RE: APPLICATION OF STATUTES GOVERNING PARTICIPATION IN OKLAHOMA FIREFIGHTERS DEFERRED OPTION PLAN.
THE ATTORNEY GENERAL HAS ASKED THAT I RESPOND TO YOUR REQUEST FOR AN OPINION CONCERNING THE APPLICATION OF THE FIREFIGHTERS PENSION STATUTES TO A SERIES OF PARTICULAR SITUATIONS. IN VIEW OF THE NUMBER AND FACTUAL SPECIFICITY OF YOUR QUESTIONS, I WILL ANSWER EACH QUESTION SERIALLY.
1. MAY A RETIRED FIREFIGHTER WHO HAS COMPLETED TWENTY (20) OR MORE YEARS OF SERVICE, TERMINATED HIS EMPLOYMENT FROM A PARTICIPATING MUNICIPALITY AND BEGUN RECEIVING A SERVICE RETIREMENT PENSION FROM THE OKLAHOMA FIREFIGHTER PENSION AND RETIREMENT SYSTEM STOP RECEIVING HIS SERVICE PENSION, ACCEPT EMPLOYMENT WITH ANOTHER MUNICIPAL FIRE DEPARTMENT AND ELECT TO PARTICIPATE IN THE OKLAHOMA FIREFIGHTERS DEFERRED OPTION PLAN?
THE RULES GOVERNING PARTICIPATION IN THE DEFERRED OPTION PLAN (PLAN) SPONSORED BY THE FIREFIGHTERS PENSION AND RETIREMENT SYSTEM (SYSTEM) ARE SET FORTH IN 11 Ohio St. 49-106.1 (1990). 11 Ohio St. 49-106.1 ESTABLISHES TWO PREREQUISITES FOR PARTICIPATION IN THE PLAN. THESE ARE (1) THAT THE FIREFIGHTER HAVE NOT LESS THAN TWENTY (20) YEARS OF CREDITED SERVICE, AND (2) THAT THE FIREFIGHTER BE OTHERWISE ELIGIBLE TO RECEIVE A SERVICE PENSION. ID. THE FIREFIGHTER DESCRIBED IN YOUR QUESTION MEETS BOTH OF THESE PREREQUISITES; ACCORDINGLY, THE FIREFIGHTER WOULD BE ELIGIBLE TO PARTICIPATE IN THE PLAN.
INCIDENTLY, I EMPHASIS THAT THIS CONCLUSION IS DEPENDENT UPON THE CONDITION THAT THE FIREFIGHTER CEASE RECEIVING BENEFIT FROM THE SYSTEM BEFORE ACCEPTING EMPLOYMENT WITH THE SECOND FIRE DEPARTMENT. SECTION 11 Ohio St. 49-106 PROHIBITS FIREFIGHTER WHO IS SERVING AS A PAID FIREFIGHTER FROM SIMULTANEOUSLY RECEIVING PENSION BENEFITS. A.G. OPIN. NO. 89-015.
2. MUST THE MUNICIPALITY WHICH EMPLOYS THE FIREFIGHTER PAY CONTRIBUTIONS BASED ON THE FIREFIGHTER'S CURRENT SALARY?
SUBSECTION D OF 11 Ohio St. 49-106.1(D) OBLIGATES THE MUNICIPAL EMPLOYER OF THE FIREFIGHTER TO MAKE CONTRIBUTIONS TO THE SYSTEM. THE CONTRIBUTIONS ARE TO BE CALCULATED IN ACCORDANCE WITH THE SCHEDULE SET FORTH IN 11 Ohio St. 49-122(B). AT PRESENT, THE CONTRIBUTION RATE WOULD BE TEN AND ONE-HALF PERCENT (10 ½%) OF THE TOTAL ACTUAL GROSS SALARY OF THE FIREFIGHTER. ID.
3. WHEN THE FIREFIGHTER RETIRES AGAIN AFTER FIVE (5) YEARS, IS THE FIREFIGHTER ELIGIBLE TO HAVE HI SERVICE PENSION RECALCULATED? 11 Ohio St. 49-106.1 PROVIDES THAT A FIREFIGHTER MAY PARTICIPATE IN THE PLAN (I)N LIEU OF TERMINATING EMPLOYMENT AND ACCEPTING A SERVICE RETIREMENT PENSION. THUS, THE PLAN IS PROPERLY CONSIDERED AS AN ALTERNATIVE TO RETIRING AND RECEIVING REGULAR PENSION BENEFITS. CONSEQUENTLY, THE PERIOD OF TIME DURING WHICH A FIREFIGHTER PARTICIPATES IN THE PLAN IS NOT CONSIDERED CREDITED SERVICE FOR PURPOSES OF DETERMINING HIS REGULAR PENSION BENEFITS. PARTICIPATION IN THE PLAN IS NOT A MECHANISM TO AUGMENT THE CALCULATION OF REGULAR RETIREMENT BENEFITS; RATHER, IT ONLY DEFERS THE RECEIPT OF THOSE BENEFITS.
BECAUSE PARTICIPATION IN THE PLAN DOES NOT IMPACT THE AMOUNT OF THE FIREFIGHTER'S PENSION BENEFITS, THERE IS NO NEED TO RECALCULATE THE AMOUNT OF HIS PENSION. THIS IS IN ACCORD WITH THE GENERAL RULE THAT PENSION BENEFITS ARE CALCULATED ONLY ONCE. SEE A.G. OPIN. NO. 85-186. MOREOVER, THERE IS SIMPLY NO STATUTORY PROVISION WHICH EITHER AUTHORIZES OR REQUIRES THE SYSTEM TO RECALCULATE A FIREFIGHTER'S SERVICE PENSION UPON TERMINATION OF HIS PARTICIPATION IN THE PLAN.
4. WHEN THE FIREFIGHTER IS REQUIRED TO RETIRE AFTER PARTICIPATING IN THE OKLAHOMA FIREFIGHTERS DEFERRED OPTION PLAN FOR FIVE (5) YEARS, IS THE FIREFIGHTER ELIGIBLE TO TRANSFER THE FUNDS IN THE DEFERRED OPTION PLAN TO THE OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM AND CONTINUE TO BE EMPLOYED BY THE MUNICIPAL FIRE DEPARTMENT? 11 Ohio St. 49-106.1(C) SPECIFICALLY PROVIDES AS FOLLOWS:
"AT THE CONCLUSION OF A MEMBER'S PARTICIPATION IN THE OKLAHOMA FIREFIGHTERS DEFERRED OPTION PLAN, THE MEMBER SHALL TERMINATE EMPLOYMENT WITH ALL PARTICIPATING MUNICIPALITIES A FIREFIGHTER, AND HALL TART RECEIVING THE MEMBER'S ACCRUED MONTHLY RETIREMENT BENEFIT FROM THE SYSTEM."
THUS, A FIREFIGHTER WHO HAS PARTICIPATED IN THE PLAN FOR FIVE (5) YEARS MAY NOT THEREAFTER CONTINUE TO BE EMPLOYED BY A MUNICIPAL FIRE DEPARTMENT; RATHER, HE MUST TERMINATE HIS EMPLOYMENT AS A FIREFIGHTER. FURTHER, 11 Ohio St. 49-106.1 DOES NOT AUTHORIZE THE TRANSFER THE FUNDS FROM A FIREFIGHTER'S PLAN ACCOUNT TO HIS PENSION SYSTEM ACCOUNT; AFTER TERMINATION, HE MUST BEGIN RECEIVING HIS REGULAR RETIREMENT BENEFITS.
5. MAY THE STATE BOARD WAIVE THE STATUTORY REQUIREMENT THAT A FIREFIGHTER PASS A PHYSICAL EXAMINATION? 11 Ohio St. 49-116(A) OF TITLE 11 PROVIDES THAT THE BOARD SHALL REQUIRE THAT ANY PERSON ENTERING THE SERVICES OF A MUNICIPALITY AS A PAID FIREFIGHTER MUST SUCCESSFULLY COMPLETE A PHYSICAL EXAMINATION. USE OF THE TERM SHALL BY THE LEGISLATURE CREATES A MANDATORY REQUIREMENT THAT FIREFIGHTERS MUST PASS A PHYSICAL EXAMINATION. THIS REQUIREMENT IS MADE SOMEWHAT AMBIGUOUS, HOWEVER, BY OTHER LANGUAGE CONTAINED IN 11 Ohio St. 49-116(A) WHICH PROVIDES THAT THE BOARD SHALL HAVE THE FINAL DETERMINATION UPON ALL APPLICATIONS FOR MEMBERSHIP IN THE SYSTEM.
A PROPER INTERPRETATION OF THESE CLAUSES IS ONE WHICH AVOIDS CONFLICT AND GIVES EFFECT TO BOTH PROVISIONS. THUS, THE CORRECT CONSTRUCTION OF 11 Ohio St. 49-116(A) IS ONE WHICH RETAINS THE MANDATORY PHYSICAL EXAMINATION REQUIREMENT, BUT ALSO PRESERVES THE BOARD'S DISCRETION. IN PRACTICE, THIS WOULD NOT PERMIT THE BOARD TO WAIVE THE REQUIREMENT THAT FIREFIGHTERS SUCCESSFULLY PASS A PHYSICAL EXAMINATION, BUT WOULD PERMIT THE BOARD TO MAKE THE FINAL DETERMINATION IN THE EVENT THERE WAS CONFLICTING MEDICAL EVIDENCE REGARDING WHETHER AN APPLICANT HAD SUCCESSFULLY COMPLETED THE PHYSICAL EXAMINATION.
6. WHAT IS THE STATUS OF A FIREFIGHTER WHO WAS A MEMBER OF THE SYSTEM WHEN THE STATUTE WAS AMENDED IN 1981, BUT WHO HAS NOT THEREAFTER COMPLETED A PHYSICAL EXAMINATION?
INDIVIDUALS WHO WERE FIREFIGHTERS PRIOR TO 1981 WERE EFFECTIVELY GRANDFATHERED INTO THE SYSTEM WHEN THE MUNICIPAL PENSION SYSTEMS WERE CONSOLIDATED INTO THE STATE SYSTEM IN 1981, AND WERE NOT REQUIRED TO COMPLETE A PHYSICAL EXAMINATION. CF. 11 Ohio St. 49-105.2/11 Ohio St. 49-116 (1981). HOWEVER, WITH RESPECT TO ANY FIREFIGHTER WHO ENTERED THE PENSION SYSTEM IN THIS MANNER, LATER RETIRED OR OTHERWISE TERMINATED EMPLOYMENT, ND WHO NOW DESIRES TO RE-ENTER THE SYSTEM, HE WILL BE SUBJECT TO THE USUAL STATUTORY REQUIREMENT THAT HE SUCCESSFULLY COMPLETE THE REQUIRED PHYSICAL EXAMINATION.
7. IS THERE ANY POSITION ON AN ORGANIZED FIRE DEPARTMENT THAT IS MEMBER OF THE STATE SYSTEM THAT IS A "NON-PENSION" POSITION?
CLEARLY, NOT ALL EMPLOYEES OF AN ORGANIZED FIRE DEPARTMENT ARE FIREFIGHTERS AND, THEREFORE, MEMBERS OF THE SYSTEM. FOR EXAMPLE, SECRETARIES AND DISPATCHERS SHOULD PROBABLY NOT BE CONSIDERED TO BE ELIGIBLE FIREFIGHTERS WITHIN THE MEANING OF THE 11 Ohio St. 49-100.1(6). ACCORDINGLY, SOME POSITIONS ARE INDEED NON-PENSION POSITIONS.
THE DETERMINATION OF WHICH PARTICULAR JOBS ARE PENSION POSITIONS AND WHICH ARE NON-PENSION POSITIONS IS A QUESTION OF FACT, HOWEVER. AND SUCH FACTUAL ISSUES ARE NOT SUSCEPTIBLE TO RESOLUTION THROUGH A LEGAL OPINION. CONSEQUENTLY, ANY SPECIFIC DETERMINATIONS OF THIS TYPE LIE OUTSIDE THE COPE OF THIS CORRESPONDENCE. ACCORD A.G. OPIN. NO. 89-015
8. MAY A FIREFIGHTER BE CREDITED WITH ADDITIONAL SERVICE TIME IF THE FIREFIGHTER'S NAME DID NOT APPEAR ON THE YEARLY REPORT FILED BY THE CLERK OF THE MUNICIPALITY ND THE REQUIRED PENSION CONTRIBUTIONS WERE NOT PAID TO THE SYSTEM FOR THE YEAR(S) IN QUESTION?
PURSUANT TO 11 Ohio St. 49-124, THE CLERK OF EACH MUNICIPALITY THAT IS A MEMBER OF THE SYSTEM MUST FILE AN ANNUAL REPORT WITH THE BOARD. THIS REPORT IS TO CONTAIN CERTAIN SPECIFIC INFORMATION, INCLUDING THE IDENTITIES OF EACH OF THE FIREFIGHTERS EMPLOYED BY THE MUNICIPALITY. ID. 11 Ohio St. 49-124 MAKES NO PROVISION FOR CORRECTING MISTAKES MADE IN CONNECTION WITH PREPARATION OF THE REPORT; HOWEVER, THE BOARD CLEARLY HAS THE GENERAL SUPERINTENDENT AUTHORITY TO REVIEW AND CORRECT SUCH CLERICAL ERRORS. IN THIS REGARD, I WOULD DIRECT YOUR ATTENTION TO BOARD RULE NO. 4, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:
IF A QUESTION ARISES CONCERNING A FIREFIGHTER'S CORRECT AMOUNT OF SERVICE TIME, THE FIREFIGHTER MUST OBTAIN THREE AFFIDAVITS STATING HIS CORRECT SERVICE TIME AND SUBMIT TO THE STATE BOARD FOR ACTION. THE CHAIRMAN OF THE BOARD MAY DIRECT A MEMBER OF THE BOARD TO VISIT THE FIREFIGHTER AND THE CITY IN QUESTION FOR FURTHER VERIFICATION. SERVICE TIME MAY BE CORRECTED TO ALLOW NOT MORE THAN TWENTY (20) YEARS OF SERVICE.
FURTHER, THERE WOULD, OF COURSE, NEED TO BE AN APPROPRIATE ADJUSTMENT TO THE AMOUNT OF CONTRIBUTION REMITTED TO THE BOARD TO MAKE UP FOR THE PAST FAILURE TO PAY CONTRIBUTIONS.
(K. W. JOHNSTON)