The Honorable Paul B. Benham, Jr. State Senator P.O. Box 477 Marianna, AR 72360
Dear Senator Benham:
This is in response to your request for an official opinion regarding Arkansas Code of 1987 Annotated 24-11-820. Your specific question is paraphrased as follows:
Is the surviving spouse of a volunteer fireman, who died prior to retirement but not in the line of duty, eligible for retirement or death benefits under A.C.A. 24-11-820?
Section 24-11-820(a)(1) provides in pertinent part:
Whenever any member of a fire department of any city, town, or fire improvement district covered by this Act shall have lost his life, except while actually performing work in gainful employment outside the fire department, or any retired member shall die, leaving a spouse, or children under the age of nineteen (19) years, then, upon satisfactory proof of those facts made to it, the board of trustees shall order and direct, in the case of volunteer or part-paid fire fighters, that a monthly pension equal to the amount of the pension or retirement pay attached to the rank of the member of the fire department at the time of his death shall be paid for life to the spouse, and the monthly pension shall not be less than thirty dollars ($30.00).
The surviving spouse of a volunteer fireman would be eligible for pension benefits under 24-11-820 if at the time of the fireman's death he was not "actually performing work in gainful employment outside the fire department." The spouse would qualify for receipt of payments "equal to the amount of the pension or retirement pay attached to the rank of the member of the fire department at the time of his death." A.C.A. 24-11-820(a)(1). The spouse would be eligible to receive pension payments for life; however, upon remarriage, the spouse would no longer qualify for benefits provided under 24-11-820. See A.C.A. 24-11-820(b)(4).
From the facts stated, it is difficult to ascertain whether the surviving spouse of a volunteer fireman who died prior to retirement and not in the line of duty would qualify for pension benefits under 24-11-820. The language of the code is clear in that surviving spouses of both retired, as well as, active volunteer firemen may qualify as recipients for benefits provided under 24-11-820. The test is whether the firemen died "while actually performing work in gainful employment outside the fire department." If the fireman died while actually engaged in employment outside the fire department, the surviving spouse of a volunteer fireman, whether retired or active, would not be eligible for receipt of benefits under A.C.A. 24-11-820.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
STEVE CLARK Attorney General
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