RE: COMPUTATION OF PENSION BENEFITS FOR VOLUNTEER FIREFIGHTERS.
THE ATTORNEY GENERAL HAS ASKED THAT I RESPOND TO YOUR REQUEST FOR AN OPINION CONCERNING THE COMPUTATION OF PENSION BENEFITS FOR VOLUNTEER FIREFIGHTERS.
BEFORE I BEGIN DISCUSSION OF THE ISSUES RAISED IN YOUR REQUEST, HOWEVER, I WOULD FIRST LIKE TO APOLOGIZE FOR THE DELAY IN RESPONDING TO YOUR INQUIRY. BECAUSE OF PERSONNEL CHANGES AND SHIFTING AGENCY APPOINTMENTS, YOUR REQUEST HAD BEEN ASSIGNED TO SEVERAL OTHER ATTORNEYS BEFORE COMING TO REST WITH ME. AND UNFORTUNATELY, DUE TO OTHER PRESSING MATTERS, I WAS UNABLE TO GIVE IMMEDIATE ATTENTION TO YOUR REQUEST. IN THE FUTURE I WILL ENDEAVOR TO AVOID SUCH DELAYS.
BUT MOVING ON TO YOUR INQUIRY, YOU ASK THREE QUESTIONS. FIRST, WHAT IS THE FORMULA FOR COMPUTING PENSION BENEFITS FOR FIREFIGHTERS WHO HAVE MORE THAN TEN (10) YEARS OF PAID SERVICE AND ADDITIONAL VOLUNTEER SERVICE? SECOND, MAY FIREFIGHTERS "CONVERT" VOLUNTEER TIME TO SERVICE CREDIT FOR PAID TIME? AND THIRD, IF FIREFIGHTERS MAY NOT "CONVERT" VOLUNTEER TIME, HOW WILL THIS AFFECT FIREFIGHTERS WHO HAVE NOT YET RETIRED, AND THOSE WHO HAVE ALREADY RETIRED?
1. FORMULA FOR COMPUTING PENSION BENEFITS FOR FIREFIGHTERS WHO HAVE MORE THAN TEN YEARS OF PAID SERVICE PLUS ADDITIONAL VOLUNTEER SERVICE.
SECTION 11 O.S. 49-106 OF TITLE 11 IS THE OPERATIVE PROVISION WHICH GRANTS PENSION BENEFITS TO EACH FIREFIGHTER. THE BENEFITS BECOME PAYABLE WHEN A FIREFIGHTER COMPLETES TWENTY (20) YEARS OF CREDITED SERVICE. 11 O.S. 46-100.7(7)/11 O.S. 49-106 (1990). HOWEVER, IF A FIREFIGHTER TERMINATES SERVICE AFTER COMPLETING TEN (10) YEARS OF CREDITED SERVICE, THE FIREFIGHTER MAY ELECT TO RECEIVE A "VESTED BENEFIT." 11 O.S. 49-117.1 (1990). PENSION BENEFITS ON A VESTED BENEFIT BECOME PAYABLE ONCE THE FIREFIGHTER REACHES FIFTY (50) YEARS OF AGE OR ONCE HE WOULD HAVE HAD TWENTY (20) YEARS OF CREDITED SERVICE HAD HIS SERVICE CONTINUED UNINTERRUPTED, WHICHEVER OCCURS LATER. ID. REGARDLESS OF THE MANNER IN WHICH THE FIREFIGHTER BECOMES ELIGIBLE TO RECEIVE A PENSION, THE AMOUNT OF THE PENSION BENEFIT IS DETERMINED BY MULTIPLYING TWO AND ONE-HALF PERCENT OF THE FIREFIGHTER'S FINAL AVERAGE SALARY BY THE NUMBER OF YEARS OF CREDITED SERVICE (NOT TO EXCEED THIRTY YEARS). 11 O.S. 49-100.1(15)/11 O.S. 49-117.1.
A SEPARATE PROVISION, 11 O.S. 49-101 (1990), PROVIDES THAT VOLUNTEER FIREFIGHTERS WHO QUALIFY FOR RETIREMENT MAY ALSO RECEIVE A PENSION. THE AMOUNT OF THE PENSION PAID TO VOLUNTEER FIREFIGHTERS IS COMPUTED BY MULTIPLYING A PARTICULAR DOLLAR AMOUNT, SET BY THE LEGISLATURE, BY THE NUMBER OF YEARS OF SERVICE CREDIT (NOT TO EXCEED THIRTY YEARS). SEE 11 O.S. 49-101(A)/11 O.S. 49-143.1(C) (1990). INCIDENTLY, I NOTE THAT 11 O.S. 49-101, LIKE 11 O.S. 49-117.1, ALSO CONTAINS A "VESTING" PROVISION.
TURNING TO YOUR SPECIFIC QUESTION, IF A FIREFIGHTER COMPLETES MORE THAN TEN (10) YEARS OF CREDITED SERVICE AS A PAID FIREFIGHTER HE IS ENTITLED, PURSUANT TO 11 O.S. 49-117.1, ELECT TO RECEIVE THE VESTED BENEFIT ATTRIBUTABLE TO HIS INITIAL TEN (10) YEARS OF SERVICE. IF THE FIREFIGHTER LATER BECOMES A VOLUNTEER FIREFIGHTER, HE MAY — PROVIDED THAT HE FULFILLS THE INDEPENDENT REQUIREMENTS OF 11 O.S. 49-101 — BECOME ELIGIBLE FOR ADDITIONAL PENSION BENEFITS. ANY SUCH ADDITIONAL BENEFITS WOULD BE COMPUTED UNDER THE FORMULA SET FORTH IN 49-101. THUS, IN THE SITUATION WHICH YOU DESCRIBE, THE FIREFIGHTER WOULD ESSENTIALLY HAVE EARNED ONE PENSION, AND BE WORKING TOWARDS A SECOND, SEPARATE PENSION.
2. CONVERTING SERVICE CREDIT FOR VOLUNTEER TIME TO SERVICE CREDIT FOR PAID TIME.
THE ONLY AUTHORITY FOR "CONVERTING" SERVICE CREDIT EARNED WHILE SERVING AS A VOLUNTEER FIREFIGHTER INTO SERVICE CREDIT FOR TIME SERVED AS A PAID FIREFIGHTER IS 11 O.S. 49-108. THAT PROVISION PERMITS VOLUNTEER FIREFIGHTERS WHO LATER BECOME PAID FIREFIGHTERS TO COMBINE THE YEARS OF SERVICE CREDIT THEY EARNED AS VOLUNTEER FIREFIGHTERS WITH THE YEARS OF SERVICE CREDIT THEY EARNED AS PAID FIREFIGHTERS IN COMPUTING THE PENSION BENEFIT PAYABLE. ID. PRESUMABLY, 11 O.S. 49-108 ALSO PERMITS THE A FIREFIGHTER TO COMBINE PAID AND VOLUNTEER CREDIT FOR PURPOSES OF DETERMINING A FIREFIGHTERS NORMAL RETIREMENT DATE.
SECTION 49-108 DOES NOT, HOWEVER, AUTHORIZE THE REVERSE OF THE INSTANCE DESCRIBED ABOVE. THAT IS, 49-108 DOES NOT PERMIT A FIREFIGHTER WHO SERVES FIRST AS A PAID FIREFIGHTER AND WHO LATER BECOMES A VOLUNTEER FIREFIGHTER TO COMBINE THE SERVICE CREDIT HE EARNED AS PAID FIREFIGHTER WITH THE SERVICE CREDIT HE EARNED AS VOLUNTEER FIREFIGHTER IN COMPUTING THE PENSION BENEFITS DUE OR TO DETERMINE THE NORMAL RETIREMENT DATE OF THE FIREFIGHTER. RATHER, IN THIS SITUATION, THE SERVICE CREDIT EARNED WHILE THE INDIVIDUAL SERVED AS A PAID FIREFIGHTER AND AS A VOLUNTEER FIREFIGHTER ARE TREATED SEPARATELY. PRIOR SERVICE AS A PAID FIREFIGHTER IS NOT MATERIAL TO COMPUTATION OF THE BENEFITS DUE UNDER THE VOLUNTEER PENSION GRANTED BY 49-101. SEE A.G. OPIN. NO. 75-329.
3. EFFECT ON ACTIVE AND RETIRED FIREFIGHTERS.
TO THE EXTENT THAT PENSIONS OF ACTIVE AND RETIRED FIREFIGHTERS WHO HAVE MORE THAN TEN (10) YEARS OF PAID SERVICE AND ADDITIONAL VOLUNTEER SERVICE MAY HAVE BEEN COMPUTED IN A MANNER WHICH IS CONSISTENT WITH THE VIEWS STATED IN THIS OPINION, THERE SHOULD BE NO EFFECT.
HOWEVER, TO THE EXTENT THAT THESE PENSIONS MAY HAVE BEEN COMPUTED IN A MANNER WHICH IS INCONSISTENT WITH THE VIEWS STATED IN THIS OPINION, IT IS POSSIBLE THAT RECOMPUTATION OF BENEFITS MAY BE APPROPRIATE. WHETHER RECOMPUTATION IS NECESSARY — OR IN SPECIFIC CASES EVEN PERMISSIBLE — AND THE IMPACT OF ANY SUCH RECOMPUTATION ON THE EXPECTATIONS OF ACTIVE FIREFIGHTERS AND THE BENEFITS OF RETIRED FIREFIGHTERS WILL DEPEND ON FACTUAL CONSIDERATIONS WHICH ARE NOT PROPERLY WITHIN THE SCOPE OF THIS CORRESPONDENCE.
(K. W. JOHNSTON)