Ms. Cathyrn E. Hinshaw Executive Director Arkansas Fire Police Pension Review Board P.O. Drawer 34164 Little Rock, AR 72203
Dear Ms. Hinshaw:
This is in response to your request for an opinion on several questions involving A.C.A. §§ 24-11-801—828 (1987 and Cum. Supp. 1991) (local Firemen's Relief and Pension Fund). Your specific questions are as follows:
1. Can a covered member leave covered employment with the same department any number of times, return to the same department, and be re-covered under the local plan?
2. Can a firefighter qualify for disability retirement from a local plan if he is capable of doing other kinds of work other than fire fighting?
It is my opinion that the answer to your first question is "yes," so long as the requirements of A.C.A. § 24-11-816 (Cum. Supp. 1991) with regard to restoration of credit are met. Subsection (b) of § 24-11-816 states in pertinent part as follows:
(1) In the event a former member again becomes an employee of the same fire department where previously employed, the fire fighter shall again become a member of the system, and the credited service forfeited by him shall be restored to his credit if he returns to the fund the amount refunded to him plus interest from the date of withdrawal to the date of repayment.
(2) The interest rate to be paid shall be equal to the fund's average investment rate of return as indicated in the last three (3) annual accountant's reports, but in no event less than six percent (6%); the repayment shall be made according to such rules and regulations as the board shall adopt from time to time.
There appears to be no limitation on the number of times a former member may return to the same department.
With regard to your second question, the inquiry with respect to ability to work focuses on whether the fire fighter is ". . . totally and permanently physically or mentally incapacitated forany suitable duty as an employee. . . ." A.C.A. §24-11-819(a)(1) (Cum. Supp. 1991). (Emphasis added.) It may reasonably be concluded that the emphasized language refers to suitable duty as an employee of the fire department. Thus, the fire fighter's ability to do other kinds of work is not necessarily dispositive.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh