Can a Dumas city clerk-treasurer combine prior city-employee service to qualify for the half-salary retirement under § 24-12-121, and can she also draw a separate city pension for earlier service?

Plain-English summary

State Representative Mark McElroy asked Attorney General Leslie Rutledge in 2018 about retirement-benefit eligibility for the clerk-treasurer of Dumas, a city of the first class. The clerk-treasurer had worked for the city in non-elected capacities (including the Dumas Ambulance Department) from 1985 through 2014, and had been elected clerk-treasurer in 2015. She had become vested in the city's defined-benefit retirement plan in 2000. The questions: (1) could the city aggregate her six years (2009-2014) of pre-election city service with her four years (2015-2018) as clerk-treasurer to satisfy the 10-year vesting requirement of Ark. Code Ann. § 24-12-121, (2) if so, would the half-salary benefit be based on her clerk-treasurer salary alone or on both her clerk-treasurer salary and her separate "administrative assistant" salary, and (3) could she also receive a separate retirement under the city's defined-benefit plan for her pre-election service without running afoul of the double-dipping bar in Ark. Code Ann. § 14-42-117?

The AG answered yes to all three, with caveats. First, § 24-12-121(c)(1) explicitly allows a clerk-treasurer who served the same city in another retirement-plan-covered capacity to apply those prior years toward the vesting period, "if approved by the city council." So with council approval, the six prior years plus four years as clerk-treasurer satisfy the 10-year vesting requirement, and the clerk-treasurer becomes eligible for the half-salary benefit at age 60. The AG cautioned that this is a city determination in the first instance based on the actual local facts, and the AG cannot adjudicate any specific person's eligibility.

Second, § 24-12-121(b)(1) ties the half-salary benefit to the salary the person received "during the last preceding year of his or her service" as clerk or clerk-treasurer. So the benefit is calculated on the clerk-treasurer salary alone, not on the combined clerk-treasurer plus administrative-assistant compensation. The AG cited Op. Att'y Gen. 2007-067 for that reading.

Third, § 14-42-117 prohibits an employee or elected official of a city of the first class from drawing more than one retirement benefit "for the same period of service." Two pensions for the same period of service is double-dipping; two pensions tied to different periods of service is not. McElroy's question presupposed that the two retirements would be based on "service in different jobs for different periods of service." If that factual premise holds, § 14-42-117 does not bar the second pension. The AG flagged that Robinson v. Taylor, 342 Ark. 459, 29 S.W.3d 691 (2000), reads § 14-42-117 to prevent the same period of service from generating both a § 24-12-121 (or § 24-12-123 mayor) benefit and a city-plan benefit.

Throughout, the AG repeated that whether any specific individual qualifies for any specific benefit is a city-level factual determination, not something the AG can adjudicate.

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.

Background and statutory framework

Ark. Code Ann. § 24-12-121 governs retirement benefits for city clerks and clerk-treasurers in Arkansas cities of the first class. Subsection (a)(1)(A) requires at least 10 years of service in that office and age 60 for retirement eligibility. Subsection (b)(1) sets the benefit at "a sum equal to one-half (½) of the monthly salary received by him or her during the last preceding year of his or her service." Subsection (c)(1) lets the clerk-treasurer apply prior years served with the same city in another retirement-plan-covered capacity toward the vesting period, with city-council approval.

Ark. Code Ann. § 14-42-117 is the double-dipping bar. It prohibits a city employee or elected official of a city of the first or second class (or incorporated town) from receiving more than one retirement benefit for the same period of service, even where the person would otherwise be entitled under a state act and a city-established plan. Robinson v. Taylor, 342 Ark. 459, 29 S.W.3d 691 (2000), applied that statute to a mayor seeking benefits under both a city-maintained plan and Ark. Code Ann. § 24-12-123 (the mayor's analog to § 24-12-121).

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.

Common questions

Does the city have to approve the vesting-credit request?
No. Section 24-12-121(c)(1) makes city-council approval discretionary. The statute says the prior years "may" be applied toward vesting "if approved by the city council." A council that declines to approve is within its statutory authority.

What if my prior city service was not in a retirement-plan-covered position?
Then it does not count under § 24-12-121(c)(1), which expressly conditions the credit on "that capacity of service also provid[ing] for a retirement plan." The provision is not a general work-history credit; it is a credit for prior service that was itself pension-covered.

Why is my § 24-12-121 benefit only based on my clerk-treasurer salary?
Because the statute says "salary received by him or her during the last preceding year of his or her service" as clerk or clerk-treasurer. The reference is to clerk-treasurer service specifically, not to total city compensation. See Op. Att'y Gen. 2007-067.

What does "same period of service" mean for double-dipping?
The same calendar period. If you were clerk-treasurer from 2015 through 2018, and you also vested in the city's defined-benefit plan based on service in 2015-2018, those overlapping years cannot generate two pensions. But your 1985-2014 service is a different period; it can support a separate pension without triggering § 14-42-117.

Does this opinion bind the city?
No. AG opinions are persuasive but not binding. The city must make the actual eligibility determinations based on the specific facts and with the advice of local counsel.

Citations

• Ark. Code Ann. § 24-12-121 (clerk and clerk-treasurer retirement; vesting period and benefit calculation)
• Ark. Code Ann. § 24-12-121(a)(1)(A) (10-year service and age-60 vesting)
• Ark. Code Ann. § 24-12-121(b)(1) (half-salary benefit calculation)
• Ark. Code Ann. § 24-12-121(c)(1) (vesting credit for prior service with city-council approval)
• Ark. Code Ann. § 24-12-123 (mayor's analog)
• Ark. Code Ann. § 14-42-117 (double-dipping bar; "same period of service")
• Robinson v. Taylor, 342 Ark. 459, 29 S.W.3d 691 (2000) (interpreting § 14-42-117 in the mayor context)
• Ops. Att'y Gen. 2000-171, 2007-067

Source

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

Original opinion text

Opinion No. 2018-069
September 19, 2018
The Honorable Mark D. McElroy
State Representative
2645 Highway 138 East
Tillar, AR 71670-9372

Dear Representative McElroy:

You have requested my opinion on several questions concerning the retirement benefits of a particular city official in a city of the first class. As background for your questions, you state that the individual in question was employed by the city in several different capacities from 1985 until 2014, when she was elected to the position of clerk/treasurer, which she currently holds. You state that she also serves in the separate, non-elected position of "administrative assistant," having been hired for that position by the mayor.

You further report that the city maintains a "defined benefit retirement plan for its employees and elected officials," the individual in question became vested in that plan in 2000, and she has continued to participate in the plan through the present time.

With these facts in mind, you ask:

1) If the city votes to allow the current clerk/treasurer to combine her service as a city employee from January 2009 through December 2014 (six years) with her service as clerk/treasurer from January 2015 through December 2018 (four years), for a total of 10 years of service, would she qualify for the half-salary retirement benefits provided for in Ark. Code Ann. § 24-12-121?

2) Assuming the answer to the first question is in the affirmative, should the retirement benefit provided for in Ark. Code Ann. § 24-12-121 be based solely on her salary as clerk/treasurer or on her combined salaries from her job as clerk/treasurer and administrative assistant?

3) Assuming the answer to the first question is in the affirmative, and the answer to the second question is that the retirement benefits should only be based on the clerk/treasurer salary, could the current clerk/treasurer also receive retirement benefits from the defined benefit retirement plan for her employment with the city from January 1985 through December [2014], since she became vested in the year 2000? More specifically, would Ark. Code Ann. § 14-42-117 prohibit the current clerk/treasurer from drawing two retirements since the two retirements would be based upon her service in different jobs for different periods of service?

RESPONSE

I must initially state that questions of this nature concerning the eligibility of particular city officials and city employees for retirement benefits must be presented first to the city for determination, based upon the applicable local benefit provision and relevant state law. You have not indicated what, if any, determination the city has made regarding the individual in question. I will address your questions against the factual backdrop presented in your correspondence. But it must be recognized that there could be other material facts, outside the information before me, to be considered in answering the questions you have posed.

The answer to your first question appears to be "yes" under the facts as presented. It is my opinion in response to your second question that the benefit under Ark. Code Ann. § 24-12-121 is based solely on her salary as clerk/treasurer. With regard to your third question, Ark. Code Ann. § 14-42-117 prohibits an individual from receiving more than one retirement benefit "for the same period of service." You state in your question that "the two retirements would be based upon her service in different jobs for different periods of service." If that is the case, then section 14-42-117's prohibition would not apply. However, this ultimately presents a factual question that must be handled locally by the interested parties and their counsel.

DISCUSSION

Question 1: If the city votes to allow the current clerk/treasurer to combine her service as a city employee from January 2009 through December 2014 (six years) with her service as clerk/treasurer from January 2015 through December 2018 (four years), for a total of 10 years of service, would she qualify for the half salary retirement benefits provided for in Ark. Code Ann. § 24-12-121?

The elected clerk-treasurer in a city of the first class must generally serve at least ten years in the office of clerk-treasurer and reach 60 years of age before becoming retirement-eligible under Ark. Code Ann. § 24-12-121. Of course, the years-of-service requirement can be satisfied through actual service as clerk-treasurer. But if the clerk-treasurer has served the city in "another capacity" covered by a retirement plan, those years of service may be applied, with city council approval, "toward the accrual of the vesting period":

"Any city clerk or clerk-treasurer in a city of the first class who has served in another capacity with the same city, and that capacity of service also provides for a retirement plan, may apply all years served in that previous capacity toward the accrual of the vesting period provided for in subsection (a) of this section, if approved by the city council."

It seems that the individual in question has not served as clerk-treasurer for the requisite ten years so as to satisfy the vesting period under section 24-12-121. But the facts provided in your request also indicate that if the city council approves, she could retire as clerk-treasurer by applying her previous years of service as a city employee to accumulate the required ten years of service.

The answer to your question thus appears to be "yes." If the city council votes to allow her to combine her six years of service as a city employee with her four years as clerk-treasurer, then she would seemingly have the ten years required to receive the retirement benefit provided in section 24-12-121. I must emphasize, however, that I cannot definitively determine whether any particular individual is eligible for retirement benefits. This is a matter for the city to decide in the first instance based upon the applicable facts and law and with the advice of local counsel.

Question 2: Assuming the answer to the first question is in the affirmative, should the retirement benefit provided for in Ark. Code Ann. § 24-12-121 be based solely on her salary as clerk/treasurer or on her combined salaries from her job as clerk/treasurer and administrative assistant?

Based on the plain language of section 24-12-121, her retirement pay must be based on her service as clerk-treasurer:

"Any city clerk, city treasurer, or any person serving as city clerk or clerk-treasurer who shall retire or be succeeded by another city clerk or clerk-treasurer within the provisions of this section shall be paid monthly a sum equal to one-half (½) of the monthly salary received by him or her during the last preceding year of his or her service."

The term "service" here plainly refers to the person's service as city clerk or clerk-treasurer.

Question 3: Assuming the answer to the first question is in the affirmative, and the answer to the second question is that the retirement benefits should only be based on the clerk/treasurer salary, could the current clerk/treasurer also receive retirement benefits from the defined benefit retirement plan for her employment service in the Dumas Ambulance Department from January 1985 through December [2014] since she became vested in the year 2000? More specifically, would Ark. Code Ann. § 14-42-117 prohibit the current clerk/treasurer from drawing two retirements since the two retirements would be based upon her service in different jobs for different periods of service?

As indicated above, I am not authorized to render judgment on any particular individual's eligibility for retirement benefits or the amount of benefits to which any individual is entitled. These matters depend to a great extent upon the facts of each case. With regard, however, to Ark. Code Ann. § 14-42-117, I will note that this statute prohibits so-called "double-dipping." It prevents entitlement to more than one retirement benefit "for the same period of service":

"Notwithstanding any other law to the contrary, any employee of a city of the first class, city of the second class, or incorporated town, and any elected official of a city of the first class, city of the second class, or incorporated town who is entitled by an act of the General Assembly to retirement benefits for service as such an employee or elected official and who also participates in another retirement plan established by the city for the same period of service shall be entitled to only one (1) retirement benefit for the same period of service to the municipality ...."

As applied to the individual in question, I interpret this statute to mean that she may not receive retirement benefits under section 24-12-121 for her service as clerk/treasurer and also receive retirement benefits under the city's defined benefit plan for such service.

You state in your question that "the two retirements would be based upon her service in different jobs for different periods of service." If that is the case, then section 14-42-117's prohibition would not apply. However, this ultimately presents a factual question that must be handled locally by the interested parties and their counsel.

Sincerely,
Leslie Rutledge
Attorney General