Can an Arkansas city reduce or cancel its Amendment 31 police or fire pension millage without a 10% revenue increase, and can a mayor redirect that money to LOPFI?

Plain-English summary

Senator Cecile Bledsoe asked the AG five questions about the City of Rogers' police and fire pension millages under Amendment 31. Rogers had voter-approved one-mill taxes for both pensions, rolled them back administratively to half a mill in 1968 (police) and 1986 (fire). Both pensions were small (15 active members on the police side, 33 on fire). The fire pension was 72.2% funded; the police pension was 152.9% overfunded. The City did not want to consolidate with LOPFI but wanted to know what flexibility it had in handling the old plans and the millages.

The AG broke the answers into two groups. On rollback, the AG read Amendment 31 as authorizing an annual levy up to one mill, with the rate set anew each year by the city council when it certifies tax rates to the county clerk. Wright v. Story, 298 Ark. 508 (1989), addressed whether the City of Rogers could raise its Amendment 31 rate after an Amendment 59 rollback had occurred (the answer was no). It did not say a 10% revenue increase is a precondition to lowering the rate. The AG concluded a city can drop the millage to half a mill, a quarter mill, or zero in any given year without invoking Amendment 59 at all.

On redirection of millage revenue to LOPFI, the AG was firmer. Pension matters are excluded from "municipal affairs" under § 14-43-601(a)(1)(F), which makes them state matters governed by general law. The two statutory paths to use Amendment 31 millage for LOPFI payments are (a) opting into LOPFI under § 24-10-302, which transfers the local fund to LOPFI's administration, and (b) designating a small (under-five-member) local fund as "inactive" under § 24-11-406 or § 24-11-804. Rogers was not in either situation. So neither the mayor nor the city council had authority, acting independently of those statutes, to direct Amendment 31 millage to LOPFI expenses. Question 5, about restricting the overfunded police pension surplus to future LOPFI use, fell to the same answer: no statutory authority.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the AG read Amendment 31

Amendment 31 (1944) authorizes cities of the first or second class to "annually" levy a property tax up to one mill each for police and fire pensions, after voter approval. The implementing statutes (§§ 24-11-404 for police, 24-11-812 for fire) repeat the annual structure. Crucially, neither Amendment 31 nor its implementing statutes require the ballot to specify a particular rate. The vote authorizes "the question of the tax," meaning the levy of a tax up to one mill to support pensions. That is different from amendments like 30, 32, and 38 (city library, hospital, county library), which require the ballot to specify a rate.

The AG drew two practical implications from that structural difference. First, because the vote does not lock in a rate, the city council has discretion to certify a lower rate (or zero) any year. Second, the only Amendment 59 issue is the one Wright v. Story addressed, which is going back up after a rollback. Going down, on its own, is not an Amendment 59 problem.

The AG also pointed to § 24-11-812(b)(5), which does require the ballot to state an amount of tax voted on, but only in cities that do not have a local pension fund and are using the levy to pay for LOPFI coverage. That is a different statutory pathway and was not Rogers's situation.

How the AG read the LOPFI pathways

LOPFI (the Arkansas Local Police and Fire Retirement System) is a state-administered system. For cities that had local funds in place on January 1, 1983, LOPFI coverage is mandatory for officers and firefighters hired after that date. But existing local funds keep operating for older members. The AG identified two ways Amendment 31 millage revenue can flow into LOPFI:

• Section 24-10-302 opt-in: The city affirmatively transfers the local fund to LOPFI's administration. The local fund's revenues then become LOPFI revenues.
• Section 24-11-406 or § 24-11-804 inactive designation: Local funds with fewer than five members can be designated inactive. The fund's revenues fall under LOPFI for system payments.

Rogers was neither. Its police plan had 15 members and was overfunded; the fire plan had 33 members. Neither met the inactive threshold, and the City had not opted in. The AG concluded there was no third path. The mayor could not by executive action redirect the millage; the city council could not by ordinance redirect the millage; and the surplus in the overfunded police pension could not be sequestered for future LOPFI use.

Common questions

Can the city ask voters to abolish the Amendment 31 tax? The AG noted in footnote 16 that Amendment 31 is silent on a citizen's right to petition for an election to raise, reduce, or abolish the tax (other amendments do create that right) and that "there currently is no statutory method for abolishing an Amendment 31 tax." So the petition path is unclear. The simpler answer the AG gave: the council can stop levying the tax in any given year by certifying a zero rate.

If the police pension is overfunded by 152.9%, can the surplus be returned to taxpayers or used for general purposes? The opinion did not address that directly. It rejected redirecting the surplus to LOPFI. Other Amendment 31 case law (and the dedicated-fund principle) typically requires pension millage revenue to stay with the pension purpose for which it was levied.

What about firefighters or officers hired after January 1, 1983, in a city like Rogers? LOPFI coverage is mandatory for those hires under § 24-10-301(a) and § 24-10-302(b) (opinion footnote 4). The City had to fund LOPFI for those employees somehow. The opinion does not say where that money was coming from in Rogers; what it says is that Amendment 31 millage was not an authorized source.

Could the legislature change the answer?
Yes. Section 14-43-601(a)(1)(F) treats pension matters as state affairs, which means general state law controls. The legislature can, and has, created the LOPFI pathways in §§ 24-10-302 and 24-11-406. New legislation could authorize additional uses for Amendment 31 revenue. But absent that, the AG's view was the city could not improvise its own pathway.

Did Wright v. Story really not foreclose a rollback without a 10% revenue increase? The AG read Wright as addressing the inverse fact pattern: a city raising its rate back to the original level after an Amendment 59 rollback had compressed it. The court rejected that move because the increase exceeded the 10% Amendment 59 ceiling. Lowering the rate is a different operation and Amendment 59 does not address it.

Background and statutory framework

Amendment 31 (1944) lets first- and second-class cities tax up to one mill each for police and fire pensions, on voter approval. The implementing chapter is Title 24, Chapter 11 of the Arkansas Code: police pensions at § 24-11-401 et seq., fire pensions at § 24-11-801 et seq. LOPFI was created in 1983 as a state-run alternative; cities with local funds before that date can keep them running for older members. LOPFI coverage is mandatory for new hires in cities that had local funds on Jan 1, 1983.

Amendment 59 (1980) was a property-tax reform measure. Among other things, it requires rate adjustment after countywide reappraisals when assessed value rises by more than 10%. Wright v. Story applied Amendment 59 to an Amendment 31 millage in the inverse direction (resisting an attempted increase). Worth v. City of Rogers, 341 Ark. 12 (2000), is the leading rollback authority.

Citations

• Ark. Const. amend. 31 (police and fire pension tax)
• Ark. Const. amend. 59 (property tax adjustment)
• Ark. Code Ann. § 14-43-601(a)(1)(F) (pension matters as state affairs)
• Ark. Code Ann. § 24-10-301 to -302 (LOPFI coverage and opt-in)
• Ark. Code Ann. § 24-11-401 et seq. (police pension funds)
• Ark. Code Ann. § 24-11-404 (police pension tax levy)
• Ark. Code Ann. § 24-11-406 (inactive police pension fund)
• Ark. Code Ann. § 24-11-801 et seq. (fire pension funds)
• Ark. Code Ann. § 24-11-804 (inactive fire pension fund)
• Ark. Code Ann. § 24-11-812 (fire pension tax levy)
• Wright v. Story, 298 Ark. 508, 769 S.W.2d 16 (1989) (Amendment 59 rollback applied to Amendment 31)
• Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000) (rollback case law)
• McLaughlin v. Lovett, 204 Ark. 708, 163 S.W.2d 826 (1942) (governing body's discretion to make no levy)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-106
January 17, 2018
STATE OF ARKANSAS
ATTORNEY GEN ERAL
LESLIE R_UTLEDG E
The Honorable Cecile Bledsoe
State Senator
709 Sky Mountain Drive
Rogers, AR 72756
Dear Senator Bledsoe:
This is in response to your request for an opinion on several questions concerning the use of police and fire pension-fund revenues.1 As background for your questions, you report that the local policemen and firemen relief and pension funds in the City of Rogers are currently supported by an Amendment 312 tax at the rate of one-half (0.5) mill each.3 You further report that there are currently 33 pensioners on the firemen's pension plan and 15 members on the policemen's pension plan, and that the City does not wish to consolidate 1 Chapter 11 of Title 24 of the Arkansas Code (Rep I. 2014 and Supp. 2017) authorizes locally administered pension programs for police officers and fire fighters. I gather from your correspondence that the City of Rogers created such police and fire pensions pursuant to Ark. Code Ann.§§ 24-11-401 et seq. (police) and 24-11-801 et seq. (fire). 2 Amendment 3 1 to the Arkansas Constitution authorizes an annual property tax levy "not to exceed one mill on the dollar" each for police and fire pensions, following an election. Ark. Const. amend. 31, § 1 (Repl. 2004). 3 You state that City records show "a millage levy of one ( 1) mill at an election some time before September 30, 1950, for a firemen's pension under Amendment 31 to the Arkansas Constitution[,]" and that "the City rolled this levy back to one-half (0.5) mill" in 1986. Regarding the policemen's pension, you state that "[o]n or about June 3, 1975, the City approved a millage levy of one (1) mill for a police pension fund under Amendment 31 to the Arkansas Constitution at a special election called for that purpose[,]" but "the City cannot locate a copy of the original ballot for this levy." You fut1her state that "[i]n 1968, the City rolled this levy back to one-half (0.5) mill for police pension." 323 CENTER STREET, SU ITE 200 · LITTLE ROCK. ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV The Honorable Cecile Bledsoe State Senator Opinion No. 2017-106 Page 2 with the Arkansas Local Police and Fire Retirement System (LOPFI) at this time.4 You state that the firemen's pension fund is 72.2% funded and the policemen's pension fund is 152.9% funded. Finally, you state that the City Council has passed a "Resolution Authorizing the Rate of Property Tax for the City of Rogers for the Year 2016 to be Collected in 2017." The Resolution reportedly provides that the Amendment 31 property taxes "for Firemen's Pension purposes" and "for Police Pension purposes" shall each be "fixed and levied at the rate of One-Half (0.5) mill. ... " Against this background, you ask:

1. In Wright v. Story, 298 Ark. 508 ( 1989), the Arkansas Supreme
   Court applied the rollback provisions of Article 16, § 14
   (Amendment 59) to Amendment 31 millage levies when there
   had been a ten percent (10%) increase in the applicable tax revenues. However, is a ten percent (10%) increase in the applicable tax revenues a prerequisite to any rollback of a millage levied under Amendment 31? Can the City cease collections of each of the one-half (0.5) mills currently collected for firemen's and police pensions or reduce the millage rate currently collected in the absence of a ten percent (10%) increase in the applicable tax revenues?
2. Can the voters of the City, by an election, cease collections of
   each of the one-half (0.5) mills currently collected for firemen's and police pension purposes? If so, what are the ballot requirements in the absence of the original ballot levying the millages?
3. Can the Rogers Mayor, through executive action and under the
   authority of the resolution mentioned above, direct payment of the Amendment 31 millage revenue to pay LOPFI expenses for police rather than continuing to feed the old, overfunded police pension plan? If not, could this be done by a legislative action of 4 LOPFI is a state-administered retirement system for local police officers and firefighters. In cities with local relief funds in place on January 1, 1983 (LOPFI's operative date), coverage under LO PF I is mandatory for all police officers and firefighters hired after January 1, 1983. See Ark. Code Ann.§§ 24-10-30l(a) and -302(b) (Rep!. 2014); Op. Att'y Gen. 2001-155. The Honorable Cecile Bledsoe State Senator Opinion No. 2017-106 Page 3 the City Council? Would the same answers apply to the firemen's pension plan?
4. Can the Rogers Mayor, through executive action and under the
   authority of the resolution mentioned above, direct payment of the Amendment 31 millage revenue to pay LOPFI expenses for firemen rather than continuing to feed the old firemen's pension plan? If not, could this be done by a legislative action of the City Council?
5. Can the City restrict the use of the overfunded amount of the old
   police pension plan by placing the overfunded amount in a
   separate restricted fund for police pension purposes that would be used for future LOPFI expenses as well as maintenance of the old police pension plan? If so, can this be done by the legislative action of the City Council or executive action of the Mayor, or does it require the approval of the Local Police Pension Board or the Arkansas Fire and Police Pension Review Board? RESPONSE It is my opinion in response to your first question that a 10% increase in tax revenues is not a prerequisite to reducing an Amendment 31 millage. Amendment 31 taxes are levied annually, and I believe a city may decide to either reduce or make no levy of any part of an Amendment 31 millage when it certifies its tax rates to the county clerk. A response to your second question is unnecessary in light of this conclusion. With regard to your remaining questions, it is my opinion under the particular facts at hand that there is no authority for directing the Amendment 31 millage revenues to pay LOPFI expenses for police officers or firefighters. DISCUSSION Question 1: In Wright v. Story, 298 Ark. 508 (1989), the Arkansas Supreme Court applied the rollback provisions of Article 16, § 14 (Amendment 59) to Amendment 31 millage levies when there had been a ten percent (10%) increase in the applicable tax revenues. However, is a ten percent (10%) increase in the applicable tax revenues a prerequisite to any rollback of a millage levied under Amendment 31? Can the City cease collections of each of the one-half (0.5) mills currently collected for firemen's and police pensions or reduce the millage The Honorable Cecile Bledsoe State Senator Opinion No. 2017-106 Page 4 rate currently collected in the absence of a ten percent (10%) increase in the applicable tax revenues? As you have noted, Amendment 59 to the Arkansas Constitution requires the adjustment, or "rollback," of taxes whenever the assessed value of property increases by more than 10% following a countywide reappraisal. 5 In my opinion, a city's ability to lower the rate of a voter-approved Amendment 31 tax is not dependent upon Amendment 59's rollback provision.6 Amendment 31 provides that "[a ]fter consent of the majority of those voting on the question at any general or special election in cities of the first or second class, the cities may annually ... levy a tax ... not to exceed two mills" for police and fire pension funds.7 The amendment states that "[t]he annual levy ... shall not exceed one mill" each for the police and fire pensions, and further provides in relevant part that "[ t ]he manner of such levy of the tax, and ... the several amounts thereof and when payable, shall be such as may be provided by law."8 Amendment 31 therefore authorizes elections in cities to approve the annual levy of a property tax of up to one mill for police and fire pensions, respectively. I believe it is clear that the vote at the election is on the question of the pension, and the levy of a tax up to an amount not exceeding one mill to support such. The vote may set an upper limit on the tax that is less than one mill; but in my opinion, it is not a vote on a specific rate of tax. Unlike several other constitutional amendments authorizin~ local tax levies, Amendment 31 does not require a vote on any specific tax rate. 5 See Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000). 6 In the case you have cited, an Amendment 59 rollback of taxes had occurred; and the Arkansas Supreme Court rejected, as contrary to Amendment 59, a city's subsequent attempt to increase the rate of its Amendment 31 tax to a full mill. Wright v. Story, 298 Ark. 508, 509, 769 S.W.2d 16, 17 (1989) (stating that "[t]o allow the city then to return to the old rate (clearly in excess of 10% over the base year) on the newly increased appraised value of the property would violate amend. 59, even though it might have seemed permitted, literally, by amend. 31."). 7 Ark. Const. amend. 31, § 1. 9 Compare Ark. Const. amend. 31 with Ark. Const. amend. 30, § 1, amend. 32, § 1, and amend. 38, § 1 (Rep!. 2004) (the latter three stating that a petition for a tax to support a city library, a county or city hospital, and a county library, respectively, "shall specify a rate of taxation."). The Honorable Cecile Bledsoe State Senator Opinion No. 2017-106 Page 5 The implementing legislation for Amendment 31 similarly states that "[a ]fter being once approved by a majority of those voting ... , a tax not to exceed one (1) mill on the dollar ... shall be levied annually by the city for the purpose of paying police officers' retirement salaries and pensions."1° Consistent with Amendment 31, there is no requirement under the relevant implementing statutes that a tax rate be specified on the ballot.11 The levy of a tax up to one mill for police officers' and firefighters' retirement is what voters will have "approved." The vote is on "the question of the tax,"12 that is, the question of a tax that may not exceed one mill to support pensions. Once such approval is obtained, the city's governing body makes the annual levy and certifies the tax rate to the county clerk: The levy shall be made by the city council or other governing body of the city on or before the time fixed by law for levying county taxes, and the city council or other governing body shall make out and certify to the county clerk the rate of taxation levied .... "13 10 Ark. Code Ann. § 24-11-404(a)(l); Ark. Code Ann. § 24-11-812(a)(l) (same for "firefighters' retirement salaries and pensions.") 11 One subsection applicable to firefighter pensions does require that the ballot "state the amount of tax being voted on .... " Ark. Code Ann.§ 24-11-812(b)(5); see also id. at§ 24-11-812(b)(3) (requiring that a petition for a vote under this subsection must state "the amount of tax to be voted on, not to exceed one (1) mill. ... "). This subsection applies in cities that do not have a local pension fund and that cover their firefighters under LOPFI, the purpose being to allow a tax levy to pay for LOPFI coverage. Id. at§ 24-11-812(b)(l). The city's levy of an amount lower than that voted on may be a closer question under this subsection. But I believe it may be forcefully argued that like the vote on an Amendment 31 tax to support local pension funds, the vote under this subsection is a vote to approve a levy up to the amount stated on the ballot (which may not exceed one mill). The levy is certified "in the same manner as" a levy to support local police or fire pensions. Id. at§ 24-l 1-812(c). And as noted infra, that levy is made annually by the city's governing body, which certifies to the county clerk the "rate of taxation levied." Ark. Code Ann.
   §§ 24-11-404(a)(2) and 24-1 l-812(a)(2).
   12 Ark. Code Ann. §§ 24-1 l-404(d) and 24-l 1-812(d) (each stating that "[a] vote on the question of the tax provided for in this section shall be had in the same manner that the Arkansas Constitution and laws of this state provide for the initiation of measures in municipalities."). 13 Id. at §§ 24-11-404(a)(2) and 24-l 1-812(a)(2). The "time fixed by law for levying county taxes" occurs annually. See Ark. Code Ann. § 14-14-904(b) (Supp. 2017). The Honorable Cecile Bledsoe State Senator Opinion No. 2017-106 Page 6 It is therefore my opinion that Amendment 31 and its implementing legislation contemplate annual levies of the tax, at rates that may var~ so long as they do not exceed one mill, or whatever rate is stated on the ballot. 4 Although there is no requirement that a rate be specified at the election, if the ballot nevertheless states a rate, I believe the vote is on whether to approve the annual levy of a millage up to that rate to support the pension. Regarding the particular Amendment 31 taxes at issue, you have stated that the full tax of one mill was approved at each of the respective elections on the police and fire pensions in the City of Rogers. Based on the above analysis, and in response to your specific questions concerning a reduction in these taxes, I believe the annual levy of each tax may be reduced below the current levy regardless of whether there has been a 10% increase in tax revenues over the previous year. In my opinion, the City may decide to either reduce or make no levy of any part of its Amendment 31 taxes when it certifies the City's tax rates to the county clerk.15 In this way, and in response to your particular question, the City may "cease collections." 16 Question 2: Can the voters of the City, by an election, cease collections of each of the one-half (0.5) mills currently collected for firemen's and police pension purposes? If so, what are the ballot requirements in the absence of the original ballot levying the millages? A response to this question is unnecessary in light of the above response. 14 Accord Op. Att'y Gen. 2016-092 at n. 13 (discussing the history of Amendment 3l's implementing legislation, and noting the absence of any provisions stating or implying that adjustments to millage rates have been prohibited). 15 See McLaughlin v. Lovett, 204 Ark. 708, 714, 163 S.W.2d 826, 826 (1942) (noting the fact that "the governing body of the City of Hot Springs made no levy of any part of the one mill permitted by the ordinance [that was initiated under Amendment 31 's implementing legislation]."). 16 Because you have asked about rolling back an Amendment 31 millage, I take it the City's ability to abolish the tax altogether is not the focus of your questions. I will nevertheless note in this regard that Amendment 31 is silent regarding the voters' right to petition for an election on the question of raising, reducing, or abolishing an Amendment 31 tax. Compare Ark. Const. amend. 31 with Ark. Const. amend. 30, §3, amend. 32, §3, and amend. 38, § 3 (Repl. 2004) (all providing for an election on raising, reducing, or abolishing these respective taxes, following a petition of electors). And there currently is no statutory method for abolishing an Amendment 31 tax. The Honorable Cecile Bledsoe State Senator Opinion No. 2017-106 Page 7 Question 3: Can the Rogers Mayor, through executive action and under the authority of the resolution mentioned above, direct payment of the Amendment 31 millage revenue to pay LOP FI expenses for police rather than continuing to feed the old, over/ unded police pension plan? If not, could this be done by a legislative action of the City Council? Would the same answers apply to the firemen's pension plan? In my opinion, the answer to each of the first two parts of this question is "no" and the answer to the third part is "yes." It is my opinion under the facts you have outlined that neither the Mayor nor the City Council can legally direct payment of the Amendment 31 millage revenues to pay LOPFI expenses for police officers or firefighters. There is authority in certain limited scenarios for using local police and fire pension fund revenues to make LOPFI system payments. But neither scenario applies under the facts you have outlined regarding the current Amendment 31 taxes for police and fire pensions in the City of Rogers. A city may opt for LOPFI coverage pursuant to Ark. Code Ann. § 24-10-302 (Repl. 2014) (part of the law that established LOPFI). Or a small local police or fire pension fund-defined as one with fewer than five members-can be designated as "inactive" pursuant to Ark. Code Ann. § § 24-11-406 (police) and 24-11-804 (fire) (Repl. 2014 ). In each of these scenarios, the local pension fund revenues will fall under LOPFI's administration and will be used for LOPFI system payments.17 None of these statutes applies under the facts at hand. And in my opinion, a city does not have any current legal authority, acting independently of these statutes, to use its Amendment 31 millage revenues to pay LOPFI expenses. Pension matters are specifically excluded from the definition of "municipal affairs" under Ark. Code Ann. § 14-43-601(a)(l)(F), which provides that such matters are "state affairs ... subject to the general laws of the State of Arkansas." Question 4: Can the Roger's Mayor, through executive action and under the authority of the resolution mentioned above, direct payment of the Amendment 31 millage revenue to pay LOPFI expenses for firemen rather than continuing to feed the old firemen's pension plan? If not, could this be done by a legislative action of the City Council? 17 See Ark. Code Ann. §§ 24-10-302(d), 24-l l-406(b), and 24-l l-804(b). See also Op. Att'y Gen. 2005-098 (discussing these statutes and the applicable procedural requirements). The Honorable Cecile Bledsoe State Senator Opinion No. 2017-106 Page 8 The answer to each part of this question is "no," in my opinion. See my response to Question 3 above. Question 5: Can the City restrict the use of the over/ unded amount of the old police pension plan by placing the over/ unded amount in a separate restricted fund for police pension purposes that would be used for future LOP FI expenses as well as maintenance of the old police pension plan? If so, can this be done by the legislative action of the City Council or executive action of the Mayor, or does it require the approval of the Local Police Pension Board or the Arkansas Fire and Police Pension Review Board? The answer to the first part of this question is "no," in my opinion, rendering the second part moot. See my response to Question 3 above. Sincerely,
   ~/-A- ~-
   LESLIE RUTLE~
   Attorney General