Opinion No.

Captain Bill Lundy, Chair Arkansas Fire Police Pension Review Board P.O. Drawer 34164 Little Rock, AR 72203

Dear Capt. Lundy:

You have requested an Attorney General opinion concerning membership on the Arkansas Fire and Police Pension Review Board.

Your question is:

Are police officers who are participating in the Deferred Retirement Option Plan (DROP) considered to be retired from the local police pension fund for purposes of serving on the Arkansas Fire and Police Pension Review Board?

It is my opinion that police officers who are participating in DROP are considered to be retired for purposes of serving on the Arkansas Fire and Police Pension Review Board.

My conclusion regarding this matter is based upon the same reasoning that was set forth in Opinion No. 99-085, in which I explained why DROP participants are considered to be retired. As noted in that opinion, this office has previously opined that DROP participants are considered to be retired for purposes of local board membership, see Op. Att'y Gen. No.97-116 (pertaining to the DROP program for police officers), as well as for purposes of voting for board members, see Op. Att'y Gen. No. 97-007 (pertaining to the DROP program for fire fighters). In Opinion No.99-085, I expounded upon the basis for these conclusions, as follows:

[T]hese conclusions are based upon the fact that because the total package of contributions that are made on behalf of DROP participants differ from those made on behalf of active members, and because their status with regard to the pension fund differs from the status of active members, DROP participants are disposed to have a different level of interest in the pension fund than do active members. The interest of DROP participants in the pension fund is more like that of regular retired members than like that of active members.

Under the provisions of A.C.A. § 24-11-434, both employee and employer contributions are to continue to be made after the employee begins to participate in DROP. A.C.A. § 24-11-434(d)(1). Although the employee's contribution will continue to be paid in full into the pension fund (see Board Rule 10, Section 6 of the Arkansas Fire and Police Pension Review Board), the employer's contribution will be divided, with half being paid into the pension fund and half being paid into the officer's DROP account. Moreover, the retirement benefits that would have been payable if the officer had chosen regular retirement will be paid into the officer's DROP account.

This structure of contributions and payments to be made on behalf of DROP participants places DROP participants in a position that is more like that of regular retired members than like that of active members. More specifically, they have a specific present interest in payments that are currently being made out of the pension fund for their specific benefit. In contrast, active members have only a future, general interest in the soundness of the fund.

Op. Att'y Gen. No. 99-085.

The reasoning set forth above applies as well to the question you have presented. The statute governing membership on the Arkansas Fire and Police Pension Review Board (A.C.A. § 24-11-203) sets forth the following membership structure requirement:

(b)(1) The board shall be composed of nine (9) persons as follows:

(A) Two (2) fire fighters, one (1) of whom shall be appointed by the Governor from a list submitted by the Arkansas Council of Professional Fire Fighters and the other from a list submitted by the Arkansas State Fire Fighters Association;

(B) Two (2) police officers to be appointed by the Governor, one (1) from a list submitted by the Arkansas Municipal Police Association and the other from a list submitted by the Fraternal Order of Police;

(C) Three (3) persons to be appointed by the Governor from a list submitted by the Arkansas Municipal League;

(D) One (1) person who is not a member, retirant, or beneficiary of the Arkansas Local Police and Fire Retirement System and who is not a current or former member of the governing body of any political subdivision, to be appointed by the Governor from a list of persons submitted to him by the Joint Committee on Public Retirement and Social Security Programs; and

(E) The Director of the Department of Finance and Administration.

(2) The board shall elect one of its members as chairman.

A.C.A. § 24-11-203.

The statute then goes on to state: "Board members appointed as employee members must be "active members of local firemen's and policemen's pension and relief funds[.]" A.C.A. § 24-11-203(c).

For the reasons stated in Opinion No. 99-085, I conclude that police officers who are participating in DROP are considered to be retired and therefore cannot meet the requirement stated in A.C.A. § 24-11-203(c).

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:SA/cyh