Colonel T.L. Goodwin, Director Arkansas State Police 3 Natural Resources Drive P.O. Box 5901 Little Rock, Arkansas 72215
Dear Colonel Goodwin:
This is in response to your request for an opinion on whether "Drug Diversion Unit" personnel are included within the definition of "public safety members" for retirement purposes.
For the reasons that follow, it is my opinion that the answer to your question is "yes".
You note that a supervisor and three investigators make up the "Drug Diversion Unit" which was transferred by administrative transfer from the Department of Health to the Arkansas State Police in 1983. These personnel are empowered under A.C.A.5-64-501 to enforce the "Uniform Controlled Substances Act", (A.C.A. 5-64-101 et seq.) and toward this end are empowered to carry firearms, execute warrants and other process, make arrests, make seizures of property, and to perform other "law enforcement" duties as may be designated. See A.C.A. 5-64-501.
Your question is whether the personnel making up the "Drug Diversion Unit" are included with the definition of "public safety members" as that term is defined at A.C.A. 24-3-102 (Supp. 1989). That definition reads in pertinent part as follows:
(5) "Public safety member" means a member whose covered employment is for personal services as a police officer or fire fighter. "Police officer" means any regular or permanent employee, whose primary duty is law enforcement of a municipal police department, a county sheriff's office, or the Arkansas State Police, including probationary police officers, and shall also include wildlife officers of the Arkansas State Game and Fish Commission. The term "police officer" shall not include any civilian employee of a police department or any person temporarily employed as a police officer during an emergency.
"Public safety members" are credited at one and one-half the regular rate for crediting service for retirement purposes. See A.C.A. 24-3-301(b)(1). Our inquiry, according to the definition above, is to determine whether the "Drug Diversion Unit" personnel are regular and permanent employees of the Arkansas State Police whose primary duty is law enforcement. If so, they fall within the statutory definition. If these personnel are not regular and permanent employees of the Arkansas State Police whose primary duty is law enforcement, or if they are merely civilian employees, they do not fall within the definition.
It appears from the information provided us that the "Drug Diversion Unit" personnel do indeed fall within the definition of "public safety members", as that term is defined for retirement purposes. These members are regular and permanent employees of the Arkansas State Police and it is my opinion that their primary duty is law enforcement. They are authorized to enforce specific criminal laws of this state, and in so doing are empowered to perform functions and duties which are quite naturally regarded as law enforcement duties. See A.C.A. 5-64-501. Additionally, A.C.A. 5-64-501, setting out these powers, also provides that these officers may perform "other law enforcement duties" as may be designated. A.C.A. 5-64-501(e). It is clear, in my opinion, from these provisions, that the primary duty of these officers is law enforcement, and that the officers are "police officers" under A.C.A. 24-3-102(5), and accordingly fall within the definition of "public safety members" under that same provision.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.
Sincerely,
STEVE CLARK Attorney General
SC:arb