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 described a former city clerk or clerk-treasurer who had previously worked ten years as a city employee, retired after nearly sixteen years as clerk, then served eight years as mayor. The person was under 55. He asked whether a city ordinance generally referring to Ark. Code Ann. § 24-12-101 et seq. allowed retirement with mayoral benefits before that age.

The Attorney General could not decide eligibility from those facts. The former clerk service could not count toward the ten years of mayoral service required by § 24-12-123, because it was covered by the separate clerk retirement statute. The earlier city employment might provide the missing two years of mayoral credit if it was not covered by another retirement plan. The AG did not know enough about that employment to decide.

The age question also depended on an ordinance the AG had not seen. State law allowed cities to enact particular ordinances lowering the usual retirement age of 60. The generic statutory reference quoted in the question would generally be too broad to authorize retirement before 55, but the AG would not determine the effect of the actual local ordinance without seeing it.

Currency note

This February 2018 opinion interprets the retirement statutes and describes the ordinance options then in effect. Check the current version of § 24-12-123 and the city's actual ordinance before deciding eligibility now.

Background and statutory framework

Under § 24-12-123, a first-class city mayor generally needed ten years of mayoral service and age 60 to retire. Prior elected or employee service for the same city could generate one year of mayoral credit for every two years of prior service, up to two additional years without an ordinance raising that cap. Service covered by another retirement statute or plan could not be credited. The opinion also explains that city pension ordinances must comply with state law.

The AG applied that rule to the service history in the request. The 15 years and nine months as clerk or clerk-treasurer were excluded because § 24-12-121 provides a separate retirement benefit for that office. The ten years of earlier city employment could yield up to two years of credit, bringing the eight actual mayoral years to ten. Whether the employment qualified depended on facts the AG did not have.

For age, the opinion identified a city ordinance allowing retirement at 55 after ten years as mayor, and two other ordinance options tied to 20 years of mayoral credit that permit retirement at 52 or 54. The AG said each option has its own criteria. In her view, the quoted ordinance's broad reference to § 24-12-101 et seq. did not trigger any of them. She still declined to decide whether the actual ordinance was sufficient because she had not seen it and generally refrained from interpreting local legislation.

Common questions

Can a former city clerk use clerk service to qualify for mayoral retirement?

Not under the statute the AG analyzed. The clerk service was covered by a separate retirement benefit and could not be credited toward mayoral retirement under § 24-12-123.

Can other city employment fill a gap in mayoral service?

Possibly. The AG said the ten earlier employee years could generate the two mayoral-credit years needed in this example, subject to the statutory cap, if that service was not covered by another retirement plan. She could not determine that from the facts supplied.

Does an ordinance referring generally to the retirement statutes authorize retirement before 55?

The AG said that wording would generally be insufficient because the age-reducing options in § 24-12-123 require more specificity. She had not seen the actual ordinance and did not decide its effect.

Can an eight-year mayor who is 53 retire under this opinion?

The opinion does not give a yes-or-no answer. It requires qualifying prior service to reach the service threshold and an applicable city ordinance for retirement below the usual age. The ordinance options discussed in the opinion have different age and credit conditions.

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTORNEY GENERAL
LESLIE RUTLE DGE

Opinion No. 2017-123

February 13, 2018

The Honorable Jonathan Dismang
State Senator
P. 0. 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 (I 0) years may retire upon reaching age fifty-five (55) with the benefits provided under this section." 1 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?

1
Ark. Code Ann .§ 24-12-123(a)(l)(B) (Rep!. 2014).

323 C ENTER STREET. SU ITE 200 · LITTL E RDC K. ARKAN SAS 7220 I TELEPHONE (50 1) 682-200 7 · FA X (501) 682-8084 ARKAN SASAG .GO V

The Honorable Jonathan Dismang
State Senator
Opinion No. 2017-123
Page 2

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

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?

This is a matter of statutory interpretation. 2 My primary task is to construe the relevant statute "just as it reads," in order to "give effect to the intent of the General Assembly." 3 I am also mindful that the Constitution prohibits cities from enacting ordinances that are in conflict with "state affairs ... subject to the general laws of the State of Arkansas. " 4 Because "[p]ens ion and civil service systems" are specifically defined as state affairs, any ordinances relating to municipal retirement must be consistent with state law. 5

2
See, e.g., Robinson v. Taylor, 342 Ark. 459, 463, 29 S.W.3d 691, 693 (2000) (stating that a former official's "rights in the retirement benefits vested only after he had met all of the requirements established in the statute.") (internal citation omitted).

3
Brock v. Townsell, 2009 Ark. 224 at 9, 309 S.W.3d 179, 185-86 (noting that a court "construes
[a] statute so that no word is left void, superfluous, or insignificant," ensuring that "meaning and effect are given to every word.") (internal citations omitted).

4
Ark. Code Ann. § 14-43-601(a)(l) (Rep!. 2013). See generally Ark. Const. art. 12, § 4 ("No municipal corporation shall be authorized to pass any laws contrary to the general laws of the state .... "). 5 Ark. Code Ann. § 14-43-601(a)(l)(F). Accord Op. Att'y Gen. 2004-312 (stating that "municipal legislation pertaining to the pension systems must conform to the general laws of the State of Arkansas.").

The Honorable Jonathan Dismang
State Senator
Opinion No. 2017-123
Page 3

Under the statute in question, individuals must generally serve at least ten years as mayor and reach 60 years of age before they are retirement-eligible. 6 Of course, the years-of-service requirement can be satisfied through actual service as the elected mayor. But as the Arkansas Supreme Court has noted, "a mayor's previous years of service as a former elected official or employee of the city may be added to his or her years of service as a mayor for retirement benefit purposes." 7 Credit for previous years of service will therefore be critical for the person described in the above fact pattern, whose eight years as the elected mayor are short of the ten years required for eligibility. 8

Years-of-service requirement

Your fact pattern describes a person with the following service history, all to the same city of the first class:

• I 0 years as a city employee;
• 15 years, 9 months as City Clerk or Clerk-Treasurer, after which the person retired;
• Following retirement, 8 years as Mayor (total service 33 years, 9 months).

Because the eight years' service as mayor does not satisfy the ten-year eligibility requirement, the first question is whether the person's previous service equates to at least two years of service credits.

Previous years of service are counted "[a]t the rate of one (1) year of a mayor's retirement for each two (2) years served as an elected official or employee of that city . . . " 9 In the absence of a relevant ordinance, a maximum of two years'

6
Ark. Code Ann. § 24-12-123(a)(l)(A). Accord Op. Att'y Gen. 89-260 (opining that an individual had "met the eligibility requirements petiaining to length of service," but was "not yet entitled to retire ... because he has not reached the eligible age."). 7 Municipality of Helena-West Helena v. Weaver, 374 Ark. 109, 114, 286 S.W.3d 132, 136 (citing Ark. Code Ann.§ 24-12-123(a)(3)). 8 See Robinson, 342 Ark. at 462, 29 S.W.3d at 692 (stating that the appellant had "accumulated
[through credits] the ten years of service required to receive her annual retirement benefit as provided in section 24-12-123 ."). 9 Ark. Code Ann.§ 24-12-123(a)(3)(A)(i).

The Honorable Jonathan Dismang
State Senator
Opinion No. 2017-123
Page 4

previous service may be credited. 10 But importantly, not all previous service qualifies. "[Y]ears of service may not be credited if that service is covered under another retirement plan." 11 And a city cannot enact an ordinance to avoid this prohibition, given that previous service covered under another retirement plan or statute "shall not be applied towards the mayor's retirement benefits .... " 12

In this case, the 15 years, nine months that the person served as clerk may not be counted towards mayoral service. City clerks have a retirement scheme at Ark. Code Ann. § 24-12-121, which authorizes "[a] city clerk or clerk-treasurer in a city of the first class [to] retire from office . . . at the retirement pay provided ... 13
•" But as noted, the mayors' statute categorically bars service "covered by another benefit provided for by law" 14 from the calculation of retirement credits. Cities are bound by this specific statutory limitation. Thus, an ordinance such as the one you have quoted-that refers generally to retirement under "Ark. Code Ann. § 24-12-101, et seq., as may be amended"-could not authorize the credit of service otherwise excluded by section 24-12-123.

The person in question might be able to count his ten years' service as a city employee. At the statutory 1:2 ratio, counting that service would result in five years of potential credit. This amount would then be reduced to "a maximum of
... two (2) years' credit" 15 added to the eight years actually served as mayor. The

10
Id. (authorizing "up to a maximum of an additional two (2) years' credit towards a mayor's retirement benefit."). 11 Municipality of Helena-West Helena, 374 Ark. at 115, 286 S.W.3d at 136 (citing Ark. Code Ann. § 24-12-123(a)(3)(B)). Similarly, a person cannot "receiv[e] retirement benefits or pension payments from both the city's retirement plan and a plan established by the General Assembly for the 'same period of service."' Robinson, 342 Ark. at 464, 29 S.W.3d at 694 (quoting Ark. Code Ann.§ 14-42-117 (Repl. 2013)). 12 Ark. Code Ann. § 24-12-123(a)(3)(B) (emphasis added).
13
Ark. Code Ann. § 24-12-12l(a)(l) (Repl. 2014). Indeed, I take it that the person described in the fact pattern retired under section 24-12-121 before leaving retirement to serve as mayor. 14 Ark. Code Ann.§ 24-12-123(a)(3)(B).
15
Id. at § 24-12-123(a)(3)(A)(i). It is possible for a city to enact an ordinance raising the maximum additional credit to three or four years. See id. at § 24-12-123(a)(3)(A)(ii) (providing for an ordinance allowing "a maximum of three (3) additional years' credit .... "). See also id. at
§ 24-12-123(a)(3)(A)(iii) (providing for an ordinance allowing "a maximum of four (4) additional years ' ered'1t . .. .") .

The Honorable Jonathan Dismang
State Senator
Opinion No. 2017-123
Page 5

person would thus have ten years total, making him eligible with respect to the years-of-service requirement. But counting the person's previous service as an employee presupposes that the employment is not covered by another statute or municipal retirement plan. Because I do not know the exact nature of the previous employment in this case, I cannot definitively decide whether the previous service would count.

To summarize the foregoing, retirement under section 24-12-123 requires at least ten years of mayoral service. Because the person in the above fact pattern served as mayor for only eight years, he must rely on "credits" generated by previous municipal service to make up the difference. His years as city clerk will not count, however, because section 24-12-123 does not allow credits for employment covered under a separate retirement statute. And cities cannot circumvent this rule by ordinance. The person's years as a city employee might possibly generate the credits needed, but the nature of this employment is unknown. I consequently am unable to conclude that the person has satisfied the years-of-service requirement.

Minimum-age requirement

You also ask whether the person could be retirement-eligible before age 55 in light of the city's ordinance. While 60 years of age is the default minimum, 16 section 24-12-123 allows cities to enact three types of ordinances that lower the age for eligibility. As you have noted, a city may "provide ... 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." 17 Second, a city may authorize "a maximum of three (3) additional years' credit towards a mayor's retirement benefit if the person has not fewer than twenty (20) years of mayor's credit .... " 18 If such an ordinance is in place, the potential retiree "must be at least fifty-two (52) years of age" 19 to claim the credits, which effectively reduces the retirement age. Third, a city may authorize "a maximum of four (4) additional years' credit towards a mayor's retirement benefit if the person

16
See id. at§ 24-12-123(a)(l)(A). Someone may retire at any age if he has served as mayor "a period of not less than twenty (20) years .... " Ark. Code Ann.§ 24-12-123(a)(l)(A). This rule does not apply to the person described in the fact pattern. 17 Id. at§ 24-12-123(a)(l)(B).
18
Id. at§ 24-12-123(a)(3)(A)(ii).

19 Id.

The Honorable Jonathan Dismang
State Senator
Opinion No. 2017-123
Page 6

has not fewer than twenty (20) years of mayor's credit .... " 20 If a "four-year" ordinance is in place, the potential retiree "must be at least fifty-four (54) years of age" 21 to qualify. But cities must choose between the subsections discussed above, each of which contains detailed criteria, in order to lower a mayor's eligibility age by ordinance.

In my opinion, none of these subsections are triggered by an ordinance that purports to encompass "Ark. Code Ann. § 24-12-101, et seq., as may be amended." That citation of Arkansas law is simply too broad to be meaningful. Moreover, section 24-12-123 is the only statute establishing retirement benefits specific to mayors of first-class cities. Reference to "Ark. Code Ann. § 24-12- 101, et seq." does not reach any authority (aside from section 24-12-123 itself) for a mayor to retire at a given age. And as explained above, an ordinance attempting to lower the retirement age by means of section 24-12-123 requires much more specificity.

In sum, I cannot determine whether the person in question meets the minimum age for retiring with a mayor's statutory benefits. While section 24-12-123 allows ordinances that reduce the retirement age to 55, 54, or 52, such ordinances are valid only in the limited circumstances set out by the statute. For this reason, an ordinance referring to "Ark. Code Ann. § 24-12-101, et seq., as may be amended from time to time,'' generally will not suffice to authorize retirement before the age of 55. But because I have not seen the actual ordinance in this case, and because I must generally refrain from opining on municipal legislation, 22 I cannot say for certain whether the ordinance here is sufficient.

~ /R_
LESLIERUTL~
Attorney General

20
Id. at§ 24-12-123(a)(3)(A)(iii).
21
Ark. Code Ann.§ 24-12-123(a)(3)(A)(iii).
22
See Op. Att'y Gen. 2015-005 ("[T]he Attorney General's office declines to interpret and apply local ordinances and resolutions ... because doing so involves significant questions of fact.").