FIREFIGHTER'S PENSION
A firefighter with prior service in a paid capacity and subsequent service in the capacity of a volunteer may not be paid a pension computed pursuant to either 11 O.S. 364 [11-364] (1971), or 11 O.S. 364 [11-364](b) (1975), upon the completion of a total of twenty years service. Pension benefits for firefighters who are serving in the capacity of volunteers at the time retirement requirements are met are to be computed pursuant to provisions of 11 O.S. 345 [11-345] (1975). The Attorney General has considered your request for opinion wherein you ask, in effect, the following question: May a firefighter who served first in a paid capacity and subsequently as a volunteer be paid a pension pursuant to provisions of either 11 O.S. 364 [11-364] (1971) or 11 O.S. 364 [11-364](b) (1975) upon the completion of twenty years service? The fact situation related in your letter is that of an individual who served as a full-time, paid member of a regularly constituted fire department for approximately fourteen years and who, after such period of service, terminated as a paid member of the department but continued serving in the capacity of a volunteer member thereof. You inquire whether that individual is, upon retirement, entitled to a pension computed under provision of either Section 364 of Title 11 or Section 364(b) of the same Title which was enacted in the First Regular Session of the Thirty-fifth Oklahoma Legislature. Title 11 O.S. 364 [11-364] (1971), provides for computation of retirement pensions for firefighters as follows: "Any person who is now or may hereafter be appointed and enrolled as a member of a regularly constituted fire department of any city or town of the state and who serves as such member in any capacity or rank for a period of not less than twenty (20) years, the last five (5) years of which shall have been continuous in the fire department in which he was a member at the time he retires, shall be entitled, upon his written request, to retire from such service and to be thereon paid from the Firemen's Relief and Pension Fund a monthly pension of one-half (1/2) of the average monthly salary which was paid to him for his service in such fire department during the last thirty (30) months of his service;. . . ." Section 11 O.S. 364 [11-364] must be construed to be applicable only to firefighters serving in a paid capacity at the time of retirement for the reason that provision is made therein for the average monthly salary during the last thirty (30) months of service to be used as a basis for computation of pension benefits. Title 11 O.S. 364 [11-364](b) (1975), provides in pertinent part: "Any volunteer fire fighter who is appointed as a regular full-time, paid member of a regular, constituted fire department of the state, after January 1, 1975, and who serves less than ten (10) years as a paid fire fighter, shall be entitled to receive one-twentieth (1/20) of a volunteer pension for each full year of the time he served as a volunteer fire fighter and one-twentieth of one-half (1/20 of 1/2) of the average salary received by him for each full year of the time he served as a paid fire fighter. . . ." Title 11 O.S. 364 [11-364](b) (1975) is limited in applicability to individuals who complete the twenty year service requirement for retirement in the status of regular, full-time paid members of regularly constituted fire departments and who have served in a paid capacity less than ten years prior to meeting the service requirement. Section 11 O.S. 364 [11-364](b), thus, necessarily contemplates an individual who served in a voluntary capacity prior to his appointment as a paid member of the fire department and, therefore, is not applicable in a situation such as you relate. You indicate that the individual on whose behalf you inquire will complete twenty years service in the status of a volunteer member of the fire department. It does not appear that the Legislature has, either in the Firemen's Relief and Pension Fund Act or elsewhere within Title 11, provided for credit to be allowed for prior years service as a regular, paid member of a fire department when computing pensions for volunteer firefighters. Prior service as a paid firefighter is, therefore, not material under the law in the computation of pension benefits for volunteer members of fire departments. Title 11 O.S. 345 [11-345] (1975), provides that all retired volunteer firefighters shall be entitled to a monthly pension and the basis for the computation of same is set forth therein. Section 345 appears to be the applicable authority in the situation you relate. It is, therefore, the opinion of the Attorney General that a firefighter with prior service in a paid capacity and subsequent service in the capacity of a volunteer may not be paid a pension computed pursuant to either 11 O.S. 364 [11-364] (1971), or 11 O.S. 364 [11-364](b) (1975), upon the completion of a total of twenty years service. Pension benefits for firefighters who are serving in the capacity of volunteers at the time retirement requirements are met are to be computed pursuant to provisions of 11 O.S. 345 [11-345] (1975). (William Don Kiser)