as a volunteer, or as a full-paid member of the fire pension fund.
In my opinion the answer to your first question, as drafted, is "no." He is not eligible to receive "service credit" for the time from August 1, 1975, and January 1, 1990, during which he was not serving the department, but was rather receiving pension benefits. It is my opinion, however, that he is eligible, given the length of his reemployment, to receive credit for the five years of reemployment which may be added to the twenty he previously served, and to be retired as a full-paid firefighter.
The relevant statute is A.C.A. § 24-11-827 (Cum. Supp. 1993),1 which provides as follows:
(a) Notwithstanding any other provision of the law to the contrary, should an age or service retirant return March 1, 1986, or later, to employment in a position covered by the fireman's fund from which he retired, no pension payments shall be paid him for the period of such reemployment, and he may make member contributions to the system as if he were an active member during such reemployment.
(b) If reemployment terminates before the retirant has rendered sufficient reemployment to accumulate at least three (3) years of credited service had he been an active member during such reemployment, the payment of his pension shall resume upon such termination, under the form of payment in force at the beginning of reemployment and in an amount as it would be had he not been reemployed. The retirant shall be paid the accumulated contributions based upon any member contributions he may have made during such reemployment.
(c)If reemployment continues until the retirant has rendered sufficient reemployment to accumulate three (3) years of credit service had he been an active member during such reemployment, then effective upon completion of such reemployment his retirement shall be canceled and such former retirant shall again become an active member. Upon resuming active membership the service and contributions and pay records during reemployment shall be added to the member's records as they were at retirement.
As can be seen from the statute above, if reemployment continues for a time sufficient to accrue three years of credited service, the former retirement is canceled and the individual can again become a member of the system and his reemployment time added to his initial service in order to arrive at a new retirement benefit. Under the facts you have presented, the individual served an additional five years as a full paid firefighter and has thus accrued the three required years of credited service. Additionally, he has contributed his member contributions during this period. He thus was eligible to again become an active member of the plan and according to A.C.A. § 24-11-827(c) his service during reemployment can be added to his former service to arrive at his retirement benefits. When this additional five years of service is added to his former service, it is clear that he is eligible to retire as a full-paid firefighter. In this regard A.C.A. § 24-11-818(e) (Cum. Supp. 1993) provides as follows:
A volunteer or part-paid fire fighter who becomes a full-paid member of his fire department shall be eligible to retire as a full-paid member only if he shall have been employed as a full-paid member for a period of at least five (5) years immediately prior to his retirement.
The individual in question served five years as a full paid member immediately prior to his retirement and thus is eligible to retire as a full paid member under the statute above.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:ECW/cyh
1 This law was enacted in 1991 (see Act 429 of 1991) presumably in response to the issuance of Op. Att'y Gen. 90-208 (copy enclosed) which opined that no service credit could be given for reemployment in a fact scenario very similar to the one you detail.