Can a former Arkansas city clerk who later became mayor retire as a mayor before age 55 under a generic 'as may be amended' city ordinance?

Plain-English summary

Senator Jonathan Dismang asked about a complex fact pattern: a person served a first-class city as clerk or clerk-treasurer for 15 years 9 months, having previously been a city employee for 10 years, then retired as clerk, then came back to serve 8 years as the elected mayor, and now wants to retire as a mayor before age 55. The city ordinance provides retirement benefits "pursuant to Ark. Code Ann. § 24-12-101, et seq., as may be amended from time to time." Senator Dismang asked whether the person is eligible.

The AG declined to give a definitive answer because the question turned on facts the AG could not establish (whether the prior city employment was covered by another retirement plan, what specific ordinance the city had enacted). But the analysis pointed strongly toward "no" on these facts:

1. The 15+ years as clerk cannot count toward mayoral service credits because § 24-12-123(a)(3)(B) bars credit for service "covered by another benefit provided for by law," and city clerks have their own retirement statute at § 24-12-121.

2. The 10 years as a city employee might count, generating up to 2 years of credit at the statutory 1:2 ratio (capped at 2 years absent a particularized ordinance), which would just barely satisfy the 10-year mayoral service threshold.

3. A generic ordinance referencing the entire chapter "as may be amended" is not specific enough to lower the retirement age. Section 24-12-123 allows three different ordinance types to drop the age to 55, 54, or 52, but each requires precise statutory hooks the generic ordinance does not invoke.

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 § 24-12-123 worked in 2018

The first-class city mayor retirement framework had two operative requirements: at least 10 years of mayoral service, and a minimum age (default 60, with optional ordinance reductions to 55, 54, or 52).

Years-of-service requirement. Mayors who serve fewer than 10 years can fill the gap with credits from prior city service, but only at a 2:1 ratio (two years of prior service equals one year of mayoral credit), and only for prior service that is not "covered by another retirement plan."

• The clerk service (15 years 9 months) did not count, because clerks have a separate retirement scheme at § 24-12-121. The categorical bar in § 24-12-123(a)(3)(B) prohibits using credit from any service "covered by another benefit provided for by law." A city ordinance cannot override this prohibition.
• The 10 years as a city employee might count, depending on whether that employment was covered by some other retirement plan. At 1:2, that 10 years could generate 5 years of potential credit, which then gets capped at 2 years under § 24-12-123(a)(3)(A)(i). Adding 2 years to the 8 years actually served as mayor brings the person to 10 years total, which would meet the threshold.
• Cities can enact ordinances raising the credit cap to 3 or 4 years (§ 24-12-123(a)(3)(A)(ii) and (iii)), but those require specific statutory language.

Minimum-age requirement. Default is 60 (§ 24-12-123(a)(1)(A)). An exception lets anyone with at least 20 years of mayoral service retire at any age. For mayors with fewer than 20 years, ordinances can drop the age:

• A "10-year ordinance" under § 24-12-123(a)(1)(B) drops the age to 55 if the person has 10 years of mayoral service.
• A "3-year credit ordinance" under § 24-12-123(a)(3)(A)(ii) effectively drops the age to 52 (subject to a 20-year mayoral-credit floor).
• A "4-year credit ordinance" under § 24-12-123(a)(3)(A)(iii) effectively drops the age to 54 (subject to a 20-year mayoral-credit floor).

A city has to pick one of these three structures, with detailed criteria, to lower the retirement age. A generic ordinance saying retirement benefits are available under chapter 24-12-101 et seq. "as may be amended" does not invoke any of them.

Constitutional limit on city ordinances. Article 12, § 4 of the Arkansas Constitution prohibits municipal corporations from enacting laws contrary to general state law. Ark. Code Ann. § 14-43-601(a)(1)(F) defines pension and civil service systems as "state affairs" subject to general state law. A city cannot circumvent the bar against double-counting service through a generic ordinance.

Common questions

I'm a former city clerk who later served as mayor. Can I count my clerk years toward mayoral retirement?
Under the law as the AG read it in 2018, no. The categorical bar in § 24-12-123(a)(3)(B) prevents credit for service covered by another retirement plan, and clerks have their own retirement statute at § 24-12-121.

Can I count years I spent as a regular city employee before becoming mayor?
Yes, possibly, if that employment was not covered by another retirement plan. At the 2:1 ratio, two years of prior city service equals one year of mayoral credit. The default cap is 2 years of mayoral credit, so up to 4 years of prior city employment can count.

Can the city raise the credit cap from 2 to 3 or 4 years?
Yes, by ordinance under § 24-12-123(a)(3)(A)(ii) or (iii). But the ordinance has to do so explicitly. A generic "as may be amended" ordinance does not invoke these subsections.

I've served 8 years as mayor and I'm 53. Can I retire?
On these bare facts, no. The 8 years is short of the 10-year minimum, and 53 is below the default 60. Eligibility depends on (a) whether you have prior credit-eligible city service to make up the 2-year gap, and (b) whether the city has enacted a particular ordinance lowering the age.

What is a "first class city" in Arkansas?
A municipal classification based on population and other criteria. Section 24-12-123 applies specifically to mayors of first-class cities. Cities of other classes have different retirement frameworks.

Why did the AG not just answer the question?
Two factors were unknown: whether the prior city employment was covered by another retirement plan, and what the specific ordinance actually said (the AG had not seen it, only a generic reference). The AG also generally declines to interpret local ordinances per Op. Att'y Gen. 2015-005.

Background and statutory framework

Arkansas's municipal retirement framework for first-class cities is fragmented across several statutes in Title 24, Chapter 12. Mayors are at § 24-12-123. Clerks and clerk-treasurers are at § 24-12-121. Other municipal positions have their own statutes. Each scheme stands independently, and the statutory bars on double-counting service are designed to prevent stacking benefits across schemes.

The AG's interpretive method here was strict statutory construction (Brock v. Townsell: no word void, superfluous, or insignificant) combined with the principle that vested retirement rights only attach when all statutory eligibility requirements are met (Robinson v. Taylor).

The AG also relied on Municipality of Helena-West Helena v. Weaver, 374 Ark. 109, 286 S.W.3d 132 (2008), which addressed the credit-for-prior-service rule under § 24-12-123 and held that a mayor's previous years of service can be added to mayoral service for retirement purposes, but cannot be counted if the previous service is covered by another retirement plan.

Citations

• Ark. Code Ann. § 24-12-101 et seq. (municipal retirement framework, generally)
• Ark. Code Ann. § 24-12-121 (city clerks and clerk-treasurers retirement)
• Ark. Code Ann. § 24-12-123 (first-class city mayors retirement)
• Ark. Code Ann. § 14-42-117 (no double pension for same period of service)
• Ark. Code Ann. § 14-43-601 (pension and civil service as state affairs)
• Ark. Const., art. 12, § 4 (cities' inability to override general state law)
• Robinson v. Taylor, 342 Ark. 459, 29 S.W.3d 691 (2000) (vested retirement rights)
• Municipality of Helena-West Helena v. Weaver, 374 Ark. 109, 286 S.W.3d 132 (2008) (prior-service credit and double-counting bar)
• Op. Att'y Gen. 89-260 (length-of-service vs age requirements)
• Op. Att'y Gen. 2004-312 (municipal pension legislation must conform to state law)

Source

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

Original opinion text

Opinion No. 2017-123
February 13, 2018
The Honorable Jonathan Dismang
State Senator
P.O. Box 475
Beebe, AR 72012

Dear Senator Dismang:

I am responding to your request for an opinion on the statutory retirement benefits available to mayors of first-class cities in Arkansas. You note that cities of the first class are authorized to "provide by ordinance that any person who has served as mayor for a period of not less than ten (10) years may retire upon reaching age fifty-five (55) with the benefits provided under this section." And you pose the following fact pattern:

A city ordinance provides that a retired mayor may "receive retirement benefits pursuant to Ark. Code Ann. § 24-12-101, et seq., as may be amended from time to time." A person served the city as clerk, or clerk-treasurer, for 15 years and nine months. Prior to becoming clerk, the person had ten years of service as a city employee. The person retired as clerk, and then left retirement to serve for eight years as the city's mayor. Currently, the person is less than 55 years old.

You ask two questions based on this fact pattern, which I have paraphrased and combined:

Given that the city's ordinance refers to "Ark. Code Ann. § 24-12-101, et seq., as may be amended from time to time," is the person eligible to retire with a mayor's statutory benefits before age 55?

RESPONSE

It is possible that the person described in the above fact pattern could retire with benefits under Ark. Code Ann. § 24-12-123 ("First class city mayors"), which authorizes ordinances that change how years of service are calculated and lower the minimum age for retirement eligibility. But for the reasons explained below, the question of eligibility under section 24-12-123 cannot be decided based simply upon an ordinance referring to "Ark. Code Ann. § 24-12-101, et seq., as may be amended from time to time." I therefore cannot definitively answer the question posed. This opinion must be limited instead to a general discussion of section 24-12-123 in the context of the fact pattern you have presented.

DISCUSSION

[The opinion analyzes the years-of-service requirement: the 15+ years as clerk cannot count because clerks have a separate retirement scheme at § 24-12-121 and § 24-12-123(a)(3)(B) categorically bars credit for service covered by another retirement plan; the 10 years as a city employee might count at the 2:1 ratio (capped at 2 years), bringing the total mayoral credit to 10 years if eligible, but the AG cannot determine whether that prior employment was covered by another plan.

The opinion then analyzes the minimum-age requirement: the default is age 60; § 24-12-123 authorizes three types of ordinances that lower the age to 55, 54, or 52, each with detailed criteria; an ordinance referring generically to "Ark. Code Ann. § 24-12-101, et seq., as may be amended" is too broad to invoke any of those particularized subsections.

The AG concludes that retirement under § 24-12-123 requires specific statutory hooks the city's generic ordinance does not provide, and that even the years-of-service question cannot be definitively answered without knowing the nature of the prior city employment.]

Sincerely,

LESLIE RUTLEDGE
Attorney General